Civil Action No. 2:17-03031-RMG-MGB
REPORT AND RECOMMENDATION
I. Introduction II. Background III. Standard of Review IV. Discussion
A. Eleventh Amendment Immunity
B. Claims against Defendants Dennis, Kelly, and McKie
C. Constitutional Claims against Defendant McFadden
a. Incident Reports, Inmate Requests, and Grievances
b. Investigation of Incident and Related Documents
c. Plaintiff's Affidavit
d. Major Clarke's Affidavit
e. Policies and Post Orders
f. Roth Report
g. Defendant McFadden's Deposition Testimony
h. Plaintiff's Expert Reports
i. Other Documented Incidents at Lieber
a. Violation of Plaintiff's Fifth and Fourteenth Amendment Rights
b. Violation of Plaintiff's Seventh Amendment Rights
c. Violation of Plaintiff's Eighth Amendment Rights
1. Legal Standards
i. Failure to Protect
ii. Supervisory Liability
2. Analysis of Eighth Amendment Claims
D. Plaintiff's State Law Claims for Violation of SCTCA
E. Injunctive Relief V. Conclusion
This action has been filed by Plaintiff pursuant to 42 U.S.C. § 1983 and the South Carolina Tort Claims Act ("SCTCA"), S.C. Code Ann. §§ 15-78-10 et seq. (Dkt. No. 1.) This was originally a multi-Plaintiff action that the Court severed on August 9, 2019. (Dkt. No. 88.) Currently before the Court is Defendants' Motion for Summary Judgment. (Dkt. No. 119.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B) and Local Rule 73.02(B)(2)(d), D.S.C., this matter has been assigned to the undersigned for all pretrial proceedings. For the reasons set forth below, the undersigned recommends the Motion for Summary Judgment be denied in part and granted in part (Dkt. No. 119). More specifically, summary judgment should be denied as to Plaintiff's § 1983 Eighth Amendment claims brought against Defendant McFadden in his individual capacity, his state law claims for negligence and gross negligence against SCDC and McFadden, and his state law claim for injunctive relief against SCDC and McFadden. The remainder of Plaintiff's claims should be dismissed with prejudice, and Defendants Dennis, Kelly, and McKie should be dismissed as party Defendants.
This case is one of the many actions currently before the undersigned that have been filed by Plaintiff's counsel concerning inmate violence and understaffing at the South Carolina Department of Corrections. See, e.g. Battle v. SCDC et al., 2:18-cv-719-TMC-MGB; James Bethel, et al. v. SCDC, et al., 4:18-cv-1343; Dexter Crawford v. SCDC, et al., 6:18-cv-2407; Craig Ellerbe v. SCDC, et al., 6:19-cv-96; Jamarcus Murray v. SCDC, et al., 6:19-cv-100. On August 13, 2019, the undersigned held a Global Status Conference, in which counsel in all the cases within this category appeared. (Dkt. No. 90.)
This civil action arises from an alleged inmate-on-inmate attack that occurred at Lieber Correctional Institution ("Lieber") on April 17, 2017, wherein Plaintiff Brandon Bartlett was attacked "by a number of inmates." (Dkt. No. 1-1 at 9.) Plaintiff alleges that he was first assaulted in his room when "the correctional officer on duty . . . failed to relock all the doors after the inmates had left for breakfast"—Bartlett was hit in the nose and stabbed in his left arm. (Id.) Plaintiff "went to look for the correctional officer" but could not find one. (Id.) Plaintiff was again assaulted when he "went downstairs to the flood zone"—he was stabbed six more times. (Id.) A correctional officer found Plaintiff "at count time," and Plaintiff was eventually taken "by EMS to Trident hospital." (Id.) He had a collapsed lung and stayed at the hospital for three days. (Id.)
Plaintiff alleges Major Clark told him that three inmates "were going to be charged but to the best of his knowledge no one has been charged." (Id. at 10.) Plaintiff further alleges he received a threatening call in his hospital room from another Lieber inmate. (Id.) According to Plaintiff, "the correctional officers at the hospital with him" overheard the phone call and moved Plaintiff to another room "due to the security risk." (Id.) Plaintiff alleges he did not receive "proper medical follow up" when he returned to Lieber, and he "has been denied any further medical care" despite his requests for medical treatment. (Id.)
According to Plaintiff, "Lieber Correctional Institution. . . has a long history of violence among inmates housed in the institution and many times the violence is encouraged and/or condoned by the Defendants as the perpetrators are not punished . . . ." (Id. at 8.) Plaintiff alleges that Defendants failed "to keep weapons out of the hands of inmates housed at Ridgeland [sic] Correctional Institution." (Id.) Plaintiff alleges that "Lieber Correctional Institution and other SCDC institutions are severely understaffed due to the failure to hire sufficient officers and due to a large number of turnovers." (Id.) Plaintiff further alleges that Lieber allows "inmates from one wing into another wing," thereby permitting "inmates who are suppose[d] to be kept apart to be together, [which] facilitate[es] fights and stabbings." (Id. at 9.) According to Plaintiff, these practices by Lieber violate SCDC's policies and procedures. (Id. at 8-9.)
Plaintiff alleges that Defendants "acted in a negligent, grossly negligent, reckless, willful, wanton, and with a deliberate indifferent manner in causing injury to the Plaintiffs" by, inter alia, "allowing uncontrolled violence in the correctional institution, . . . failing to provide protection and security for the Plaintiff, [and] . . . in failing to discipline its correctional officers for violations of SCDC policies and procedures." (Id. at 16.) Specific to Plaintiff, the Complaint alleges four causes of action for: (1) injunctive relief pursuant to S.C. Code Ann. § 15-43-30 and 42 U.S.C. § 1983; (2) deliberate indifference against Warden McFadden "and any named Defendant correctional officers" pursuant to § 1983; (3) failure to implement appropriate policies, customs, and practices against Warden McFadden pursuant to § 1983; and (4) violation of the South Carolina Tort Claims Act ("SCTCA") against SCDC, Warden McFadden, "and any named Defendant correctional officers." (Id. at 15-21.) In addition, the first paragraph of the Complaint states that Plaintiff seeks relief under "the Fifth, Seventh, Eighth, and Fourteenth Amendments to the United States Constitution." (Id. at 1.) Under the cause of action for deliberate indifference pursuant to § 1983, the Complaint states, inter alia, that
In committing the acts and omissions herein, Defendant Warden McFadden acted under color of state law to deprive Plaintiffs of certain constitutionally protected rights under the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States and the Constitution of the State of South Carolina including but not limited to: 1) due process of law and 2) the right to be free from cruel and unusual punishment.(Id. at 17.) Plaintiff seeks injunctive and declaratory relief as well as actual, consequential, special damages, and punitive damages. (Id. at 21-22.)
