Opinion
C. A. 5:21-3800-RBH-KDW
05-24-2023
Theodore J. Bolick, Plaintiff, v. Bryan Stirling, Terrie Wallace, Lieutenant Sumter, Lieutenant Wright; Lieutenant Robb, Gregory Furness, Kirkland Medical Staff, Oluwakemi Babatunde, Cathy Grimes, and Joyalyn Eskew, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge.
Theodore J. Bolick (“Plaintiff”), proceeding pro se and in forma pauperis, brought this action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. This matter comes before the court on Defendants' Motion for Summary Judgment filed October 12, 2022. ECF No. 162. The next day, Defendants filed an Amended Memorandum in Support of their Motion for Summary Judgment. ECF No. 166. On October 27, 2022, Plaintiff filed a Response in Opposition to Defendants' Motion. ECF No. 171. On November 14, 2022, Defendants filed their Reply. ECF No. 177. On November 28, 2022, Plaintiff filed a Motion for Sanctions, seeking sanctions for alleged fraudulent falsehoods contained within Defendants' Motion and related filings. ECF No. 178. Defendants responded to this Motion on December 9, 2022. ECF No. 179. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), this Magistrate Judge is authorized to review pretrial matters in cases involving pro se litigants and submit findings and recommendations to the District Court.
I. Factual Allegations
On November 19, 2021, Plaintiff initially filed this action pursuant to 42 U.S.C. § 1983 against Defendants Bryan Stirling, Terrie Wallace, Lieutenant Sumter, Lieutenant Robb, Gregory Furness, and the Kirkland Medical Staff. ECF No. 1. Bryan Stirling is the Director of the South Carolina Department of Corrections (the “SCDC”). See ECF No. 96-2 at 3. Terrie Wallace is the Warden of Kirkland Correctional Institution (“Kirkland”), which includes the Reception and Evaluation Center (the “R&E”). See ECF No. 96-2 at 4; Affidavit of Terrie Wallace, ¶ 1, ECF No. 162-4 at 1. Elaine Sumter, Twonda Wright and Catherine Robb are all lieutenants or officers at Kirkland. See ECF No. 96-2 at 4-5. Finally, Dr. Furness is a physician providing care to inmates at Kirkland. See ECF No. 96-2 at 5. On June 16, 2022, Plaintiff filed an Amended Complaint adding parties, Defendants Oluwakemi Babatunde, Cathy Grimes, and Joyalyn Eskew, all nurses working at Kirkland, as well as adding claims related to the allegations in his Complaint. ECF No. 96.
Plaintiff's original Complaint was attached as an exhibit to the Amended Complaint.
According to Plaintiff, from September 17, 2020 through February 13, 2021, he was housed at the Kirkland R&E under the “immediate supervision and control” of Defendant Sumter, and the “overall supervision and control” of Defendant Wallace. ECF No. 96-2 at 8. From September 17, 2020 until February 3, 2021, he alleges he was housed in the B-1 dormitory. ECF No. 92-2 at 8. From February 3, 2021 until February 13, 2021, Plaintiff alleges he was housed in F-3 dormitory under the “immediate supervision and control” of Defendant Wright and the “overall supervision and control” of Defendant Wallace. ECF No. 96-2 at 8. Plaintiff left Kirkland for a period of several months before ultimately returning to Kirkland on or about June 15, 2021 and stayed there until December 9, 2021.
In responding to Defendants' Motion for Summary Judgment, Plaintiff contends it is “undisputed” that he was housed in B-1 dormitory on “both occasions, while later contending it is “undisputed that he was housed in F-3 dormitory on “both occasions.” See Plaintiff's Response Brief at 20-21, ECF No. 171-1. Defendants produced the affidavit of Kimberley Yon, Bedspace Manager for the SCDC. In her affidavit, she states that Plaintiff was housed at Kirkland from September 17, 2020 until February 11, 2021, and during that time he as assigned to dorms B-1 and F-3. Affidavit of Kimberely Yon, ¶ 4, attached to Defs. Amended Br. at ECF No. 166-1. Plaintiff was then transferred to Lieber Correctional Institution, and later, Kershaw Correctional Institution. Yon Aff., ¶ 5. Plaintiff returned to Kirkland on June 15, 2021 where he was housed while awaiting classification until December 9, 2021. Yon Aff., ¶ 7. He was again housed in B-1 and F-3 during this time. Yon Aff., ¶ 7.
All parties agree that while housed at Kirkland, he was unable to engage in outside recreation. The justification for the inability for Plaintiff to recreate outside is disputed. It is Plaintiff's contention that during the time he was denied out-of-cell exercise or recreation, he suffered from physical, mental, and emotional injuries. Id. Plaintiff alleges the “policy, custom and/or practice” of keeping prisoners “locked in their cells 24 hours a day” was established and promulgated by Defendant Wallace and enforced by Defendants Sumter and Wright. Id. Plaintiff alleges this policy was approved and sanctioned by Defendant Director Sterling. Id. at 8-9. For their part, Defendants deny many of Plaintiff's allegations and explain that the policy at Kirkland R&E of enforcing in-cell recreation for certain inmates is necessitated by safety concerns. Defs. Amended Br., ECF No. 166 at 11. In an affidavit provided by Defendant Wallace, he further explains that during the pendency of the COVID-19 pandemic, inmates were housed and classified in a way intended to limit the spread of disease. See Affidavit of Terrie Wallace, ¶ 5, attached to Defendants' Motion for Summary Judgment, at ECF No. 162-1. Defendant Wallace further explains that Plaintiff was provided an in-cell recreation program designed for inmates who are required to remain in their cells most of the time. Wallace Aff., ¶ 6. For inmates who have not yet been classified and assigned to an institution, such as Plaintiff, out-of-cell recreation poses potential security risks. Wallace Aff., ¶ 6. Defendant Wright, a lieutenant assigned to F-3 dormitory, averred that she ensured all inmates housed in that dorm were provided opportunities to visit medical, take showers, and make telephone calls. See Affidavit of Twonda Wright, ¶ 4, attached to Defendants' Motion for Summary Judgment, at ECF No. 162-8. She further stated that even when there may have been security staff out due to COVID-19, she made sure to provide both showers and telephone calls three times per week to inmates. Wright Aff., ¶ 4. Defendant Sumter, a lieutenant assigned to B-3 dormitory, testified similarly. Affidavit of Elaine Sumter, ¶ 4, ECF No. 169.
