Opinion
Civil Action 2:19-1551-RBH-MGB
07-02-2021
Ontavious Derenta Plumer, Plaintiff, v. Officer Collier, Lt. Taylor, Officer Banks, and Officer Harden, [1] Defendants.
ORDER AND REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated the Eighth Amendment's ban on cruel and unusual punishment. Currently before the Court are (1) Defendants' Second Motion for Summary Judgment (Dkt. No. 144) and (2) Plaintiff's Motion for Supplemental Jurisdiction (Dkt. No. 149). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), 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 Defendants' Second Motion for Summary Judgment (Dkt. No. 144) be granted and orders that Plaintiff's Motion for Supplemental Jurisdiction (Dkt. No. 149) be denied.
BACKGROUND
This civil action arises from an inmate-on-inmate assault that occurred while Plaintiff was housed at McCormick Correctional Institution (“McCormick”). (Dkt. No. 109; Dkt. No. 109-1; Dkt. No. 109-2.) Plaintiff alleges that, on December 28, 2018, he “was attacked in [his] cell by inmates that stabbed [him] once in the arm and twice in the head.” (Dkt. No. 109-1 at 2.) Plaintiff alleges that the inmates who attacked him were gang members and that they attacked him because they thought he was a “snitch.” (Dkt. No. 109-2 at 5.) Plaintiff alleges that Defendants were deliberately indifferent in failing to protect him from this attack, and in failing to provide proper medical care following the attack. (Id.) Plaintiff contends that Defendants therefore violated the Eighth Amendment's ban on cruel and unusual punishment. (Id.)
Plaintiff alleges that he suffered life threatening injuries as a result of the incident. (Dkt. No. 109-1 at 2.) He seeks declaratory relief and compensatory damages. (Dkt. No. 109-1 at 3; Dkt. No. 109-2 at 5.)
Plaintiff brought the instant action on or about May 29, 2019. (Dkt. No. 1.) On July 7, 2020, the Court granted Plaintiff's request to amend his original complaint. (Dkt. No. 106.) Plaintiff's Amended Complaint was entered that same day. (Dkt. No. 109.) On August 21, 2020, Defendants filed a Motion for Summary Judgment. (Dkt. No. 115.) After receiving multiple extensions of his deadline to respond to Defendants' Motion, Plaintiff filed a Response in Opposition on January 8, 2021. (Dkt. No. 132.) Defendants timely replied. (Dkt. No. 135.) On January 25, 2021, the undersigned issued a Report and Recommendation recommending that Defendants' Motion for Summary Judgment be granted in part and denied in part. (Dkt. No. 136.)
On August 24, 2020, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedure and the possible consequences if he failed to adequately respond to Defendants' Motion. (Dkt. No. 116.) Plaintiff's response was due on September 24, 2020, and Plaintiff did not file a response to the Motion. In light of Plaintiff's pro se status, the Court filed an Order on October 1, 2020, giving Plaintiff through October 20, 2020 to file his response to the Motion for Summary Judgment. (Dkt. No. 118.) Plaintiff was advised that if he failed to respond, this action would be dismissed. Plaintiff then filed a Motion for Extension of Time to file his response to Defendants' Motion for Summary Judgment on October 16, 2020. (Dkt. No. 120). The Court noted that Plaintiff's Motion made certain allegations regarding his access to the law library and ordered Defendants to respond. (Dkt. No. 121). Defendants filed their response to the Court's Order on October 30, 2020. (Dkt. No. 123.) On November 12, 2020, the undersigned held a telephone conference to discuss Plaintiff's Motion for Extension of Time. (Dkt. No. 124; Dkt. No. 126.) Following the telephone conference, the undersigned granted Plaintiff's Motion and ordered the parties to provide an update of Plaintiff's online access by November 19, 2020. (Dkt. No. 126.) Upon receiving confirmation that Plaintiff was given access to the legal materials necessary for him to draft his response to Defendants' pending Motion for Summary Judgment, the undersigned extended Plaintiff's deadline to respond to December 17, 2020. (Dkt. No. 128.) The Court received Plaintiff's Response in Opposition to Defendants' Motion on January 8, 2021. (Dkt. No. 132.)
More specifically, the undersigned recommended that summary judgment based on non-exhaustion be denied. (Id. at 17.) The undersigned further recommended that summary judgment be denied as to Plaintiff's failure to protect claims against Defendants Collier, Banks, and Harden, and that summary judgment be granted with respect to Plaintiff's claims for failure to protect and deliberate indifference to Plaintiff's serious medical needs against Defendant Taylor. (Id. at 29.)
Shortly after the undersigned issued that Report and Recommendation, the United States Court of Appeals for the Fourth Circuit issued Goodman v. Diggs, 986 F.3d 493 (4th Cir. 2021). In Goodman, the Fourth Circuit held that “an amended complaint does not divest an earlier verified complaint of its evidentiary value as an affidavit at the summary judgment stage.” 986 F.3d at 499. Thus, the Fourth Circuit determined that unverified amended complaints supersede prior verified complaints for pleading purposes only. Id. at 488-89. In other words, the Fourth Circuit concluded that verified complaints must be considered for evidentiary purposes when ruling on a summary judgment motion. Id. Here, Plaintiff submitted a verified complaint and an unverified amended complaint. (See Dkt. No. 1; Dkt. No. 109; Dkt. No. 139 at 3.) Because the undersigned “did not have the benefit of Goodman when evaluating Defendants' summary judgment motion and entering the R & R, ” and because “[n]obody has had a chance to address Plaintiff's verified original complaint, ” the Court rejected the undersigned's Report and Recommendation, denied Defendants' Motion for Summary Judgment, and recommitted the matter to the undersigned for further proceedings consistent with Goodman. (Dkt. No. 139 at 3-4.)
