Legette v. S.C. Dep't of Corr.

Full title: Richard Legette, Plaintiff, v. South Carolina Department of Corrections…

Court: United States District Court, D. South Carolina, Charleston Division

Date published: Mar 16, 2022

Civil Action 2:20-02092-JD-MGB (D.S.C. Mar. 16, 2022)

Opinion

Civil Action 2:20-02092-JD-MGB

03-16-2022

Richard Legette, Plaintiff, v. South Carolina Department of Corrections; Warden Aaron Joyner, individually and in his capacity as warden of Lee Correctional Institution; Associate Warden Rudy Trisdale, individually and in his capacity as associate warden at Lee Correctional Institution; Associate Warden Sharpe, individually and in his/her capacity as associate warden at Lee Correctional Institution; Defendants.

MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE.

REPORT AND RECOMMENDATION

MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE.

This action was filed by Plaintiff Richard Legette (“Plaintiff”), through counsel, pursuant to 42 U.S.C. § 1983 and the South Carolina Tort Claims Act (“SCTCA”), SC Code Ann. §§ 1578-10 et seq. (Dkt. No. 1-1.) Plaintiff originally filed this action in the Lee County Court of Common Pleas on March 27, 2020, and the case was removed to federal court on June 3, 2020. (Dkt. No. 1.) Currently before the Court is a Motion for Summary Judgment filed by Defendants South Carolina Department of Corrections (“SCDC”), Warden Aaron Joyner (“Joyner”), Associate Warden Rudy Tisdale (“Tisdale”), and Associate Warden Sharpe (“Sharpe”). (Dkt. No. 34.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B) and Local Rule 73.02(B)(2)(d), D.S.C., this matter has been assigned to the undersigned for all pretrial proceedings.

For the reasons set forth below, the undersigned recommends that the Court grant Defendants' Motion for Summary Judgment based on Plaintiff's failure to exhaust administrative remedies and remand Plaintiff's state law claims to Lee County.

In the alternative, the undersigned recommends the Court grant in part and deny in part Defendants' Motion for Summary Judgment on the merits. More specifically, summary judgment should be denied as to Plaintiff's § 1983 claims for deliberate indifference, supervisory liability and failure to train against Joyner in his individual capacity, and Plaintiff's state law claims against SCDC for gross negligence and injunctive relief. The remainder of Plaintiff's claims should be dismissed with prejudice, and Tisdale and Sharpe should be dismissed from this action.

BACKGROUND

This civil action arises from an alleged inmate-on-inmate attack that occurred at Lee Correctional Institution (“Lee”) on March 29, 2018. (Dkt. No. 1-1 at 6.) Plaintiff alleges that he was in his dorm room in F-5 on the A wing at approximately 3:15 A.M. “when he heard his roommate ease open their unlocked door and leave their room.” (Id.) According to Plaintiff, “all the doors on F-5 were broken and did not lock, ” and so the doors to the dorm and its wings were left unlocked, in violation of SCDC policy. (Id.) Plaintiff alleges that after his roommate left their room, “three hooded inmates, armed with a machete, an axe, and a large knife” rushed in and began to attack Plaintiff “as they robbed him of his personal items.” (Id.) Plaintiff alleges he “was able to briefly fight off his attackers as he attempted to flee from the attack to seek help in stopping the bleeding of his injuries.” (Id.)

According to Plaintiff, Correctional Officer Branch (“Branch”) was not present on the wing when this attack occurred and Branch also failed to make rounds that day, in violation of SCDC policy. (Id.) Plaintiff alleges that when he went to the front of the dorm, he found Branch “laid back in a chair asleep, in violation of SCDC policy.” (Id.) Plaintiff alleges he was able to wake Branch, and Correctional Officer Sgt. Minor escorted Plaintiff to medical. (Id. at 6-7.) EMS was called and Plaintiff was then transferred to Tuomey Hospital. (Id. at 7.) Plaintiff was returned to Lee for further care after his treatment at Tuomey Hospital. Plaintiff alleges he was placed in lockup upon his arrival at Lee and stayed in lock-up for approximately 45 days. (Id.) Plaintiff alleges that he was never provided any physical therapy for his injuries, and he “now has permanent damage, including but not limited to neuropathy in the hand, as a result of the brutal attack on his person.” (Id.)

Plaintiff alleges that his attackers were members of a gang. (Id.) According to Plaintiff, police services never met with or interviewed him after the attack, “in violation of SCDC policy, ” despite Plaintiff's requests to speak with them. (Id.) Plaintiff also alleges he was denied access to Request to Staff forms while on lock-up and that he made “his own hand copies and sent the Request to Staff to Warden Joyner, Associate Warden Tisdale, and Associate Warden Sharpe but received no response.” (Id.) Plaintiff alleges these requests went unanswered and so he then “filed several grievances, and again received no response.” (Id.)

According to Plaintiff, “Lee Correctional Institution . . . has a long history of violence among inmates housed in the institution.” (Id. at 5.) Plaintiff claims that violence is often “encouraged and/or condoned” and that “perpetrators are not punished.” (Id.) Plaintiff alleges that Lee frequently operates in violation of SCDC's policies and procedures-including SCDC's policy not to allow inmates from one wing onto another wing-and that Defendants failed to keep weapons out of the hands of inmates housed at Lee. (Id. at 5-6.)

The Complaint alleges four causes of action:

• First Cause of Action: “For temporary and permanent injunctive relief pursuant to Section 15-45-30 of the South Carolina Code of Laws Ann., 1976, as amended, Rule 65(b) of the

South Carolina Rules of Civil Procedure, and 42 U.S.C. Section 1983”; does not specify any particular Defendant;

• Second Cause of Action: “Violation of Civil Rights and 42 USC Section 1983; General Allegations against Defendant Warden Joyner, Defendant Associate Warden Tisdale and Defendant Associate Warden Sharpe” for inter alia, “allowing uncontrolled violence in the correctional institution”; “failing to provide protection and security for the Plaintiff”; and “allowing inmate [sic] to have dangerous weapons”;

• Third Cause of Action: “Violation of Civil Rights and 42 USC Section 1983; Failure to Implement Appropriate Policies, Customs, and Practices against Defendant Warden Joyner and Defendant Associate Warden Tisdale, and Defendant Associate Warden Sharpe”; for “failing to prevent inmates from obtaining and possessing dangerous weapons” and failing to “adequately train and supervise its employees”;

• Fourth Cause of Action: “Violation of Tort Claims Act of South Carolina, SC Code Section 15-78-10, et. seq.; General Allegations against Defendant SCDC” for the acts of its employees who “acted in a negligent, grossly negligent, reckless, willful and wanton manner in causing injury to the Plaintiff.”

Defendants SCDC, Joyner, Tisdale, and Sharpe filed a Motion for Summary Judgment on December 29, 2021. (Dkt. No. 34.) Plaintiff filed a response in opposition, along with several supporting exhibits and Plaintiff's affidavit, on February 7, 2022. (Dkt. No. 37.) On February 24, 2022, Defendants filed a reply to Plaintiff's response. (Dkt. No. 40.) Defendants' Motion is now ripe for disposition.

STANDARD OF REVIEW

Defendants seek dismissal pursuant to Rule 56 of the Federal Rules of Civil Procedure both on the merits of the claims and on the basis that Plaintiff has failed to exhaust his administrative remedies. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

“As the moving party, Defendants are required to identify those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which they believe demonstrate the absence of genuine issues of material fact.” Perez v. Arnold Transportation, No. 3:15-cv-3162-TLW, 2018 WL 2301850, at *3 (D.S.C. Feb. 12, 2018) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “As the nonmoving party, Plaintiff[] must then produce specific facts showing that there is a genuine issue for trial.” Id. (citing Celotex Corp., 477 U.S. at 317). “Plaintiffs may not rest on mere allegations or denials; they must produce ‘significant probative evidence tending to support the complaint.'” Id. (quoting, 477 U.S. at 248). In other words, “the nonmoving party must go beyond the facts alleged in the pleadings and instead rely upon affidavits, depositions, or other evidence to show a genuine issue for trial.”¹ Crawford v. Newport News Indus. Corp., No. 4:14-cv-130, 2018 WL 4561671, at *2. (E.D. Va. Mar. 2, 2018), adopted in part, 2018 WL 2943445 (E.D. Va. June 11, 2018), appeal dismissed sub nom. Kershaw v. Newport News Indus. Corp., 2018 WL 8058614 (4th Cir. Oct. 25, 2018). “To survive a motion for summary judgment asserting he failed to exhaust [his administrative remedies], an inmate is required to produce competent evidence to refute the contention that he failed to exhaust.” Noe v. S.C. Dep't of Corr., No. 818-cv-00256-DCC-JDA, 2019 WL 2090564, at *3 (D.S.C. Mar. 6, 2019), adopted by, 2019 WL 2089275 (D.S.C. May 13, 2019) (citing Hill v. Haynes, 380 Fed.Appx. 268, 270 (4th Cir. 2010) (holding that “to withstand a motion for summary judgment, the non-moving party must produce competent evidence sufficient to reveal the existence of a genuine issue of material fact for trial”)).

1 The undersigned recognizes that “[i]n this Circuit, verified complaints by pro se litigants are to be considered as affidavits and may, standing alone, defeat a motion for summary judgment when the allegations contained therein are based on personal knowledge.” Sweat v. Cook, No. 9:09-cv-1255-HFF-BM, 2010 WL 1428328, at *1 (D.S.C. Mar. 12, 2010), (citing Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991)), adopted by, 2010 WL 1444190 (D.S.C. Apr. 9, 2010), aff'd, 402 Fed.Appx. 807 (4th Cir. 2010). However, Plaintiff has had counsel at every step in this action, and the Complaint is not signed by Plaintiff. Accordingly, Plaintiff cannot rely on the Complaint alone to defeat summary judgment.

In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Although the Court must “draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Sandlands C & D LLC v. Cty. of Horry, 737 F.3d 45, 54 (4th Cir. 2013) (citing Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013)). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.

DISCUSSION

I. Exhaustion of Administrative Remedies

Defendants seek dismissal pursuant to Rule 56 of the Federal Rules of Civil Procedure both on the merits of the claims and on the basis that Plaintiff has failed to exhaust his administrative remedies. The undersigned considers the exhaustion issue, below.

A. Exhaustion of Administrative Remedies

Section 1997e(a) of the Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Through the enactment of this statute, “Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741 (2001); see also Porter v. Nussle, 534 U.S. 516 (2002).

Exhaustion is defined by each prison's grievance procedure, not the PLRA; a prisoner must comply with his prison's grievance procedure to exhaust his administrative remedies. Jones v. Bock, 549 U.S. 199, 218 (2007). An inmate's failure to “properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983.” Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7^th Cir. 2002); see also White v. McGinnis, 131 F.3d 593, 595 (6^th Cir. 1997) (upholding dismissal of an inmate's complaint because the inmate failed to proceed beyond the first step in the administrative grievance process).

The SCDC grievance procedure is outlined in SCDC Policy GA-01.12 (“Inmate Grievance System”). (Dkt. No. 37-1.) Subject to certain exceptions, the Inmate Grievance System requires that inmates initially attempt to resolve grievances informally by “submitting a Request to Staff Member Form to the appropriate supervisor/staff within eight (8) working days of the incident.” (Id. ¶ 13.2.) Informal resolution is not required, however, when “the matter involves allegations of criminal activity.” (Id.) With respect to criminal activity complaints, the inmate must file Form 10-5 Step 1 within five working days of the alleged incident. (Id.) The Inmate Grievance System provides:

Any grievance which alleges criminal activity will be referred immediately to the Chief/designee, Inmate Grievance Branch. The IGC will note on the grievance tracking CRT screen that the grievance has been forwarded to the Inmate Grievance Branch for possible investigation by the Division of Investigations and the date on which the grievance was forwarded. The Chief/Designee, Inmate Grievance Branch, will consult with the Division of Investigations to determine if a criminal investigation would be appropriate. If deemed appropriate, the grievance will be forwarded to the Division of Investigations, to be handled in accordance with applicable SCDC policies/procedures. The grievance will be held in abeyance until the Division of Investigations completes their review/investigation. (Id. ¶ 15.) If it is determined that a criminal investigation is not required, the grievance will be processed in accordance with the procedures applicable to non-criminal activity grievances. (Id.)

