United States District Court, D. South Carolina, Columbia Division
ORDER AND OPINION
MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT COURT
Brian Franklin Evans (“Plaintiff”), a prisoner in
custody of the South Carolina Department of Corrections
(“SCDC”), is currently housed at the Broad River
Correctional Institution in Columbia, South Carolina.
Plaintiff is suing under 42 U.S.C. § 1983, alleging that
Defendants Michael McCall, Donikia Gray, Joette Scarborough,
Larry Cartledge, and Christine Long, each in their individual
and official capacities, (“Defendants”) have
violated his constitutional rights. ECF No. 1 at 4. Plaintiff
is serving a thirty year sentence pursuant to a guilty plea
for the murder of his estranged wife and an acquaintance in
two separate incidents. See ECF No. 62-1 at 4.
Defendant McCall is the Deputy Director of the SCDC. ECF No.
1 at 2. Defendant Gray is a mental health evaluator for SCDC
and was a voting member of the Statewide Protective Custody
Review Board (“SWPC Review Board”) in 2015 when
Plaintiff was removed from Statewide Protective Custody
(“SWPC”) and placed in the general population.
ECF No. 40-7 at 1. Defendant Scarborough is the Division
Director of Classification and Inmate Records for SCDC. ECF
No. 25-1 at 1. Defendant Cartledge was a Warden with Perry
Correctional Institution while Plaintiff was housed at Perry
Correctional Institution. Defendant Cartledge also served on
the SWPC Review Board at the time of Plaintiff's removal.
ECF Nos. 40-4 at 1; ECF No. 1 at 3. Defendant Long is the
SCDC SWPC Coordinator. ECF No. 40-5 at 1.
entering SCDC, Plaintiff was placed in SWPC. Plaintiff
alleges that Defendants violated his rights pursuant to the
Fourth, Fifth, Eighth, and Fourteenth Amendments by taking
him out of and failing to return him to SWPC. Plaintiff
requests a preliminary injunction, permanent injunction,
compensatory damages, punitive damages, costs, and any
additional relief that the court deems proper. ECF No. 1 at
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02,
D.S.C., the preliminary injunction and permanent injunction
were referred to United States Magistrate Judge Jacquelyn D.
Austin for pre-trial proceedings and a Report and
Recommendation (“Report”). On September 29,
2016, the Magistrate Judge issued a Report recommending the
court grant Plaintiff's motion for a preliminary
injunction and deny Plaintiff's motion for a permanent
injunction. ECF No. 30 at 9. Defendants filed their
objections to the Report on October 17, 2016. ECF No 40. The
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270
(1976). This court is charged with making a de novo
determination of any portions of the Report to which a
specific objection is made. The court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or may recommit the matter to the Magistrate
Judge with instructions. 28 U.S.C. § 636(b)(1).
before the court are: review of the Report granting
Plaintiff's motion for a preliminary injunction and
denying Plaintiff's motion for a permanent injunction
(ECF No. 21); Plaintiff's motion for summary judgment
(ECF No. 46), and Defendants' motion for summary judgment
(ECF No. 53). Plaintiff moves for summary judgment on the
grounds that Defendants violated his Fourteenth Amendment due
process right and Defendants were deliberately indifferent to
his Eighth Amendment right against cruel and unusual
punishment. Defendants move for summary judgment on
the grounds that (1) Plaintiff is not entitled to SWPC as a
result of a plea agreement, (2) Plaintiff's
constitutional rights have not been violated, (3) Defendants
are entitled to qualified immunity, and (4) Plaintiff's
property claims do not rise to the level of a constitutional
violation and are not actionable under state law. ECF No. 53.
consideration of the objections, and for the points set forth
below, the court declines to adopt the Report, and
Plaintiff's motions for preliminary and permanent
injunctive relief are denied. Defendants' motion for
summary judgment is granted in part and denied in part.
Plaintiff's motion for summary judgment is denied.
STATEMENT OF FACTS
has various housing units. Based on the inmate's
conviction and behavior while incarcerated, he may be placed
in one of five housing units: (1) general population, (2)
short term detention, (3) disciplinary detention, (4)
security detention, or (5) substantiated security risk.