As such, the undersigned instructed Defendants to renew their Motion for Summary Judgment in accordance with the Court's February 26, 2021 Order. (Dkt. No. 142.) On April 9, 2021, Defendants filed a Second Motion for Summary Judgment. (Dkt. No. 144.) Plaintiff's response to Defendants' renewed Motion was due on May 13, 2021. (Dkt. No. 145.) On May 19, 2021, Plaintiff had not filed a response to Defendants' renewed Motion. (Dkt. No. 147.) Thus, the undersigned entered an Order extending Plaintiff's response deadline to June 7, 2021. (Id.) In that Order, the undersigned explained that “[s]hould Plaintiff fail to respond to Defendants' Motion, the undersigned will consider Plaintiff's January 8, 2021 response brief in relation to the [] Motion. (Dkt. No. 132.)” (Id.) Plaintiff did not file a response to Defendants' Second Motion for Summary Judgment by the June 7 deadline. The undersigned has therefore considered Plaintiff's January 8, 2021 response brief in making the below recommendations to the Court.
Plaintiff did, however, file a “Motion to Proceed in Supplemental Jurisdiction” on June 7, 2021. (Dkt. No. 149.) Defendant timely replied to the Motion on June 15, 2021. (Dkt. No. 153.) As such, the Motions before the Court have been fully briefed and are ripe for disposition.
LEGAL STANDARDS
I. Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). “[L]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Jehovah v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015), cert. denied, 136 S.Ct. 1829 (2016), reh'g denied, 136 S.Ct. 2503 (2016) (internal quotation marks and citations omitted).
Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. Summary Judgment Standard
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 Anderson, 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.” Crawford v. Newport News Indus. Corp., No. 4:14-cv-130, 2018 WL 4561671, at *2. (E.D. Va. Mar. 2, 2018) (citing Celotex Corp., 477 U.S. at 317), 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). However, “[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, 2010 WL 1444190 (D.S.C. Apr. 9, 2010), aff'd, 402 Fed.Appx. 807 (4th Cir. 2010).
Given the Fourth Circuit's recent ruling in Goodman v. Diggs, 986 F.3d 493 (4th Cir. 2021), the undersigned has viewed Plaintiff's initial verified complaint as an affidavit and has considered its evidentiary value accordingly.
“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-256-DCC-JDA, 2019 WL 2090564, at *3 (D.S.C. Mar. 6, 2019), adopted, 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”)). In ruling on such 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.'” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); 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
Defendants seek dismissal pursuant to Rule 56 of the Federal Rules of Civil Procedure, arguing that they are entitled to summary judgment because: (1) Plaintiff failed to exhaust his administrative remedies; (2) Plaintiff failed to state a claim upon which relief may be granted against Defendants Harden, Taylor, and Banks; (3) negligence is an insufficient standard for imposing liability for § 1983 claims; (4) Plaintiff cannot establish that Defendants were deliberately indifferent; and (5) Defendants are entitled to qualified immunity. (Dkt. No. 144-1.) Plaintiff objects to each of these assertions. (Dkt. No. 132.) As discussed below, the undersigned finds that Plaintiff failed to exhaust his available administrative remedies prior to filing this civil action. The undersigned therefore recommends that Defendant's Motion for Summary Judgment be granted.
I. Defendants' Second Motion for Summary Judgment
A. Exhaustion of Administrative Remedies
Defendants first argue that they are entitled to summary judgment on account of Plaintiff's failure to exhaust his administrative remedies. (Dkt. No. 144-1 at 3-18.) In doing so, Defendants make four specific allegations that they contend justify summary dismissal based on non-exhaustion: (1) Plaintiff filed the instant litigation prior to receiving a response to his Step 1 grievance; (2) Plaintiff failed to appeal the response to his Step 1 grievance before filing this civil action; (3) Plaintiff did not provide Defendants sufficient notice of his Eighth Amendment claims in his Step 1 grievance; and (4) Plaintiff failed to utilize the administrative remedies available to him. (Id.) On the other hand, Plaintiff asserts that his failure to exhaust SCDC's administrative remedies is justified because: (1) he was placed in protective custody immediately following his attack; (2) SCDC's grievance policy is unclear; and (3) following SCDC's grievance policy was unnecessary in this case because SCDC conducted an “outside investigation” of Plaintiff's assault.(Dkt. No. 132 at 2-5.) The undersigned considers the parties' arguments, below.
Because the undersigned finds that Plaintiff failed to exhaust his administrative remedies for the reasons set forth below, the undersigned declines to fully address this argument. However, the undersigned notes that Plaintiff's grievance stated he “was assaulted by some gang bang members, [and] this incident happened [because] [] [Officer] Collier . . . allowed a group of inmates . . . out of their rooms . . . . The [officer] [was] negligent in failing to prevent this assault.” (Dkt. No. 132-4 at 2.) It seems clear from this language that Plaintiff's grievance put SCDC on notice of Plaintiff's potential suit for deliberate indifference and failure to protect. See Wilcox v. Brown, 877 F.3d 161, 167 n.4 (4th Cir. 2017) (“[T]o satisfy the exhaustion requirement, grievances generally need only be sufficient to ‘alert[ ] the prison to the nature of the wrong for which redress is sought.'” (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002))).
Construing Plaintiff's arguments liberally, the undersigned considers Plaintiff's first and second arguments as assertions that SCDC's administrative remedies were unavailable to Plaintiff. See Ross v. Blake, 136 S.Ct. 1850, 1853-54 (2016) (setting forth scenarios where administrative process is considered “unavailable”: (1) administrative process “operates as a simple dead end;” (2) administrative process is too opaque for an ordinary prisoner to discern or navigate; and (3) administrators prevent inmates from utilizing the grievance process through “machination, misrepresentation or intimidation.”)
Plaintiff also argues that his case should not be dismissed for failure to exhaust because Defendants failed to “plead PLRA in [their] responsive pleading.” (Dkt. No. 132 at 2.) However, Defendants did, in fact, raise Plaintiff's failure “to exhaust his readily available administrative or state court remedies” in their Answer to Plaintiff's Amended Complaint. (Dkt. No. 114 at 4.)