Plaintiff alleges his specific injuries include bed sores, skin rashes, lethargy, fatigue, loss of stamina, atrophied muscles, shortness of breath, chest pains, stiffness of joints, severe pain in his right leg and hip, back pain, and skin discoloration. ECF No. 96-2 at 8-9. Plaintiff further alleges he suffered mental injuries, including delusional thoughts of mass murder and suicide. Id. at 9. In October 2020, Plaintiff alleges he began seeking medical treatment for the physical and mental injuries he sustained. Id. Plaintiff alleges the medical staff initially prescribed in ibuprofen, but starting in November of that year through February 13, 2021, the Kirkland Medical Staff ignored his sick calls. Id. Plaintiff alleges he submitted several Request to Medical Staff Member (“RTSM”) forms; however, these forms were returned to him. Id. at 9-10. Plaintiff alleges that on November 10, 2020, he submitted a Step 1 Grievance with an RTSM form attached; however, he says this grievance was rejected for failure to submit an RTSM form. Id. at 10. Plaintiff alleges he continued to seek medical treatment through February 13, 2021. Id. According to Plaintiff, psychiatrist Andrew Hedgepath prescribed him two medications for his mental injuries. Id. Plaintiff further alleges he was seen by Defendant Furness, who threatened him, and explained to him that he would receive more jail time if he “pissed off the right people.” Id. at 10-11. Plaintiff alleges that Defendant Furness provided him a bottom bunk pass but otherwise denied him medical treatment. Id. at 10-11. Plaintiff alleges that from November 12, 2020 until January 8, 2021, he wrote three letters to Defendant Stirling, all of which were returned with instructions to file RTSM forms. Id. Plaintiff alleges that Defendants Babatunde, Grimes, and Eskew are all nurses who “knew that keeping prisoners locked in small, overcrowded cells” for 24 hours a day would cause Plaintiff serious health issues. ECF No. 96 at 3. He further alleges these three nurses “knew” this amounted to cruel and unusual punishment. Id. at 3-4. Plaintiff further alleges that these Defendants personally treated prisoners who were mutilating themselves due to the cruel and unusual punishment endured by being locked in their cells 24 hours a day. Id. at 4. Plaintiff alleges these Defendants colluded with Defendant Furness and Defendant Wallace to conceal prisoner injuries, destroy Plaintiff's sick call requests and RTSM forms, and make false entries in Plaintiff's medical records. Id. Plaintiff alleges he was seen by Defendants Babatunde and Eskew, who only gave him ibuprofen but otherwise did not provide him treatment. Id. at 5-6. According to Plaintiff, Defendant Eskew was belligerent toward him and threatened to fabricate disciplinary charges attributable to Plaintiff. Id.
Plaintiff alleges Defendant Stirling violated his Eighth Amendment right to be free from cruel and unusual punishment by “approving and allowing” Defendant Wallace to establish and promulgate policies intended to keep prisoners in their cells for 24 hours a day. ECF No. 96-2 at 11. Plaintiff alleges Defendant Wallace violated his Eighth Amendment right to be free from cruel and unusual punishment by establishing and promulgating these policies. Id. Plaintiff alleges Defendants Sumter and Wright violated his Eighth Amendment right to be free from cruel and unusual punishment by enforcing these policies and customs. Id. Plaintiff alleges Defendant Stirling, Wallace, Furness and the Kirkland Medical Staff violated his Eighth Amendment right to be free from cruel and unusual punishment by ignoring his request for medical attention. Id. at 12.
As initially filed, Plaintiff also sought to bring a cause of action for wrongful incarceration under the Fourth, Fifth, and Fourteenth Amendments. However, on May 23, 2022, the court dismissed his illegal incarceration claim. ECF No. 79.
II. Summary Judgment Standard
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own argument, affidavit, or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).
Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
III. Analysis
a. Plaintiff's Motion for Sanctions
On November 28, 2022, Plaintiff filed a Motion for Sanctions, ECF No. 178, his second request for sanctions in this case, again asking this court to impose sanctions on Defendants' counsel for submitting filings which Plaintiff contends contain “fraudulent falsehoods” in an attempt to “dupe” this court into making rulings in their favor. ECF No. 178 at 1-2. Plaintiff further contends that Defendants' counsel knew its Motion and Reply contained these false statements. ECF No. 178 at 1-2. Defendants counter that Plaintiff's arguments boil down to his own disagreement with Defendants' arguments in this case and/or his misunderstanding of the law and its application to this case. ECF No. 179 at 1-2. As aptly pointed out by Defendants, Plaintiff's arguments are that: (1) Defendants falsely state that he did not allege damages in his original Complaint due to overcrowding; (2) Defendants fraudulently argue that Plaintiff failed to allege any specific conduct on the part of Defendant Stirling; and (3) Defendants wrongfully state that Plaintiff has not established a sufficiently serious medical need. Defendants respond that within their Reply, they simply argue that the allegations of overcrowding have not been the basis of Plaintiff's claim. ECF No. 179 at 2. As to Plaintiff's allegations related to Defendant Stirling, Defendants argue Plaintiff disagrees with the applicable legal standard to be applied in this case. ECF No. 179 at 2. Finally, Defendants again argue that Plaintiff's argument related to his claims against the medical professionals centers on the fact that he disagrees with Defendants about the applicable law to apply in analyzing an Eighth Amendment claim. Id. at 3.