See SCDC Policy 22.38. Alternatively, in response to
threats made by others, an inmate may be placed in (1) a
restrictive housing unit, or (2) SWPC. SCDC Policy 22.23.
SCDC only has forty-eight beds in SWPC. ECF No. 40-5 at 1.
Placement of an inmate in SWPC is entirely at SCDC's
discretion based upon the policies and procedures set forth
by the department. See SCDC Policy
Policy 22.23 states that an inmate requesting protective
custody may be placed in pre-hearing detention with
protective concerns (“SP”) for up to seven days.
SCDC must provide an inmate a review of his request within
seven days of the initial placement in SP. During this time,
the inmate must meet with the Institutional Protective
Custody Committee (“IPCC”) to discuss placement
in SWPC, and
[i]f placement in SWPC is recommended, at least one of the
following elements must be established by the IPCC in order
for the inmate's request to be considered valid: (1)
record of having been assaulted, (2) reputation among the
population, attested to in writing by staff, as an informant
or trial witness, (3) verified threats, verbal abuse, or
harassment, (4) former police or criminal justice activity
resulting in verified threats, verbal abuse, or harassment,
(5) conviction of crime repugnant to the inmate population,
or (6) reliable confirmed evidence of sexual assault.
Policy 22.23 § 5.1. Upon review of the recommendation by
the IPCC, the SWPC Board may determine that: (1) the
inmate's protective custody concerns are alleviated
through transfer to another institution's general
population; (2) the inmate should be assigned and transferred
to the Restrictive Housing Unit; or (3) the inmate should be
assigned and transferred to the SWPC Housing Unit. SCDC
Policy 22.23 § 7.1.2. According to the policy, if an
inmate is placed in SWPC, his status is reviewed every ninety
to one hundred eighty days to determine if the inmate should
be released from SWPC and returned to the general population.
SCDC Policy 22.23, §§ 12, 13.
“[SW]PC review committee . . . [merely provides]
recommendation[s] and [the SWPC Review Board] [makes] the
final determination, given they have more detailed
information.” ECF No. 62-1 at 20. The SWPC Review Board
information generally includes: “history and purpose
for protective placement, police services report, everything
that was presented at the PC committee review.”
Id. at 21. An inmate is “also asked to provide
written and/or verbal statements, explaining his reason for
wishing to remain or be released” to the SWPC Review
Board. Id. at 20. The SWPC Board must unanimously
agree that an inmate should be placed in or removed from
alleges that he satisfies element number two of SCDC Policy
22.23 § 1, by establishing that he has a reputation
among the population as a “snitch” for his
assistance to law enforcement. ECF No. 28 at 1-2. Plaintiff
further alleges that he satisfies element number three as
there has been verified threats, verbal abuse, or harassment
against him, such as verbal threats that he will be killed in
any general population and could “be got to” even
in lockup. ECF No. 28 at 3. Plaintiff also alleges that he
meets element number five as there is reliable confirmed
evidence of sexual assault because he was sexually assaulted
by a corrections officer in the 1990s. ECF No. 28 at 3; ECF
No. 1 at 5. Plaintiff further claims that he has a court
order ordering placement in SWPC.
exchange for pleading guilty, Plaintiff requested placement
in SWPC. Id. at 6; ECF No. 62-1 at 4. The solicitor
sent a letter to the Division Director of Classification and
Inmate Records at SCDC inquiring if, given Plaintiff's
past history and present concerns, “[SCDC] could give
any sort of reassurance that” Plaintiff would be
assigned to SWPC. ECF No. 62-1 at 4-5. Deputy General Counsel
for SCDC responded that although it “cannot guarantee
placement in protective custody until an offender is actually
in its custody, [Plaintiff] is likely to be placed in
protective custody upon his incarceration.” ECF No.
58-6. The solicitor recommended SWPC as part of the plea
agreement, and the court included the recommendation in the
sentencing sheet. ECF No. 40-2 at 2. However, the solicitor
states that he informed Plaintiff that the plea agreement
would not be binding on SCDC. ECF No. 53-2 at 1. Plaintiff
was placed in SWPC when he entered SCDC.
has been in SWPC on numerous occasions. Plaintiff's
amount of time in SWPC varies, some stays lasted days while
others lasted months. ECF No. 62-1 at 11. Most recently,
Plaintiff was in SWPC from October 15, 2013, until April 17,
2015. ECF No. 40-4 at 1. Defendants Gray and Long attended
the April 3, 2015, review of Plaintiff's SWPC status.