On October 7, 2019, Defendants filed a Motion for Summary Judgment. (Dkt. No. 119). Plaintiff filed a response in opposition on October 21, 2019, stating he "agrees to withdraw all 42 U.S.C. § 1983 claims" against Defendants Correctional Officer Dennis, Correctional Officer Kelly, and Correctional Officer McKie. (Dkt. No. 123 at 10.) Defendants filed a reply brief on October 28, 2019. (Dkt. No. 126.) Defendants' Motion has been fully briefed and is ripe for disposition.
III. STANDARD OF REVIEW
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). "Only 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." Anderson, 477 U.S. at 248.
In moving for summary judgment, Defendants argue that: (1) Plaintiff's claims against SCDC and the named Defendants in their official capacities are barred under the Eleventh Amendment; (2) Plaintiff's claims against Defendants Dennis, Kelly, and McKie in their individual capacities should be dismissed for failure to state a claim; and (3) Plaintiff's claims against Defendant McFadden "should be dismissed for failure to present a constitutional claim, and based upon qualified immunity." (Dkt. No. 119-1 at 21.)
In his response brief, Plaintiff states that he withdraws all of his § 1983 claims against Defendants Correctional Officer Dennis, Correctional Officer Kelly, and Correctional Officer McKie. (Dkt. No. 123 at 10.) Thus, Plaintiff's remaining claims are for: (1) injunctive relief pursuant to S.C. Code Ann. § 15-43-30 and 42 U.S.C. § 1983; (2) deliberate indifference against Warden McFadden pursuant to § 1983; (3) failure to implement appropriate policies, customs, and practices against Warden McFadden pursuant to § 1983; and (4) violation of the South Carolina Tort Claims Act ("SCTCA") against SCDC, Warden McFadden, "and any named Defendant correctional officers." (Id. at 15-21.) In addition, the Complaint appears to assert § 1983 claims against McFadden under "the Fifth, Seventh, Eighth, and Fourteenth Amendments to the United States Constitution." (Id. at 1.)
The undersigned considers Defendants' arguments for dismissal, below.
A. Eleventh Amendment Immunity
Defendants assert that Plaintiff's § 1983 claims against SCDC and the named Defendants in their official capacities are barred under the Eleventh Amendment. Plaintiff responds that Defendants waived sovereign immunity by voluntarily removing this action to federal court, and Plaintiff's § 1983 claim for injunctive relief "is proper." (Dkt. No. 123 at 18-19.) As discussed above, the only remaining § 1983 claims are against SCDC for injunctive relief and against McFadden for monetary damages and injunctive relief in both his official and individual capacities.
The Eleventh Amendment prohibits federal courts from entertaining an action against a state. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (citations omitted); Hans v. Louisiana, 134 U.S. 1, 10-11 (1890). Eleventh Amendment immunity "extends to 'arm[s] of the State,' including state agencies and state officers acting in their official capacity," Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (alteration in original) (internal citations omitted), because "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office . . . [and] is no different from a suit against the State itself," Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted). Accordingly, "[s]tate officials may only be sued in their individual capacities." Rhoden v. S.C. Dep't of Corr., No. 4:17-cv-2537-HMH-TER, 2017 WL 9288217, at *3 (D.S.C. Oct. 4, 2017) (finding claims against prison warden in his official capacity should be dismissed because warden is entitled to Eleventh Amendment immunity), adopted by, 2017 WL 5494126 (D.S.C. Nov. 16, 2017), amended, 2017 WL 6032341 (D.S.C. Dec. 6, 2017); Edwards v. Patell, No. 4:06-cv-0748-HFF-TER, 2007 WL 2428548, at *8 (D.S.C. Aug. 21, 2007) (dismissing claims brought against defendant "employee of SCDC" in his official capacity). Further, "[a]s a state agency, SCDC is an arm of the State of South Carolina." Abebe v. S.C. Dep't of Corr., No. 0:09-cv-3111-MBS-PJ, 2010 WL 2991595, at *2 (D.S.C. July 2, 2010), adopted in part, 2010 WL 3258595 (D.S.C. Aug. 16, 2010). "As such, the Eleventh Amendment protects SCDC from suit whether money damages or injunctive relief is sought." Id. (citing Alabama, 438 U.S. at 782).
Plaintiff's assertion that the Eleventh Amendment does not bar federal claims against SCDC for injunctive relief is without merit. Plaintiff offers no authority for this assertion, and precedent demonstrates Plaintiff is incorrect. In the landmark Supreme Court decision, Ex parte Young, the Court held that, although prohibited from giving orders directly to a State, federal courts could enjoin state officials in their official capacities. 209 U.S. 123, 155-56 (1908). "The Ex Parte Young exception is directed at 'officers of the state [who] are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings'" to enforce an unconstitutional act against affected parties. McBurney v. Cuccinelli, II, 616 F.3d 393, 399 (4th Cir. 2010) (citing Ex Parte Young, 209 U.S. at 155-56). "Thus, to correctly plead such a claim, the proper State official must be included as a defendant by name and identified in the body of the complaint with a specific unconstitutional policy, custom, or practice." Smith v. City of Huntington, No. 3:17-cv-03806, 2017 WL 5180456, at *3 (S.D.W. Va. Sept. 28, 2017), adopted sub nom. Smith v. City of Huntignton, 2017 WL 5180437 (S.D.W. Va. Nov. 8, 2017); see also Woods v. S.C. Dep't of Health & Human Servs., No. 3:18-cv-00834-MGL-KDW, 2019 WL 1995136, at *6 (D.S.C. Apr. 18, 2019) (finding that a "claim for prospective injunctive relief permitted by Ex Parte Young . . . would be brought against state officers or agency employees in their official capacities"), adopted by, 2019 WL 1995511 (D.S.C. May 6, 2019).
