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Evans v. McCall

United States District Court, D. South Carolina, Columbia Division

March 30, 2017

MICHAEL MCCALL; DONIKIA GRAY; JOETTE SCARBOROUGH; LARRY CARTLEDGE; CHRISTINE LONG, each in their individual and official capacities, Defendants.



         Plaintiff 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.

         Upon 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 16.

         In 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”).[1] 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).

         Currently 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.[2] 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.

         After 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.


         SCDC 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 22.23.[3]

         SCDC 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.

         SCDC 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.

         The “[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 SWPC.

         Plaintiff 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.

         In 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.

         Plaintiff 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.

         After 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. [4]

         In 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 ...

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