Opinion
Civil Action 4:20-cv-2071-SAL-TER
01-25-2022
ORLANDO PAUL, #231996, Plaintiff, v. OFFICER WINGARD, WARDEN STEPHON, SYLVIA ROBERTS, and MRS. GAMBREL, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
In this action, Plaintiff, who is a pro se prisoner, alleges various violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Presently before the Court is Defendants' Motion for Summary Judgment (ECF No. 71). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motions could result in dismissal of his Complaint. After receiving two extensions of time to respond to Defendants' motion, Plaintiff filed a response. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
A. Sexual Assault
Plaintiff's complaint in this action is lengthy and includes a No. of allegations. He alleges that in May of 2018, while he was housed in lock-up (also known as RHU) at the Broad River Correctional Institution (BRCI), he was sexually assaulted in the shower by Officer Wingard, who punched and choked him, rammed his head into the shower wall, penetrated his anus with his fingers, and squeezed his testicles. Compl. pp. 5-6, 17, 19, 20-21 (ECF No. 1). Plaintiff alleges that Officer Wingard is an active member of the blood gang and, following the assault, took Plaintiff to the cells of several known gang members “engaging them in pointed conversation about ‘what happens to snitches and faggots.'” Compl. p. 21-22. Officer Wingard continuously threatened Plaintiff with assaults, labels, and death. Compl. p. 22.
Plaintiff alleges that he was first questioned about the alleged assault by Defendant Roberts and Nurse Ware on August 16, 2018, approximately three months after Plaintiff first reported the assault to Defendant Roberts. Compl. p. 29. Nurse Ware stated that too much time had passed to gather any physical evidence and asked Defendant Roberts why she did not notify medical of the assault as soon as she was notified. Compl. p. 29. Defendant Roberts stated that she notified a nurse at the time. Compl. p. 29. The conversation between Defendant Roberts and Nurse Ware confirmed Plaintiff's suspicions that Defendant Roberts had forgotten about his PREA complaint. Compl. p. 29. Her failure to report the assault in a timely and meaningful manner is a depravation of Plaintiff's constitutional rights. Compl. p. 30.
Prison Rape Elimination Act, 42 U.S.C. § 42 U.S.C. § 15601.
Plaintiff alleges that on August 29, 2018, BRCI Investigators Ward and Titus spoke with Plaintiff regarding his PREA complaint after being contacted by Nurse Ware. Compl. p. 35. They indicated that Defendant Roberts often failed to perform her job adequately and Plaintiff should have attempted to contact a different mental health counselor after Defendant Roberts failed to act. Compl. p. 35. On September 5, 2018, Investigator Ward came to Plaintiff's cell door and told him that the Associate Warden would not take Plaintiff's allegations seriously until Plaintiff identified an assailant. Compl. p. 36. Plaintiff explained his fears of retaliation but wrote Officer Wingard's name on a piece of paper and gave it to Investigator Ward. Compl. p. 36. Plaintiff never saw Investigator Ward or Titus after he identified his assailant. Compl. p. 36. On November 11, 2018, Plaintiff had a verbal altercation with Officer Wingard in front of other prisoners who wanted to know what Officer Wingard meant when he said “this faggot ass nigga snitching.” Compl. p. 39; Ex. B, Ex. C.
Other evidence in the record reveals that on June 13, 2018, SCDC officials received a Step One Grievance Form (dated by Plaintiff June 11, 2018), in which Plaintiff stated that on May 29, 2018, he finally gathered the courage to approach Lieutenant Bracey and inform her that she would like to file a PREA complaint. Step One Grievance dated June 11, 2018 (ECF No. 71-12). Lieutenant Bracey informed Plaintiff that she called the proper authorities and someone would come speak to him that day, but no one did. Id. On May 30, 2018, Plaintiff submitted a Request to Staff Member (RTSM) form indicating that no one had come to speak to him about his complaint. Id.; RTSM Form dated May 30, 2018 (ECF No. 71-12). On June 8, 2018, Plaintiff passed Defendant Roberts, a mental health employee, a note regarding his complaint and she stated that she did not believe him but “she was going into protocol.” Step One Grievance dated June 11, 2018 (ECF No. 71-12). As of June 11, 2018, neither Defendant Roberts nor anyone else had returned to speak to Plaintiff about his complaint. Id.