In other words, as a state agency, SCDC retains its immunity under the Eleventh Amendment, regardless of the type of relief sought. While McFadden could potentially be subject to a § 1983 claim for prospective injunctive relief in his official capacity, he is no longer the Warden at Lieber Correctional Institution. Accordingly, he cannot be sued in his official capacity for prospective relief related to alleged unconstitutional policies and procedures at Lieber. See Wilson v. United States, 332 F.R.D. 505, 528 (S.D.W. Va. 2019) ("Plaintiff cannot maintain an official capacity claim against Warden Nohe for prospective relief [related to unconstitutional practices and procedures at Lakin], because she is no longer the Warden at Lakin Correctional Center."). For these reasons, the undersigned recommends that the Eleventh Amendment bars Plaintiff's § 1983 claim for injunctive relief against SCDC and bars Plaintiff's § 1983 claims for injunctive relief and monetary damages brought against Defendant McFadden in his official capacity.
However, by voluntarily removing a case to federal court, a defendant waives any immunity from suit in federal court with respect to any claims it otherwise would have been subject to in state court. Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 619 (2002) ("A State's voluntary appearance in federal court waives sovereign immunity for claims where a state has consented to suit in its own courts for such claims); see also Cameron v. Cox, No. 10-1278, 2011 WL 1235308, at * 4 (D.S.C. Jan.21, 2011), adopted by, 2011 WL 1212177 (D.S.C. Mar. 30, 2011). Through enactment of the SCTCA, South Carolina has generally consented to suit for tort claims filed against it in state court. Briggs v. South Carolina Dept. of Corrections, No. 13-cv-1348, 2014 WL 1278173 at *21 (Mar. 27, 2014).
Such voluntary removal does not waive a defendant's immunity to any § 1983 claims, however. See Passaro v. Virginia, 893 F.3d 243, 248 (4th Cir. 2019) (rejecting argument that the Commonwealth waived its sovereign immunity to a Title I claim by removing case to federal court); Stewart v. North Carolina, 393 F.3d 484 (4th Cir. 2005) (holding that where a state retains its sovereign immunity from suit in state court, it does not lose that immunity by removing the case to federal court).
B. Claims Against Defendants Dennis, Kelly, and McKie
Defendants next assert that Plaintiff's claims against Defendants Dennis, Kelly, and McKie in their individual capacities should be dismissed for failure to state a claim because Plaintiff "makes no factual assertions against" them. (Dkt. No. 119-1 at 6.) In response, Plaintiff states that he "agrees to withdraw all 42 U.S.C. § 1983 claims" against these Defendants. However, Plaintiff's concession does not resolve his state law cause of action. As noted, the Complaint brings a state law cause of action for violation of the SCTCA against SCDC, Warden McFadden, "and any named Defendant correctional officers." (Dkt. No. 1-1.) This presumably would include Defendants Dennis, Kelly, and McKie, as they are named Defendants in this action. However, given that the Complaint fails to make any factual allegations against these Defendants specific to Plaintiff, and because Plaintiff does not offer any objection to Defendant's argument that these Defendants should be dismissed as a matter of law, the undersigned recommends Defendants Dennis, Kelly, and McKie be dismissed from this action.
C. Constitutional Claims against Defendant McFadden
Finally, Defendants argue that Plaintiff's claims against Defendant McFadden "should be dismissed for failure to present a constitutional claim, and based upon qualified immunity." (Dkt. No. 119-1 at 21.) The Complaint alleges several claims against Defendant Warden McFadden for constitutional violations pursuant to § 1983, including: (1) deliberate indifference; (2) failure to implement appropriate policies, customs, and practices; and (3) violations of the "Fifth Seventh, Eighth, and Fourteenth Amendments to the United States Constitution." (Dkt. No. 1-1.)
The undersigned first summarizes the evidence presented by the parties before analyzing Plaintiff's claims, below.
a. Incident Reports, Inmate Requests, and Grievances
Plaintiff was housed at Lee Correctional Institution ("Lee") prior to his transfer to Lieber in March 2017. (Dkt. No. 119-4 at 107.) While at Lee, Plaintiff was granted protective custody. More specifically, on December 23, 2016, Major Bernadette Jefferson completed an Incident Report stating Plaintiff's mother "called me via telephone and stated 'My son just called me and he said his life is in danger and somebody was going to kill him. She said to me Please Help My Son.'" (Dkt. No. 119-4 at 11.) Jefferson wrote that she "placed [Plaintiff] in the restricted Housing Unit for his protection." (Id.) A form for "Evaluation of Protective Concerns" dated December 23, 2016, shows that Plaintiff requested protective custody for "fear of his life" and he provided a written statement stating,
I need to have protected custody because a few PPl [sic] here at Lee County want to kill me. I think I need to be put in statewide PC because I'm not sure if I'm safe here at Lee County or any other level 3 . . . I do know that some blood affiliates want to kill me . . . I've never disrespected them or no one else . . . I don't owe no one nothing. So I guess I'm just a target.(Id. at 10, 12.)
Plaintiff was transferred to Lieber on March 7, 2017. (Id. at 107.) The record shows he filed some inmate requests in March 2017 related to, inter alia, obtaining a job assignment, taking educational classes, and getting "work boots." (Id. at 131-39.) These requests do not mention any fear for Plaintiff's safety.