Defendant Gray questioned Plaintiff about his safety concerns
at the April 3, 2015, meeting. ECF No. 62-1 at 19. The review
classification official recommended Plaintiff remain on SWPC
“base[d] on [his] record.” ECF No. 46-1 at 2. The
reviewer reasoned Plaintiff should stay on SWPC as “no
change in the safety that SCDC can [illegible].” ECF
No. 62-1 at 18. The recommendation that Plaintiff's
remain on SWPC was then given to the SWPC Review Board. On
April 13, 2015, the SWPC Review Board recommended Plaintiff
“be released to the general population at Perry
[Correctional Institution] due to court order not sufficient
enough to remain in [SWPC].” The SWPC Review Board
consisted of Joette Scarborough, Larry Cartledge, Donikia
Gray, and Christine Long. ECF No. 46-1 at 3. Defendant McCall
is the Deputy Director, Division of Operations for SCDC. ECF
No. 62-1 at 24. The SWPC Review Board submits its
recommendation to Defendant McCall for final approval. ECF
No. 62-1 at 23-24. Defendant McCall approved the change and
Plaintiff was released into the general population on April
17, 2015. ECF No. 62-1 at 11.
being released into the general population at Perry
Correctional Institution, Plaintiff reiterated his safety
concerns to Defendant Cartledge. ECF No. 1 at 7. Plaintiff
alleges that Defendant Cartledge told Plaintiff “to
return to his unit and not create no problems and there
wouldn't be any” and did not investigate the matter
further. ECF No. 1 at 8. Plaintiff next alleges that he was
threatened he would be attacked on July 4, 2015. Id.
Plaintiff contacted his attorney on June 30, 2015, who
responded that “she had  made contact with SCDC about
[his] safety concerns, and her requests to have [Plaintiff]
put back on SWPC unit.” Id. Plaintiff's
cellmate threw a television stand at Plaintiff on July, 4,
2015. Id. at 8. Plaintiff began hitting his cellmate
with the television stand, severely injuring his roommate.
ECF No. 58-9 at 1. Plaintiff suffered a back injury as a
result. ECF No. 1 at 8. Based on this incident, prison
officials placed Plaintiff on short term detention and then
moved him to long term security detention status
(“SD”) after he was convicted of assault of an
inmate for the attack. Id. at 9. Plaintiff appealed
his placement on S.D. by filing a grievance with SCDC and
requested to be returned to SWPC. ECF No. 1 at 9-10.
Plaintiff also filed a grievance alleging that prison
officials left his prison cell open and permitted
Plaintiff's television to be stolen. Id.
October 2015, IPCC at Perry Correctional Institution
recommended Plaintiff be placed in SWPC again. However, the
SWPC Review Committee unanimously recommended that Plaintiff
remain in the general population as SCDC Police Services
could not substantiate the threats Plaintiff claimed. ECF No.
62-1 at 23. Plaintiff alleges that no prison investigator
ever questioned him about the alleged threats. Id.
at 21. SCDC transferred Plaintiff from Perry Correctional
Institute to Lieber Correctional Institute in May 2016 where
he was placed in the general population. ECF No. 21-1 at 1.
Plaintiff asserts that his cellmate tampered with his legal
documents in June 2016. Id. Plaintiff states he is
missing a copy of his federal complaint for the present
matter and a motion for Post-Conviction Relief filed on his
behalf in his criminal matter. Id. These documents
corroborate Plaintiff's assistance to law enforcement,
confirming his reputation as a “snitch.” After
the June 2016 incident with his cellmate, Plaintiff claims he
was immediately approached in the yard by an individual known
as Wali, whom he alleges is the Blood gang leader. Wali
allegedly told Plaintiff that he was going to be killed or
tortured and killed. Id. Plaintiff was able to slip
the guard a note about the incident in the yard and was
immediately placed in protective custody. Id. On
July 5, 2016, rather than being placed in SWPC, Plaintiff was
transferred to Broad River Correctional Institute and placed
in the ...