1. Exhaustion of Administrative Remedy Process
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 (7th Cir. 2002); see also White v. McGinnis, 131 F.3d 593, 595 (6th 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”). See http://www.doc.sc.gov/policy/GA-01-12.htm.pdf. 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. “If informal resolution is not possible, the grievant will complete Form 10-5, Step 1, . . . and will place the form in a designated grievance drop box within five (5) working days of the alleged incident.” Id. The Inmate Grievance System provides:
Defendants have not attached the Inmate Grievance System policy to their Motion. However, Defendants note that the policy is available at: http://www.doc.sc.gov/policy/GA-01-12.htm.pdf. A federal court may take judicial notice of factual information located in postings on governmental websites in the United States. See Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015) (“[A] court may properly take judicial notice of ‘matters of public record.'” (quoting Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009))); see also Mitchell v. Newsom, No. 3:11-cv-869-CMC-PJG, 2011 WL 2162723, at *3 n.1 (D.S.C. May 10, 2011) (collecting cases), adopted, 2011 WL 2162184 (D.S.C. June 1, 2011). As such, the undersigned takes judicial notice of SCDC's Inmate Grievance System policy for purposes of this Report and Recommendation.
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.
2. Unavailability of Administrative Remedy and Notice
Plaintiff does not dispute that he failed to exhaust his administrative remedies in accordance with the Inmate Grievance System. (See generally Dkt. No. 132.) Rather, he contends that SCDC's administrative remedies were not available to him, or, in the alternative, that he was not required to follow the Inmate Grievance System because SCDC conducted an “outside investigation” into his attack. (Dkt. No. 132 at 3-5.)
At the outset, the undersigned notes that Plaintiff conflates the criminal investigation into his attack conducted by SCDC's Division of Police Services with an investigation conducted by the IGC due to an inmate's grievance. (See id. at 4.) The “outside investigation” Plaintiff references was not an “an investigation triggered by the grievance process, ” as Plaintiff contends. (Dkt. No. 132 at 4, citing to Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005).) Rather, the “outside investigation” began on the day that Plaintiff was attacked and appears to have concluded before Plaintiff filed his Step 1 grievance. (See generally Dkt. No. 144-10.) Accordingly, such investigation could not have been a response to his grievance and therefore has no bearing on Plaintiff's responsibility to exhaust his administrative remedies.
Thus, at issue here is whether SCDC's 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 particular 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).
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.Appx. 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)).
Also, the Fourth Circuit Court of Appeals has held that “to satisfy the exhaustion requirement, grievances generally need only be sufficient to ‘alert the prison to the nature of the wrong for which redress is sought.'” Wilcox v. Brown, 877 F.3d 161, 167 n.4 (4th Cir. 2017) (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). In Wilcox, the plaintiff prisoner had submitted to the district court “a copy of the Step-Three decision of the Inmate Grievance Resolution Board disposing of his grievance” objecting to the cancellation of certain religious services. 877 F.3d at 166. The Fourth Circuit held that the plaintiff was not required to submit an additional grievance when the prison, after resolution of the initial grievance, agreed to restart the services, then made a second decision to cancel the services. Id. at 167 n.4. The court reasoned that the initial grievance provided the prison with “notice of, and an opportunity to correct, a problem, ” which “satisfied the purpose of the exhaustion requirement.” Id. (quoting Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013)).
3. Analysis
In support of their argument that Plaintiff failed to exhaust his administrative remedies, Defendants have submitted affidavits from various SCDC employees (including Sherman Anderson, the Chief of Inmate Grievance Branch for SCDC), Plaintiff's grievance, and SCDC's response to Plaintiff's grievance. (Dkt. No. 144-8; Dkt. No. 144-9; Dkt. No. 144-10; Dkt. No. 144-11; Dkt. No. 144-12.) In support of his argument that SCDC's administrative remedies were unavailable to him, Plaintiff has submitted a declaration, a copy of his grievance, and a copy of the notice of appeal he filed for that grievance. (Dkt. No. 132-3; Dkt. No. 132-4.) Having reviewed the evidence submitted by the parties, the undersigned finds that Plaintiff did not exhaust administrative remedies that were available to him. The undersigned therefore recommends that Defendant's Motion for Summary Judgment be granted.
Plaintiff refers to his personal declaration as an “affidavit, ” but it is not notarized or otherwise certified by an authorized officer. (See Dkt. No. 132-3.) Plaintiff's declaration does, however, state that Plaintiff sets forth the facts therein being “duly sworn and under penalty of perjury.” (Id. at 1.) As such, the undersigned has considered Plaintiff's declaration in making the recommendations contained herein, in accordance with 28 U.S.C. § 1746 and Fed. R. Civ. Pro. 56.
As noted, the undersigned has also considered Plaintiff's original verified complaint (Dkt. No. 1) in making the recommendations contained herein. See generally Goodman v. Diggs, 986 F.3d 493 (4th Cir. 2021).
As noted, Plaintiff alleges that he was assaulted by a group of inmates on December 28, 2018. (Dkt. No. 109; Dkt. No. 109-1; Dkt. No. 109-2.) In his affidavit, Mr. Anderson avers that Plaintiff filed a grievance related to this assault on April 18, 2019 (and the copy of the grievance submitted by Plaintiff confirms this date). (Dkt. No. 132-4 at 2; Dkt. No. 144-8 at 3.) He states that the grievance was returned to Plaintiff on June 18, 2019 because Plaintiff “exceeded the time frame in which to file a grievance, nor did he attempt informal resolution.” (Dkt. No. 144-8 at 3.)
Plaintiff's grievance describes that he was assaulted and stabbed on December 28, 2018, while housed at McCormick. (Dkt. No. 132-4 at 2.) The grievance further states that all of Plaintiff's personal property was taken. (Id.) The grievance goes on to say that “the incident happened because [ ] Ofc. Collier [who was] assigned to that unit allowed a group of inmates that weren't suppose[d] to be out of their rooms . . . [the officer was] negligent in failing to prevent this assault.” (Id.)
The undersigned notes that Plaintiff filed this grievance after being transferred to Broad River Correctional Institution (“Broad River”). (Dkt. No. 132-4.) Plaintiff requested that his grievance be forwarded to McCormick “because [he was] actual[ly] physical[ly] injured.” (Id.)