The undersigned recommends finding that Defendants' counsel did not engage in sanctionable conduct under Rule 11. Rule 11 provides that a pleading, written motion or paper should not be presented for an improper purpose, that the claims, defenses and other legal contentions are warranted, and the denials of factual contentions are warranted by the evidence. Fed.R.Civ.P. 11(b). In reviewing Plaintiff's arguments, the undersigned does not find that Plaintiff's explanation of Defendants' filings warrant the imposition of sanctions. As explained by Defendants, Plaintiff either disagrees with Defendants as to the legal standard or how Defendants believe it should be applied or otherwise mischaracterizes Defendants' arguments in their Reply. However, as previously pointed out to Plaintiff by this court, Plaintiff has failed to comply with Rule 11. Under Rule 11, a motion for sanctions must be made separately, served under Rule 5, and not be presented to the court if the challenged paper or claim is withdrawn or appropriately corrected within 21 days of service. Fed.R.Civ.P. 11(c)(2). Put simply, a party seeking sanctions must serve the Rule 11 Motion on the opposing party at least 21 days before filing the motion with the court. Brickwood Contractors, Inc.v v. Datanet Engineering, Inc., 369 F.3d 385, 389 (4th Cir. 2004) (emphasis added). The failure to comply with the procedural requirements of Rule 11 precludes the imposition of the requested sanctions. Id. Plaintiff does not contend or otherwise establish that he met the procedural requirements of Rule 11. Indeed, attached to his Motion is a “Certification of Notification,” certifying that he notified Defendants' counsel of the Motion by placing a letter stating as such in the U.S. Mail signed November 18, 2022. Plaintiff could not have complied with the procedural requirements of Rule 11 because 21 days had not passed from the time Defendants filed their Reply, which Plaintiff contends contained the alleged falsehoods, until the time Plaintiff filed his Motion. Accordingly, the undersigned recommends Plaintiff's Motion for Sanctions be denied for the reasons explained herein.
b. Defendants' Motion for Summary Judgment
Defendants raise several arguments in support of their Motion for Summary Judgment. These arguments include: (1) Defendants are entitled to Eleventh Amendment Immunity; (2) Plaintiff has failed to allege any acts against Defendant Stirling which would state a cause of action under 42 U.S.C. § 1983; (3) Plaintiff has not established that Defendants ignored his serious medical needs; (4) Plaintiff has not established Defendants violated his rights by not allowing out-of-cell recreation; and (5) Defendants are entitled to qualified immunity. ECF Nos. 162; 166; 177. Plaintiff does not provide any argument in response to all arguments raised by Defendants; however, where applicable, the undersigned will analyze any arguments made in response by Plaintiff. Further, the undersigned has not considered Plaintiff's arguments related to his illegal incarceration claim, as that claim has previously been dismissed.
i. Eleventh Amendment Immunity
Defendants argue that they are entitled to immunity under the Eleventh Amendment as to any claims brought against them in their official capacity. The Eleventh Amendment provides: “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” U.S. CONST. amend. XI. The United States Supreme Court has long held that the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001). Eleventh Amendment immunity also extends to “arms of the State” and state employees acting in their official capacity. Doe v. Coastal Carolina Univ., 359 F.Supp.3d 367, 378 (D.S.C. Jan. 9, 2019). Relatedly, the Supreme Court has held that neither a State nor its officials acting in their official capacities are “persons” under § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Moreover, a state cannot, without its consent, be sued in a District Court of the United States by one of its own citizens upon the claim that the case is one that arises under the Constitution and laws of the United States. Edelman, 415 U.S. at 663.
Defendants argue they are state actors and therefore not “persons” within the meaning of 42 U.S.C. § 1983. They argue that the law is therefore clear that in this case, Defendants are immune from suit in their official capacity. Plaintiff does not respond to this argument. The undersigned agrees that the Eleventh Amendment immunity applies to Plaintiff's claims against state actors in their official capacity. With respect to Defendant “Kirkland Medical Staff,” this Defendant is not a “person” amenable to suit under § 1983. See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001) (finding that the medical department of a prison is not a “person” pursuant to § 1983). Thus, the undersigned recommends granting summary judgment in favor of Defendants as to Plaintiff's conditions of confinement claims brought against them in their official capacity pursuant to § 1983, as well as dismissing Kirkland Medical Staff because it is not a person amenable to suit under § 1983.
ii. § 1983 claims against Defendant Stirling
Defendant Stirling argues that Plaintiff has failed to demonstrate he personally participated in any alleged violation of Plaintiff's constitutional rights. Plaintiff disagrees. In his Amended Complaint, Plaintiff alleged that Defendant Stirling violated the Eighth Amendment by “approving and allowing” Defendant Wallace to establish and promulgate policies intended to keep prisoners in their cells for 24 hours a day. In his Response, Plaintiff argues that Defendant Stirling's “tacit authorization” or “acquiescence” to the policy of keeping prisoners in their cells for 24 hours a day, or otherwise promulgating such a policy, is a violation of his constitutional rights. Pl.'s Br., ECF No. 171-1 at 30. Under 42 U.S.C. § 1983, relief may be sought when a plaintiff alleges the violation of a right secured by the Constitution by a person acting under color of state law. West v. Askins, 487 U.S. 42, 48 (1988). Liability under § 1983 involves a showing that “the official charged acted personally in the deprivation of the plaintiff's rights.” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). Plaintiff acknowledges that the letters he wrote to Defendant Stirling were returned to him. Here, Plaintiff has not otherwise alleged that Defendant Stirling had any personal involvement in the alleged deprivation of his rights. Therefore, the undersigned recommends granting summary judgment on this ground.
Plaintiff also alleged within his Complaint that he wrote three letters to Defendant Stirling informing him of varied constitutional rights violations. These letters appear to be the letters attached to the Affidavit of N. Dayne Haile, Executive Assistant to Director Bryan Stirling. See Affidavit of N. Dayne Haile, attached to Defs.' Motion for Summary Judgment at ECF No. 1629, 162-10. Of the three letters, one of the letters discusses complaints that do not bear upon the claims currently being litigated in this case. One letter is dated after the filing of this lawsuit. The third letter, dated January 5, 2021, was apparently sent back to Bolick for failure to comply with SCDC Policy #GA-06.04. Haile Aff., ¶¶ 3-4.