On April 25, 2017, Plaintiff submitted an inmate request to the Investigations Department stating that he was attacked and stabbed by several inmates on April 17, 2017, after "Officer Butler" unlocked the doors and left them unlocked for hours. (Id. at 140.) The request states that following the second stabbing incident, Plaintiff was transported to Trident Hospital for his "wounds and lungs." (Id.) The request states that "the failure to secure the cell doors is a direct violation to security procedures especially with the lack of staff . . . ." (Id.) The "Request Response" dated April 25, 2017 states, "This is currently being investigated by Police Services. The case is still an open/active case." (Id.)
On April 26, 2017, Plaintiff filed another inmate request under the "Request Type, Grievance," stating he is filing a "grievance in regards" to the April 17, 2017 incident, again noting he was attacked when an officer left the doors unlocked. (Dkt. No. 63-4 at 2.) The request also states Plaintiff was "attacked in [his] room this morning and the altercation ended when [he] was attacked again and transferred to Trident Memorial Hospital with 6 stab wounds." (Id.) The "Request Response" dated April 26, 2017, states "You can't file a grievance through a kiosk system. You must complete a 10-5 and place it in the grievance box." (Id.)
Defendants submitted this evidence with their briefing for their prior Motion for Summary Judgment, arguing for dismissal on the basis that Plaintiff failed to exhaust his administrative remedies. (Dkt. No. 62.) The Court denied Defendants' Motion with respect to the Plaintiff here. (Dkt. No. 95.) Because this evidence is in the record, the undersigned finds it is appropriate to consider this evidence here.
On May 12, 2017, Plaintiff submitted a Step 1 grievance stating he was attacked in his cell on April 17, 2017, "after officers came and unlocked all cell doors at approx. 5:30-7:30 AM and continued to leave them unlocked." (Dkt. No. 63-6 at 2.) After recounting the assaults, the grievance states, "I don't understand why I'm here and not at Kirkland Correctional or back on my level 2 I'm ME-02 I came from Tyger River Corrections . . . before Lee County." (Id.) Under "Action Requested," Plaintiff asks "To be transferred to a level 2 and either Tyger River or Allendale Corrections; handle in courts or civil restitutional [sic] agreement, through the attny's; see mental health get back to schooling and a non-violent institution; need victim Rule 5 in this matter." (Id.) The grievance was returned to Plaintiff as being "NON-GRIEVABLE." (Id.)
On June 1, 2017, Plaintiff filed another Step 1 grievance again stating he was assaulted on April 17, 2017, and asking that "mental health inmates" be protected from "gang affiliates" who are "not actually mental health" inmates. (Dkt. No. 63-6 at 1.) Under "Action Requested," Plaintiff states he is "requesting the classification and mental health try to resolve this problem . . . ." The grievance was returned to Plaintiff for "fail[ure] to attach the answered Request to Staff Form/Automated Request to Staff regarding your informal resolution attempt on this issue through the appropriate staff prior to filing this grievance." (Id.)
b. Investigation of Incident and Related Documents
Plaintiff alleges he was assaulted by other inmates on April 17, 2017. An Incident Report completed by SCDC employee Fred Thompson and dated April 18, 2017, states that he "received an anonymous phone call" identifying three specific inmates as Plaintiff's attackers on April 17, 2017. (Dkt. No. 119-4 at 149.) The caller told Thompson that "the inmates allegedly were extorting money from Inmate Bartlette's family." (Id.)
Major Timothy Clark completed an Incident report on April 18, 2018, stating that he interviewed Plaintiff "regarding who stabbed him." (Id. at 150.) According to Clark, "during the interview," Plaintiff identified three specific inmates as "the ones that stabbed him." (Id.) Clark stated he was charging those inmates with "857 Assault and Battery of Inmate." (Id.)
According to the "Case Status Report" dated April 27, 2017,
On April 17, 2017 the Division of Police Services received a report from [Lieber] of an inmate on inmate assault. Based on information proved, [Plaintiff] was assaulted while in the Ashley Unit A wing. Bartlette sustained multiple stab wounds and a punctured lung and was sent for independent medical treatment. Institutional security staff later identified [three specific inmates] as possible offenders.(Dkt. 119-4 at 143.) Agent Garvin was assigned to investigate.
On April 28, 2017, Plaintiff completed a "Voluntary Statement" recounting the assault. He stated, inter alia, that the assault occurred because "no officer was around." (Id. at 144.) He also stated that he could not identify his attackers:
I don't remember who did what[.] I was struck in the head when knocking at door or either exiting the room. People said Clark put on his allegations that he interviewed me and I identified 3 individuals, which I'm not sure exactly who they are but from their messages from lock up here at Lieber they aren't familiar to me. . . . Names are hard to remember as well as faces.(Id. at 149-50.)
Notes from the "Report of Interview," dated August 23, 2017, state that Agent Garvin interviewed both Capt. Clarke and Plaintiff on August 23, 2017. (Id. at 146-47.) The notes state that
Capt. Clarke provided the following information: On the day of the incident, he had received information from A/W Thompson stating that an anonymous caller told him the names of the individuals involved in the stabbing of inmate Bartlette. After receiving this information Capt. Clarke went to the hospital where inmate Bartlette was transported. Capt. Clarke showed inmate Bartlette the names and pictures of the inmates. Inmate Bartlette told Capt. Clarke he had the right individuals. Capt. Clarke based on that he charged the inmates.
Inmate Bartlette provided the following information: Inmate Bartlette cannot confirm the identities of the inmates that Capt. Clarke showed him while in the hospital. Inmate Bartlette believes its [sic] possible but offers no other explanation. Inmate Bartlette was reluctant and refused to give any details. Inmate Bartlette said there may be witnesses by [sic] refuse to name anyone.(Id.)
On October 27, 2017, the case was "administratively closed." (Id. at 142.) Under "Remarks," the Case Status Report states,
During the course of this investigation, Agent Garvin attempted to interview the victim however the victim refused to cooperate with this investigation. Per Agent Garvin, the victim claims that he does not know who attacked him and he did not identify the suspects named in this case as offenders. All leads have been exhausted. This case is administratively closed with no report.(Id.)