Under “Action Taken by IGC, ” the boxes “processed” and “other” are checked. (Id.) A textual response dated June 11, 2019 states that the grievance was processed and returned to Plaintiff “by BRCI, so that it can be forwarded to McCormick CI for review.” (Id.) A textual response dated June 18, 2019 states “[s]ee reverse for response from J. Franklin, IGC at McCormick Correctional Institution.” (Id.) The response from J. Franklin reads:
I have reviewed your concern. You have exceeded the time frame to file a grievance on this missing property issue. Per SCDC policy GA-01.12 Inmate Grievance System, section 13: Inmates must make an effort to informally resolve a grievance by submitting a SCDC form 19-11 Request to Staff Member Form (RTSM) to the appropriate supervisor/staff within eight (8) working days of the incident. If informal resolution is not possible, the grievant will complete Form 10-5, Step 1, which is located in common areas, i.e., living areas, libraries, etc. and will place the form in a designated grievance drop box within five (5) working days of the alleged incident. The grievance form must contain information about how, with whom, and when attempts were made to resolve the problem informally within eight (8) working days of the appropriate supervisor's signature date on the RTSM. The alleged incident mentioned in this grievance took place on 12/28/18; you filed this grievance 04/18/19. Therefore, your grievance is being returned.(Dkt. No. 144-9 at 2.)
As discussed above, it is clear that Plaintiff failed to exhaust his administrative remedies regarding the incident at issue-there is no evidence in the record that Plaintiff filed a Step 2 grievance or an appeal prior to filing this lawsuit. (Dkt. No. 1.) Because Plaintiff did not exhaust his administrative remedies, Plaintiff's federal claims can only survive summary judgment if 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, 413 Fed.Appx. at 663 (citing Moore, 517 F.3d at 725).
In his initial verified complaint, Plaintiff asserts that he was “unable to file a grievance through no fault of [his] own” and that he “had no opportunity to file [a] grievance” because he “was placed on [a]dministrative lockup . . . without access to the grievance forms[ ] [w]hich [he] could not go to the library to [pick up].” (Dkt. No. 1 at 8-9.) He further claims that Warden Charles Williams would not allow him to leave lockup to file a grievance and that his failure to exhaust his administrative remedies ultimately was not his fault because he could not leave lockup. (Id. at 9.)
In his response to Defendant's Motion, Plaintiff clarifies that SCDC's administrative remedies were unavailable to him because he did not have access to the Inmate Grievance System while he was in the restricted housing unit at McCormick (which is where he was housed at the time he would have needed to file his grievance to comply with the Inmate Grievance System). (Dkt. No. 132 at 3-5.) Plaintiff states that SCDC's procedures: “don't describe[] how and what to do when an inmate is attack[ed] . . . and put on protective custody, ” and “[are] meant for prisoners in general population.” (Id. at 3.) Plaintiff also asserts that information about the Inmate Grievance System “is not available on protective custody.” (Id.)
Plaintiff also claims that the Inmate Grievance System does not address what to do when a Request to Staff Member goes unanswered and “object[s] . . . that if a Step 1 grievance is returned unprocessed, the inmate must submit a grievance which correct[s] deficiencies . . . or appeal to the Chief of the Inmate Grievance Branch within ten working days.” (Dkt. No. 132 at 3.) However, the Court declines to address these arguments, as the Inmate Grievance System explains these procedures. (See supra at 8-11.)
However, the record reflects that Plaintiff had access to the Inmate Grievance System while in the restricted housing unit. (Dkt. No. 144-1 at 16; Dkt. No. 144-12 at 1-2.) For example, Defendants provide an affidavit from Lt. A. Thomas (a 22-year SCDC employee with experience in the restricted housing unit) describing how inmates in the restricted housing unit can utilize SCDC's grievance procedures. (See generally Dkt. No. 144-12.) In this affidavit, Lt. Thomas states that “[i]nmates in RHU can obtain a copy of an RTSM form from an officer” working in that unit. (Dkt. No. 144-2 at 2.) He then explains that at least four officers work in the restricted housing unit at all times. (Id. at 1.) He describes that inmates can call to officers if they need something, and notes that officers make “security rounds” every thirty minutes. (Id.) Lt. Thomas confirms that an officer would pass Plaintiff's cell each time he made rounds. (Id.)
Lt. Thomas also explains that:
There is a box with “Grievance” clearly marked on it on the wing where Plaintiff was housed. Inmates can obtain blank copies of a Step 1 grievance form while out of their cells and can place a completed grievance form in the grievance box which has a slot and is locked. Inmates in RHU can also ask an officer for a grievance form. Plaintiff could place a grievance in the locked grievance box on his way to take a shower, or at other times he is out of his cell. Officers would also escort him to the grievance box upon request if he wished to file a grievance. . . . I am familiar with the Plaintiff and know he is familiar with the grievance process . . . . Grievance forms were always available to him while he was in RHU. . . . I do not specifically recall if the Plaintiff asked for an RTSM or grievance form, but would have given him either form had he requested it of me.(Id.) Nothing in the record contradicts Lt. Thomas' affidavit or otherwise suggests that Plaintiff could not have filed a grievance while he was in the restricted housing unit. Plaintiff does not contend that he ever requested a grievance form or attempted to file a grievance while in restricted housing. (See generally Dkt. No. 132.) Thus, even considering the facts in the light most favorable to Plaintiff, it is clear from the record that SCDC's administrative remedies were available to him throughout his tenure in the restricted housing unit.
“Inmates are advised that any questions they have about the grievance procedure can be addressed by sending a staff request to IGC, who will meet with the inmate and explain anything that is unclear about the process.” (Id. at 2-3.) Plaintiff'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. Cty. of Gloucester, Va., 668 F.Supp.2d 734, 741 (E.D. Va. 2009); see also Mouzon v. Clawson, No. 1:13-cv-00818-RBH, 2014 WL 1668293, at *2 (D.S.C. Apr. 25, 2014), aff'd sub nom. Mouzon v. Clauson, 585 Fed.Appx. 110 (4th Cir. 2014) (“[A]ny disputed fact that Plaintiff was unaware that he had to appeal his grievance is immaterial under the PLRA. After all, the evidence is undisputed that the procedures were available to all detainees, including Plaintiff.”). To the extent Plaintiff disagrees with this finding on the basis that he was unaware of how to utilize the Inmate Grievance System, the undersigned notes that Sherman Anderson's affidavit states: “Inmates are made aware of the grievance system throughout multiple orientations. When they first come into SCDC, all inmates receive an initial orientation . . . which describes the grievance process.” (Dkt. No. 144-8 at 2.) Mr. Anderson also avers that:
Moreover, the record reflects that Plaintiff was transferred out of the restricted housing unit and into a general population dormitory in January of 2019. (Dkt. No. 144-1 at 17; Dkt. No. 144-11 at 1.) Plaintiff does not contend that SCDC's administrative remedies would have been unavailable to him in a general population dormitory. (Dkt. No. 132 at 3.) In fact, Plaintiff specifically asserts that SCDC's grievance procedures “[are] meant for prisoners in general population.” (Id.) Nonetheless, Plaintiff “waited until April 18, 2019, i.e., three months, to file his Step 1 grievance.” (Dkt. No. 144-1 at 17.) He provides the Court with no explanation for this delay. (See generally Dkt. No. 132.)
