United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
KEVIN F. McDONALD, Magistrate Judge.
The plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to Title 42, United States Code, Section 1983. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Title 42, United States Code, Section 1983, and submit findings and recommendations to the District Court.
The defendant filed a motion for summary judgment (doc. 28) on November 7, 2014. The same day, the undersigned issued a Roseboro (doc. 29) order to apprise the plaintiff of summary judgment procedure, as required by Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975). The plaintiff filed a response on November 20, 2014 (doc. 31), and the defendant filed a reply on November 21, 2014 (doc. 38).
The plaintiff is a currently an inmate at Livesay Correctional Institution within the South Carolina Department of Corrections ("SCDC"), but was housed at SCDC's Trenton Correctional Institution on December 23, 2013, when he was allegedly assaulted by a group of inmates. The defendant Officer Parrot is an SCDC correctional officer who was working at Trenton when the alleged assault took place. The plaintiff claims that Officer Parrot and another officer allowed seven or eight inmates to leave their assigned dorm and enter the plaintiff's dorm. Those inmates then gathered with others in the plaintiff's dorm, and the group subsequently attacked the plaintiff. While he did not notify Officer Parrot of his concerns over the gathering of the inmates, the plaintiff claims that Officer Parrot should have recognized the potential for trouble and taken action to prevent it: "I felt whatever was going on, this officer sees and is smart enough to see that something's wrong and that something's about to happen so he would do something before something happened, but this officer did not do nothing" (comp., p. 3). The plaintiff then went to his locker, where he was attacked from behind by the group of inmates, leaving him bruised and bleeding. Officer Parrot then came out of his office, and the inmates scattered, with those from the other dorm allowed to return to their assigned area. Officer Parrot later came into the plaintiff's dorm to do a security check and then a head count, but the plaintiff did not tell him that he had been attacked, nor did he tell them that he needed medical attention. Instead, he insists that Officer Parrot should have seen what had happened and that he needed medical attention: "I'm almost positive that [Officer Parrot] seen the incident or at least the disturbance and the crowd of inmates. Also I'm positive and sure that Officer Parrot seen my bruised face and bloodied towel that I was holding to stop the blood that was coming from my face and nose" ( id., p. 4). He states that later that night, he was "pulled out by a Sgt. and brought to operations, " where he told Lt. Thomas about the incident and gave a written statement, before being moved to a different dorm ( id., p. 5). In his complaint, the plaintiff alleges that he did not go to the medical unit until seven days later.
Attached to the complaint are a number of requests and grievance forms submitted by the plaintiff to the Trenton staff between January and June 2014, all relating to the alleged assault (doc. 1-1, pp. 1-17; doc. 1-2, pp. 1-5). In a grievance signed January 4th, the plaintiff writes that he went to the medical unit one week after the assault, after asking another officer, Lt. McKie, while his cell was being "shook down" for contraband (doc. 1-2, p. 2).
With his motion for summary judgment, Officer Parrot provides his affidavit that he has no recollection of any incident involving the plaintiff and that he was never aware that the plaintiff was being threatened by other inmates (doc. 28-2).
APPLICABLE LAW AND ANALYSIS
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. "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." Id. Summary judgment is not "a disfavored procedural shortcut" but an important mechanism for weeding out "claims and defenses [that] have no factual bases." Celotex, 477 U.S. at 327.
Failure to Protect
Prison officials are required to protect prisoners from being attacked by other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994); see also Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (suffering physical assaults in prison is not "part of the penalty that criminal offenders pay for their offenses against society") and Miltier v. Beorn, 896 F.2d 848, 851-52 (4th Cir. 1990) ("A defendant acts recklessly by disregarding a substantial risk of danger that is either known to the defendant or which would be apparent to a reasonable person in the defendant's position."). A prisoner, in a claim of deliberate indifference with respect to an inmate attack, must show that the defendant showed a deliberate or callous indifference to a specific, known, substantial risk of serious harm to the plaintiff. See Sarratt v. Daughtery, C.A. No. 2:06-3422-HFF-RSC, 2007 WL 2406784, at *2 (D.S.C. July 16, 2007) (citing Farmer, 511 U.S. at 835), adopted by 2007 WL 2406783 (D.S.C. Aug. 20, 2007). A prison official cannot be found liable unless it is shown that the official was both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and that he also drew the inference. Farmer, 511 U.S. at 835. A negligent failure to protect a prisoner from violence does not violate the Constitution. See Davidson v. Cannon, 474 U.S. 344, 347 (1986) (negligence not actionable under Section 1983).
The plaintiff has failed to show that his assault by the group of inmates should have been anticipated by Officer Parrot or that Officer Parrot deliberately took no action to prevent it. The plaintiff's allegations reveal that he did not notify Officer Parrot or any other officer of his safety concerns when the group of inmates gathered in his dorm. Indeed, the plaintiff admits that he really was not concerned himself: "I seen the inmates gathered together, I didn't think nothing of what was going on, because I was new at this institution and felt whatever was going on, it wasn't my concern and it didn't involve me" (comp., p. 3). At best, the plaintiff's claim amounts to negligence by Officer Parrot for his purported failure to manage and control the inmates. However, negligence is not actionable under Section 1983. See Daniels v. Williams, 474 U.S. 327, 328-36 (1986); and Davidson v. Cannon, 474 ...