On September 29, 2017, Plaintiff completed an inmate request stating that he needed "to be shipped off this yard." (Id. at 156.) He further states he
came from Lee to here and was attacked. I asked for help through headquarters and didn't get any. They shipped me here to be stabbed. . . . I should have been shipped to Kirkland when I was out of the hospital. Clark put my life in danger by telling inmates that I said they attacked me and he charged them with DHO papers and they beat the charges. He stated on the paper I said these individuals did this which I never signed or said that.(Id.) The "Request Response" dated October 12, 2017 states, "Speak with your caseworker. You will need to request a hardship transfer during your annual review." (Id.)
c. Plaintiff's Affidavit
Plaintiff has submitted his affidavit, which is dated October 15, 2019. (Dkt. No. 123-3 at 4.) He avers he is currently incarcerated at Evans Correctional Institution. (Id. at 1.) In his affidavit, Plaintiff avers that he is "personally aware of the ongoing violence in the South Carolina Department of Corrections and [he] is a victim of such violence." (Id.) Plaintiff avers he is "personally aware" that, inter alia, (1) there is an "increase in illegal contraband and weapons" within SCDC; (2) "gang members are taking over and running the prison"; (3) "correctional officers are complicit and/or colluding with inmates in bringing in illegal contraband and weapons"; and (4) "multiple inmates [have] hits on their lives by gang members" and he "also had hits on [his] life by gang members." (Id. at 2.) Plaintiff avers that he is "fearful for [his] life and [has] had several threats on it that [he has] told SCDC employees on several occasions." (Id.)
d. Major Clarke's Affidavit
Defendants have submitted an affidavit from Major Timothy Clark dated October 7, 2019. (119-4.) In his affidavit, Clarke avers that Plaintiff has "refused to cooperate and refused to identify anyone specifically as to who assaulted him or who may have witnessed the assault." (Id. at 6.) He contends that "SCDC officers and staff, as well as Police Service Agents, cannot investigate inmate on inmate violence without cooperation of the victim inmate." (Id.) Clarke avers that he "did not inform" the three inmates originally charged that Plaintiff had identified them as his attackers. (Id. at 8.) Clarke further avers that although Plaintiff "failed to identify his attackers or otherwise assist with the investigation after the April 17, 2017 alleged assault, Lieber staff moved him to a different dorm in an effort to minimize the risk of any further harm." (Id. at 7.)
In his affidavit, Mr. Clarke also references Plaintiff's assertion that he told SCDC employees about "several threats" to his life "on several occasions." (Id. at 2.) Clarke avers, "As far as I am aware, Bartlett did not inform any SCDC employee at Lieber Correctional, including me." (Id.) Clarke also avers that Plaintiff did not request protective custody prior to his April 17, 2017 assault, and that Plaintiff "is aware and knowledgeable in requesting protective custody," as demonstrated by his request for protective custody at Lee Correctional Institution. (Id.) Clarke cites SCDC Policy 21.04, which covers the "Inmate Classification Plan." (Dkt. No. 119-4 at 14.) He states that per this policy, "Central Classification at Headquarters decides all bed moves, including facility moves for all inmates." (Id. at 3.)
It is curious that Major Clarke quotes an affidavit that post-dates his own affidavit.
Clarke also cites SCDC Policy 22.03: "Statewide Protective Custody"; SCDC Policy GA-01.12: "Inmate Grievance System"; and SCDC Policy GA-06.04: "Request to Staff Member." (Id.) Without citing any specific provision in these policies, Clarke avers that Plaintiff's "non-specific complaints and/or his written statement of 'my life is in danger' or 'they are going to kill me,' fails to meet his burden of proof under SCDC Policy 22.03, SCDC Policy GA-01.12, and SCDC Policy GA-06.04. (Id.) Clarke later quotes section 14.1 of Policy GA-01.12 stating it is the inmate's responsibility "to demonstrate the factors creating the substantial risk of personal injury or other serious and irreparable harm" in order for a grievance to be processed as an emergency. (Id. at 6.) Clarke avers that this policy indicates that "[r]eporting vague, non-specific information does not help officers and staff to identify 'real threats' to the inmate population." (Id.)
Relevant here, SCDC Policy 22.03 provides that the Warden may place an inmate in protective custody under certain circumstances. (Id. at 112.) This policy further states that "When the Warden/Duty Warden or approved designee has determined that the inmate is at risk and may require a higher degree of safety and security, an investigation must be conducted to substantiate the inmate's need for Statewide Protective Custody." (Id.)
e. Policies and Post Orders
The parties have submitted various SCDC Policies in support of their briefing:
Plaintiff has submitted SCDC Policy OP-22.24, which addresses "Post Orders and is dated February 23, 2016. (Dkt. No. 123-5.) This policy states that "All Post Orders will . . . be distributed" to certain authorities, including Wardens. (Id. at 1.) The policy further states that "Each Warden will be responsible for ensuring that every authorized institutional post has a copy of all applicable Post Orders on hand," and "will ensure that a signature log is attached to each Post Order, and that employees assigned to the post have signed the log to document that they have read and understood the Post Order(s) prior to accepting the post." (Id. at 2-3.) The policy also states that "[e]ach Warden will be responsible for detailing any duties or responsibilities specific to his/her institution." (Id. at 5.) The policy states that "[a]ny problems or noncompliance areas noted will be reported to the Warden in writing so that immediate corrective action can be taken. Wardens will be responsible for reporting on the actions taken to ensure staff compliance or to correct any noted problem area." (Id.)