If an inmate files a Step 1 grievance that does not involve criminal activity, the Warden is required to respond in writing within 45 days and advise the inmate of his right to appeal to the next level:

The Warden will respond to the grievant in writing (in the space provided on SCDC Form 10-5, Step 1), indicating in detail the rationale for the decision rendered and any recommended remedies. The grievant will also be informed of his/her rights to appeal to the next level. The Warden will respond to the grievant no later than 45 days from the date the grievance was formally entered into the OMS system by the IGC. The response will be served by the IGC to the grievant, within ten (10) calendar days, and the grievant will sign and date the response acknowledging receipt. The IGC will maintain the original grievance for the inmate's grievance file and a copy will be given to the inmate.

(Id. ¶ 13.5)

The inmate may then appeal by filing a Form 10-5(a) Step 2 appeal to the Inmate Grievance Coordinator within five days of the receipt of the response. (Id. ¶ 13.7) The appeal is referred to the “responsible official” who is required to make a final decision within 90 days. (Id.) The Inmate Grievance System provides,

As part of the Department's final answer to a grievance, the inmate will be notified that any further appeal must be initiated within 30 days after receipt of the Department's final answer. This appeal must be contained on the South Carolina Administrative Law Court “Notice of Appeal” that will be attached to the Department's final answer and must be sent to the Administrative Law Court. Instructions regarding completion of the form, and information indicating where the form must be sent, will also be provided to the inmate.

(Id. ¶ 13.9)

B. Unavailability of Administrative Remedy and Notice

As discussed below, it is undisputed that Plaintiff did not exhaust his administrative remedies in accordance with the Inmate Grievance System with respect to the assault at issue.

Thus, the issue here is whether the administrative remedies were unavailable to Plaintiff, such that his failure to exhaust does not preclude his claims in this action. “[A]n administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). In Ross v. Blake, the Supreme Court set forth three scenarios where the administrative process is considered “unavailable”: (1) the administrative process “operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) the administrative process is so opaque that no ordinary prisoner can discern or navigate through the process; and (3) the “administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation or intimidation.” 136 S.Ct. 1850, 1853-54 (2016).

The examples provided in Ross with respect to the first scenario indicate that a deficiency of this type would be systemic or widespread, or at least not isolated. See Ross, 136 S.Ct. at 1859 (giving the following examples of when an administrative remedy is a dead end: when a prison handbook directs inmates to submit their grievances to a particular administrative office, but in practice that office disclaims authority to consider them; or when administrative officials have apparent authority but decline ever to exercise it). With respect to the third scenario, Ross seems to require that, to prevail on an assertion that prison officials thwarted his efforts to exhaust, an inmate must be able to demonstrate something more than isolated negligence on behalf of prison officials. Id. at 1860 n.3 (citing cases where correctional facilities staff misled the inmate about the existence of a process or its rules; used threats or intimidation; or misled him into thinking he had done everything necessary to use the process).

To prove unavailability, the inmate must “adduce facts showing that he was prevented, through no fault of his own, from availing himself of that procedure.” Graham v. Gentry, 413 Fed.App'x 660, 663 (4th Cir. 2011). “The district court is ‘obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials.'” Zander v. Lappin, 415 Fed.Appx. 491, 492 (4th Cir. 2011) (quoting Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)).

C. Analysis

In support of their arguments that Plaintiff has failed to exhaust his administrative remedies, Defendants submitted, inter alia, an affidavit from Felecia McKie, the Chief of Inmate Grievance Branch for SCDC (Dkt. No. 34-2); a Step 1 grievance filed by Plaintiff relating to the March 29, 2018 incident (Dkt. No. 34-3); and Request to Staff Member (“RTSM”) forms submitted by Plaintiff relating to, inter alia, treatment for his injuries stemming from the assault (Dkt. No. 34-7). In response, Plaintiff submitted the relevant SCDC grievance policy (Dkt. No. 37-1) and Plaintiff's affidavit (Dkt. No. 37-2). Having carefully reviewed the evidence submitted by the parties relevant to the exhaustion issue, the undersigned makes the following recommendations:

• Defendants' Evidence

Defendants have submitted a Step 1 grievance signed and dated by Plaintiff on May 14, 2018, and received on May 15, 2018. (Dkt. No. 34-3.) The grievance states,

On 3/29/18 at approximately 3:15AM I was assaulted by 3 armed and masked inmates. I was struck in the head with an axe and stabbed through my right forearm. Since that time it has been approximately 46 days during which I have not been seen by any mental health counselors or the psychiatrist even though I have verbally spoken to Ms. Privett on 3 occasions to do so, including the afternoon of 3/29/18, and I have written 3 requests to staff to do so. I have PTSD, depression, anxiety, and IED, which I'd been getting treatment for before the incident. I am now having nightmares EVERY night.

(Id. at 1.) Under “Action Requested, ” Plaintiff states: “Compensation for pain and suffering, psychiatric treatment, and assignment to the level 2 yard of my choice.” (Id.) Under “Action Taken by IGC, ” the boxes “processed” and “other” are checked. (Id.) Under “Warden's Decision and Reason, ” it states that the grievance is being processed and returned to Plaintiff because he has

exceeded the appropriate time frame to file this grievance on the above issue. According to Agency Policy/Procedure GA-01-12, you have eight (8) days from the date of the incident to file a RTSM. As a result of your not filing a RTSM within policy, you have exceeded the time frame to file this grievance. Your grievance is being returned to you with no action taken.

(Id. at 2.) There is an illegible signature under the Warden's decision with the date 5/17/18. However, “N/A” is written above the signature and date lines for “Warden Signature, ” “Grievant Signature, ” and “IGC Signature.” (Id.) The grievance instructs, inter alia, “If you are not satisfied with the Warden's decision, you may appeal to the appropriate responsible official within five (5) days of your receipt of the Warden's decision, by placing your Step 2 appeal form in the Grievance Box at your institution.” (Id.)

In his affidavit, Ms. McKie references the above grievance and states that it

was processed and returned to Inmate Legette on May 17, 2018 as he had exceeded the appropriate time frame to file a grievance related to the alleged assault that occurred on March 29, 2018. Inmate Legette did not provide any reasonable cause in his grievance as to why it was filed outside of the eight (8) working days from the date of the incident. Because Inmate Legette did not timely file this grievance, his grievance was returned with no action taken.

(Dkt. No. 34-2 at 4.) She avers that Plaintiff “did not properly exhaust his administrative remedies that are provided to him through SCDC Grievance System with regards to the alleged assault that occurred at Lee Correctional Institution on or about March 29, 2018.” (Id. at 4-5.) Ms. McKie also generally avers that a “Step 2 Grievance Form . . . is provided to [the inmate] by the IGC when the Step 1 Grievance is served on him.” (Id. at 3.)

Defendants have also submitted Plaintiff's RTSMs, which show the following:

On April 10, 2018, Plaintiff submitted a RTSM to “Medical/Dr. Phillips” stating,

I need to see Dr. Phillips about the stitches I received 3/29/18, as a result of being stabbed. I haven't met with anyone as of yet. The wound appears to be getting infected, I haven't had a dressing change, the circulation in two of my fingers is almost non-existent, and I appear to have extensive nerve and tendon damage. I would have written sooner, but I had no forms.

(Dkt. No. 34-7 at 1.) The response to this form states that Plaintiff has been scheduled for a sick call and is dated May 1, 2018. (Id.)

On April 13, 2018, Plaintiff submitted a RTSM to “Ms. Muldrow/Mental Health Counselor” stating,

I hope you are well. I need to consult with you on a few matters and I would like to speak to Dr. S as well. As you may, or may not, know, I was attacked and stabbed in F5 on 3/29/18. I've been having a few issues since then and think talking them out may help greatly. I look forward to seeing you.

(Id. at 3.) The response to this form states “I received your request” and is dated July 19, 2018. (Id.)

On May 1, 2018, Plaintiff submitted another RTSM to “Ms. Muldrow/Mental Health Counselor” stating,

This is my third request to be seen by you. I know other staff are tampering with my mail, so it's no surprise. I have been trying to reach you since 3/29/18, the day I was assaulted. I spoke with Ms. Privett that day and once afterwards to see you and Dr. S to no avail. Since then I haven't received my medication on 3/30, 3/31, 4/7, 4/19, 4/24, 4/30. My condition grows worse with each passing day. I feel like I'm being punished for doing the right thing yet again.

(Id. at 6.) The response to this form states “I received your request” and is dated July 19, 2018. (Id.)

• Plaintiff's Evidence

Plaintiff has submitted his affidavit in which he avers, inter alia, that he “heard about filing grievances from other inmates but no one ever explained what to do or how to do it.” (Dkt. No. 37-2 at 1.) Plaintiff avers,

When I was stabbed in 2018, I filed a Request to Staff and asked for the incident to be investigated but never got a response. I was taken to the hospital but brought back to the same institution after my incident and put in lock-up.... While in lock [-]up, I did not have access to the paper Request to Staff or Grievance forms, so I made my own. Because I was in lock-up, I was required to hand off my Requests to Staff to an officer to be placed in the appropriate mailbox. It is my understanding that officers were supposed to bring a grievance box to us in lock-up so that we can confidentially file grievances, however, no box was ever brought to me. Because no box was ever brought to me, I had to resort to handing my grievances to an officer.

(Id. at 2.)

Plaintiff avers that he “was never able to file a Step 2 grievance because I never personally received the necessary response and original Step 1 grievance to file.” (Id. at 3.) Plaintiff further avers that while he was in lock-up,

Officer Commander was the unit manager for lock[-]up. In 2010/2011, I filed a grievance against Officer Commander regarding cell maintenance while he was the Lt. of the Chesterfield Unit at Lee Correctional Institution. I believe that because of our previous history, Officer Commander made it more difficult for me while I was in lock-up.

(Id. at 2-3.)

• Arguments

Relying on the above evidence, Defendants argue that Plaintiff failed to exhaust his administrative remedies because he filed the grievance “outside of the eight working days from the date of the alleged assault.” (Dkt. No. 34-1 at 6.) Defendants assert that Plaintiff's requests to staff submitted while he was in lock-up in April and May of 2018 belie any claim by Plaintiff that “he did not have access or the ability to file a grievance.” (Id.) Plaintiff responds that if his grievance was untimely, it was because “he had no access during his time in RHU.” (Dkt. No. 37 at 9.) Citing his affidavit testimony, Plaintiff asserts that “[w]ith no request to staff or grievances forms, pressure from Lt. Commander, and the absence of confidential submission, Plaintiff's administrative remedies were effectively ‘unavailable' to him.” (Id. at 10.) Plaintiff also argues that “by removing the confidential submission box and requisite grievance forms, Defendants are intentionally limiting inmates' ability to use the administrative remedy process.” (Id. at 11.)

Because Plaintiff did not exhaust his administrative remedies, Plaintiff's federal claims can only survive summary judgment if there is at least a genuine issue of material fact as to whether the grievance process was unavailable to him. The Defendants bear the burden of proving the affirmative defense that Plaintiff failed to exhaust available administrative remedies regarding his claims. Jones, 549 U.S. at 212. Once they have done so, the burden of proof shifts to Plaintiff to show, by a preponderance of the evidence, that the administrative remedies were unavailable to him through no fault of his own. Graham v. Gentry, 413 Fed.Appx. 660, 663 (4th Cir. 2011) (citing Moore, 517 F.3d at 725).