After Plaintiff finally submitted his Step 1 grievance, it was returned to him because it was untimely and because he did not attempt an informal resolution prior to submitting it. (Dkt. No. 132-4 at 2; Dkt. No. 144-9 at 2.) Although Plaintiff does not contest these as inappropriate reasons on which SCDC returned his grievance, the undersigned considers it important to note that Plaintiff filed the instant litigation prior to receiving a response to his Step 1 grievance. (Dkt. No. 1; Dkt. No. 132-4 at 2; Dkt. No. 144-9 at 2.) As such, Plaintiff could not have known that his grievance would be returned on these bases at the time he filed suit. Regardless, Defendants clarify that “[h]ad Plaintiff waited for the response to his Step 1 grievance before filing his action, he could easily have filed a Step 2 appeal which asserted” any challenges to the grievance coordinator's response. (Dkt. No. 144-1 at 10.) Defendants note that “[i]n such a case, SCDC could have addressed each point raised by Plaintiff, thus developing the administrative record for review, and been given ‘an opportunity to correct its own mistakes with respect to the programs it administers before it [was] haled into federal court.'” (Id., quoting Woodford v. Ngo, 548 U.S. 81, 95 (2006).) Because Plaintiff filed the instant litigation prior to receiving a response to his Step 1 grievance and prior to filing a Step 2 appeal to any such response, Plaintiff deprived Defendants of the opportunity to “address complaints about the program it administers before being subjected to suit, ” which is “[t]he main purpose of the PLRA's exhaustion requirement.” Wilcox, 877 F.3d at 167 n.4 (citing Moore, 517 F.3d at 726).
Plaintiff does seem to allege that he submitted a Request to Staff Member (thus attempting informal resolution) that went unanswered. (Dkt. No. 132 at 3.) However, nothing in the record supports this contention. Further, as noted, Plaintiff filed this civil action prior to receiving a response to his Step 1 grievance and therefore could not have known that his grievance would be returned on this basis.
Based on the record now before the Court, it is clear that that none of the scenarios outlined in Ross are present and that SCDC's administrative remedies were available to Plaintiff. See Ross, 136 S.Ct. at 1853-54 (setting forth scenarios where administrative process is considered “unavailable”: (1) administrative process “operates as a simple dead end;” (2) administrative process is too opaque for an ordinary prisoner to discern or navigate; and (3) administrators prevent inmates from utilizing the grievance process through “machination, misrepresentation or intimidation.”). It is undisputed that Plaintiff did not file his Step 1 grievance until April of 2019. (See generally Dkt. No. 132; Dkt. No. 144.) It is also undisputed that Plaintiff had not received a response to his Step 1 grievance and had not filed a Step 2 grievance at the time he filed this lawsuit. (See generally Dkt. No. 132; Dkt. No. 144.) As such, it is clear that Plaintiff failed to exhaust the administrative remedies available to him prior to filing this civil action. See Harper v. Drakeford, No. 9:15-cv-01278-RBH, 2015 WL 6735898, at *3 (D.S.C. Nov. 3, 2015) (citing Malik v. Ward, No. 8:08-cv-1886-RBH-BHH, 2010 WL 1010023, at *6 (D.S.C. Feb. 4, 2010), adopted, 2010 WL 936777 (D.S.C. Mar. 16, 2010). (“Only after completing both Steps 1 and 2 of the SCDC grievance policy has an inmate properly exhausted his claims under § 1983.”) The undersigned therefore recommends that the Court grant Defendant's Motion for Summary Judgment and dismiss Plaintiff's case in full. See Powell v. Pressley, No. 4:19-cv-1818-SAL-TER, 2020 WL 8083689, at *3 (D.S.C. Oct. 20, 2020), adopted, 2021 WL 62578 (D.S.C. Jan. 7, 2021) (recommending that a plaintiff's complaint be dismissed for failure to exhaust where the plaintiff had not received a response to his Step 1 grievance prior to filing suit and filed his Step 2 grievance after filing his civil action).
Plaintiff states in his declaration that he “filed an appeal to the State of South Carolina Administrative Law Court contesting the delay of SCDC in [his] step 1 grievance and [has] received [a] step 2 grievance through the institutional mailroom on 1/27/2020.” (Dkt. No. 132-3 at 1.) Plaintiff filed a copy of the notice of appeal for his Step 1 grievance, dated January 29, 2020, as an exhibit to his Response in Opposition to Defendants' initial Motion for Summary Judgment. (Dkt. No. 132-4.) By Plaintiff's own records, he failed to submit a notice of appeal or a Step 2 grievance prior to filing this civil action.
The undersigned recognizes that SCDC's administrative grievance procedure is possibly futile, particularly in light of the nature of the allegations in this case. For example, Plaintiff seeks compensation for past harm, but it is unclear, and the parties have not addressed, how such a grievance could be remedied at the administrative level. However, “Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures, ” and the Supreme Court has stated “we stress the point . . . that we will not read futility or other exceptions into [PLRA's] statutory exhaustion requirements.” Booth v. Churner, 532 U.S. 731, 741 (2001); see also Porter v. Nussle, 534 U.S. 516 (2002).
B. Constitutional Claims
In the event the Court disagrees with the undersigned's conclusion regarding Plaintiff's failure to exhaust his administrative remedies, the undersigned has also considered the merits of Plaintiff's claims. Should the Court decline to dismiss Plaintiff's civil action for non-exhaustion, the undersigned recommends that summary judgment should be (1) denied as to Plaintiff's failure to protect claims against Defendants Collier, Banks, and Harden, and (2) granted as to Plaintiff's claims for failure to protect and deliberate indifference to Plaintiff's serious medical needs against Defendant Taylor.