Plaintiff has also submitted an SCDC "Post Orders" document titled Housing Unit Number 35 and dated December January 9, 2018, which is roughly nine months before the incident at issue occurred. (Dkt. No. 123-4.) The document states it supersedes the December 16, 2016 version. (Id. at 1.) The document states the "Post Orders" were approved by Michael McCall, Deputy Director for Operations. (Id. at 1.) The document "specif[ies] the duties of the Housing Unit Officer in supervising the inmates assigned within the duty post." (Id.) It states that "This officer will maintain inmate accountability, movement, and control within the duty post." (Id.) Most relevant here, the document states that a Housing Unit Officer's duties and responsibilities include, "ensure all wing doors are secured except while allowing entry or exit; "at no time will Unit keys be given to inmates"; "allow only assigned inmates entrance to Unit"; "ensure that inmates are counted independently by two (2) employees, during formal/roll call counts"; and "supervise day room activities." (Id. at 2-3.) The document also states that "During unit/institutional lock down, due to disturbance or for disciplinary reasons, all cells will remain locked and secured at all times. Cell doors will only be opened and secured, one at a time, for feeding, showers, medical issues, or as directed by the Major or above." (Id. at 3.) The document further states that "This officer will remain within sight and sound of the inmates to ensure constant supervision within the living area." (Id.) It is unclear if this Post Order is specific to Lieber—a portion of the document contains instructions specific to Turbeville Correctional Institution. (Id. at 4.)
Defendants have submitted several SCDC policies that they submit pertain to the hiring, training, staffing, and retention of SCDC employees. (Dkt. No. 119-1 at 13-18.)
SCDC Policy ADM-11.28 covers the "Applicant Selection Process." (Dkt. No. 119-2 at 2.) This policy states that "All current vacancies or projected vacancies . . . must be requested by the appropriate official and entered into the Automated Vacancy System (AVS) by the Requesting Division/Institution Human Resource Manager or designee. Positions for announcement will be automatically routed to the Classification Compensation Branch" for review. (Id. at 5.) The policy states that "vacancy announcements must be approved by the designated approving official," which can include the warden. Section 7.4.8 describes the "screening process" for majors and states that "Upon completion of screening, applicant profiles will be forwarded to the appropriate Warden/Regional Director for interview." (Id. at 11.) In addition, this policy includes an attachment which lists the "selecting officials" for various positions at SCDC. Notably, the list states that for the positions of captains, lieutenants, sergeants, and corporals, the "Warden/Designee" is the selecting official. (Id. at 26.)
SCDC Policy ADM-11.06 addresses the "Employee Performance Management System" ("EPMS"). (Id. at 31.) This Policy states that the EPMS process "functions as an effective management tool within the Agency and provide[s] a sound process for evaluation of the performance and productivity of its employees." (Id.) Through the process, all employees are evaluated by a "rating official," which refers to the employees' current immediate supervisor. (Id. at 41.)
SCDC Policy ADM-17.06 addresses "Training Advisory Councils." (Id. at 49.) This policy explains that there is an Agency Training Advisory Council ("ATAC") and an Institutional Training Advisory Council ("ITAC"). The ATAC assists in the development of the annual training plan and reviews and approves the plan. (Id. at 50.) The ITAC is made up of members "selected by the Warden(s) . . . [and] one ITAC member will be appointed by the Warden(s) to serve as the chairperson." (Id. at 52.) The policy provides that the ITAC will meet quarterly or more frequently if deemed necessary by the Warden or others. (Id.) The ITAC "will develop . . . an institutional training plan that will contain . . . a statement of any additional training needs not specified in the Agency Master Training Plan." (Id. at 53.) Relatedly, SCDC Policy ADM-17.01 addresses "Employee Standards Training," and provides that "[a]ny employee who fails to meet his/her training requirements will be subject to corrective action by the appropriate Warden/Division Director/designee, and/or the Division Director of Training." (Id. at 64.) SCDC Policy ADM-17.02 addresses "Continuing Law Enforcement Education Standards," ("CLEE") and "mandates that those employees required to maintain CLEE certification obtain at least 40 hours of CLEE approved training during their three (3) year re-certification cycle." (Id. at 68.) The Policy provides that if an employee fails to obtain a passing score for any CLEE mandatory class, "[t]he Division of Training will notify the appropriate Warden, Division Director, or other authorized designee." (Id. at 69.) "The appropriate Warden, Division Director, or other authorized designee will, with the approval of the Division of Human Resources, ensure that the employee who fails to obtain a passing score is removed from the certified position within ten (10) days of the receipt of the notice of 'Expiration of Law Enforcement Certificate.'" (Id.) Also relevant here, "[t]he CLEE non-compliance report will inform Wardens and Division Directors of any employees approaching a non-compliance status, no less than 90 days prior to the end of their three (3) year cycle." (Id. at 70.)
SCDC Policy ADM 11.19 addresses "Employee Assistance Program," which is "designed to provide assistance to employees who may be experiencing emotional or physical problems/discomfort or other situations that may be affecting job performance." (Id. at 76.) Relevant here, the policy provides that "[t]he employees['] appropriate Warden or Division Director, in consultation with the Division Director of Human Resources or designee, will be responsible for determining whether the employees['] job performance meets Agency requirements or if the employees deficiencies are too disruptive for effective operations." (Id. at 78.) SCDC Policy ADM-11.20 addresses "Equal Opportunity and Affirmative Action," and states that "Each Warden . . . will be responsible for . . . ensuring that managers and supervisors under his/her responsibility are aware of the existence of their Affirmative Action Plan, monitoring continued progress in meeting goals and objectives, and implementing corrective procedures to ensure compliance with EEO and affirmative action plans and programs." (Id. at 83-84.) SCDC Policy ADM-11.02 covers "Employee Grievance and Appeals Procedures" and outlines "a formal grievance and appeals system whereby covered state employees may file a complaint when they feel they have been subjected to unfair treatment." (Id. at 87.) SCDC Policy ADM-11.04 covers "Employee Corrective Action," and provides "uniform guidelines for the application and administration of corrective action for employees who have committed rule infractions." (Id. at 93.) The policy provides that an employee suspected of committing a rule infraction will have the opportunity to have his case heard by the Reprimanding Authority "to review the information concerning each case; to determine whether the employee has committed a violation; to properly characterize the violation; and, if necessary, to assess corrective action." (Id. at 95.) The policy designates Wardens as one of the definitive "Reprimanding Authorities." (Id. at 103, 117-119.)