On June 18, 2018, Associate Warden Peeples completed an Incident Report stating that he had received Plaintiff's Step One grievance form alleging a sexual assault but noted that Plaintiff failed to name an assailant. Incident Report dated June 18, 2018 (ECF No. 71-12). Associate Warden Peeples stated in the Incident Report that Plaintiff did not want to be interviewed at his cell door and requested that the process be completed in private. Id. Associate Warden Peeples indicated that Plaintiff's Step One Grievance form and his Incident Report would be forwarded to the appropriate personnel. Id.
On July 9, 2018, Daniel Catoe with SCDC's Police Services sent an email to Warden Stephan and Associate Warden Peeples indicating that the PREA allegation made by Plaintiff had been closed as unsubstantiated because Plaintiff “refused to cooperate at all with this investigation. It appears that inmate Paul was trying to remain in RHU due to him being moved from Lee.” Catoe Email dated July 9, 2018 (ECF No. 71-12). There is no indication in the record that Plaintiff was notified at this time that the investigation into his complaint was closed.
Plaintiff filed another Step One Grievance on February 19, 2019, complaining of, among other things, the lack of investigation into his PREA complaint. Compl. p. 59; Step One Grievance dated Feb. 19, 2019 (ECF No. 1-1, p. 1). He received a response on December 30, 2019, stating that his PREA allegation made on June 11, 2018, was found to be unsubstantiated and his case was closed. Compl. p. 59; Memo dated Dec. 30, 2019 (ECF No. 1-1, p. 80).
B. Denial of Basic Necessities
Plaintiff alleges that he informed Warden Stephon on August 1, 2018, that he had been without a mattress, blanket, spoon, washcloth, or underwear for 18 days. Compl. p. 18, 34. He alleges that unknown security staff intentionally lost his property to prevent him from following up with his complaint. Compl. p. 18. Officer Wingard bragged that he was the reason for Plaintiff's lost property. Compl. p. 23. Plaintiff alleges that he was also denied legal mail and religious books. Compl. p. 23.
Plaintiff attached to his complaint numerous RTSM forms and Step One Grievance forms regarding the denial of property, legal materials, and religious materials.
C. Denial of Mental Health Treatment
Plaintiff had difficulty engaging with mental health staff following the alleged sexual assault even after exhibiting and relating self-injurious behavior. Compl. p. 26. Defendant Roberts unnecessarily prolonged and delayed providing Plaintiff proper mental health care, which caused him to become suspicious, paranoid, jittery, and suicidal. Compl. p. 26. Defendant Gambrel failed to properly and legally document Plaintiff's sexual assault. Compl. p. 26, 41-42. Even though Plaintiff was already suffering from mental health problems prior to the sexual assault, the problems were exacerbated by the actions of all Defendants. Compl. p. 27.
In November of 2018, Plaintiff began to seek counseling from providers independent of SCDC. Compl. p. 36. He received treatment from a counselor with Sexual Trauma Services of the Midlands (STSM), but was told by the counselor that she had difficulty meeting with people housed in the Saluda and Monticello dorms at BRCI. Compl. p. 36. Plaintiff was able to meet with the counselor face-to-face for a period of time, though their sessions were often interrupted, and he also corresponded with her via letters. Compl. p. 37. On February 23, 2019, the counselor notified Plaintiff that she would no longer be able to meet with him in person due to ongoing scheduling issues with BRCI. Compl. p. 37.
Plaintiff attached to his complaint numerous RTSM forms and Step One Grievance forms regarding his need for mental health treatment.
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, arguing that Defendants violated numerous constitutional rights. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A legal action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). To be successful on a claim under § 1983, a plaintiff must establish two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The parties do not dispute that they were acting under color of state law in their individual capacities at all times relevant to this action.