1. Failure to Protect Claims Against All Defendants a. Defendants Collier, Banks, and Harden
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. at 825; 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.” Farmer, 511 U.S. at 837.
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. Id. 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 of 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 acknowledged 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 (quoting Brice v. Virginia Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995)); 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.” Id. 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.” Id. 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 ultimately 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).
Here, Plaintiff alleges that Defendants knew Plaintiff was at risk of being assaulted and “did not act reasonably” to abate that risk. (See generally Dkt. No. 1-2; Dkt. No. 109; Dkt. No. 109-1; Dkt. No. 109-2.) More specifically, Plaintiff alleges that Defendant Collier “left the inmates out of their respect[ive] cells, when they should have been locked down.” (Dkt. No. 1-2 at 3-6; Dkt. No. 109-1 at 1.) Plaintiff also alleges that “Defendant Banks knew that [g]ang [m]embers posed a substantial risk of serious harm to [Plaintiff] as a snitch, and that [they] lived in the same dorm [as] [Plaintiff], and . . . that they were looking to assault [Plaintiff], and . . . she left [Plaintiff] in that dorm to get assaulted.” (Dkt. No. 1-2 at 3-6; Dkt. No. 109-2 at 5.)
In the declaration attached to Plaintiff's Response in Opposition to Defendants' initial Motion for Summary Judgement, Plaintiff provides more detail. (Dkt. No. 132-3.) Plaintiff states that Defendant Collier came to see him while he was at the hospital and told him that “he knew that something was going to happen.” (Id. at 2.) Plaintiff avers that Defendant Collier told him that Plaintiff's attackers complained about the toilet being backed-up, so Defendant Collier unlocked the door to give them a “snake, ” but forgot to relock the doors. (Id.) Plaintiff claims Defendant Collier told him: “they played me, I should have known better.” (Id.) Plaintiff also avers that Defendant Harden “admitted to me [] that [s]he knew about the incident before it happened, because she spoke to me days prior about what she had heard from inmates and was warning me to stay safe.” (Id. at 3.) With respect to Defendant Banks, Plaintiff's declaration states that: “Officer Banks said she was sorry that happened to me and she feels responsible because she was suppose[d] to get me out of the dorm a week before all of this happened.” (Id.)
Although Defendants argue in their Motion that “Plaintiff never alleges nor is there any evidence to suggest he told any Defendants he feared an attack by other inmates, ” (Dkt. No. 144-1 at 23), Defendants do not contest the assertions made in Plaintiff's declaration. (See generally Dkt. No. 144-1.) Generally, Defendants rest on the arguments that Plaintiff's claims lack sufficient factual allegations to determine plausibility and that Plaintiff fails to state claims upon which relief may be granted. (Id.) Defendants more specifically argue that Plaintiff alleges negligence, not deliberate indifference, and that negligence is insufficient to establish a failure to protect claim.(Id. at 20-24.)
The undersigned notes that Defendants addressed Plaintiff's allegations with respect to Defendant Banks in their Answer to Plaintiff's Amended Complaint (Dkt. No. 114 at 2, admitting that Defendant Banks “visited Plaintiff and told him that she was sorry that he had been stabbed” but denying the remaining allegations.) However, Defendants do not address or contest the statements made by Plaintiff in his declaration. (See generally Dkt. No. 135.)
It seems undisputed that Plaintiff's assault, and the injuries resulting therefrom, constitute a sufficiently “serious deprivation of his rights.” 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”).
Defendants are correct that Plaintiff must show more than negligence for his failure to protect claims to survive summary judgment. See Wilson, 501 U.S. at 302-03 (stating that a prison official must have a “sufficiently culpable state of mind” which means the official either purposefully caused the harm or acted with “deliberate indifference”). As noted above, a prison official demonstrates deliberate indifference if he “knows of and disregards an excessive risk to inmate health or safety.” Id. Defendants are also correct that “Plaintiff never alleges nor is there any evidence to suggest he told any Defendants he feared an attack by other inmates.” (Dkt. No. 144-1 at 22) (emphasis added). However, Defendants neglect that there is evidence in the record that Defendants had prior knowledge of Plaintiff's attack. (See generally Dkt. No. 1-2; Dkt. No. 132-3.) More specifically, Plaintiff avers that Defendants Collier, Banks, and Harden knew that he was going to be attacked. (Dkt. No. 1-2 at 4-6; Dkt. No. 132-3 at 2-3.) Defendants do not deny these statements and the undersigned must view the evidence in the light most favorable to Plaintiff and make all inferences in Plaintiff's favor. See Hunt, 526 U.S. at 552 (stating that “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor” when evaluating a motion for summary judgment). Accordingly, the undersigned finds that a reasonable jury could determine that Defendants Collier, Banks, and Harden had knowledge of an excessive risk to Plaintiff's safety. There is a genuine issue of material fact as to whether Defendants had such knowledge and disregarded it. Thus, the undersigned recommends that Defendants are not entitled to summary judgment with respect to Plaintiff's failure to protect claims against Defendants Collier, Banks, and Harden. See Wilson, 501 U.S. at 302-03.
The undersigned further recommends that Defendants Collier, Banks, and Harden are not entitled to qualified immunity with respect to Plaintiff's failure to protect claims against them. 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 Defendants Collier, Banks, and Harden violated Plaintiff's Eighth Amendment rights, as discussed above; therefore, the undersigned cannot determine at this time whether their actions were objectively reasonable. See, e.g., Crawford v. S.C. Dep't of Corr., No. 6:18-cv-2407-DCN-MGB, 2020 WL 7000864, at *26 (D.S.C. June 11, 2020), adopted, 2020 WL 5835073 (D.S.C. Oct. 1, 2020) (denying summary judgment on qualified immunity grounds where questions of fact existed regarding whether defendants' actions were reasonable); Kane v. Beaufort Cty. Sheriffs Dep't, No. 9:14-cv-508-RMG, 2015 WL 404570, at *5 (D.S.C. Jan. 29, 2015) (quoting Vathekan v. Prince George's Cnty., 154 F.3d 173, 180 (4th Cir. 1998) (“[S]ummary judgment on qualified immunity grounds is improper as long as there remains any material factual dispute regarding the actual conduct of the defendants. ”).