Upon careful review of the record, the undersigned cannot find that the grievance process was unavailable to Plaintiff in this instance. Plaintiff appears to argue that the grievance process operated as a dead end because he could not access the requisite grievance forms. However, he ultimately was able to file a Step 1 grievance. Even if the Court excused the untimely filing of this grievance, Plaintiff still failed to submit a Step 2 grievance. Critically, there are no facts indicating Plaintiff was prevented, through no fault of his own, from obtaining a Step 2 grievance form. Graham, 413 Fed.Appx. at 662 (“[I]n order to show that a grievance procedure was not ‘available,' a prisoner must adduce facts showing that he was prevented, through no fault of his own, from availing himself of that procedure.”).

While it does not appear that an informal resolution attempt was required with respect to the incident at issue, Plaintiff's Step 1 grievance was still untimely. Plaintiff asserts that the informal resolution requirement was excepted because his grievances were about criminal activity; specifically, being assaulted by other inmates. (Dkt. No. 37 at 10.) Here, the Inmate Grievance System states that “in certain cases, informal resolution may not be appropriate or possible (e.g., when the matter involves allegations of criminal activity), ” and it defines “criminal activity” as “any illegal activity to include sexual misconduct, staff assaults, transfer of drugs/contraband, etc.” (Id. ¶ 19.) Based on this definition, the undersigned agrees that allegedly suffering a severe stabbing from fellow inmates would fall under the category of “criminal activity” as contemplated by the Inmate Grievance System. Thus, Plaintiff was not required to informally resolve his complaint, and he only needed to file a Step 1 grievance to begin the administrative process.

Regardless, Plaintiff's Step 1 grievance was still untimely. The Inmate Grievance System states that where an informal resolution is not appropriate, “the grievant will complete” a Step 1 grievance form “within five (5) working days of the alleged incident.” (Dkt. No. 37-1 ¶ 13.2.) The record shows Plaintiff filed a Step 1 grievance related to the March 29, 2018 stabbing incident 46 days later, on May 14, 2018. (Dkt. No. 34-3.) While Plaintiff asserts in his response brief his grievance was untimely because “he had no access during his time in RHU” (Dkt. No. 37 at 9), Plaintiff's affidavit testimony indicates he was still able to make his own grievances during this time. More specifically, in his affidavit, Plaintiff avers that “[w]hile in lock-up, I did not have access to the paper Requests to Staff or Grievance forms, so I made my own.” (Dkt. No. 37-2 at 2.) The record further substantiates this testimony given that Plaintiff filed seven RTSMs during the time period when he allegedly “did not have access to the paper Requests to Staff.”² (Dkt. No. 34-7.) Also, it appears Plaintiff was still in lock-up when he filed his Step 1 grievance. All of the RTSMs mentioned above and the Step 1 grievance show that Plaintiff was assigned to the restrictive housing unit “63A” when they were submitted.

2 Even if Plaintiff's April 10, 2018 RTSM form could be construed as the equivalent of a Step 1 grievance, it was still untimely filed.

Based on the foregoing, even when construed in the light most favorable to Plaintiff, the evidence indicates Plaintiff was able to file RTSMs and a grievance while in lock-up. Thus, Plaintiff cannot create a genuine dispute of material fact that the Step 1 grievance was untimely filed because the administrative process was unavailable to him while he was in lock-up. Plaintiff's vague reference to “pressure from Lt. Commander” does not provide enough detail to create an issue of fact that Lt. Commander somehow prevented Plaintiff from participating in the grievance process. (Dkt. Nos. 37 at 10; 37-2 at 2-3). Indeed, the Fourth Circuit has recently stated that where “an inmate in fact is able to participate in a grievance process, notwithstanding alleged obstacles, then that process remains ‘available' for purposes of the PLRA.” Moss v. Harwood, 19 F.4th 614, 622-23 (4th Cir. 2021) (granting summary judgment based on non-exhaustion because “the record in this case establishes conclusively that Moss was able to submit multiple grievances while he was on lockdown, but failed to raise the disciplinary hearing claim he seeks to litigate now”; noting that while Moss was “still on lockdown, and still allegedly ‘thwarted' from availing himself of the grievance process-[he] did file a written grievance raising the hearing issue, though it was too late to satisfy the PLRA”).

Further, while Plaintiff avers he was not able to file a Step 2 grievance because he “never personally received the necessary response and original Step 1 grievance to file, ” he does not aver that he ever asked any SCDC officials about the status of his submitted Step 1 grievance or for a Step 2 grievance form. While the grievance forms may not have been “readily available, ” this does not necessarily mean that the forms were withheld from inmates when requested. The record does not indicate Plaintiff ever asked for a Step 2 grievance form. In short, there is no evidence that SCDC officials were “unable to or consistently unwilling to provide any relief” to Plaintiff with respect to the grievance process. Because Plaintiff has not met his burden to produce evidence that his administrative remedies were unavailable for any of the reasons recognized in Ross or controlling Fourth Circuit precedent, Plaintiff's federal claims should be dismissed for failure to exhaust. See, e.g., State v. S.C. Dep't of Corr., No. 0:17-CV-3326-MGL-PJG, 2019 WL 3773867, at *8 (D.S.C. Aug. 9, 2019) (finding lack of exhaustion where even assuming the plaintiff timely filed a Step 1 grievance, the plaintiff “did not avail himself of the next step in the grievance procedure and file a Step 2 grievance”) adopted by, 2019 WL 3780141 (D.S.C. Aug. 9, 2019); Williams v. Reynolds, No. 4:12-CV-138-RMG, 2013 WL 4522574 at * 4 (D.S.C. Aug. 27, 2013) (Noting that “even if Plaintiff did file a Step 1 grievance that was returned unprocessed, there is no evidence that Plaintiff filed a Step 2 grievance or otherwise appealed the decision not to process the Step 1 grievance”).

Here, the undersigned recognizes that the administrative grievance procedure may have been futile to Plaintiff, where he seeks protection from future harm and monetary damages for past harm. However, exhaustion of administrative remedies is a mandatory process that is required “even though the relief sought is not attainable through resort to the administrative remedy procedure.” Stokes v. Davis, No. CV JKB-16-3239, 2018 WL 656445, at *6 (D. Md. Feb. 1, 2018). Indeed, the Supreme Court has held that “an inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues.” Booth, 532 U.S. at 741 n.6. Thus, the undersigned is constrained to recommend summary judgment be granted to Defendants as to Plaintiff's federal claims based on Plaintiff's failure to exhaust administrative remedies.

Should the district court agree with this recommendation, the undersigned further recommends the district court decline to exercise supplemental jurisdiction over Plaintiff's state law claims under 28 U.S.C. § 1367(c)(3). See § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if- . . . (3) the district court has dismissed all claims over which it has original jurisdiction.”). The undersigned's recommendation for dismissal of Plaintiff's federal claims is based on the interpretation of the PLRA, a federal statute, rendering the above findings inapplicable to Plaintiff's state law claims. Courts in this district overwhelmingly remand state law claims when the federal claims have been dismissed for failure to exhaust administrative remedies. See Simpson v. S.C. Dep't of Corr., No. 2:17-CV-3031-RMG, 2019 WL 4254228, at *5 (D.S.C. Sept. 9, 2019) (granting summary judgment on federal claims for failure to exhaust, declining to exercise supplemental jurisdiction over the remaining state law claims and remanding the state law claims to state court noting, “there is no indication that remanding the state law claims would inconvenience or unfairly prejudice the parties, nor does the Court find any underlying issues of federal policy involved in these state law claims”); Johnson v. Ozmint, No. 9:08-CV-0431-PMD-BM, 2009 WL 252152, at *6 (D.S.C. Feb. 2, 2009) (dismissing federal claims for failure to exhaust administrative remedies and noting, “With respect to these remaining state law causes of action, when federal claims presented in a case which has been removed to federal court from state court are dismissed, the case should be remanded to state court for resolution of any remaining state law claims ....”). Accordingly, the undersigned recommends that the Plaintiff's state law claims be remanded to Lee County.

II. Consideration of the Merits of Plaintiff's Claims

Although the undersigned recommends Plaintiff's federal claims be dismissed based on failure to exhaust administrative remedies and the district court remand Plaintiff's state law claims, the undersigned will address the merits of Plaintiff's claims in an abundance of caution. In support of their Motion for Summary Judgment, Defendants argue: (1) Defendants are entitled to summary judgment as to Plaintiff's federal claims brought against them in their official capacities; (2) Plaintiff has failed to present sufficient evidence to support any § 1983 deliberate indifference claims against Defendants Joyner, Tisdale, and Sharpe; (3) Defendants Joyner, Tisdale, and Sharpe are entitled to qualified immunity; (4) Plaintiff has failed to state a sufficient claim for injunctive relief; and (5) Plaintiff's gross negligence claim against SCDC fails as a matter of law. (Dkt. No. 34-1.) The undersigned considers these arguments, below.

A. Eleventh Amendment Immunity

Defendants assert that Plaintiff's federal claims brought against SCDC and the individual Defendants in their official capacities are barred by the Eleventh Amendment. (Dkt. No. 34-1 at 12-13.) Plaintiff responds that SCDC waived sovereign immunity by voluntarily removing this action to federal court, and is therefore “subject to suit in this Court for the state law claims asserted against it.” (Dkt. No. 37 at 18-19.) Relevant here, the Amended Complaint alleges a § 1983 claim for injunctive relief against all Defendants and alleges § 1983 claims against Joyner, Tisdale, and Sharpe for monetary damages in both their official and individual capacities.

The Eleventh Amendment prohibits federal courts from entertaining an action against a state. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (citations omitted); Hans v. Louisiana, 134 U.S. 1, 10-11 (1890). Further, Eleventh Amendment immunity “extends to ‘arm[s] of the State,' including state agencies and state officers acting in their official capacity, ” Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (alteration in original) (internal citations omitted), because “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office . . . [and] is no different from a suit against the State itself, ” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted). Accordingly, “[s]tate officials may only be sued in their individual capacities.” Rhoden v. S.C. Dep't of Corr., No. 4:17-cv-2537-HMH-TER, 2017 WL 9288217, at *3 (D.S.C. Oct. 4, 2017) (finding claims against prison warden in his official capacity should be dismissed because warden is entitled to Eleventh Amendment immunity), adopted by, 2017 WL 5494126 (D.S.C. Nov. 16, 2017), amended, 2017 WL 6032341 (D.S.C. Dec. 6, 2017); Edwards v. Patell, No. 4:06-cv-0748-HFF-TER, 2007 WL 2428548, at *8 (D.S.C. Aug. 21, 2007) (dismissing claims brought against defendant “employee of SCDC” in his official capacity). “As a state agency, SCDC is an arm of the State of South Carolina.” Abebe v. S.C. Dep't of Corr., No. 0:09-cv-3111-MBS-PJ, 2010 WL 2991595, at *2 (D.S.C. July 2, 2010), adopted in part, 2010 WL 3258595 (D.S.C. Aug. 16, 2010).