A. Failure to Exhaust Administrative Remedies
Defendants argue that summary judgment is appropriate in part because Plaintiff failed to exhaust his administrative remedies. The Prison Litigation Reform Act (PLRA) requires that a prisoner exhaust the available administrative remedies before filing a 1983 action concerning conditions of his confinement. 42 U.S.C.1997e(a). In enacting the PLRA, Congress carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing a civil rights suit. The PLRA amended section 1997e so that it now provides, “No 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.” Id. § 1997e(a). Accordingly, before Plaintiff may proceed with his claims in this Court, he must first exhaust his administrative remedies. The United States Supreme Court has held that “Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); see Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Jones v. Smith, 266 F.3d 399 (6th Cir.2001) (exhaustion required even though Plaintiff claimed futility); Larkin v. Galloway, 266 F.3 d 718 (7th Cir.2001) (exhaustion required even though Plaintiff claimed he was afraid); see also Claybrooks v. Newsome, 2001 WL 1089548 (4th Cir., Sept. 18, 2001) (unpublished opinion) (applying Booth v. Churner to affirm district court's denial of relief to Plaintiff). A failure to exhaust all levels of administrative review is not “proper exhaustion” and will bar actions filed by inmates under any federal law, including § 1983. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006).
SCDC's Policy includes an Inmate Grievance System which is available to all inmates regardless of custody level, classification, disciplinary status, disability, language, or skills. SCDC provides inmates with a procedure through which they may file grievances on issues related to conditions that directly affect them. This procedure is explained to inmates when they first enter SCDC. In order to properly exhaust his administrative and state remedies, under SCDC Policy No. GA-01.12, “Inmate Grievance System, ” a prisoner alleging a wrong by a staff member must first attempt to settle the matter informally by sending a Request to Staff Member (RTSM) to the appropriate staff member within eight working days of the incident. See Inmate Grievance System SCDC Policy No. GA-01.12. Inmates are permitted to file five grievances per month, which includes grievances that are returned to them unprocessed for any reason. Id. All grievances in excess of five are returned to the inmate as unprocessed, except disciplinary conviction appeals or classification and custody level reviews. Id. Only after receiving a response to the RTSM, may the inmate file a Step 1 Grievance. Id. The inmate must attach the response to the RTSM to the Step 1 Grievance. Id. The Step 1 Grievance is reviewed by an inmate grievance coordinator at the inmate's institution, who then makes a recommendation to the warden as to what action to take in response. Id. The warden then issues their response to the grievance in writing. Id. If the inmate is dissatisfied with the warden's decision, he or she can appeal it by filing a Step 2 grievance within five calendar days of receiving the response to the Step 1 Grievance. Id. The response to that Step 2 grievance is SCDC's final decision with regard to that matter. Id.
See http://www.doc.sc.gov/policy/policy.html. Defendants cite to the Inmate Grievance Policy but did not attach a copy of the policy as an exhibit to their motion. Nevertheless, this court may take judicial notice of the SCDC inmate grievance policy. See Hall v. Virginia, 385 F.3d 421, 424 & n.3 (4th Cir. 2004) (taking judicial notice of publicly available information on state government's website).
As set forth above, Plaintiff attached to his Complaint numerous RTSM forms and Step One Grievance forms that he completed with respect to the various issues he has raised in this action, including the sexual assault, lack of a proper investigation into his complaint of sexual assault, his lack of mental health treatment following the assault, and the denial of basic necessities, religious materials and legal materials following the assault. However, he did not attach any Step Two Grievance forms. He admits that he did not file any Step Two Grievances but asserts that he failed to do so because he never received responses to his Step One Grievances and inmates can only get a Step Two Grievance form from a grievance coordinator after receiving said response. However, each of the Step One Grievance forms Plaintiff attached to his complaint except for two, discussed below, include a response from the Inmate Grievance Coordinator. See Step One Grievance Forms (ECF No. 1-1, pp. 18, 28, 42, 48, 49, 51, 66, 79, 81).
One Step One Grievance form, dated July 23, 2018, in which Plaintiff complains of being denied personal and legal property, does not include a response from the Inmate Grievance Coordinator. Step One Grievance Form dated July 23, 2018 (ECF No. 1-1, p. 15). However, there is also no indication on the form that it was ever submitted. Id. In addition, Plaintiff filed other Step One Grievance forms addressing the same issues that did receive a response.