As to Plaintiff's allegations that Defendant Stirling is vicariously liable by virtue of the actions of the prison employees at Kirkland, the doctrine of respondeat superior is inapplicable in these cases. Id.; see Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (stating that there is no respondeat superior liability under § 1983). However, supervisory officials, such as Defendant Stirling, may be held liable in certain circumstances upon a “recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their case.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (quoting Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir. 1984)). Such are the allegations alleged by Plaintiff against Defendant Stirling in this case. Defendants argue that Shaw v. Stroud is inapplicable in this case because Plaintiff has failed to make the requisite showing to establish supervisory liability. To establish supervisory liability under § 1983 one must show: (1) the “supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a ‘pervasive and unreasonable risk' of constitutional injury”; (2) the “supervisor's response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices,'”; and (3) there was an “affirmative causal link between the supervisors inaction and the particular constitutional injury suffered by the plaintiff.” Shaw, 13 F.3d at 799 (internal citation omitted).
Defendants argue that Plaintiff has not established that Defendant Stirling was actually aware of any unreasonable risk of constitutional injury. Defendant Stirling's executive assistant explained that letters sent to Defendant Stirling, such as the ones from Plaintiff, are returned back to the inmate if the inmate did not abide by the requisite procedure. Still, Plaintiff argues Defendant Stirling acquiesced to policies that were promulgated by the warden of the detention center. Plaintiff summarily alleges that Defendant Stirling is the “head policy maker” and he is to “promulgate policies that ensure the safety and well-being of prisoners under his authority.” Pl.'s Br. at 171-1 at 30. Plaintiff refers to a policy which prohibits or limits certain categories of prisoners from outside or out-of-cell exercise. Pl.'s Br. at 171-1 at 30. Plaintiff's arguments against Defendant Stirling fail for the following reasons.
While Plaintiff provides evidence in the form of affidavits of other inmates that support his allegations that he was unable to leave his cell for outdoor recreation, he has not provided evidence of a policy that summarily mandates inmates to be locked inside their cells for 24 hours a day. Nor does Plaintiff provide any evidence to suggest that Defendant Stirling had actual or constructive knowledge of any policy requiring inmates to be locked in their cells 24 hours a day. Instead, Defendants produced a copy of Kirkland's R&E policies, which includes the establishment of an in-cell exercise program while inmates are at Kirkland. See Kirkland R&E Orientation Packet, ECF No. 162-6 at 10. The in-cell exercise program, according to the orientation packet, is designed for inmates “who are, for whatever reason, required to remain in their cells most of the time (i.e. institutional lockdown, Restrictive Housing Unit, Substantiated Security Risk Unit, Death Row, etc.).” This policy, according to Defendant Wallace, the Warden of Kirkland, is put in place for inmates who are required to remain in their cells for most of the time. Wallace Aff., ¶ 6. Further, Defendant Wallace explains that for inmates who have not yet been classified upon intake, out-ofcell recreation poses serious potential security risks. Wallace Aff., ¶ 6. Thus, the evidence in the record establishes that there is a general policy or procedure intended for some, but not all, inmates, and is related to security concerns. Even assuming that Defendant Stirling was aware of the in-cell exercise program, it does not follow that Defendant Stirling was aware of conduct on the part of his subordinates that resulted in all inmates being locked in their cells for 24 hours a day, or how the policy was applied to Plaintiff specifically.
Plaintiff does not allege or otherwise establish that Defendant Stirling's response, or lack of response, shows deliberate indifference or authorization of such a practice or otherwise shows that his inaction caused the particular constitutional injury alleged in this case. While he wrote to Defendant Stirling regarding his concerns regarding prison conditions, the evidence in the record indicates that Defendant Stirling was not provided those letters.Whether the subordinates misapplied the policy, or the policy as applied to Plaintiff raises constitutional concerns, does not automatically establish liability on the part of Defendant Stirling. See Harper v. Stirling, No. 9:16-0404-RBH-BM, 2016 WL 7852484, at *2 (D.S.C. Dec. 13, 2016), report and recommendation adopted, 2017 WL 228006 (D.S.C. Jan. 19, 2017) (explaining that Stirling cannot be held liable simply because other employees violated Plaintiff's constitutional rights, assuming that to be true). Plaintiff does not allege that Defendant Stirling had any personal knowledge of Plaintiff's alleged problems in seeking time outside of his cell. Accordingly, the undersigned recommends granting summary judgment in favor of Defendant Stirling.
Further, it is settled law that receiving and/or responding to prison grievances is not sufficient personal involvement in the matters grieved to impose liability under § 1983 on the person who received and/or responded to the grievance. See Green v. Bell, 539 Fed.Appx. 78, 81 (4th Cir. 2013); see also Greene v. Stirling, No. 5:16-CV-00587-JMC-KDW, 2016 WL 11201007, at *2 (D.S.C. June 17, 2016), report and recommendation adopted, No. 5:16-CV-00587-JMC, 2017 WL 1420238 (D.S.C. Apr. 21, 2017).
iii. Deprivation of Out-of-Cell Exercise (Defendants Wallace, Sumter, Wright and Robb)
Defendants Wallace, Sumter, Wright and Robb argue that Plaintiff has failed to establish a violation of his constitutional rights pursuant to § 1983 based on his claim that he was denied out of cell exercise. Plaintiff argues that being kept in a small, overcrowded cell 24 hours a day without the opportunity or ability to exercise, while also being forced to sleep on the floor constitutes a violation of the Eighth Amendment. The Eighth Amendment prohibition of cruel and unusual punishment “protects inmates from inhumane treatment and conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). The Eighth Amendment applies to claims by prisoners against corrections officials challenging conditions of confinement. Porter v. Clarke, 923 F.3d 348, 355 (4th Cir. 2019). To sustain an Eighth Amendment claim, a prisoner needs to show two things: (1) “the deprivation suffered or injury inflicted on the inmate was sufficiently serious (the objective component)”; and (2) the “prison official acted with a sufficiently culpable state of mind (subjective component).” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008). When considering Plaintiff's Eighth Amendment claim, courts must consider the totality of the circumstances, including elements such as the overall duration of incarceration, the length of time each day that prisoners are locked in their cells, and the opportunities given to provide prisoners with increased exercise opportunities. Mitchell v. Rice, 954 F.2d 187, 191 (4th Cir. 1992).