The Supreme Court has found that a suit for injunctive relief against a state officer to prevent ongoing violations of federal law is not a suit against the state for purposes of the Eleventh Amendment. More specifically, in the landmark Supreme Court decision, Ex parte Young, the Court held that, although prohibited from giving orders directly to a State, federal courts could enjoin state officials in their official capacities. 209 U.S. 123, 155-56 (1908). “The Ex Parte Young exception is directed at ‘officers of the state [who] are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings'” to enforce an unconstitutional act against affected parties. McBurney v. Cuccinelli, II, 616 F.3d 393, 399 (4th Cir. 2010) (citing Ex Parte Young, 209 U.S. at 155-56). “Thus, to correctly plead such a claim, the proper State official must be included as a defendant by name and identified in the body of the complaint with a specific unconstitutional policy, custom, or practice.” Smith v. City of Huntington, No. 3:17-cv-03806, 2017 WL 5180456, at *3 (S.D. W.Va. Sept. 28, 2017), adopted sub nom. Smith v. City of Huntignton, 2017 WL 5180437 (S.D. W.Va. Nov. 8, 2017); see also Woods v. S.C. Dep't of Health & Human Servs., No. 3:18-cv-00834-MGL-KDW, 2019 WL 1995136, at *6 (D.S.C. Apr. 18, 2019) (finding that a “claim for prospective injunctive relief permitted by Ex Parte Young . . . would be brought against state officers or agency employees in their official capacities”), adopted by, 2019 WL 1995511 (D.S.C. May 6, 2019).

Here, the record indicates that Joyner is no longer employed by SCDC. (Dkt. No. 40 at 6 n.1.) Accordingly, Joyner cannot be sued in his official capacity for prospective relief related to alleged unconstitutional policies and procedures within SCDC. See Wilson v. United States, 332 F.R.D. 505, 528 (S.D. W.Va. 2019) (“Plaintiff cannot maintain an official capacity claim against Warden Nohe for prospective relief [related to unconstitutional practices and procedures at Lakin], because she is no longer the Warden at Lakin Correctional Center.”). Further, as discussed infra section C, Plaintiff is no longer housed at Lee. Plaintiff does not present any evidence or argument that Tisdale and Sharpe, as Associate Wardens at Lee, are the proper State officials to enforce any prospective relief at SCDC institutions other than Lee. Accordingly, Plaintiff's § 1983 claim for injunctive relief against all Defendants fails as a matter of law.

Notably, by voluntarily removing a case to federal court, a defendant waives any immunity from suit in federal court with respect to any claims it otherwise would have been subject to in state court.³ Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 619 (2002) (“A State's voluntary appearance in federal court waives sovereign immunity for claims where a state has consented to suit in its own courts for such claims); see also Cameron v. Cox, No. 10-1278, 2011 WL 1235308, at * 4 (D.S.C. Jan.21, 2011), adopted by, 2011 WL 1212177 (D.S.C. Mar. 30, 2011). Through enactment of the SCTCA, South Carolina has generally consented to suit for tort claims filed against it in state court. Briggs v. South Carolina Dept. of Corrections, No. 13-cv-1348, 2014 WL 1278173 at *21 (Mar. 27, 2014).

3 Such voluntary removal does not waive a defendant's immunity to any § 1983 claims, however. See Passaro v. Virginia, 893 F.3d 243, 248 (4th Cir. 2019) (rejecting argument that the Commonwealth waived its sovereign immunity to a Title I claim by removing case to federal court); Stewart v. North Carolina, 393 F.3d 484 (4th Cir. 2005) (holding that where a state retains its sovereign immunity from suit in state court, it does not lose that immunity by removing the case to federal court).

Based on the foregoing, the undersigned recommends that the Eleventh Amendment bars Plaintiff's § 1983 claim for injunctive relief and bars Plaintiff's § 1983 claims for monetary damages brought against Defendants Joyner, Tisdale, and Sharpe in their official capacities. However, because SCDC voluntarily removed this case to federal court and South Carolina has consented to suit for tort claims filed against it in state court, SCDC is subject to suit in this Court for the state law claims asserted against it.

B. Constitutional Claims against Defendants Joyner, Tisdale, and Sharpe

Plaintiff brings several claims against Defendants Joyner, Tisdale, and Sharpe for constitutional violations pursuant to § 1983. He alleges that these Defendants deprived Plaintiff of his “constitutionally protected rights under the Eighth, and Fourteenth Amendments to the Constitution of the United States” to due process of the law and to be free from cruel and unusual punishment. (Dkt. No. 1-1 at 10.) More specifically, under this cause of action, he alleges that these Defendants acted in a “grossly negligent [sic] . . . and with a deliberate indifferent manner” by, inter alia, “allowing uncontrolled violence in the correctional institution”; “failing to provide protection and security for the Plaintiff”; and “allowing inmate [sic] to have dangerous weapons.” (Id. at 8-9.) Plaintiff also alleges Joyner, Tisdale, and Sharpe failed to adequately train and supervise their employees in that they “implicitly or explicitly adopted and implemented careless and reckless policies, customs, or practices, including . . . failing to prevent inmates from obtaining and possessing dangerous weapons.” (Id. at 10.) Plaintiff alleges that this failure amounts to deliberate indifference to his right to be free from threats to his life under “the Amendments to the Constitution of the United States.” (Id.)

As an initial matter, because Plaintiff is a state prisoner and not a pre-trial detainee, his allegations of deliberate indifference and failure to protect implicate the Eighth Amendment's proscription against cruel and unusual punishment, not the Fourteenth Amendment's requirement of due process.⁴ Bowman v. Ozmint, No. 0:08-2517-PMD-PJG, 2009 WL 3065180, at *12 (D.S.C. Sept. 22, 2009), aff'd, 369 Fed.Appx. 416 (4th Cir. 2010); (“[A]s Bowman is a state prisoner and not a pre-trial detainee, his allegations of deliberate indifference and failure to protect implicate the Eighth Amendment's proscription against cruel and unusual punishment . . . not the Fourteenth Amendment's requirement of due process.”); see also Heyward v. Price, No. 6:18-CV-00150-JMC, 2019 WL 1416880, at *5 (D.S.C. Mar. 29, 2019), appeal docketed, No. 19-6460 (4th Cir. April 10, 2019) (“Although Plaintiff has alleged a violation of rights under the Fourth, Eighth, and Fourteenth Amendments, he is a convicted prisoner and, therefore, only the Eighth Amendment is relevant to the court's analysis.”); James v. S.C. Dep't of Corr., No. CIV.A. 3:08-664-HFF-JRM, 2009 WL 1147994, at *4 (D.S.C. Apr. 27, 2009) (“Defendants have analyzed Plaintiff's claims under the Fourteenth Amendment. Plaintiff, however, appears to have been a convicted inmate at the time of the alleged incidents such that his claims are properly analyzed under the Eighth Amendment.”). Further, Plaintiff makes no independent allegation that his Fourteenth Amendment due process rights were violated in his Complaint or his briefings. Rather, he restates his allegations of deliberate indifference, which is more appropriately addressed under the Eighth Amendment, as discussed above. Accordingly, the undersigned recommends granting Defendants Joyner, Tisdale, and Sharpe summary judgment on Plaintiff's claims for violation of his Fourteenth Amendment rights and dismissing those claims.

4 Technically, the Fourteenth Amendment is applicable but only to the extent that the Eighth Amendment protection against infliction of cruel and unusual punishments is enforced against states through the Fourteenth Amendment. See Hewins v. Loftis, No. 615-cv-04320-MGL-JDA, 2016 WL 11410920, at *5 (D.S.C. May 19, 2016), adopted by, 2016 WL 4035461 (D.S.C. July 28, 2016).

In light of the foregoing, it is clear that Plaintiff's § 1983 claims for violation of his constitutional rights should be analyzed under the Eighth Amendment. Before analyzing the merits of Plaintiff's § 1983 claims under the Eighth Amendment, the undersigned sets forth certain relevant legal standards.

1. Legal Standards

a. Failure to Protect

The Eighth Amendment requires prison officials to “protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). Officials must take “reasonable measures to guarantee the safety of the inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). In other words, “[t]he government and its officials are not free to let the state of nature take its course.” Farmer, 511 U.S. at 833. Nonetheless, “[t]he burden is on the prisoner to demonstrate that prison officials violated the Eighth Amendment, and that burden is a heavy one.” Pyles v. Fahim, 771 F.3d 403, 408-09 (7th Cir. 2014) (citing Whitley v. Albers, 475 U.S. 312, 325 (1986)). Not every “injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials responsible for the victim's safety.” Farmer, 511 U.S. at 834. Instead, the Supreme Court has outlined two requirements for an Eighth Amendment failure to protect claim. First, “a prison official's act or omission must result in the denial of ‘the minimal civilized measure of life's necessities.'” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). In other words, the denial of the prisoner's constitutional rights must be “sufficiently serious.” Id.; see also Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014) (“a prisoner must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury”) (internal quotation marks omitted). Second, the prison official must have a “sufficiently culpable state of mind, ” id., which means the official either purposefully caused the harm or acted with “deliberate indifference, ” Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). A prison official demonstrates deliberate indifference if he “knows of and disregards an excessive risk to inmate health or safety.” Id.

A prison official is deliberately indifferent if he has actual knowledge of a substantial risk of harm to a prisoner and disregards that substantial risk. Farmer, 511 U.S. at 847; Parrish v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (observing that “deliberate indifference” requires actual knowledge and disregard of a substantial risk of serious injury). A prison official is not liable if he or she “knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.” Farmer, 511 U.S. at 844; see also Rich v. Bruce, 129 F.3d 336, 338 (4th Cir. 1997) (finding that a prison official was not liable, because he did not actually draw the inference that the inmate was exposed to a substantial risk of serious harm). A showing of mere negligence does not qualify as deliberate indifference. Davidson v. Cannon, 474 U.S. 344, 347 (1986); see Whitley, 475 U.S. at 319 ((“[C]onduct that does not purport to be punishment at all must involve more than ordinary lack for due care .... [O]bduracy and wantonness, not inadvertence . . . characterize the conduct prohibited by [the Eighth Amendment].”); see also Moore v. Winebrenner, 927 F.2d 1312, 1316 (4th Cir. 1991) (citing Fourth Circuit cases adopting the Supreme Court's reasoning in Whitley).

A prison official's subjective actual knowledge can be proven through circumstantial evidence, for example, that the “substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known' about it.” Farmer, 511 U.S. at 842. The Fourth Circuit Court of Appeals has reiterated that the subjective knowledge component is nuanced. See Makdessi v. Fields, 789 F.3d 126, 137-38 (4th Cir. 2015) (finding that the district court failed to appreciate nuances with respect to this component). The Fourth Circuit found that the “‘actual knowledge' standard required to find prison officials deliberately indifferent to a substantial risk of serious injury may be proven by circumstantial evidence.” Id. at 129. “Prison officials may not simply bury their heads in the sand and thereby skirt liability.” Id. “Rather, they may be held accountable when a risk is so obvious that it had to have been known.” Id. Therefore, “even under this subjective standard, a prison official cannot hide behind an excuse that he was unaware of a risk, no matter how obvious.” Id. at 133; see also Porter v. Clarke, 923 F.3d 348, 361 (4th Cir. 2019), as amended (May 6, 2019) (“[A]n obvious risk of harm justifies an inference that a prison official subjectively disregarded a substantial risk of serious harm to the inmate.” (quoting Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir. 2011)).

In short, direct evidence of actual knowledge is not required. Farmer, 511 U.S. at 842. The question is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial “risk of serious damage to his future health . . . and it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.” Farmer, 511 U.S. at 843.