As such, the undersigned recommends that the Court deny Defendants Collier, Banks, and Harden summary judgment 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 F. App'x. 276 (4th Cir. 2017) (affirming denial of summary judgment on qualified immunity where facts remained in dispute); Wynn v. Perry, No. 3:14-cv-625-FDW, 2018 WL 1077321, at *29 (W.D. N.C. Feb. 27, 2018) (“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.”).
b. Defendant Taylor
As for Defendant Taylor, Plaintiff seems to bring his failure to protect claim against her in her capacity as a supervisor. (Dkt. No. 109-1 at 3; Dkt. No. 132-3 at 3.) “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, 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)).
Accordingly, Plaintiff must establish that Defendant Taylor knew of a specific threat to Plaintiff's safety and then acted with deliberate indifference to that knowledge in order for this Court to find Defendant Taylor personally liable on the basis of failure to protect. See, e.g., Armstrong v. City of Greensboro, 190 F.Supp.3d 450, 464 (M.D. N.C. 2016) (“Personal involvement and affirmative misconduct or tacit authorization are necessary to establish the direct liability of a supervisor.”); Harbeck, 814 F.Supp.2d at 627 (“To establish [] personal wrongdoing, the individual ‘must have had personal knowledge of and involvement in the alleged deprivation of appellant's rights in order to be liable.'” (quoting Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985)); cf. Toomer v. Baltimore Cty. Det. Ctr., Civ. A. No. 12-0083, 2014 WL 4678712, at *4 (D. Md. Sept. 18, 2014) (“Any attempt to hold [Defendants] personally liable on the basis of failure to protect is unavailing because Plaintiff's allegations do not support that any of these three Defendants knew of a specific threat to Plaintiff's safety and then acted with deliberate indifference to that knowledge.”).
In the alternative, Plaintiff must show that Defendant Taylor (1) knew that her subordinate “was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury”; (2) her response showed “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) that there was an “affirmative causal link between [her] 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, 2014 WL 4678712, at *5.
Plaintiff's only allegations with respect to his failure to protect claim against Defendant Taylor are: “she was the dorm supervisor” and “[she] did [] nothing for me before I got attacked.” (Dkt. No. 109-1 at 3; Dkt. No. 132-3 at 3.) Plaintiff does not allege or aver that Defendant Taylor knew of a specific threat to Plaintiff's safety and then acted with deliberate indifference to that knowledge, nor does he claim that Defendant Taylor knew that a subordinate “was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury” and showed “deliberate indifference to or tacit authorization of the alleged offensive practices.” Shaw, 13 F.3d at 799 (internal quotation marks omitted); see also Armstrong, 190 F.Supp.3d at 464 (“Personal involvement and affirmative misconduct or tacit authorization are necessary to establish the direct liability of a supervisor.”). As such, Plaintiff has failed to establish the requisite elements of his failure to protect claim against Defendant Taylor, and the undersigned recommends that summary judgment be granted as to Plaintiff's failure to protect claim against her.
2. Deliberate Indifference to a Serious Medical Need Claim Against Defendant Taylor
Plaintiff also brings a claim for deliberate indifference to his medical needs against Defendant Taylor. (Dkt. No. 109-1 at 3.) Plaintiff alleges that Defendant Taylor “knew that [Plaintiff] was attacked by inmates and was bleeding severely and she allowed Officer Collier to lock [him] in [his] cell. [She] did [] nothing for [him] . . . after the attack but leave [him] in the room to bleed to death.” (Id.) To the contrary, Defendants assert that “upon finding Plaintiff covered in blood in the cell, Lt. Taylor notified her captain. This triggered first responders to come to the cell and escort Plaintiff to the medical unit, where he was evaluated for a stab wound.” (Dkt. No. 144-1 at 24.) Defendants further assert that “McCormick County Emergency Medical Services was called, and Plaintiff was subsequently transported by ambulance to the hospital.” (Id.)
The government is “obligat[ed] to provide medical care for those whom it is punishing by incarceration.” Estelle, 429 U.S. at 102. 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.
The Supreme Court has held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment.” Id. To prevail on an Eighth Amendment deliberate indifference claim, “a prisoner must prove two elements: (1) that objectively the deprivation of a basic human need was sufficiently serious, and (2) that subjectively the prison officials acted with a sufficiently culpable state of mind.” Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998) (internal quotation marks and citations omitted).
The first element “is satisfied by a serious medical condition, ” while the second element “is satisfied by showing deliberate indifference by prison officials.” Id. The subjective prong of a deliberate indifference claim requires Plaintiff to demonstrate that Defendants actually knew of and disregarded a substantial risk of harm to his person. See Farmer, 511 U.S. at 837. “To establish that a health care provider's actions constitute deliberate indifference to a serious medical need, the treatment must be so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled in part on other grounds by Farmer, 511 U.S. at 837; see also Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (stating that a disagreement between an inmate and a medical professional regarding the inmate's care is “not actionable absent exceptional circumstances”).
The Fourth Circuit Court of Appeals has held that to bring a claim of deliberate indifference to serious medical needs 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, 896 F.2d at 854; 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)).
It is undisputed that Defendant Taylor is non-medical prison personnel.