In considering the objective prong, Plaintiff must show that the deprivation suffered or injury inflicted was sufficiently serious. Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016). The Fourth Circuit has previously articulated that it has “never held that denial of out-of-cell exercise opportunities” is per se unconstitutional cruel and unusual punishment. Mitchell, 954 F.2d at 191. However, depriving an inmate of “all meaningful opportunities to exercise” generally violates the Eighth Amendment. Id. at 193 (emphasis added). In Mitchell, the court determined that seven months without out-of-cell exercise could potentially give rise to a violation of constitutional standards. Id. at 191-93. Similarly, in Rivera v. Mathena, the Fourth Circuit determined an inmate who was in segregation satisfied the objective prong of his Eighth Amendment claim where the evidence showed he received far fewer than five hours of recreation and three showers a week. No. 18-6615, 2019 WL 6133727, at *3 (4th Cir. Nov. 19, 2019). There, the inmate's injuries included emotional and mental deterioration, depression, difficulty sleeping, headaches, and loss of appetite. Id.
Here, Defendants concede that Plaintiff was denied out-of-cell recreation while he was detained at Kirkland; however, they argue the policy of implementing in-cell recreation for certain inmates is safety measure put in place while inmates are in Kirkland R&E. Defs.' Amended Br. at 11. Additionally, Defendants argue that complications related to COVID-19 have also resulted in the SCDC enacting measures to further limit movement to mitigate the spread of the virus. Defs.' Amended Br. at 11. Defendants provide affidavit testimony from employees who explained that inmates are allowed to leave their cell for the purpose of making phone calls or to shower.Finally, Defendants point out that Plaintiff was not deprived of out-of-cell recreation for a consecutive 10-month period. Instead, there was a 124-day period in between Plaintiff's two separate stays at Kirkland, where Plaintiff was housed elsewhere. Defs.' Amended Br. at 12. Plaintiff responds that the in-cell exercise program was in effect, meaningless, because he was locked in a small cell with three other prisoners at times; thus, there was inadequate space to exercise. Pl.'s Br. at 33. Plaintiff provides the affidavit of several other inmates to buttress these statements, including the affidavits of two inmates who were housed in a cell in F-3 with Plaintiff.In Plaintiff's own affidavit, he explains that when he initially arrived at Kirkland he was in a cell in dorm B-1 that had three steel beds, and he shared that cell with another inmate. ECF No. 171-5 at 2. Plaintiff states that there was little room to exercise in that cell, and the cramped space and the inability to shower more than three times per week “negated” in-cell exercise. ECF No. 171-5 at 3. Plaintiff also argues that the deprivation period that is considered within constitutional limits should be considered in days or weeks, not months. Pl.'s Br. at 35. Plaintiff further argues that, as evidenced by his medical records, he suffered both physical and emotional injury in the form of bed sores and chest pains, as well as mental injuries such as depression, and that he had plates, rods, and screws in his leg which caused him pain as a result of the prolonged deprivation of out-of-cell exercise. Plaintiff's Medical Records, attached to exhibits to Defs.' Br., ECF Nos. 162-15 at 2; 162-17 at 3, 4; 162-13 at 4. See Shakka v. Smith, 71 F.3d 162, 167 (4th Cir. 1995) (“In the context of a conditions-of-confinement claim, to demonstrate a deprivation is extreme enough to satisfy the objective component of an Eighth Amendment claim, a prisoner must ‘produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions.'”) (quoting Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993)).
Twonda Wright indicates that she “made it a point” to provide both shower and telephone calls to inmates housed in F-3. Wright Aff., ¶ 4. Affidavit of Elaine Sumter, ¶ 4, ECF No. 169-1. This testimony appears to be presented to establish that while not able to exercise outside of his cell, Plaintiff did get some time, albeit limited, outside of his cell approximately three times a week.
Michael Dixon states that he, and another inmate, along with Plaintiff were locked in the same cell for 24 hours a day without out-of-cell exercise. Affidavit of Michael J. Dixon, ¶ 3, attached as an exhibit to Plaintiff's Brief at ECF No. 171-3. He further states that “there was no room to hardly move around in the cell, and certainly no room to exercise whatsoever.” Dixon Aff., ¶ 5. Willie Haynes also provided an affidavit stating he was in the same cell as Dixon and Plaintiff and explained that the cell only had two beds, so the third individual slept on the floor. Affidavit of Willie Haynes, ¶¶ 3-4, attached as an exhibit to Plaintiff's Brief at ECF No. 171-4. Haynes also stated that there was not a lot of room to move around or exercise. Haynes Aff., ¶ 5.
It is unclear whether any of Plaintiff's other medical records were relevant to the allegations in his Complaint, though it is noted that Defendants attached “excerpts” of Plaintiff's medical records to their exhibits.
The undersigned has carefully considered the evidence of the record and considered the totality of the circumstances specific to this case. On the one hand, prison administrators should rightly be concerned with the safety of both the staff and inmate population. Sandin v. Conner, 515 U.S. 472, 482 (1995). Likewise, courts should afford deference and flexibility to state officials attempting to manage a volatile environment such as a prison. Id. Defendants have established that the restriction on out-of-cell exercise was necessary for both safety concerns during the intake process and nature of R&E (and generally alleged COVID-19 also resulted in additional restrictions). Defendants have provided testimony providing the purpose for in-cell recreation for inmates who have not yet been classified (i.e. safety concerns). On the other hand, deprivation of out-of-cell exercise for an extended period of time may violate the Eighth Amendment. See Mitchell, 954 F.2d at 191. The record before the court is unclear whether Plaintiff was assigned a classification that then further restricted his ability to exercise outside of his cell, whether he remained without a classification for five months, or whether he was required to remain in his cell due to COVID-19 concerns. Additionally, there exists a genuine issue of material fact as to whether the alternative provided, that of in-cell exercise, was a viable alternative given the number of inmates assigned to Plaintiff's cell and the size of the cell. Defendants present testimony that inmates were allowed some time outside of their cells to shower or use the phone; however, Plaintiff argues that time period in question where he was not allowed to exercise, two separate periods of five months each, is still excessive. Plaintiff's medical records further support his contention that he complained of and was seen for physical and emotional injuries that he contends are related to the restriction on the ability to exercise outside. Thus, in considering the duration of time Plaintiff remained without outdoor exercise, the fact that the in-cell exercise option appeared difficult to effectuate for Plaintiff due to the small cell size and the number of inmates within at least one of his cells, and the fact that he otherwise was not outside of his cell other than three times a week to shower or use the phone, Plaintiff has established a genuine issue of material fact exists as to the objective component of the test.