However, because prison officials who lacked knowledge of a risk cannot be said to have inflicted punishment, it remains open to the officials to prove that they were unaware of an obvious risk to inmate health or safety. For example, they may show “that they did not know of the underlying facts indicating a sufficiently substantial danger and that they were therefore unaware of a danger, or that they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.” Farmer, 511 U.S. at 844. In addition, prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, “even if the harm was not averted” because a prison official's duty is to ensure “reasonable safety.” Id. (quoting Helling v. McKinney, 509 U.S. 25, 33 (1993)). This standard “incorporates due regard for prison officials' ‘unenviable task of keeping dangerous men in safe custody under humane conditions.'” Id. (quoting Spain v. Procunier, 600 F.2d 189, 193 (9th Cir. 1979)) (Kennedy, J.). Absent successful rebuttal, prison officials may be held liable for obvious risks they must have known. Makdessi, 789 F.3d at 133 (citing Farmer, 511 U.S. at 842).

b. Personal Participation

As noted, the undersigned has found Joyner, Tisdale, and Sharpe can only be sued in their individual capacities with respect to the § 1983 claims for monetary damages. “It is well-established that a government official cannot be held liable under § 1983 solely on the basis of respondeat superior.” See, e.g., Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). “The law is clear that personal participation of a defendant is a necessary element of a Section 1983 claim against government officials in their individual capacities.” Blessing v. Scaturo, No. 6:16-cv-1832-BHH-KFM, 2017 WL 3575734, at *9 (D.S.C. July 28, 2017) (citing Trulock v. Free, 275 F.3d 391, 402 (4th Cir. 2001)), adopted by, 2017 WL 3535104 (D.S.C. Aug. 17, 2017). “In order for an individual to be liable under Section 1983, it must be ‘affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights, [and the defendant] must have had personal knowledge of and involvement in the alleged deprivation of [the plaintiff's] rights ....'” Id. (quoting Harbeck v. Smith, 814 F.Supp.2d 608, 627). “The Fourth Circuit further described this requirement as ‘designed to ensure that the serious burdens of defending against this sort of lawsuit are vested upon a department supervisor only when the complaint plausibly suggests that the supervisor engaged in his or her own misconduct.'” Id. (quoting Evans v. Chalmers, 703 F.3d 636, 661 (4th Cir. 2012)).

c. Supervisory Liability and Failure to Train

A supervisor can be liable where (1) he knew that his subordinate “was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury”; (2) his response showed “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) that there was an “affirmative causal link” between his inaction and the constitutional injury.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal quotation marks omitted).

In the context of a failure to protect claim premised on supervisory liability, Plaintiff “assumes a heavy burden of proof, ” as he “not only must demonstrate that the prisoners face a pervasive and unreasonable risk of harm from some specified source, but he must show that the supervisor's corrective inaction amounts to deliberate indifference or tacit authorization of the offensive practices.” Slakan, 737 F.2d at 373. Generally, a plaintiff cannot satisfy this heavy burden of proof “by pointing to a single incident or isolated incidents.” Id. But, “[a] supervisor's continued inaction in the face of documented widespread abuses . . . provides an independent basis for finding he either was deliberately indifferent or acquiesced in the constitutionally offensive conduct of his subordinates.” Id. (citations omitted).

Toomer v. Baltimore City Det. Ctr., No. 12-cv-0083, 2014 WL 4678712, at *5 (D. Md. Sept. 18, 2014).

Relatedly, to impose supervisory liability under § 1983 for failure to train subordinates, a plaintiff must plead and prove that: (1) the subordinates actually violated the plaintiff's constitutional or statutory rights; (2) the supervisor failed to train properly the subordinates thus illustrating a “deliberate indifference” to the rights of the persons with whom the subordinates come into contact; and (3) the failure to train actually caused the subordinates to violate the plaintiff's rights. Hubbard v. Byars, No. 8:14-cv-33-BHH, 2015 WL 337642, at *12 (D.S.C. Jan. 26, 2015) (quoting Brown v. Mitchell, 308 F.Supp.2d 682, 701 (E.D. Va. 2004)).

d. Deliberate Indifference to Serious Medical Need

The government is “obligat[ed] to provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). This obligation arises from an inmate's complete dependence upon prison medical staff to provide essential medical service. Id. The duty to attend to prisoners' medical needs, however, does not presuppose “that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.” Id. at 105. Instead, it is only when prison officials have exhibited “deliberate indifference” to a prisoner's “serious medical needs” that the Eighth Amendment is offended. Id. at 104.

In addition, the Fourth Circuit Court of Appeals has held that to bring a denial of medical treatment claim against non-medical prison personnel, an inmate must show that such officials were personally involved with a denial of treatment, deliberately interfered with prison doctors' treatment, or tacitly authorized or were indifferent to the prison physicians' misconduct. Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837, (1994); see Mallett v. Johnson, No. 8:08-cv-863-PMD, 2008 WL 5351618, at *7 (D.S.C. Dec. 22, 2008) (“A medical indifference claim is not appropriate against a superintendent/supervisor absent an allegation that he was personally connected to the treatment received.”) (citing Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)). “Mere knowledge is not sufficient to establish personal participation.” Coleman v. Stevenson, No. 0:09-cv-872-HMH, 2010 WL 2990737, at *4 (D.S.C. June 22, 2010), adopted by, 2010 WL 2990740 (D.S.C. July 26, 2010), aff'd, 407 Fed.Appx. 709 (4th Cir. 2011).

2. Arguments and Relevant Evidence

In moving for summary judgment on the merits of Plaintiff's federal claims, Defendants argue: (1) Plaintiff cannot make a showing of any personal involvement by Joyner, Tisdale, and Sharpe; (2) “Plaintiff has produced no evidence that Defendants Joyner, Tisdale and Sharp, or any SCDC employee or official had actual knowledge of a risk of a potential constitutional injury”; (3) Joyner, Tisdale, and Sharpe are entitled to qualified immunity because Plaintiff has failed to demonstrate that these Defendants violated his constitutional rights; and (4) there is no evidence Joyner, Tisdale, and Sharpe were deliberately indifferent to Plaintiff's serious medical needs. (Dkt. No. 34-1.) In support of their arguments, Defendants cite, inter alia, a Management Information Note (“MIN”) entry and Plaintiff's medical records. (Dkt. Nos. 34-5; 34-6.)

Plaintiff contests Defendants' arguments. He asserts that Defendants Joyner Tisdale, and Sharp “were consciously aware of the rise in violence and contraband within Lee Correctional” and that the evidence “creates a genuine issue of material fact as to whether Defendants were personally involved in Plaintiff's medical treatment by failing to properly and timely schedule his medical visits.” Dkt. No. 37 at 16-17.) Plaintiff argues that there is sufficient evidence to support his deliberate indifference claims.

In support of these arguments, Plaintiff has submitted the following evidence: (1) Plaintiff's affidavit testimony; (2) certain quarterly contraband reports; (3) a MIN entry regarding the incident; (4) Plaintiff's medical records; (5) Plaintiff's inmate request forms; (6) the “Roth Report, ” a report drafted by Tom Roth in connection with a settlement of another case against SCDC (the “Mental Health Settlement”) that focuses on staffing levels at SCDC; and (7) the expert opinion report submitted by Plaintiff's expert, James Aiken. (Dkt. Nos. 37-2 through 37-8.)

Below, the undersigned summarizes the evidence in the record that is particularly relevant to the remaining § 1983 claims.

• MIN entry

The MIN entry related to the March 29, 2018 incident states

Lee Correctional Institution: Thursday March 29, 2018 at approximately 3:45am Ofc. Branch called for assistance in the F-5 unit stating there was an inmate bleeding on the “A” pod. When Sgt. Lucky arrived to the unit, Inmate Richard Legette #320340 met him at the front door with a blood soaked towel wrapped around his right forearm. Sgt. Lucky escorted i/m Legette to Lee Medical where he was seen by Nurse Allison for a stab wound that went completely through his arm. Nurse Allison called the on-call Dr who advised her to call EMS and have i/m Legette transported to Tuomey by EMS. Ofc. Duncan rode in the ambulance with Ofc. Holden in the escort vehicle 3758. Lee County EMS Smith and Dubose in EMS vehicle 1912 tag #CG71471 exited Lee with i/m Legette at approximately 5:00am. Duty Warden Stewart was notified of the incident. Lt. Hurley at EAC was also notified along with Warden Joyner, AW Tisdale and Major Ray.

(Dkt. Nos. 34-5 at 1-2; 37-4 at 1-2.)

• Plaintiff's Affidavit Testimony

In his affidavit, Plaintiff avers,

To my knowledge, any incidents regarding an ambulance are reported to all Wardens at South Carolina Correctional Institutions. During my time at Lee Correctional it appeared that Warden Joyner, Associate Warden Tisdale, and Associate Warden Sharpe had a disregard for inmate safety. Prior to my assault in the F-5 Richland Unit, I witnessed at least six other assaults on other inmates take place. In the F-5 Unit there were inmates assaulted two weeks prior to my assault that resulted in the need for life-flights to the hospital. The gangs in the F-5 Unit maintained control and officers often would turn a blind eye to allow them to do bad.

(Dkt. No. 37-2 at 3.)

With respect to the assault at issue, Plaintiff avers,

At the time of my assault, Officer Branch was asleep inside the control booth and was not monitoring the wing. When I finally made it to medical after the attack on my life, an officer was present with a video-camera taking footage of my treatment and condition. Sargent Coaxum was present while I was in medical, however she never followed up or sent any messages to Police Services to my knowledge.

(Id.) Plaintiff avers that after the assault,

I made a request to an officer for my mental health medication, however none was provided. I asked a plain clothes staff member about speaking with a Police Services investigator, however no Police Services investigators ever came to speak with me. I also asked to speak with the Associate Warden or the Major regarding the incident, however neither came to talk with me.

(Id. at 2.)

Plaintiff further avers,

Prior to being placed in the F-5 Unit, I attempted to speak with Associate Warden Tisdale about not being placed there, however Associate Warden Tisdale refused to speak with me. At that time, I was a minimum custody level inmate and I knew that the F-5 Unit was not safe for me. I also spoke with Major Ray regarding this and he told me he would see what he could do about me being placed in a different unit. My cellmate at the time witnessed both of these conversations.

(Id. at 4.)

• Plaintiff's Medical Records

An “emergency in house” encounter dated March 29, 2018 states that Plaintiff reported to medical with a “stab wound noted to right lower forearm” and that Plaintiff was sent to the Tuomey Emergency Room. (Dkt. No. 34-6 at 5.) A mental health clinic encounter also dated March 29, 2018 documents Plaintiff's return from Tuomey. (Id. at 3-5.) This encounter documents Plaintiff's injuries and states, inter alia,

inmate . . . reported he did not need to meet with the psychiatrist and only requested to meet with Major Ray to talk about the event and to talk about a prior charge. On call mental health counselor, Privette paged Major Ray.... Inmate Legette requested to talk with Major Ray and is aware that Major Ray will be getting with him as requested. Inmate Legette is on Ms. Muldrow's caseload also.

(Id. at 4.) A “follow-up sick call” encounter dated April 11, 2018 states, “Removed 6 stitches from posterior right forearm. Area healing well, no open areas noted. Removed 5 stitches from anterior forearm. Area healing well. No open areas noted. Pt. flexed and extended arm several times and areas did not come open. Cleaned and pt. was escorted back to RHU ....” (Id. at 3.)

A “follow-up sick call” encounter dated May 22, 2018 states, “C/o numbness/tingling right arm secondary to stabbing at Lee Correctional [with] nerve/muscle/tendon damage (instructed on sick call process). Stabbing was in March per IM.” (Id. at 2.) A mental health clinic encounter dated June 11, 2018 indicates Plaintiff had a telemedicine visit and reported “PTSD SX (from being attacked in SCDC), anger issues, anxiety.” (Id.) A sick call encounter dated June 25, 2018 reports that Plaintiff stated

I got stabbed in my right arm 3/29. My ring finger and pinky and half of my right hand have decreased mobility. I have no feeling in my pinky at all. My ring finger and half of my hand are numb all the time. They said I have nerve damage. I have a dull ache at times. At night sometimes I have sharp pains. I would like to see the doctor to find out if there is anything that can be done to improve my mobility.