Here, Plaintiff contends that Defendant Taylor knew of his serious medical need because she knew he “was attacked by inmates and was bleeding severely.” (Dkt. No. 109-1 at 3.) Plaintiff asserts that Defendant Taylor was deliberately indifferent to this serious medical need because “she allowed Officer Collier to lock [Plaintiff] in [his] cell. [She] did [] nothing for [Plaintiff] . . . after the attack but leave [him] in the room to bleed to death.” (Id.) However, the evidence submitted by Defendants in support of their Second Motion for Summary Judgment demonstrates that Defendant Taylor contacted her captain after seeing Plaintiff covered in blood. (Dkt. No. 144-5 at 1.) The evidence further shows that a “911/ambulance call[]” was made at 2:30 PM, and that an ambulance arrived at 2:50 PM and departed at 3:10 PM. (Dkt. No. 144-7 at 3.) The MIN Narrative recounting the incident describes:
[F]irst responders reported to the unit and escorted Inmate Plumer to medical where he was treated for a stab wound on his scalp. . . . It was determined that Inmate Plumer needed to be transported to Self Regional Healthcare for further medical treatment. McCormick County EMS responded and left the institution with Lt. Lancaster riding in the ambulance and Ofc. Collier following in SCDC Vehicle #2664.(Dkt. No. 144-6 at 1.) The medical records submitted by Defendants and the medical records submitted by Plaintiff both support this narrative. (See Dkt. No. 132-4 at 9, indicating “Date of Service” as 12/28/2018 3:58 PM and noting “Patient is coming from the correctional facility”; Dkt. No. 144-7 at 1-3.)
Further, the record shows (through evidence submitted by Defendants and through Plaintiff's own recitation of the events following his assault) that Defendant Collier locked Plaintiff in his cell prior to informing Defendant Taylor that Plaintiff needed medical attention. (Dkt. No. 1-2 at 3; Dkt. No. 109-1 at 2; Dkt. No. 132 at 10; Dkt. No. 144-5 at 1; Dkt. No. 144-6 at 1.) As a result, Defendant Taylor could not have been deliberately indifferent to Plaintiff's serious medical needs by “allow[ing] Officer Collier to lock [him] in [his] cell, ” (Dkt. No. 132 at 10), because she had no knowledge of Defendant Collier locking Plaintiff in his cell prior to him doing so. (Dkt. No. 144-5 at 1; Dkt. No. 144-6 at 1.) Accordingly, nothing in the record supports Plaintiff's allegation that Defendant Taylor knew Plaintiff was severely injured and left Plaintiff in his room “to bleed to death.” (Dkt. No. 109-1 at 3.)
Moreover, there is no evidence that Defendant Taylor was personally involved in a denial of treatment, deliberately interfered with prison doctors' treatment, or tacitly authorized or was indifferent to a prison physician's misconduct. See Miltier, 896 F.2d at 854; see also Mallett, 2008 WL 5351618, at *7. Thus, there is no genuine issue of material fact regarding Defendant Taylor's deliberate indifference to Plaintiff's medical needs and the undersigned therefore recommends that summary judgment be granted with respect to this claim.
Because the undersigned recommends that summary judgment be granted for Plaintiff's claims against Defendant Taylor on other grounds, the undersigned declines to address Defendants' qualified immunity argument with respect to Defendant Taylor.
II. Plaintiff's Motion for Supplemental Jurisdiction
On June 7, 2021, Plaintiff filed a “Motion to Proceed in Supplemental Jurisdiction” seeking to add two state-law gross negligence claims to his Amended Complaint. (Dkt. No. 149 at 1-3.) Because Plaintiff's Motion attempts to add new causes of action, the undersigned has considered Plaintiff's “Motion to Proceed in Supplemental Jurisdiction” as a Motion to Amend. For the reasons stated below, Plaintiff's Motion (Dkt. No. 149) is denied.
Plaintiff has twice amended his original complaint, which was filed on May 29, 2019. (Dkt. No. 1; Dkt. No. 72; Dkt. No. 78; Dkt. No. 96; Dkt. No. 109.) As such, Plaintiff may further amend his Amended Complaint “only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). Rule 15(a) requires that the Court “freely give leave [to amend] when justice so requires.” Id. In other words, “leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006).
Here, Defendants do not support Plaintiff's Motion to Amend. (See generally Dkt. No. 153.) They contend that Plaintiff brings this Motion too late in the proceedings and that justice does not require the Court to grant Plaintiff leave to further amend. (Dkt. No. 153 at 4.) More specifically, Defendants assert that “it is both patently inconvenient and unfair to Defendants to have to reevaluate this action through the lens of state law and the provisions of the South Carolina Tort Claims Act, given its age and the prolific filings and assertions by Plaintiff in regard to the federal claims.” (Id. at 5.) The undersigned agrees.
As an initial matter, Defendant correctly notes that Plaintiff has inappropriately waited until the summary judgment stage to raise this request to amend. (Id. at 4.) The deadline for motions to amend pleadings expired on March 30, 2020-more than a year ago. (Dkt. No. 56.) The Court has allowed Plaintiff to amend his complaint twice since that deadline. (Dkt. No. 72; Dkt. No. 78; Dkt. No. 96; Dkt. No. 109.) Further, Plaintiff did not submit this Motion with his response to Defendants' first summary judgment motion back in January. (Dkt. No. 132.) Instead, he waited until the deadline for his response to Defendants' second summary judgment motion. (Dkt. No. 149.) Defendants have not had an opportunity to review or respond to Plaintiff's allegations of gross negligence in the two years this litigation has been pending and it would be highly prejudicial to allow Plaintiff to bring new causes of action at this late stage.
It is worth noting that this Court has granted over six months' worth of extensions for Plaintiff's time to respond to Defendants' summary judgment motions. (See supra at 2; see also Dkt. No. 118; Dkt. No. 120; Dkt. No. 123; Dkt. No. 126; Dkt. No. 128; Dkt. No. 147.)
Moreover, to the extent the Court agrees with the undersigned's recommendation that Plaintiff's case should be dismissed for non-exhaustion, no federal claims remain. As such, the Court need not exercise supplemental jurisdiction over Plaintiffs new state-law causes of action. See 28 U.S.C § 1367(c)(3)-(4). (“The district court may decline to exercise supplemental jurisdiction over a claim under 28 U.S.C. § 1367(a) if . . . (3) the district court has dismissed all claims over which it has original jurisdiction.”); see also Missouri v. Spivey, No. 4:13-cv-01326-RMG, 2014 WL 4349151, at *4 (D.S.C. Aug. 29, 2014) (declining to exercise supplemental jurisdiction over state law claims where summary judgment was granted on the plaintiff s federal claims).
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Defendants' Motion for Summary Judgment (Dkt. No. 144) be GRANTED on account of non-exhaustion. It is ORDERED that Plaintiffs Motion for Supplemental Jurisdiction (Dkt. No. 149) be DENIED.
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 (4th 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).