In looking at the actual policy language itself, the other examples of inmates who are required to remain in their cells most of the time does not appear to be at issue here.
In considering the subjective component, Defendants argue that Plaintiff has not offered any evidence that Defendants knew of a substantial risk of serious harm. Defendants point to the fact that they are constrained to the enforcement of the in-cell exercise policy due to unavoidable safety concerns. Defs' Amended Br. at 12-14; Defs.' Reply at 4. Plaintiff responds that there have been “many lawsuits” related to this issue, and that Defendants knew or reasonably should have known that he was suffering from injury as a result of the prolonged inability to exercise. Pl.'s Br. at 40. Over the course of his confinement at Kirkland, Plaintiff filed numerous grievances challenging the inability to exercise outside of his cell. See Requests to Staff Member, ECF No. 162-5 at 2, 3, 8, 9,11-18. The responses indicate that, at times, Plaintiff's inability to have outside recreation was related to COVID-19 measures, while other times it was due to the fact that as an R&E inmate, he was to utilize the in-cell exercise program. ECF No. 162-5 at 2. Plaintiff also states in these grievances that he is suffering physical injury, and on at least one occasion, was treated for complaints related to bed sores, among other complaints. Eskew Aff., ¶ 5. It is clear that Defendants knew that Plaintiff was not able to exercise outside of his cell, though they submit that the reason behind this policy sounds in safety concerns. Penological justifications can support prolonged detention of an inmate in segregation. Porter v. Clarke, 923 F.3d 348, 362-63 (4th Cir. 2019). However, while Defendants have provided a safety reason for confining Plaintiff to his cell, and to a lesser extent COVID-19 concerns, without more, the undersigned does not find that the record before the court is sufficient to determine whether Defendants were deliberately indifferent in this case. Defendants provide reasonable and plausible explanations for the denial of out of cell exercise. However, Plaintiff disputes the explanation provided, and further argues that the time period he was housed without outside recreation was too long. Defendants' only response to the duration of time Plaintiff remained without outside recreation is that it did not extend for a consecutive ten months. Defendants were also likely aware that Plaintiff was not classified. Thus, there is a factual dispute regarding the explanation provided (whether it was related to COVID-19 or his temporary placement in R&E without a classification) and the appropriateness of the length of time he remained restricted to his cell. Further, while Defendants provide a legitimate penological justification to support the need for in-cell exercise, Defendants do not present any evidence that Plaintiff was a safety concern with respect to being outside of his cell with other inmates or otherwise state that he was classified as a high security risk. Thus, the undersigned recommends denying summary judgment based on the record currently before the court as to Plaintiff's Eighth Amendment claim as to Defendants Wallace, Wright, Robb and Sumter.
Defendant Wallace responded to at least some of those grievances. Defendants Wright and Sumter both provided affidavits acknowledging that they are aware that Plaintiff alleged they placed him in an overcrowded cell and denied him recreation or exercise outside of his cell. Defendant Robb did not provide an affidavit but otherwise does not allege lack of knowledge regarding this policy or its implementation as to Plaintiff.
iv. 1983 Claims Against Defendants Wallace, Furness, Babatunde, Grimes and Eskew
Defendants Furness, Babatunde, Grimes, Eskew and Wallace argue that Plaintiff has failed to establish that they were deliberately indifferent to his serious medical needs. Plaintiff alleges these Defendants failed to provide him adequate medical care, and that they conspired with Defendant Wallace to conceal his injuries. As an initial matter, the undersigned recommends dismissing Defendant Babatunde. In an affidavit provided to the court, Plaintiff concedes that, “through mistaken identity I have wrongfully named Oluwakemi Babatunde as a defendant in this case.” ECF No. 171-5 at 27. Plaintiff acknowledges he served the wrong defendant, therefore, dismissal would be appropriate as to this Defendant.
The government is obligated to provide medical care to incarcerated individuals. Estelle v. Gamble, 429 U.S. 97, 103 (1976); see Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975) (“[q]uestions of medical judgment are not subject to judicial review.”). However, the Supreme Court has stated that “every claim by a prisoner that he has not received adequate medical treatment” does not amount to a violation of the Eighth Amendment. Gamble, 429 U.S. at 103. A prisoner's allegations of mistreatment must reach a “constitutional dimension” before a federal court will interfere with the operations of a state penal facility. Id. The Fourth Circuit has held that a negligent medical diagnosis or treatment, without more, does not meet the standard for deliberate indifference. Webb v. Hamidullah, 281 Fed.Appx. 159, 166 (4th Cir. 2008); see also Gamble, 429 U.S. at 105 (“a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment”). Deliberate indifference to a prisoner's serious medical needs constitutes the “unnecessary and wanton infliction of pain” proscribed by the Eighth Amendment, whether it is in response to a prisoner's needs, there is an intentional denial or delay in access to medical care, or there is intentional interference with prescribed treatment. Estelle, 429 U.S. at 104. To establish these Defendants deprived Plaintiff of adequate medical care, Plaintiff must first establish that he suffered a serious medical condition; that is, one that is either “diagnosed by a physician as mandating treatment” or is “so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Mays v. Sprinkle, 992 F.3d 295, 300 (4th Cir. 2021) (quoting Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)). Second, Plaintiff must establish that the prison official(s) acted with “deliberate indifference to inmate health or safety,” which requires that the official have “had actual subjective knowledge of both the inmate's serious medical condition and the excessive risk posed by the official's action or inaction.” Mays, 992 F.3d at 300 (citations omitted). Stated another way, deliberate indifference is met by showing a defendant actually knew of and ignored an inmate's serious need for medical care. Parrish ex. Rel. Lee v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004).