(Id. at 1.) This encounter also documents, inter alia,

Wound completely healed at this time. Can completely make a fist. Moves all fingers without difficulty. Cannot touch pinky to thumb. With hand opened and fingers straight, all fingers touch except pinky.... IM states ‘I would like to see [] the doctor to find out if there is anything that can be done to help me regain some of my dexterity. . . Reassured IM his requests will be forwarded to the provider. IM was thankful and AMB out of the dayroom without difficulty.

(Id.)

• Plaintiff's Request to Staff Member forms (“RTSM”)

On April 10, 2018, Plaintiff submitted a RTSM to “Medical/Dr. Phillips” stating,

I need to see Dr. Phillips about the stitches I received 3/29/18, as a result of being stabbed. I haven't met with anyone as of yet. The wound appears to be getting infected, I haven't had a dressing change, the circulation in two of my fingers is almost non-existent, and I appear to have extensive nerve and tendon damage. I would have written sooner, but I had no forms.

(Dkt. No. 34-7 at 1.) The response to this form states that Plaintiff has been scheduled for a sick call and is dated May 1, 2018. (Id.)

On April 13, 2018, Plaintiff submitted a RTSM to “Ms. Muldrow/Mental Health Counselor” stating,

I hope you are well. I need to consult with you on a few matters and I would like to speak to Dr. S as well. As you may, or may not, know, I was attacked and stabbed in F5 on 3/29/18. I've been having a few issues since then and think talking them out may help greatly. I look forward to seeing you.

(Id. at 3.) The response to this form states “I received your request” and is dated July 19, 2018. (Id.)

On May 1, 2018, Plaintiff submitted another RTSM to “Ms. Muldrow/Mental Health Counselor” stating,

This is my third request to be seen by you. I know other staff are tampering with my mail, so it's no surprise. I have been trying to reach you since 3/29/18, the day I was assaulted. I spoke with Ms. Privett that day and once afterwards to see you and Dr. S to no avail. Since then I haven't received my medication on 3/30, 3/31, 4/7, 4/19, 4/24, 4/30. My condition grows worse with each passing day. I feel like I'm being punished for doing the right thing yet again.

(Id. at 6.) The response to this form states “I received your request” and is dated July 19, 2018. (Id.)

On March 15, 2019, Plaintiff submitted an inmate request with “Attention” to “Karol Berry-Medical Director” stating, verbatim,

On 3/29/18 at approx. 3:15 AM, I was assaulted at Lee Correctional by 3 masked individuals whilst in my room F5A-170. I was struck in the forehead with a small hatchet, and stabbed clear through my right forearm. Despite repeated requests, I have yet to receive ANY physical therapy for my injury even though the ER doctor on duty had to re-attach several tendons. There is clearly nerve, circulation, and tendon damage still. I met with Dr. Furness early in November 2018, and he was supposed to have scheduled me for testing of the nerves in my arm, but the odd thing is that he repeatedly insisted that I [ let the matter go] after this. I find this a rather odd and even alarmingly request. I still have yet to receive said test. My right hand is showing signs of atrophy, and there is still zero feeling in the little finger. My hands have been my livelihood for over 40 years. I'd like to think that it might be worth the trouble for every possible method be utilized to preserve my quality of life.

(Dkt. No. 37-6 at 2.) Karol Berry responded to this request on March 28, 2019, stating, “I have asked the medical staff about your appointment. While you are waiting get medical to help you with PT. That will help too. You may not be able to do much but every little bit helps.” (Id.)

On May 2, 2019, Plaintiff submitted another inmate request with “Attention” to “Karol Berry HQ Medical” stating, inter alia, “As of today I have not received ANY physical therapy guidance from medical, ANY of the recommended testing for the injury I sustained on 3/29/18, nor have I received ANY type of comprehensive treatment of any kind.” (Dkt. No. 37-6 at 1.) The response to this request is dated May 7, 2018 and states, inter alia, “You are being scheduled for EMG. You are on the list to go out for an EMG. However, due to the shortage of security this will be done as soon as possible.” (Id.)

• Quarterly Contraband Reports

Plaintiff has submitted documents titled “[SCDC] Quarterly Report of Confiscated Property, ” showing contraband reported by the Contraband Officer “through Warden Aaron Joyner” to the Division Director of Security and Division Director of Internal Affairs. (Dkt. No. 37-3) Relevant here, a report for the quarter dated January 3, 2017 through March 31, 2017 states that 191 homemade knives were “destroyed by Lee CI.” (Id. at 1.) A report for the quarter dated April 3, 2017 through June 30, 2017 states that 63 homemade knives were “destroyed by Lee CI.” (Id. at 2.) A report for the quarter dated July 31, 2017 through September 30, 2017 states that 74 homemade knives were “disposed of at Lee CI Medical.” (Id. at 3.) A report for the quarter dated October 31, 2017 through December 31, 2017 states that 17 homemade knives were “destroyed at Lee CI.” (Id. at 4.) A report for the quarter dated January 31, 2018 through March 31, 2018 states that 67 homemade knives were “held in Lee CI evidence room.”⁵ (Id. at 5.)

5 Plaintiff has submitted additional contraband reports, but they post-date the March 29, 2018 incident at issue and therefore could not have provided notice of a risk of harm to inmates at Lee prior to the incident.

• Plaintiff's Expert Report

Plaintiff has submitted an expert report drafted by his expert James Aiken, a former Warden, Deputy Warden, and Deputy Regional Administrator in South Carolina. Mr. Aiken has over 49 years of experience “in all aspects of prisoner confinement management” with a “major focus” on “the assessment and restoration of confinement facilities and systems which have experienced chronic and acute security issues, operational critical events and prison/jail management shortfalls.” (Dkt. No. 37-8 at 2, 6.) In his expert report, Mr. Aiken opines that “Defendants did not take fundamental measures, within their authority and responsibility, to prevent, detect, respond and/or contain the obvious foreseeable blatant failures prior and during the life endangerment critical event which resulted in Mr. Legette being violently attacked with weapon(s).”⁶ (Id. at 11-12.) According to Mr. Aiken,

6 Defendants assert that portions of Mr. Aiken's expert report constitute inadmissible legal conclusions. (Dkt. No. 40 at 8-9.); see United States v. McIver, 470 F.3d 550, 562 (4th Cir. 2006) (“[O]pinion testimony that states a legal standard or draws a legal conclusion by applying law to the facts is generally inadmissible.”). The undersigned agrees. For example, Mr. Aiken opines that “Defendants South Carolina Department of Corrections, Warden Aaron Joyner, Associate Warden Rudy Tisdale, and Associate Warden Shape were operationally deliberately indifferent, callous, wanton, and grossly negligent in not adhering to basic confinement responsibilities and utilizing their authority to reasonably protect and secure Mr. Legette.” (Dkt. No. 37-8 at 11.) Here, the undersigned has not considered those portions of the expert report constituting legal conclusions.

The extreme operational deliberate indifferent failures (examples) of Defendants blatantly disregarding and not exercising even the slightest degree of operational care are characterized as: (1) inmate sight and sound supervision critical failures, (2) contraband control mitigation and abatement failures, (3) investigation failures, (4) not providing minimal protective custody provisions, (5) critical failures regarding gang management, and (7) not providing and reasonably ensuring inmate movement restrictions as operationally required. These critical near fatal failures operationally validate Defendants' operational deliberate indifference and gross negligence to the basic aspects of inmate management, security, and supervision.

(Id. at 12.)

Mr. Aiken opines that

Defendants were placed on specific operational notice that the security status of the prison was in advanced critical peril pertaining to the presence of weapons to inflict random and/or systemic violence by gangs and/or individuals by the contraband

discovery rates.... The weapon discovery and confiscation rate provide the forewarning to Defendants that inmates are (1) still retrofitting weapons, (2) raw weapon making materials remain assessable to inmates, (3) the advent of critical event occurrences remained in a critical status, (4) inmate population are in a more enhanced level to be victims of attack by the weapons, and (5) the prison weapon contraband discovery rate is not a positive indicator that the prison is a safer environment.

(Id. at 17.)

As the basis for his opinion, Mr. Aiken cites the Roth Report, discussed further, below. (Id. at 13-16.) He also cites an inmate request Plaintiff submitted on May 30, 2014 that states,

There is an inmate at this institution that has been seen passing contraband on a regular basis for over a month now. I have confirmed that he has passed along pills ‘Neurotin', tobacco, and marijuana. he also moves large amounts of canteen between dorms regularly. His name is [REDACTED BY AIKEN]. If you need any other info please feel free to contact me. Please follow this info to A.W. Steve Nolan.

(Id. at 18.) Citing this request, Mr. Aiken opines, “The reliance upon inmate intelligence by prison officials and law enforcement is also a key indicator that the prison's security delivery system is in critical and life endangerment critical failure.” (Id.)

• Roth Report

The Roth Report is dated March 2018 and includes a detailed 20-page analysis of staffing issues specific to Lee, including on how staffing at Lee has impacted the number of contraband related incidents and incidents of assault from 2015 through 2017. The Roth Report states that “[s]ecurity staffing levels have been a critical concern at Lee for an extended period.... [A] significant decrease in front-line security (FLS) staffing levels began in 2012 and had continued to decline through the middle of 2017.” (Dkt. No. 37-7 at 100.) In connection with this staffing shortage, the Roth Report conveys concerns regarding the number of contraband incidents and inmate-on-inmate assaults at Lee. (Id. at 104-06.) For example,

At Lee there has been several significant weapon related incidents, including incidents resulting in the death of an inmate. Reports reflected a stabbing has occurred at the facility in 2009, 2016, 2017 and 2018, resulting in an inmate death. ....

Having a total of between one and two staff assigned to a 250-bed housing unit which contains limited to no electronic surveillance support or having one staff member on the courtyard during movement periods, creates an environment where the perceived opportunity to commit an assault can initially go undetected. This appears to be the case at Lee. There is simply not enough staff supported by available surveillance equipment to consistently cover all the required areas and send the message to the inmate population that when involved in criminal activity the risk of being apprehended for the same will be great.

At Lee as previously mentioned an assault resulting in the death of an inmate occurred in 2009, 2016, 2017 and 2018. This is an extremely high number of fatal incidents for any facility. The total number of assault related incidents reported in 2017 were less than the overall average and less than the two previous years.... [A]ssaults still occur; however, at a higher than acceptable level. It is of considerable concern that in the past three years at least one homicide has occurred at the facility.

(Id.)

Having considered the relevant evidence put forth by the parties, the undersigned will analyze the remaining § 1983 claims Joyner, Tisdale, and Sharpe.

3. Analysis of § 1983 Claims for Failure to Protect, Supervisory Liability, Failure to Train

• Failure to Protect

The undersigned recommends Defendant Joyner be denied summary judgment on Plaintiff's § 1983 failure to protect claim and Defendants Tisdale and Sharpe be granted summary judgment as to this claim.

Here, the undersigned finds that when construed in the light most favorable to Plaintiff, the circumstantial evidence supports finding a genuine issue of material fact as to whether Joyner had actual knowledge of a substantial risk of harm to Plaintiff and disregarded that substantial risk prior to the March 29, 2018 assault. Farmer, 511 U.S. at 847. However, Plaintiff has failed to establish a genuine issue of material fact as to his § 1983 failure to protect claim with respect to Tisdale and Sharpe. More specifically, Plaintiff has failed to provide evidence that Tisdale and Sharpe had been exposed to information concerning a risk to Plaintiff prior to the assault at issue and thus must have known about it.

As noted, a prison official's subjective actual knowledge can be proven both through direct and circumstantial evidence. The Supreme Court has held that circumstantial evidence would include “evidence showing that a substantial risk of inmate attacks was ‘longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known' about it.'” Farmer, 511 U.S. at 842.

