United States District Court, D. South Carolina, Anderson/Greenwood Division
C. COGGINS, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants South Carolina
Department of Corrections (“SCDC”), FNU Lee, FNU
Truman, James Bell, Dewayne Campbell, and Joey Tutt's
(collectively, “the Moving Defendants”) Motion
for Summary Judgment. ECF No. 39. Plaintiff filed a Response
in Opposition, and the Moving Defendants filed a Reply. ECF
Nos. 46, 49. In accordance with 28 U.S.C. § 636(b) and
Local Civil Rule 73.02(B)(2), (D.S.C.), this matter was
referred to United States Magistrate Judge Jacquelyn D.
Austin for pre-trial proceedings and a Report and
Recommendation (“Report”). On August 2, 2019, the
Magistrate Judge issued a Report recommending that the Motion
for Summary Judgment be granted with respect to
Plaintiff's claims pursuant to 42 U.S.C. § 1983 and
that the action be remanded to the state court for
consideration of Plaintiff's state law claims. ECF No.
49. The Magistrate Judge advised the parties of the
procedures and requirements for filing objections to the
Report and the serious consequences if they failed to do so.
The Moving Defendants and Plaintiff filed objections to the
Report. ECF Nos. 50, 52.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge 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 recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. §
636(b). The Court will review the Report only for clear error
in the absence of an objection. See Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (stating that “in the absence of 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.” (citation omitted)).
initial matter, the Magistrate Judge provided a thorough and
complete recitation of the facts of this case and the
applicable law, which the Court incorporates into this Order.
Moving Defendants' Objection
Moving Defendants only object to the Magistrate Judge's
discussion of Plaintiff's Eighth Amendment claim for
failure to protect. ECF No. 50. They contend that she
correctly decided the issue on the merits; however, she
should have found that Plaintiff's failed to exhaust his
administrative remedies with respect to this claim.
Moving Defendants argue that Plaintiff's grievances were
clearly not complaints of criminal activity; accordingly, he
was required to proceed through the grievance process. The
Court has conducted a de novo review of the record, the
applicable law, and the Report of the Magistrate Judge.
Having done so, the Court finds that Plaintiff provided
sufficient evidence to meet his burden of showing that the
generally available administrative remedies were effectively
unavailable to him. See Graham v. Gentry, 413
Fed.Appx. 660, 663 (4th Cir. 2011) (“[I]n order to show
that a grievance procedure was not ‘available,' a
prisoner must adduce facts showing that he was prevented,
through no fault of his own, from availing himself of that
procedure.”) (internal citation omitted)). Accordingly,
the Moving Defendants' objection is overruled.
Plaintiff's Eight Amendment claim for failure to protect,
Magistrate Judge found that Plaintiff could not
“establish that any Defendant had a sufficiently
culpable state of mind.” ECF No. 49 at 17. Plaintiff,
through counsel, objects to the Magistrate Judge's
recommendation that summary judgment should be granted with
respect his § 1983 claims. Plaintiff contends that this
statement overlooks the concerns expressed by Plaintiff when
he was being moved into a room with Defendant Dwight Jones.
Plaintiff argues that he and Jones had a fight and that
Plaintiff told the lieutenant about it. He contends that when
he asked to be moved, he was told to go to classification. He
asserts that he requested to be moved several times, that the
room change was approved, but that he was not moved out of
the room within the 30 days allowed under SCDC
deposition, Plaintiff testified that he did not want to move
into a room with Jones because he knew Jones had a
“past history of fighting his roommates, and pulling
out knives, and stabbing” and that he “told Mr.
Campbell in the yard that [he had] to get out of that room
[because he felt] like something is going to happen.”
ECF No. 46.3 at 7- 8. He stated that he and Jones had a fight
and after the fight he and Jones “went to the staff
[and] told the staff that [they] both needed to move out of
the room.” Id. at 8. Plaintiff testified that
he was told to go to classification; then classification told
him to wait until his annual review; then, at his annual
review, he requested to move. Id. at 9. He stated
that the move was approved but was delayed. Id.
has failed to provide any evidence that he told any Defendant
about the fight with Jones or that he felt threated by Jones. The
fact that he requested a room change without additional
information is insufficient to establish that the Natural
Defendants were aware of facts from which the inference could
be drawn that Plaintiff was at a substantial risk of harm by
Jones or that the Natural Defendants ever drew that
inference. See Wynn v. Perry, No. 3:14-cv-625-FDW,
2018 WL 1077321, at *27 (W.D. N.C. Feb. 27, 2018) (holding
that the plaintiff's report of “rising
tension” between himself and a known gang member was
insufficient to show that the defendants knew of and
disregarded a substantial risk of harm to the plaintiff);
Drayton v. Cohen, C.A. No. 2:10-3171-TMC, 2012 WL
666839 (D.S.C. Feb.29, 2012), aff'd, 474
Fed.Appx. 991, at *4, *7 (4th Cir. 2012) (holding that
“[t]he facts alleged by Plaintiff fall short of the
requisite standard because his requests to staff expressed no
more than a generalized concern that he would be drawn into a
confrontation with [his cellmate] based upon Plaintiff's
disdain for [the cellmate's] behavior” where the
plaintiff requested his cellmate be “moved to another
cell, in order to prevent the potential physical
confrontation that is sure to come”); Sutton v.
Johnson, No. 7:10-cv-00070, 2010 WL 1813791, at *2 (W.D.
Va. Apr. 30, 2010) (holding that the plaintiff's request
to be removed from a cell with an inmate who was in a gang
known for violence and whose recent segregation sentence was
for unidentified violence did not put the defendant on notice
that the gang member posed a specific risk of harm to the
plaintiff). Accordingly, Plaintiff's objections are
party has objected to the Magistrate Judge's
recommendation with respect to Plaintiff's property
claim, claim for deliberate indifference to serious medical
needs, or qualified immunity. Accordingly, the Court has
reviewed the record, the applicable law, and these portions
of the Report for clear error. Finding none, the Court adopts
the recommendation of the Magistrate Judge. The Court finds
that Plaintiff failed to exhaust his administrative remedies
with respect to his deliberate indifference to serious
medical needs claim, that the Natural Defendants are entitled
to qualified immunity, and that summary judgment is
appropriate with respect to Plaintiff's property claim to
extent he asserts this claim under § 1983.
Magistrate Judge further recommended remand of
Plaintiff's state law claims taking into consideration
the factors articulated in Shanaghan v. Cahill, 58
F.3d 106, 110 (4th Cir. 1995). No. party objected to this
portion of the Report. Upon review of the Report, the ...