Defendants Furness, Babatunde, Grimes, Eskew and Wallace argue that Plaintiff has not alleged that he suffered a serious injury, even though Defendants point out that he alleges he suffered chest pains and also received mental health treatment. Defs.' Amended Br. at 9. In his Amended Complaint, Plaintiff alleges that he suffered from bed sores, skin rashes, lethargy, fatigue, loss of stamina, atrophied muscles, shortness of breath, chest pains, stiffness of joints, severe pain in his right leg and hip, back pain, and skin discoloration. Plaintiff also filed an affidavit outlining his injuries as follows: lower extremity injuries and pain resulting from one or more metal rods in his legs, mental injuries including anxiety and depressive thoughts, stiff joints, back and neck pain, bed sores, skin discoloration, shortness of breath, fatigue, chest pains, as well as other aches and pains. ECF No. 171-5 at 5-9, 29. Therefore, it appears that Plaintiff alleges both physical and mental injuries. See DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018) (citing Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977)). In reviewing the medical records from Plaintiff's initial months at Kirkland, it appears Plaintiff presented to the medical staff with chest pains, and he was prescribed ibuprofen and rulox. See Plaintiff's Medical Records, attached to Defendant Eskew's Affidavit at ECF No. 162-13 at 3. Defendant Furness stated in his affidavit that when initially screened by medical and mental health professionals on September 28, 2020, Plaintiff had no significant mental health issues. See Affidavit of Gregory Furness, ¶ 5, attached to Defs.' Br. at ECF No. 162-16. Over the new few months, he was seen by mental health staff several times, including on November 12, 2020, November 26, 2020, December 4, 2020 and January 7, 2021. See Furness Aff., ¶ 5. Defendant Furness otherwise does not recall any significant health problems, other than low back pain. See Furness Aff., ¶ 7.
During the second time he incarcerated at Kirkland, Plaintiff was seen by medical for complaints of muscle deterioration and ulcers, as well as complaints related to pain due to rods in his legs. See Plaintiff's Medical Records, ECF No. 162-13 at 4. Patient was prescribed hydrocortisone cream, but his skin appeared otherwise intact. See Plaintiff's Medical Records, ECF No. 162-13 at 4. Defendant Furness recalls Plaintiff being assessed by medical on June 15, 2021, as well as screened by mental health twice in June 2021. See Furness Aff., ¶ 8. Defendant Furness states that through the end of that year, Plaintiff was seen at least once per month by medical or mental health professionals. See Furness Aff., ¶ 8. Defendant Furness states that during Plaintiff's two separate stays at Kirkland, he was diagnosed with arthritis, depression, a personality disorder, and treated for a bump on his thigh (as also noted by Defendant Eskew in her medical records). See Furness Aff., ¶ 9. The excerpts from his medical records included in the record provided to the court indicate he was treated with prescription medication for his mental health issues. See Plaintiff's Medical Records, ECF No. 162-17 at 5.Viewing the facts in a light most favorable to Plaintiff, there appears to be some evidence by which one could infer Plaintiff suffered a serious medical condition attributable to his mental health and/or a serious medical condition associated with his chest pains and rods in his lower extremities.
Plaintiff was also diagnosed with Hepatitis C, however Plaintiff does not suggest this is related to his inability to leave his cell for exercise. See Plaintiff's Medical Records, ECF No. 162-17 at 17.
However, even assuming Plaintiff established a serious medical need, the undersigned agrees with these Defendants that Plaintiff failed to establish the requisite intent on the part of Defendants. Plaintiff argues that these Defendants delayed or ignored his requests for treatment. Deliberate indifference may occur when prison officials deny, delay, or intentionally interfere with medical treatment. Nelson v. Caswell, No. CIVA 8:05-874-HMH-BHH, 2006 WL 1432084, at *3 (D.S.C. May 23, 2006). In response, Defendants have provided medical records and the affidavit of the medical professionals which evidence consistent medical treatment on the part of Defendants. Plaintiff states that he began complaining about his inability to go outside in October of 2020, during his first stay at Kirkland. Indeed, while Plaintiff argues that his complaints were ignored or he wasn't provided adequate medical care, he also recognizes, for example, that he was provided a bottom bunk floor pass for his injuries, that he was seen in November 2020 by Defendant Eskew, that he was seen by Defendant Grimes, and he was seen by Defendant Furness in January and February of 2021.Plaintiff does not indicate what treatment he believed he should have received, and the records show that he was seen by medical multiple times and received prescription medication when needed. While Plaintiff may disagree that this was the best course of treatment, he has not set forth any set of facts that suggests these Defendants deliberately withheld treatment or ignored a condition that required a different course of treatment. See Jackson v. Fair, 846 F.2d 811, 817 (4th Cir. 1988) (explaining that while prisoners are to be provided a minimum level of medical treatment, the Constitution does not guarantee a prisoner the treatment of his choice). Nor has he established a genuine issue of fact as to whether Defendant Wallace acted in conspiracy with these Defendants to deny him medical care, particularly when it is clear from the evidence before the court that he received medical treatment. Finally, Plaintiff summarily alleges his medical records were either deleted or fabricated, but he has not produced any evidence to support these claims. For these reasons, the undersigned recommends finding that Defendants Furness, Babatunde, Grimes, Eskew and Wallace are entitled to summary judgment to any claims of medical indifference. In any event, as conceded by Plaintiff, Defendant Babatunde was incorrectly identified and should therefore be dismissed.