Plaintiff has offered circumstantial evidence that supports finding Defendant Joyner had the subjective actual knowledge required to support a § 1983 failure to protect claim. More specifically, construed in the light most favorable to Plaintiff, the Roth Report indicates a substantial risk of serious harm to inmates at Lee was longstanding, pervasive, and well-documented before Plaintiff was attacked on March 29, 2018. The Roth Report demonstrates that during the time period relevant to this case, Lee was severely understaffed and it experienced a high number of contraband related incidents and incidents of assault. As the Roth Report stated, “[s]ecurity staffing levels have been a critical concern at Lee for an extended period.... [A] significant decrease in front-line security (FLS) staffing levels began in 2012 and had continued to decline through the middle of 2017.” (Dkt. No. 37-7 at 100.) The report considered the impact of these staffing levels on incidents of assault at Lee, noting that “assaults still occur . . . at a higher than acceptable level.” (Id. at 105.) In short, construed in the light most favorable to Plaintiff, the Roth Report indicates a substantial risk of serious harm to inmates at Lee was longstanding, pervasive, and well-documented prior to Plaintiff's March 29, 2018 assault.

Critically, there is evidence in the record indicating Joyner would have been aware of these statistics reported in the Roth Report. Specifically, the quarterly contraband reports dated January 3, 2017 through December 31, 2017 indicate that Joyner was kept apprised of the incidents of contraband at Lee for approximately one year prior to the assault at issue. (Dkt. No. 37-3.) From Joyner's knowledge of the incidents of weapons contraband and staffing shortages, a reasonable juror could find that Joyner “knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842; see also Porter, 923 F.3d at 361 (“[A]n obvious risk of harm justifies an inference that a prison official subjectively disregarded a substantial risk of serious harm to the inmate.”). As the Supreme Court stated in Farmer, “it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.” Id. at 843.

Also, there is a genuine issue of material fact as to whether Joyner acted with deliberate indifference by failing to take appropriate action once he became aware of the risk of harm to inmates at Lee. As discussed above, the record indicates Lee was still experiencing a severe staff shortage with the resulting security issues prior to Plaintiff's assault. Construed in the light most favorable to Plaintiff, there is a genuine issue of material fact as to whether Joyner acted with deliberate indifference by failing to respond “reasonably to the risk” of harm to inmates at Lee. Farmer, 511 U.S. at 844. See, e.g., Rivera v. Mathena, No. 18-6615, 2019 WL 6133727, at *5 (4th Cir. Nov. 19, 2019) (denying summary judgment on deliberate indifference claim, noting that “[o]nce prison officials become aware of a problem with prison conditions, they cannot simply ignore the problem, but should take corrective action when warranted” (quoting Williams v. Griffin, 952 F.2d 820, 826 (4th Cir. 1991)).

However, Plaintiff cannot establish a genuine issue of material fact that Associate Wardens Tisdale and Sharpe had been exposed to information concerning the risk of harm to inmates at Lee and failed to respond reasonably to that risk. Farmer, 511 U.S. at 842-44. There is no evidence that Tisdale and Sharpe were aware of the quarterly contraband reports and there is no other evidence indicating they otherwise would have been aware of any of the Roth Report statistics pertaining to Lee prior to the assault at issue. In short, there is no evidence in the record to support Plaintiff's § 1983 failure to protect claim against Tisdale and Sharpe. While Mr. Aiken opines that Plaintiff's assault “was operationally foreseeable, anticipated, and avoidable, ” the only concrete basis he offers for this opinion is the Roth Report, the “contraband discovery rates, ” and Plaintiff's May 30, 2014 inmate request. There is no basis to find that Tisdale and Sharpe were actually aware of the statistics contained in the Roth Report, the contraband discovery rates at Lee, or the contents of Plaintiff's May 30, 2014 inmate request. Mr. Aiken's opinion evidence, even when viewed in the light most favorable to Plaintiff, simply does not create an inference that Tisdale and Sharpe “had been exposed to information concerning the risk [of harm to inmates at Lee] and thus ‘must have known' about it.” Farmer, 511 U.S. at 842. Because the undersigned cannot find a genuine issue of material fact as to whether Tisdale and Sharpe were aware of the risk of harm to inmates at Lee prior to the assault at issue, they should be granted summary judgment on Plaintiff's § 1983 failure to protect claim in its entirety.

The case law in this circuit supports the above recommendations. The evidence here is similar to that in Wynn v. Perry, wherein the court found a genuine issue of material fact as to the plaintiff's Eighth Amendment failure to protect claim against the defendant prison administrator based on his assault by another inmate. No. 3:14-CV-625-FDW, 2018 WL 1077321, at * 28 (W.D. N.C. Feb. 27, 2018). In finding an issue of material fact, the Wynn court noted that the plaintiff

has shown that a substantial risk of serious harm was longstanding, pervasive, and well-documented before the attack on him occurred. As Acting Administrator and Administrator at Lanesboro, Defendant Parsons knew via PA announcements, emails, phone calls, and incident reports, that inmate-on-inmate attacks with contraband weapons frequently occurred in the prison and were especially pervasive on the Union housing unit where Plaintiff was housed. Defendant Parsons had access to tools for reducing the danger in the housing units and there is a genuine dispute with regards to whether he took reasonable actions to reduce the threat to inmates' safety.

Id. Notably, the court found no issue with the plaintiff's failure to establish that the prison administrator knew “of a specific risk” to the plaintiff posed by a specific inmate. The court quoted Farmer, 511 U.S. at 843, for the proposition that “a prison official may not avoid liability simply because he was unaware that Plaintiff was ‘especially likely to be assaulted by the specific prisoner who eventually committed the assault.'” Id. The Wynn court further found that the evidence created “a dispute about whether Defendant Parsons sufficiently ensured that his staff were properly trained and that they adhered to security and safety policies. Material issues of fact preclude summary judgment for Defendant Parsons under these circumstances.” Id.

Similarly, in Hollabaugh v. Cartledge, the court found a genuine issue of material fact as to the plaintiff's Eighth Amendment failure to protect claim against the defendant warden and defendant associate warden where the plaintiff alleged he was beaten and stabbed by other inmates after “his cell door was left unlocked and unsecured . . . in violation of SCDC policy.” No. 9:14-cv-1324-BHH-BM, 2016 WL 11423538, at *2 (D.S.C. Mar. 7, 2016). The court denied the defendants summary judgment on this claim because the plaintiff had “presented evidence sufficient to create an inference that the Defendants were aware of the dangerous conditions that had been created at the prison by virtue of their policies and customs relating to cell access and freedom of movement, thereby resulting in a dangerous situation to the Plaintiff which ultimately led to his being assaulted.” 2016 WL 11423538, at *8. Similar to the instant matter, the Hollabaugh defendants argued that “that they had no prior notice that Plaintiff was in danger or would be subjected to attack prior to the incident occurring.” Id. at *8. The plaintiff further acknowledged that prior to the assault at issue, “he had never been threatened by any particular inmates nor was there any specific individual that he had concerns about.” Id. at *5.

Unlike the records in Wynn and Hollabaugh, there is no evidence here to establish that Tisdale and Sharpe were exposed to information of a pervasive, longstanding, and well-reported risk of harm to the inmates during his employment at Lee. However, Wynn and Hollabough support finding Joyner is not entitled to summary judgment on Plaintiff's § 1983 failure to protect claim. Based on the foregoing, the undersigned recommends granting summary judgment with respect to Plaintiff's § 1983 failure to protect claim against Tisdale and Sharpe and denying summary judgment as to Plaintiff's § 1983 failure to protect claim against Joyner.

• Supervisory Liability and Failure to Train

The undersigned recommends summary judgment be denied to Joyner on Plaintiff's § 1983 claims for supervisory liability and failure to train, and Tisdale and Sharpe should be granted summary judgment as to these claims.

For similar reasons, the undersigned recommends Plaintiff's § 1983 claims for supervisory liability and failure to train should survive summary judgment only as to Joyner. In support of their Motion, Defendants argue that Plaintiff offers only “conclusory allegations that Defendants Joyner, Tisdale and Sharp failed to adequately supervise and/or train the correctional officers at Lee Correctional Institution.” (Dkt. No. 34-1 at 14-15.)

As discussed above, the record indicates Lee was severely understaffed during the relevant time period, thereby curtailing the ability of SCDC employees to adequately monitor the inmates and address incidents of contraband and assault. There is a question of fact as to whether Joyner took steps to address these staffing levels and the resulting issues. Thus, construing the evidence in the light most favorable to Plaintiff, there is a question of fact as to whether the severe staff shortage at Lee and the resulting security issues created a substantial risk of harm to Plaintiff. Further, as discussed above, there is a question of fact as to whether Joyner knew of this risk and acted with deliberate indifference to that knowledge prior to the assaults at issue. Likewise, there is a question of fact as to whether Joyner took steps to better train staff to address the high number of contraband related incidents and incidents of assault at Lee. Plaintiff's allegations in the Complaint directly relate to this evidence; specifically, that Joyner allegedly “fail[ed] to prevent inmates from obtaining and possessing dangerous weapons”; “‘fail[ed] to have a sufficient number of trained correctional officers to adequately respond to incidents such as what occurred to Plaintiff”; and “fail[ed] to discipline its correctional officers for violations of SCDC policies and procedures.” However, for the reasons discussed above, the relevant statistics in the Roth Report and the quarterly contraband reports do not create a question of fact as to the § 1983 claims brought against Tisdale and Sharpe.

Given the above evidence, the undersigned recommends that Plaintiff's claims for supervisory liability and failure to train should survive summary judgment against Joyner. See, e.g., Murray v. S.C. Dep't of Corr., No. CV 6:19-0100-RMG, 2020 WL 3603782, at *3 (D.S.C. July 2, 2020) (denying summary judgment on § 1983 claims for supervisory liability and failure to train because questions of fact exist “such as whether [defendant warden] was aware of McCormick's substantial staff shortage and took steps to ameliorate that inadequacy by, for instance, properly training correctional officers or disciplining them for violating the existing the policies”); Stephens v. S.C. Dep't of Corr., No. 4:17-cv-3482-JFA-TER, 2018 WL 3215644, at * 3 (D.S.C. June 12, 2018) (“Plaintiffs' allegations that various correctional officers left their assigned wings unattended and, in some instances, left inmate room doors unlocked, are sufficient to state a claim that [defendant wardens] failed to properly train their subordinates in correct policies and procedures given the known incidents of violence within the facility.”), adopted by, 2018 WL 3209709 (D.S.C. June 29, 2018). The above evidence also creates a genuine dispute of material fact as to whether Joyner adopted reckless policies, customs, or practices in failing to prevent inmates from obtaining and possessing dangerous weapons prior to Plaintiff's assault. However, summary judgment should be granted to Tisdale and Sharpe with respect to the § 1983 claims for supervisory liability and failure to train.

• Qualified Immunity

The undersigned further recommends Joyner is not entitled to qualified immunity with respect to Plaintiff's § 1983 claims. It has long been established that prison officials have a duty to protect inmates from a substantial and known risk of harm, including harm inflicted by other prisoners. See Farmer, 511 U.S. at 833. Questions of fact exist with regards to whether Joyner violated Plaintiff's clearly established rights as discussed above, and therefore, the undersigned cannot determine at this time whether Joyner's actions were objectively reasonable. See, e.g., Kane v. Beaufort Cty. Sheriffs Dep't, No. 9:14-cv-508-RMG, 2015 WL 404570, at *5 (D.S.C. Jan. 29, 2015) (“summary judgment on qualified immunity grounds is improper as long as there remains any material factual dispute regarding the actual conduct of the defendants” (quoting Vathekan v. Prince George's Cnty., 154 F.3d 173, 180 (4th Cir. 1998)); see also Hollabaugh, 2016 WL 11423538, at *9 (denying summary judgment on qualified immunity, “as it was certainly clearly established during the time period at issue that even supervisory personnel can be subject to liability for having either direct knowledge of, or having created a policy or practice exercised by their subordinates, sufficient to create a situation from which an inference could be drawn that a substantial risk of harm existed and being deliberately or callously indifferent to that substantial risk of serious harm”).