SCDC Policy ADM-11.15 addresses the "South Carolina Whistleblower Act"—it "define[s] the parameters by which employees are protected by the South Carolina Whistleblower Act when reporting allegations of misconduct and wrongdoing by a public official or employee." (Id. at 122.)
f. Roth Report
The Roth Report has been provided to the Court for in camera review by Defendants. This report was drafted by Tom Roth in connection with a settlement of another case against SCDC (the "Mental Health Settlement"), and it focuses on staffing levels at SCDC. The Roth Report is dated March 2018 and analyzes 13 SCDC institutions, including Lieber. The report provides a "security staffing assessment" based on documentation reviews, staff interviews, and on-site assessments. (Roth Report at 9.) According to the report, the on-site facility visits began in September 2017. (Id.) It is unclear the relevant dates of the documents reviewed.
Plaintiff has an unredacted copy of the Roth Report.
The Court has found the Roth Report relevant and discoverable on numerous occasions in this case. (Dkt. Nos. 67 at 2; 79 at 3; 117 at 9.) The Court has also found that the Roth Report is only "tangentially related to the Mental Health Settlement" and "is not covered by the confidentiality provisions of the Mental Health Settlement." (Dkt. No. 79 at 3.)
Most relevant here, the report includes a detailed 18-page analysis of staffing issues specific to Lieber, including on how staffing at Lieber has impacted the number of contraband related incidents and incidents of assault. The report begins its analysis of Lieber with a "security staffing profile." (Id. at 118.) It states that "[t]he existence of security staff vacancies has been a well-publicized concern at Lieber for an extended period" and includes a chart of security staff levels at Lieber from 2011 to 2018. The chart shows "a 29.6% decrease" in reported security staffing level from January 1, 2011 to January 1, 2018. (Id.) Most relevant here, the report shows that in 2014, there were 220 assigned security staff, 209 assigned security staff in 2015, 180 assigned security staff in 2016, 153 assigned security staff in 2017, and 159 assigned security staff in 2018. (Id.) The report states that as of January 2018, "the facility was operating at 69.4% of the approved security staff funding level."
The report details the various staff positions at Lieber and focuses in part on the lack of filled front-line security positions. The report defines front-line security staff positions as "the positions that normally have the most frequent direct contact with inmates and routinely include posts such as housing units, transportation, hospital coverage, inmate escorts, and direct security within a specific area." (Id. at 120.) It notes that the "[t]he primary difference in the security staffing levels from is in the number of front-line positions filled. . . . The decrease in front-line security (FLS) staffing levels began in 2013 and had continued to decline through June 2017." (Id.)
The report includes a chart showing a 34% decrease in the average number of filled front-line security staff positions at Lieber from 2013 to 2017. More specifically, the report shows that in 2013, there were 161 average front-line security staff, 151 average front-line security staff in 2014, 130 average front-line security staff in 2015, 109 average front-line security staff in 2016, and 106 average front-line security staff in 2017. (Id. at 119.) The report includes another chart identifying the average staffing level by position category from July 1 through December 1, 2017, and notes that "the largest number of vacancies (71.8%) was in the front-line staff positions." (Id. at 120.)
Relatedly, the report addresses the lack of adequate staffing in the general population housing units at Lieber:
The general population housing units, when fully operational, each have an operating capacity of close to 250. Approximately 91% of the inmates housed at Lieber are considered level III maximum security inmates. These are generally individuals with a history of violence with long sentences and/or inmates who have exhibited behavioral problems while in the system.(Id. at 129-30.)
The inmates are housed in one of two wings located within each unit. Each wing is separated by a common sally port that contains a secure entry/exit to the building, officer work space and entry into each wing. Visibility from the sally port area into each wing is limited.
The current operating practice is to provide at least one officer into each general population housing unit, except for the housing unit referred to as "Wando", which has a secure control room and four housing wings, where a minimum of two officers are assigned. Actual staffing levels vary by shift, day and the availability of supervisory and unit management personnel.
Based on the everyday responsibilities of the officer and the activity levels of each unit, the practice of having not only one, but two officers assigned to provide security, custody and control of 250 maximum custody inmates is inconsistent with realistic expectations of what an officer can accomplish. At this level, the front-line officer becomes a "watchman" that no longer functions as a trained correctional officer, but primarily reacts and notifies when situations occur. As a result, effective supervision in the housing units is not consistently being provided. Additional posts are being recommended in the updated post charts;
The report further explores the impact that deficient staffing has had on the increase of contraband related incidents and incidents of assaults. Specific to contraband, the report states that
The introduction and presence of contraband in a correctional facility is and has always been a primary management concern. It often leads to unauthorized movement, destruction of property, compromised staff, public trespassing, criminal activity, violence and escape. At Lieber an escape from the facility occurred in July 2017 where wire cutters and possibly a drone and cell phone were used to help facilitate the escape.(Id. at 122.)
At Lieber a significant number of contraband related incidents involving weapons and/or cell phones have occurred. In comparison with other level three facilities Lieber had the most weapon and cell phone related incidents reported during the past three years. During Calendar years 2015 through 2017 Lieber reported 818 incidents involving weapons and/or cell phones.
The report specifically analyzes the levels of contraband related incidents at Lieber from 2015 through 2017, and provides a chart identifying the frequency in which weapons and/or cell phone incidents were reported at Lieber "in comparison with the other male facilities reviewed in this project." (Id.) The chart shows that in 2015, there were 141 weapon and cell phone incidents at Lieber, compared with the overall average of 69 incidents. In 2016, there were 126 weapon and cell phone incidents at Lieber, compared with the overall average of 73 incidents. In 2017, there were 108 weapon and cell phone incidents at Lieber, compared with the overall average of 56 incidents. According to the report, "approximately twice the number of cell phone and weapons were reported in 2015 at Lieber when compared with the average. In 2016 and 2017 the number of incidents decreased; however, it is still a major concern." (Id. at 122.)
The report notes here, "there is no indication that the reason for the higher level of contraband at Lieber is due to a more pro-active in-house approach toward contraband election and recovery." (Id. at 123.)
