United States District Court, D. South Carolina, Anderson/Greenwood Division
Timothy M. Cain United States District Judge
Robert Eugene Mitchell, Jr., a prisoner proceeding pro se,
filed this action pursuant to 42 U.S.C. § 1983. (ECF No.
1). Defendants Bryan Sterling, Director of South Carolina
Department of Corrections (“SCDC”), and Michael
McCall, Deputy Director of Operations, filed a motion for
summary judgment. (ECF No. 33). On May 6, 2019, Magistrate
Judge Jacquelyn D. Austin issued a Report and Recommendation
(“Report”) recommending that Defendants be
granted summary judgment on the basis of Eleventh Amendment
immunity for claims against the Defendants in their official
capacity and denied as to the other claims. (ECF No.
The parties were advised of their right to file objections to
the Report. (ECF No. 60-1). Both parties timely filed
objections to the Report. (ECF Nos. 62, 63). Mitchell also
filed a reply to Defendants' objections. (ECF No. 65).
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). In the absence of objections, this court is not
required to provide an explanation for adopting the Report.
See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983). Rather, “in the absence of a 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.” Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72 advisory committee's note).
Furthermore, failure to file specific written objections to
the Report results in a party's waiver of the right to
appeal the district court's judgment based upon that
recommendation. 28 U.S.C. § 636(b)(1); Thomas v.
Arn, 474 U.S. 140 (1985); Wright v. Collins,
766 F.2d 841 (4th Cir. 1985); United States v.
Schronce, 727 F.2d 91 (4th Cir. 1984).
their summary judgment motion, Defendants contend that they
are entitled to summary judgment because Mitchell's
failure to protect claim fails as a matter of law, Mitchell
has not alleged sufficient facts against each Defendant, and
Defendants are entitled to qualified and Eleventh Amendment
immunity. (ECF No. 33). In response, Mitchell mostly repeats
the allegations he made in his complaint. (ECF Nos. 38, 44).
Report, the magistrate judge agrees with Defendants that they
are entitled to Eleventh Amendment immunity as to claims
against them in their official capacities, but disagrees as
to Defendants' other arguments. (ECF No. 60 at 11).
Specifically, viewing the facts in a light most favorable to
Mitchell as required, the magistrate judge concludes that
Mitchell's mother and cousin informed Defendants of the
gang member inmates' threats to beat and stab Mitchell if
they did not pay them $5, 000, and that Defendants denied
Mitchell's request for protection, even after he reported
being assaulted and threatened at knife point. Id.
at 15. The magistrate judge found that a jury could find that
Defendants acted unreasonably when they left Mitchell in the
general population despite recognizing that he faced a
substantial risk of serious physical injury from gang members
who were threatening him. Id. at 16-17.
objections, Mitchell states that he accepts the Report in
regard to his claims against Defendants in their official
capacities, but he wants to move forward with a jury trial on
his claims against Defendants in their individual capacities.
(ECF No. 63). In their objections, Defendants specifically
object to the magistrate judge's conclusions that
Mitchell was assaulted or involved in a gang related
altercation, that no actions were taken, and that
Mitchell's injuries, if any, were more than de minimnus.
(ECF No. 62 at 4). Specifically, Defendants argue that
Mitchell has not filed any grievances regarding his alleged
security clearance and that Mitchell did not raise the
argument that he was prevented from filing a grievance until
he filed objections to the prior Report. Id.
Further, Defendants contend that from February 27 through
April 3, 2018, Mitchell had forty-six medical visits, and
“there is no report by [Mitchell] of being stabbed,
being assaulted, being threatened at knifepoint, or suffering
a broken finger.” Id. at 3. Defendants state
that Mitchell was in a fight with another inmate, a
separation order was issued, and Mitchell was transferred to
another institution. Id. at 4. Defendants object to
the conclusions that the magistrate judge reaches in her
Report because they argue that the conclusions are based
solely on the allegations in the complaint and not on
evidence submitted by Mitchell. Id. at 5. In his
response to Defendants' objections, Mitchell mainly
disputes Defendants' recitation of what he told the
mental health counselor. (ECF No. 65 at 2-3). Mitchell
contends that he was attacked by five inmates who were gang
members, and he specifically argues that he did not just get
into a fight with another inmate. Id.
state a claim for failure to protect from violence, an inmate
must show: (1) serious or significant physical or emotional
injury resulting from that failure, and (2) that the prison
officials had a sufficiently culpable state of mind which in
this context is deliberate indifference. Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (internal quotation
marks and citation omitted). “[A] prison official
cannot be found liable under the Eighth Amendment for denying
an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference.” Id. at 837. Further, the Eighth
Amendment is not violated by the negligent failure to protect
inmates from violence. Davidson v. Cannon, 474 U.S.
344, 347-48 (1986); Grayson v. Peed, 195 F.3d 692,
695 (4th Cir. 1999).
the facts in a light most favorable to Mitchell, the court
agrees with the magistrate judge's conclusion that a jury
could reasonably find that Defendants failed to protect
Mitchell. After Mitchell's mother and cousin informed
Defendants of the gang member inmates' threats and
Defendants denied him protection, Mitchell was assaulted and
suffered injuries. As the magistrate judge noted, (ECF No. 60
at 17), Defendants have not presented any evidence that a
separation order was ever issued with regard to Mitchell.
Furthermore, despite Defendants' objection, the
magistrate judge did not err in basing her recommendation on
the allegations in the complaint because “[a] verified
complaint is the equivalent of an opposing affidavit for
summary judgment purposes, when the allegations contained
therein are based on personal knowledge.” World
Fuel Servs. Trading, DMCC v. Hebei Prince Shipping Co.,
Ltd., 783 F.3d 507, 516 (4th Cir. 2015); see also
Duff v. Potter, 665 Fed. App'x 242, 243 (4th Cir.
2016) (reversing district court and holding that
“[plaintiff's] statements in his complaint should
have been considered by the court as admissible evidence
rebutting the Defendants' evidence. It is clear that the
district court did not do so, and to the extent that it may
have, it resolved the factual disputes in favor of the moving
party.”). Mitchell's allegations in the verified
complaint are sufficient to create a genuine issue of
material fact as to his claims. “Although the
Defendants submitted affidavits and support for the motion
for summary judgment, the court may not consider these
materials in a vacuum.” Duff, 665 Fed.
App'x at 245. The court must view the facts and
inferences drawn from the facts in the non-moving party's
favor. Id. Doing so, the court agrees with the
magistrate judge that there are issues of material fact,
which preclude granting Defendants' summary judgment
motion. Accordingly the court finds Defendants'
objections to be without merit.
thorough review of the Report and the record in this case,
the court adopts the Magistrate Judge's Report (ECF No.
60) and incorporates it herein. Defendants are granted
summary judgment only as to Plaintiff's claims for
monetary damages against Defendants in their official
capacities. Otherwise, Defendants' summary judgment
motion is denied. Accordingly, Defendants' Summary
Judgment Motion (ECF No. 33) is GRANTED in part and
DENIED in part.
IS SO ORDERED.
In accordance with 28 U.S.C. §
636(b) and Local Rule 73.02(B)(2), D.S.C., all pre-trial
proceedings were referred to a magistrate judge.
The magistrate judge previously filed a
Report recommending that Defendants' summary judgment
motion be granted on the basis that Mitchell had failed to
exhaust his administrative remedies. (ECF No. 46). However,
finding an issue of material fact in dispute, the court
declined to adopt the Report and recommitted the case to the
magistrate judge for consideration of ...