The other Step One Grievance form, dated February 19, 2019, includes all of the allegations he has raised in this action, but does not include a response from the Inmate Grievance Coordinator. Step One Grievance Form dated Feb. 19, 2019 (ECF No. 1-1, p. 1). Plaintiff submitted a RTSM form on July 23, 2019, inquiring as to the status of the February 19, 2019, Step One Grievance, and received a response stating “All PREA related ‘grievances' are forwarded to the PREA Compliance Manager (usually the Associate Warden) for processing. Inmate Grievances no longer process[es] such grievances as of Today's date. Your response will come from the PREA Compliance Manager.” RTSM Form dated July 23, 2019 (ECF No. 1-1, p. 75). On December 30, 2019, Plaintiff received a Memorandum from Associate Warden Arthur Fredericks stating that his PREA allegation made on June 11, 2018, was found to be unsubstantiated. Memo dated Dec. 30, 2019 (ECF No. 1-1, p. 80).
Plaintiff acknowledged in his complaint that he did not file an appeal because he assumed the response he received in the Memorandum was the final agency response. Compl. p 59. He also stated that “in all grievance situations you are given the option to accept the disposition or appeal. Plaintiff has not been given that option.” Compl. p. 59. Defendants did not specifically address the grievance procedure requirements with respect to allegations of sexual assault and, thus, the undersigned directed the parties to file a supplemental brief addressing the issue.
As an initial matter, courts have held that “PREA complaints are not prison grievances for purposes of satisfying the administrative remedies requirement under the PLRA.” See Barringer v. Stanley, No. 5:16-CV-17-FDW, 2017 WL 1028595, at *3 (W.D. N.C. Mar. 16, 2017) (citing Porter v. Howard, 531 Fed.Appx. 792, 793 (9th Cir. 2013) (“[Plaintiff] provides no support for his contention that he was excused from the requirement that he file an administrative grievance by operation of the Prison Rape Elimination Act of 2003 ....”); Omaro v. Annucci, 68 F.Supp.3d 359, 364 (W.D.N.Y. 2014) (“Nothing in the text or legislative history of the PREA suggests that it was intended to abrogate the PLRA's exhaustion requirement.”); Lamb v. Franke, No. 2:12-cv-367-MO, 2013 WL 638836, at *2 (D. Or. Feb. 14, 2013) (unpublished) (“The PREA does not impose an alternative remedial scheme, nor does it supersede PLRA's exhaustion requirement.”); Myers v. Grubb, No. CV 12-29-H-DLC, 2013 WL 352194, at *1 (D. Mont. Jan. 29, 2013) (“The Prison Rape Elimination Act (‘PREA') does not impose a different administrative remedy scheme or supersede PLRA's requirement that a prisoner exhaust all available administrative remedies before filing suit.”)).
Defendants assert that the only differences in SCDC's grievance procedure with respect to allegations of sexual assault are that the inmate is not required to attempt an informal resolution by submitting a RTSM form prior to submitting a Step 1 grievance, nor is the inmate bound by a time limitation for raising an allegation of sexual assault. SCDC Policy No. GA-01.12, Section 15.2.1. Though the policy provides for a different procedure of investigation of such claims, see SCDC Policy No. GA-01.12, Section 15.2.6 (providing that grievances involving sexual assault will be provided to the PREA Compliance Manager for investigation and providing recommended responses), it does not change the manner in which the inmates are required to proceed through the grievance process other than the manner in which the grievance is initiated. The policy provides that “[t]he Agency will provide an Agency final response to any grievances alleging sexual abuse within 90 days of the initial filing of the grievance. The 90 days will not include time consumed by the inmate preparing any administrative appeal.... “If the inmate does not receive a response in the time allotted for a reply the inmate may consider the absence of a response to be a denial at that level.” SCDC Policy No. GA-01.12, Section 15.2.2. Nothing in Section 15.2 of the grievance procedure indicates that an inmate is not otherwise responsible for following the normal grievance procedure, which requires an inmate to file a Step 2 grievance within five days of receiving a response to the Step 1 grievance if he is dissatisfied with the response. SCDC Policy No. GA-01.12, Section 13.6, 13.7. Though Section 15.2 does reference an “Agency final response, ” it