While Plaintiff asserts that he made several RTSM written requests to be seen by medical, he does not assert he made these complaints to medical staff. Plaintiff was seen approximately a month after he alleges he first began complaining of aches and pains he attributed to the in-cell exercise program.
v. Qualified Immunity
Defendants argue that they are entitled to qualified immunity with respect to Plaintiff's claims. In Harlow v. Fitzgerald, the Supreme Court held that government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known. 457 U.S. 800 (1982). When a qualified immunity defense is raised, the courts apply a two-part test. First, the court must determine whether the facts viewed in the plaintiff's favor make out a violation of one's constitutional rights, and second, whether the violated right was clearly established at that time. Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (citing Pearson v. Callahan, 555 U.S. 233, 231 (2009)). The Fourth Circuit employs a split burden of proof for the qualified immunity defense. The plaintiff bears the burden of proving the first prong, and the [officer] bears the burden on the second prong. Stanton v. Elliott, 25 F.4th at 233 (citing Henry v. Purnell, 501 F.3d 374, 377-78 & n.4 (4th Cir. 2007)). Courts are not required to analyze the two-part qualified immunity test sequentially, though it is often the better approach to first determine whether a plaintiff has alleged a deprivation of a constitutional right. E.W. by & through T.W. v. Dolgos, 884 F.3d 172, 178-79 (4th Cir. 2018) (citing Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 898 (4th Cir. 2016)). The test is meant to satisfy both interests, “by holding public officials responsible only for conduct that a reasonable official should readily be able to determine unlawful.” Mitchell v. Rice, 954 F.2d 187, 191 (4th Cir. 1992).
Here, the undersigned recommends granting summary judgment in favor of Defendants Furness, Babatunde, Grimes, Eskew and Wallace because Plaintiff has failed to establish an Eighth Amendment violation as to his claims of deliberate indifference to his medical needs. Alternatively, the undersigned recommends finding that these Defendants are entitled to qualified immunity. As previously analyzed, Plaintiff has failed to show that Defendants' conduct violated a constitutional right for the reasons previously explained. Plaintiff has not otherwise explained how the conduct in question violates his clearly established rights. Therefore, the undersigned recommends finding that Defendants Furness, Babatunde, Grimes, Eskew and Wallace are entitled to qualified immunity as to the claims regarding deliberate indifference to his medical needs.
As to the conditions of confinement claims brought against Defendants Wallace, Sumter, Wright and Robb, the undersigned recommends finding that Plaintiff has established a genuine issue of material fact as to whether the inability for Plaintiff to meaningfully participate in any recreation for a collective period of ten months is a constitutional violation. Clearly established rights are those rights which have been specifically adjudicated, as well as those “manifestly included within more general applications of the core constitutional principles involved.” Wilson v. Layne, 141 F.3d 111, 114 (4th Cir. 1998). In considering whether the right was clearly established at the time of the violation, courts look to the substantive Eighth Amendment law established at the time of the alleged constitutional violation or violations. Mitchell, 954 F.2d at 191.
There is certainly case law that clearly establishes that the inability to leave one's cell and the denial of exercise opportunities for an extended period of time could give rise to a violation under the Eighth Amendment. See Mitchell, 954 F.2d at 191 (explaining that several decisions on the issue of exercise limitations had previously been announced, and that it is generally considered that complete deprivation of exercise for an extended period of time violates the Eighth Amendment). At the same time, there is no authoritative decision setting forth any specific number of exercise hours that an inmate is entitled to under the Eighth Amendment. See, e.g., Reynolds v. Shearin, No. CIV.A. DKC-13-2495, 2015 WL 570308, at *6, n. 3 (D. Md. Feb. 10, 2015). Further, courts concede that some penological justifications can, in some cases, justify restrictions. Mitchell, 954 F.2d at 192 (citing Patterson v. Mintzes, 717 F.2d 284, 289 (6th Cir. 1983)).
Here, Defendants Sumter, Wright, and Robb argues that they simply followed the policy in place, which provided that inmates held in R&E cannot have recreation due to safety concerns, and that instead they can utilize in-cell exercise. Defs.' Amended Br. at 15. They argue that they had no part in selecting the policy, but instead simply enforce the policy, and that this “tends to indicate” that they would not have known they were violating a right. Id. Finally, these Defendants argue that the combination of the fact that inmates could exercise inside their cells, and that they were allowed to leave for showers also “tends to indicate” that these Defendants would have reasonably believed that no law was being violated. Id. at 16. Defendant Wallace argues that the policy was a necessary safety measure, and that coupled with COVID-19 complications set forth a need to reduce movement in certain dorms. Wallace Aff., ¶¶ 6-11. Defendant Wallace points to the fact that inmates were encouraged to exercise in their cells and were allowed to periodically leave to shower “3 times per week.” Defs.' Amended Br. at 16. Thus, like Defendants Sumter, Wright and Robb, Defendant Wallace states that a reasonable officer could conclude that, in looking at the totality of the circumstances, there was no constitutional violation taking place. Defendants do not address the fact that as applied to Plaintiff, the length of time the policy applied to him was for approximately five month increments on two separate occasions, and Plaintiff began complaining of injuries associated with the inability to exercise both inside and outside of his cell.
The undersigned has considered the applicable case law previously established by federal courts and finds that a reasonable prison official should know that withholding exercise opportunities from a prisoner for an extended period of time could implicate constitutional concerns. The justification provided by Defendants, that of the safety concerns of unclassified inmates, would seem to justify some deprivation of interaction among inmates, including out of cell exercise. But the record before the court and the facts as presented do not allow for the undersigned to recommending granting qualified immunity. Plaintiff has provided some evidence that the ability to exercise in his cell did not, in reality, exist because of the size of the cell and the fact that for at least some period of time, he was housed with three other inmates. Further, it is not clear how long inmates generally remain in R&E at Kirkland; in Plaintiff's case, it was approximately five months each time. Prior precedent establishes that the deprivation of all opportunities to exercise would generally violate the Eighth Amendment prohibition against cruel and unusual punishment. However, the record before the court is not sufficient to determine whether the safety concerns explained by Defendants and the alternatives provided to move around within the cell are sufficient to justify the limited inability to go outside in this case. Therefore, the undersigned cannot recommend granting qualified immunity to these Defendants on the condition of confinement claim based on the insufficiency of the evidence currently in the record.
IV. Conclusion and Recommendation
For the reasons explained above, the undersigned recommends granting summary judgment in favor of Defendants Bryan Stirling and Kirkland Medical Staff, and Defendants Furness, Babatunde, Grimes, Eskew, and Wallace as to Plaintiff's claims that they violated his constitutional rights under § 1983 by providing him inadequate medical care. However, the undersigned recommends denying summary judgment as to Defendants Wallace, Sumter, Wright and Robb as to Plaintiff's conditions of confinement claims.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n 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 & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such 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).