Accordingly, the undersigned recommends that the Court deny Joyner summary judgment here on the grounds of qualified immunity. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (Defendant entitled to qualified immunity only insofar as the conduct alleged did not violate clearly established statutory or constitutional rights of which a reasonable person should have known); Newkirk v. Enzor, 674 Fed.Appx. 276 (4th Cir. 2017) (affirming denial of summary judgment on qualified immunity where facts remained in dispute); Wynn, 2018 WL 1077321, at *29 (“It has long been established that prison officials have a duty to protect inmates from a substantial and known risk of harm, including harm inflicted by other prisoners.”).

4. Analysis of § 1983 Claim for Deliberate Indifference to Serious Medical Needs

Finally, to the extent Plaintiff attempts to bring a § 1983 claim for deliberate indifference to his serious medical needs against Joyner, Tisdale, and Sharpe, such a claim fails. Here, these Defendants are non-medical SCDC personnel, and the record does not include any evidence indicating these Defendants were personally involved in Plaintiff's medical care. In support of this claim, Plaintiff relies on his medical records, affidavit testimony, and inmate requests. (Dkt. No. 37 at 17.) However, Plaintiff's cited evidence does not connect Joyner, Tisdale, or Sharpe to Plaintiff's medical care. For example, Plaintiff's inmate requests regarding his medical care are not directed to Joyner, Tisdale, or Sharpe, and there is no evidence they were otherwise aware of these requests.

Plaintiff's failure to establish any personal involvement with his medical care by Joyner, Tisdale, and Sharpe mandates dismissing this deliberate indifference claim. See Miltier, 896 F.2d at 854; Mallett, 2008 WL 5351618, at *7 (“A medical indifference claim is not appropriate against a superintendent/supervisor absent an allegation that he was personally connected to the treatment received.”).

C. State Law Claim for Injunctive Relief

As discussed above, the undersigned recommends Plaintiff's § 1983 claim for injunctive relief is barred by the Eleventh Amendment. Plaintiff also seeks injunctive relief under state law. According to the Complaint,

Injunctive relief is necessary due to the nature of the threats against the Plaintiff herein shown in that Plaintiff will suffer irreparable harm if such injunction is not granted in that, as has previously occurred, Plaintiff is at risk to be attacked and injured and possibly killed. The multitude of incidents of violence against the Plaintiff as recited herein is a clear and definite indication that without Court intervention by way of injunctive relief the likelihood of repeated incidents will occur and monetary compensation cannot replace the loss of life.

(Dkt. No. 1-1 at 8.)

Here, Defendants assert that Plaintiff's claim for injunctive relief fails because Plaintiff has an adequate remedy at law in the form of money damages, Plaintiff cannot show he will suffer irreparable harm, and the claim is moot because Plaintiff has been transferred to a different SCDC institution. (Dkt. No. 34-1 at 18-19.) The record shows Plaintiff is currently incarcerated at Turbeville Correctional Institution (“Turbeville”). (Dkt. No. 34-4 at 1.) Plaintiff responds that “the failures of Defendant SCDC alleged by the Plaintiff are not just Lee related; they are systemic and system wide issues” and are occurring “at McCormick, Lieber, Evans, Broad River, and a variety of other SCDC correctional institutions.” (Dkt. No. 37 at 23.)

“[A] case is moot when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the out-come.” Powell v. McCormack, 395 U.S. 486, 496 (1969). Relevant here, “an inmate's transfer to a separate prison facility moots his requests for injunctive relief, so long as the transfer prevents the inmate from encountering those same allegedly unconstitutional prison conditions that gave rise to his original grievances.” Turner v. Clelland, No. 1:15-cv-947, 2016 WL 6997500, at *13 (M.D. N.C. Nov. 30, 2016), adopted sub nom. Turner, Jr. v. Clelland, 2017 WL 913630 (M.D. N.C. Mar. 7, 2017) (citing, e.g., West v. Grams, 607 Fed. App'x. 561, 566 (7th Cir. 2015) (noting that “a prison transfer might moot a claim for injunctive relief if the transfer means that the inmate no longer is laboring under the allegedly unconstitutional policy or practice”); Wright v. Bennett, No. 5:08-CT-3129, 2010 WL 3075519, at *3 (E.D. N.C. Aug. 4, 2010) (explaining that “[t]he Fourth Circuit has consistently held that when a prisoner is no longer subject to the alleged unconstitutional condition, the claim is moot, ” and citing cases)).

Here, the Roth Report provides compelling evidence that SCDC “faces a significant shortage in the number of security personnel available to meet the mission of the agency.” (Dkt. No. 37-7 at 3.) As discussed above, the Roth Report is dated March 2018 and provides a “security staffing assessment” for 13 SCDC institutions, including Lee and Turbeville. (Id. at 2.) Based on the widespread staffing issues at SCDC, the documented effects such staffing issues have on incidents of contraband and assaults, and the question of fact as to whether action has been taken to remedy these issues following the issuance of the Roth Report, the undersigned finds Plaintiff's transfer from Lee does not remove the possibility that Plaintiff will suffer similar future violations under federal law and state tort law while incarcerated. Cf. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (concluding that the inmate's transfer to another prison rendered moot his claims for declaratory and injunctive relief, “since he is unlikely to return to [that prison]”).

Based on the foregoing, the undersigned finds Defendants' arguments for the dismissal of Plaintiff's claim for injunctive relief are without merit. The claim should not be dismissed as moot and should proceed against SCDC.⁷

7 Given that Joyner is no longer employed by SCDC, there is no basis for Plaintiff's state law claim for injunctive relief to proceed against him. Further, there is no evidence Tisdale or Sharpe can provide the prospective injunctive relief sought by Plaintiff.

D. Gross Negligence Claim against SCDC

Finally, Plaintiff brings a gross negligence claim against SCDC under the SCTCA. The SCTCA provides that “a governmental entity is not liable for a loss resulting from responsibility or duty including but not limited to supervision, protection, control, confinement, or custody of any . . . prisoner, inmate, or client of any governmental entity, except when the responsibility or duty is exercised in a grossly negligent manner.” S.C. Code Ann. § 15-78-60(25) (2005) (emphasis added). “Gross negligence is the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do. It is the failure to exercise slight care.” Jinks v. Richland Cty., 355 S.C. 341, 345, 585 S.E.2d 281, 283 (2003) (internal citation omitted). “The term is relative and means the absence of care that is necessary under the circumstances.” Moore by Moore v. Berkeley Cty. Sch. Dist., 326 S.C. 584, 591, 486 S.E.2d 9, 13 (Ct. App. 1997). To plead the following elements to state a claim for gross negligence, a plaintiff must show: (1) a duty of care owed to the plaintiff by the defendant; (2) a breach of that duty by a grossly negligent act or omission; and (3) damages proximately resulting from the breach of duty. See Cockrell v. Lexington Cty. Sch. Dist. One, No. 3:11-cv-2042-CMC, 2011 WL 5554811, at *5 (D.S.C. Nov. 15, 2011). Gross negligence is a mixed question of law and fact and should be presented to the jury unless the evidence supports only one reasonable inference. Bass v. S.C. Dep't of Soc. Servs., 414 S.C. 558, 571, 780 S.E.2d 252, 259 (2015).

Here, the Complaint alleges that SCDC acted in a grossly negligent and reckless manner by, inter alia, (1) “allowing uncontrolled violence in the correctional institution”; (2) “failing to provide protection and security for the Plaintiff”; (3) “employing employees who were contributory to the violence in the prison.”; and (4) “failing to discipline its correctional officers for violations of SCDC policies and procedures.” (Dkt. No. 1-1 at 11-12.)

As an initial matter, the undersigned has recommended summary judgment be denied on Plaintiff's Eighth Amendment claims against Joyner. Accordingly, summary judgment should also be denied to SCDC on the state law claim arising from the assault at issue. See A.P. ex rel. Bazerman v. Feaver, No. 04-15645, 2008 WL 3870697 at *12 (11th Cir. Aug. 21, 2008) (“[D]eliberate indifference requires a much higher standard of fault than mere or even gross negligence ....”). More specifically, the Roth Report states “[s]ecurity staffing levels have been a critical concern at Lee for an extended period.... [A] significant decrease in front-line security (FLS) staffing levels began in 2012 and had continued to decline through the middle of 2017.” (Dkt. No. 37-7 at 100.) The Report documents “an extremely high number of fatal incidents” at Lee between 2009 and 2018. (Id. at 105.) Based on the information detailed in the Roth Report and the quarterly contraband reports, there is a question of fact as to whether SCDC failed to give the care necessary under the circumstances alleged in this action and therefore acted in a grossly negligent manner. See Moore by Moore, 326 S.C. at 591.

Defendants' arguments to the contrary are without merit. Defendants rely on the South Carolina Supreme Court case, Hamilton v. Charleston Cty. Sheriff's Dep't, 731 S.E.2d 727 (S.C. Ct. App. 2012), to argue for summary judgment on Plaintiff's gross negligence claim. (Dkt. No. 34-1 at 16-17.) In Hamilton, an inmate brought action against the county sheriff's department for negligent training and negligent supervision of a prison guard who engaged in sexual misconduct with the inmate. 731 S.E.2d at 728. The court affirmed granting a directed verdict to the department based on “uncontradicted evidence” that the department met South Carolina security standards and the absence of evidence that the department should have known the prison guard required additional supervision. Id. at 730. Citing Hamilton, Defendants assert that Plaintiff cannot “show a complete absence of care by Defendant SCDC, ” and the “evidence clearly shows at least slight care was exercised by Defendant SCDC's employees.” (Dkt. No. 34-1 at 17.) The undersigned finds Hamilton inapposite here, given the evidence contained in the Roth Report and the quarterly contraband reports, discussed above. In other words, the evidence creates a genuine issue of material fact as to whether SCDC failed to give the care necessary under the circumstances alleged in this action and therefore acted in a grossly negligent manner. See Moore by Moore, 326 S.C. at 591.

Accordingly, summary judgment should be denied as to Plaintiff's state law gross negligence claim against SCDC. See Bass, 414 S.C. at 571 (gross negligence is a mixed question of law and fact and should be presented to the jury unless the evidence supports only one reasonable inference). The undersigned recommends that the Court exercise supplemental jurisdiction over the state law claims for injunctive relief and gross negligence under 28 U.S.C § 1367(c).

CONCLUSION

Based on the foregoing, it is RECOMMENDED that the Court GRANT Defendants' Motion for Summary Judgment (Dkt. No. 34) based on Plaintiff's failure to exhaust administrative remedies and REMAND Plaintiff's state law claims to Lee County.

IN THE ALTERNATIVE, it is RECOMMENDED that the Court GRANT IN PART AND DENY IN PART Defendants' Motion for Summary Judgment (Dkt. No. 34) on the merits.

More specifically, summary judgment should be denied on the merits as to Plaintiff's § 1983 claims for deliberate indifference, supervisory liability and failure to train against Joyner in his individual capacity, and Plaintiff's state law claims against SCDC for gross negligence and injunctive relief. The remainder of Plaintiff's claims should be dismissed with prejudice, and Tisdale and Sharpe should be dismissed from this action.

IT IS SO RECOMMENDED.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4^th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29402

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).