clearly contemplates an appeal and that there is more than one level of the grievance process. Further, the grievance policy specifically states that “allegations involving sexual conduct between inmates and staff constitute criminal activity, ” SCDC Policy No. GA-01.12, Section 13.2, and that such grievances still require a Step 2 appeal. SCDC Policy No. GA-01.12, Sections 15, 15.1. As stated above, Plaintiff failed to file a Step 2 grievance after receiving a response on December 30, 2019, that his claims of sexual assault were found to be unsubstantiated. Though Plaintiff stated in his complaint that he did not file an appeal because he assumed the response he received was the final agency response, a prisoner's lack of “full knowledge of the specifics of the grievance process does not excuse or waive a failure to exhaust administrative remedies.” Graham v. County of Gloucester, Va., 668 F.Supp.2d 734, 741 (E.D. Va. 2009); see also Ross v. Blake, 136 S.Ct. 1850 (2016) (refusing to recognize a “special circumstances” exception to the exhaustion requirement where the prisoner reasonably, but mistakenly, believed that he had sufficiently exhausted his administrative remedies). Further, Defendants note that Plaintiff had a subsequent opportunity to exhaust his administrative remedies with respect to his sexual assault allegations but failed to do so on that occasion as well. During an institutional transfer from Broad River to Allendale Correctional Institution, Plaintiff again raised allegations that he was sexually assaulted by a correctional officer in May 2018. On October 9, 2019, LPN Yawanda Smith was conducting a standard PREA screening during the rehousing process when Plaintiff claimed to Smith that he had been assaulted around May 2018. Incident Report (ECF No. 99-3). She reported this allegation, leading to Associate Warden Arthur Fredricks speaking with Plaintiff on October 15, 2019. Fredricks Written Statement (ECF No. 99-1). Associate Warden Fredricks informed Plaintiff of his available options for pursuing this allegation of sexual assault. Fredricks Written Statement (ECF No. 99-1). Plaintiff remarked to Fredricks that the matter was over and he had no remaining concerns. Fredricks Written Statement (ECF No. 99-1). Thus, even when Plaintiff was given an additional opportunity to grieve the sexual assault, he declined to do so, just as he declined to file a Step 2 grievance.
Under the laws of both statutory and contract construction, language is ambiguous only if it lends itself to more than one reasonable interpretation. Newport News Shipbuilding & Dry Dock Co. v. Brown, 376 F.3d 245, 248 (4th Cir.2004); CNH Indus. N.V. v. Reese, 138 S.Ct. 761, 765, 200 L.Ed.2d 1 (2018); cf. Scible v. Steward, No. CIVA 1:08CV100, 2010 WL 933857, at *13 (N.D. W.Va. Mar. 11, 2010) (holding that a prison policy is not vague and ambiguous unless a prisoner of normal intelligence could not reasonably determine that his conduct would violate the particular regulation). Here, given the specific references to appeals and different levels of the process within the section addressing complaints of sexual assault, it would not be a reasonable interpretation to conclude that appeals are not required with respect to such grievances. As noted above, “PREA does not impose an alternative remedial scheme, nor does it supersede PLRA's exhaustion requirement.” Lamb v. Franke, No. 2:12-cv-367-MO, 2013 WL 638836, at *2 (D. Or. Feb. 14, 2013) (unpublished)); see also Myers v. Grubb, No. CV 12-29-H-DLC, 2013 WL 352194, at *1 (D. Mont. Jan. 29, 2013) (“The Prison Rape Elimination Act (‘PREA') does not impose a different administrative remedy scheme or supersede PLRA's requirement that a prisoner exhaust all available administrative remedies before filing suit.”).
The PLRA's exhaustion requirement is a robust one. See Ross, 136 S.Ct. at 1856-58. Prisoners must therefore diligently and properly follow the administrative procedures that are available. See Woodford, 548 U.S. at 90. Because Plaintiff failed to exhaust at all levels of administrative review with respect to the issues raised in this action, summary judgment is appropriate as to all such claims. Woodford, 548 U.S. at 81, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006).
However, to the extent the district disagrees and finds that Plaintiff has exhausted his administrative remedies with respect to the sexual assault claim, the merits of that claim are discussed below.
