United States District Court, D. South Carolina, Beaufort Division
Michael J. Ferola, Plaintiff,
Michael McCall, Levern Cohen, Sgt. Michael Washington, Dennis Paterson, D. Mervin, and Bernard McKie, Defendants.
Bryan Harwell United States District Judge
Michael J. Ferola, proceeding pro se,  brings this
action pursuant to 42 U.S.C. § 1983 against the six
above-captioned Defendants, five of whom have filed motions
to dismiss. See ECF Nos. 28 & 48. The matter is
before the Court for review of the Report and Recommendation
(“R & R”) of United States Magistrate Judge
Bristow Marchant, made in accordance with 28 U.S.C. §
636(b)(1)(B) and Local Civil Rule 73.02 for the District of
South Carolina. See R & R, ECF No. 52. The
Magistrate Judge recommends that the Court grant in part and
deny in part the motions to dismiss. R & R at 12.
Plaintiff has filed timely objections to the R & R.
See Pl.'s Objs., ECF No. 55. No Defendants have
filed objections to the R & R.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
verified complaint, Plaintiff alleges Defendants acted with
deliberate indifference by failing to protect him from
assaults by other inmates while he was incarcerated at
Ridgeland Correctional Institution, thereby violating the
Eighth Amendment's prohibition against cruel and unusual
punishment. See Complaint [ECF No. 1] at
¶¶ 21-37. Plaintiff identifies “at
least” three assaults by Inmate Coltran Miller that
allegedly occurred on July 28, 2015, September 8, 2015, and
February 5, 2016. Id. at ¶¶ 23-27, 32.
Plaintiff has attached several exhibits to his complaint,
including copies of grievances that he filed with prison
officials. See ECF No. 1-1. Plaintiff names six
prison officials as defendants: Michael McCall, Levern Cohen,
Sgt. Michael Washington, Dennis Paterson, D. Mervin, and
Bernard McKie. Id. Five of these six
Defendants-McCall, Cohen, Washington, Paterson, and
McKie-have filed motions to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6). See ECF Nos. 28 &
48. The Magistrate Judge recommends granting in part and
denying in part these motions. R & R at 12. Specifically,
the Magistrate Judge recommends: (1) granting the motion to
dismiss filed by Washington, Paterson, and McKie; and (2)
denying the motion to dismiss filed by McCall and Cohen.
Id. Plaintiff has filed timely objections to the R
& R. See Pl.'s Objs. [ECF No. 55]. No
Defendants have filed objections or a reply to
objects to the dismissal of Paterson and McKie as
defendants. In the R & R, the Magistrate Judge
found that Plaintiff
has failed to set forth a “plausible claim” for
failure to protect against the Defendants Washington,
Paterson, or McKie. . . . Plaintiff's only allegations
against Paterson and McKie are his general and conclusory
claim that they were aware that RCI [Ridgeland Correctional
Institution] is understaffed and that the lack of security
posed a severe risk of injury to inmates. Complaint,
¶ 37. This allegation is not sufficient to establish the
level of knowledge or responsibility required to maintain a
failure to protect claim.
R & R at 7-8. In his objections, Plaintiff contends
Paterson and McKie can be held liable under a theory of
supervisory liability based on Farmer v. Brennan,
511 U.S. 825 (1994), Slakan v. Porter, 737 F.2d 368
(4th Cir. 1984),  and Wellington v. Daniels, 717
F.2d 932 (4th Cir. 1983). Pl.'s Objs. at 1-2. Plaintiff
refers to grievances that he filed with prison officials, and
he claims Paterson and McKie were on notice of the threat to
his safety by virtue of these grievances.
objections, Plaintiff states, “In a grievance I filed
over officers leaving their assigned post a
year prior to the assault[, ] I placed
defendant Patterson on notice of inmates being assaulted as a
result of no officer. Defendant Patterson closed out said
grievance and signed it [and] thus can be held liable under
both” Farmer and Slakan. Pl.'s
Objs. at 1 & n.1. Plaintiff is referring to a grievance
that he Dated: May 30, 2014; he attached this grievance to
his complaint as Exhibit L and refers to it in paragraph 37
of his complaint. See Compl. at ¶ 37; ECF No.
1-1 at 26 (Exhibit L). The grievance describes how
“officers are permitted to leave their assigned post
for hours at a time, ” which “makes available
chances for inmates . . . to be . . . assaulted.”
Id. The grievance also contains a section entitled
“Responsible Official's Decision and Reason”
with a negative response and an illegible signature; according
to Plaintiff, the signature is Paterson's.
deciding a motion to dismiss made under Federal Rule of Civil
Procedure 12(b)(6), the Court must accept all well-pled facts
alleged in the complaint as true and draw all reasonable
inferences in the plaintiff's favor. Nemet Chevrolet,
Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253
(4th Cir. 2009). A court must “also consider documents
that are explicitly incorporated into the complaint by
reference, Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007), and those attached to
the complaint as exhibits, see Fed. R. Civ. P.
10(c).” Goines v. Valley Cmty. Servs. Bd., 822
F.3d 159, 166 (4th Cir. 2016). “ A document filed
pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers[.]” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (internal quotation marks and citations omitted).
the grievance was explicitly incorporated into
Plaintiff's complaint by reference and attached as
Exhibit L, and because this Court must assume Plaintiff's
pro se allegations are true and draw all reasonable
inferences in his favor for purposes of Rule 12(b)(6), the
Court finds Paterson should not be dismissed at this time.
Similar to the Magistrate Judge's recommendation
concerning Cohen and McCall (who are not being
dismissed), Plaintiff “has set forth facts to establish
a ‘plausible claim for relief'” because
Paterson “had been specifically made aware by the
Plaintiff through the grievance system . . ., prior to his
being assaulted on July 28, 2014, that officers were leaving
their assigned posts, but [Paterson] took [no] corrective
action to resolve this problem; and that this is exactly what
led to his being assaulted by Miller.” R & R at
9-10 (citing Compl. at ¶¶ 24-26, 37); cf.
Id. at 10 (“Giving Plaintiff's Complaint the
liberal construction to which he is entitled as a pro se
litigant, these allegations state a claim against Cohen and
McCall sufficient to survive a Rule 12 motion to dismiss at
this time.”). Significantly, the grievance was ...