The other claims raised in that same grievance-lack of a proper investigation into his complaint of sexual assault, his lack of mental health treatment, and the denial of basic necessities, religious materials and legal materials-had all been raised by Plaintiff in previous grievances, which, as discussed above, he failed to appeal. Even if he had not previously raised those issues, they would have been untimely under the grievance policy, which requires inmates to raise an issue in a RTSM within eight days of the incident. See Inmate Grievance System SCDC Policy No. GA-01.12, Section 13.2. Ass stated above, grievances alleging sexual abuse have no time limit. SCDC Policy No. GA-01.12, Section 15.2.1.
B. Eighth Amendment
The Eighth Amendment protects prisoners from “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010). An Eighth Amendment claim for excessive force requires the prisoner to prove the official possessed a culpable state of mind (subjective component) and caused the prisoner a sufficiently serious deprivation or injury (objective component). Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996).
The subjective component requires a claimant to prove the official acted “maliciously and sadistically for the very purpose of causing harm” rather than “in a good faith effort to maintain or restore discipline.” Whitley, 475 at 320-321 (internal quotation marks omitted). In Whitley, the Supreme Court identified the following four factors to consider when determining whether a prison official's actions were carried out “maliciously and sadistically” to cause harm: (1) the need for application of force; (2) “the relationship between the need and the amount of force” used; (3) “the extent of the injury inflicted”; and (4) “the extent of the threat to the safety of staff and inmates as reasonably perceived by the responsible officials on the basis of the facts known to them.” Whitley, 475 U.S. at 321 (1986). Whether there is an Eighth Amendment violation in the context of a prison disturbance depends upon “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins, 130 S.Ct. 1175, 1178. See also Hudson v. McMillan, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). “The objective component measures the force used against contemporary standards of decency.” Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995 (1992). When a prisoner satisfies the subjective standard, “contemporary standards of decency always are violated.” Id. at 9.
As stated above, Plaintiff asserts in his verified complaint that in May of 2018, while he was housed in lock-up (also known as RHU) at the Broad River Correctional Institution (BRCI), he was sexually assaulted in the shower by Officer Wingard, who punched and choked him, rammed his head into the shower wall, penetrated his anus with his fingers, and squeezed his testicles. Compl. pp. 5-6, 17, 19, 20-21 (ECF No. 1). “Sexual abuse is repugnant to contemporary standards of decency and allegations of sexual abuse can satisfy the objective component of an Eighth Amendment excessive force claim.” Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003). “A prison guard may violate the Eighth Amendment by sexually harassing or sexually assaulting an inmate. Sexual assault is not a legitimate part of a prisoner's punishment, and the substantial physical and emotional harm suffered by a victim of such abuse are compensable injuries under § 1983. Ellis v. Elder, 2009 WL 275316, at *3 (W.D. Va. Feb. 4, 2009). Defendants argue that summary judgment is appropriate because the record reflects only allegations concerning sexual assault and there are no “tests, documentation, evidence, etc. that substantiate the assault.” Def. Mem. pp. 14-15. Defendants point to the conclusion by Police Services that it could not verify the assault based upon the information provided during its investigation. However, at this stage of the litigation, all facts are to be construed in the light most favorable to Plaintiff, and his “verified complaint is the equivalent of an opposing affidavit for summary judgment purposes, when the allegations contained therein are based on personal knowledge.” Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). Further, Police Services found only that Plaintiff's claims could not be substantiated because Plaintiff refused to cooperate in the investigation. Incident Report dated June 18, 2018 and Catoe Email dated July 9, 2018 (ECF No. 71-12). Based upon the evidence in the record, a dispute of fact exists as to whether Officer Wingard sexually assaulted Plaintiff in violation of the Eighth Amendment, which must be resolved by a jury and not the court. Therefore, summary judgment is not appropriate as to Plaintiff's eighth amendment claim of sexual assault as to Officer Wingard.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion for Summary Judgment (ECF No. 71) be granted for Plaintiff's failure to properly exhaust his administrative remedies and this case be dismissed. In the alternative, it is recommended that Defendants' Motion for Summary Judgment be denied as to Plaintiff's Eighth Amendment sexual assault claim against Officer Wingard and that it be granted as to all other claims as a result of Plaintiff's failure to properly exhaust his administrative remedies.