The report recommends ways that management should remedy these issues with contraband and staffing:
One of the keys to an effective contraband prevention and detection plan is to establish a realistic plan based on existing resources to prevent, identify and detect contraband as a facility-wide goal. Part of the plan should ensure fundamental practices, including searches, patrol, detection and intelligence gathering are consistently incorporated into daily workload activities by all staff, not just those assigned to contraband control. To carry out the plan supervisory staff need to be vested and trained staff need to be available to perform these fundamental responsibilities as part of their daily routine. Once an employee becomes responsible for more than one post assignment at a time their ability to carry out all the necessary functions diminishes. Their workload expands, back-up personnel may or may not [be] readily available, and staff often become more conservative, rather than assertive. Staffing levels at Lieber during the review period and for an extended period prior have been extremely deficient to effectively establish a contraband control plan on their own to make a significant impact on reducing the volume of contraband at the facility.(Id. at 123.)
As noted, the report also includes a detailed analysis on the impact of deficient staffing on the incidents of assault:
A second risk factor that is often associated with staffing levels is the number of assaults that occur at a facility. The number of staff, staff training, and experience level of staff is often referenced as one of the causes of prison violence. . . . It has been my experience, most inmates when contemplating committing an assault look for opportunities to carry out the act without being detected. Having two staff assigned to a 270-bed housing unit which contains limited to no electronic surveillance support or having one staff member on the courtyard during movement periods, creates an environment where the perceived opportunity to commit an assault, if interested, can initially go undetected. This appears to be the case at Lieber. There is simply not enough staff supported by surveillance equipment to consistently cover all the required areas and send the message when involved in criminal activity the risk of being apprehended and the penalty for the same will be great.(Id. at 124.)
The report includes a chart on the number of reported assaults at Lieber from 2015 through 2017, separating inmate-on-employee assaults from inmate-on-inmate assaults. (Id. at 124.) The chart shows that at Lieber in 2015 there were 30 instances of inmate-on-inmate assault, in 2016 there were 45 instances of inmate-on-inmate assault, and in 2017 there were 30 instances of inmate-on-inmate assault. The chart shows that the average number of inmate-on-inmate assaults at Level 3 SCDC institutions from 2015-2017 was 28. The report analyzes the chart, stating that "At Lieber the total number of reported inmate-on-inmate assaults during 2015 - 2017 was the highest of the level 3 facilities and the second highest for inmate-on-employee assaults." (Id.) It remarks that "both inmate-on-employee and inmate-on-inmate assaults at Lieber exceeded the average during each year for the past three years. In 2016 and in 2017 an inmate was killed by another inmate at the facility." (Id.) The report concludes that "[t]he fact there are so many assaults should be considered a major contributing factor to staff retention rates at the institution."
g. Defendant McFadden's Deposition Testimony
Defendant McFadden was deposed on March 21, 2019. During his deposition, he testified that he was promoted to Warden at Lieber in 2012 and transferred to "Palmer" in August of 2017. (Dkt. No. 119-3 at 11-12.) He testified that as Warden, he is "basically responsible for the whole operations of the facility, day-to-day operations," which "covers a lot of ground." (Id. at 14.) When pressed for specifics, he testified: (1) his participation in hiring staff is limited to conducting interviews; (2) he is "not directly" involved in scheduling the staff for work; and (3) his participation in training is limited to "ensuring that training is scheduled and ensuring that staff are getting the training timely." (Id. at 14-15.)
More specifically, McFadden testified staff must complete 40 hours of annual training at the institution and that the "training academy staff and development" mandate what is covered in the annual training. (Id. at 15-16.) However, he later testified that as Warden, he can "suggest . . . to the training academy" what should be included on the training schedule at Lieber. (Id. at 18.) He testified that Lieber conducts annual employee evaluations. (Id. at 18-19.) When asked what he would do if "you found weaknesses that seems to be across the board while you're doing your employee evaluations," McFadden responded "If you feel like that's a[n] area that we can improve in or we need to get out to the broad staff, then we will make that suggestion." (Id. at 19.) When asked if he is "responsible for ensuring that [his] staff complies with all State policies and procedures," McFadden replied he has "oversight of all staff . . . [t]o do as best they could to follow the guidelines, the policies, and the . . . laws of South Carolina." (Id. at 21.)
With respect to disciplining the employees at Lieber, McFadden testified that he is "normally the reprimanding official." (Id. at 20.) He stated he "normally" will get suggestions from other staff members about whether or not an employee should be reprimanded. (Id.) He explained his involvement in the process as follows:
I will get the report from the major on the recommendation, to review it. At that point, based on the severity of the offense, then I'll make a determination of whether we need to go forward with the corrective action, or if he needs to handle it at his level.(Id.)
When asked about the incident reports at Lieber, McFadden testified, "I don't see all the incident—I—I'm pretty sure I don't see all the incident reports. I—my practice is to have all reports sent to my office for review." (Id. at 22.) He testified that "the bulk of the lion share of . . . the reports will come by my office for review." (Id.) He later testified that he is "the only one that reviews" incident reports. (Id. at 65.) He confirmed there are other reports that members of his staff have to complete on a regular basis that come to his office, including "inspections," "contraband reports," and "reports from the cafeteria." (Id. at 22-23.) He testified that "[j]ust about every area ha[s] some form of document that need to be reviewed by me." (Id. at 23.)
McFadden also discussed the "Monday morning meetings" at Lieber where people gave verbal reports and there were "[d]iscussions ranging from weekend events, timelines or deadlines of things needing to get done, projects, ongoing projects." (Id. at 23-24.) He explained, "ideally, your area supervisors or your unit supervisors are present [at these meetings] to explain or express areas of concerns in their area, the  good things as well as the positive that's going on. And be informed about what may be going on regarding their particular units in the near future, or for that day." (Id. at 24.) He further explained that if there were problems in a particular unit over the weekend, that would also be discussed, including inmate-on-inmate attacks. (Id. at 24-25.) With respect to inmate-on-inmate attacks, McFadden testified, "Once that unit manager gets the reports or would have been informed by way of incident report or briefed by the shift, then chances are it's going to be discussed in the Monday morning meeting." (Id. at 25.) At the deposition, Plaintiff's counsel indicated she "only [saw McFadden's] name in one of" the Monday morning meetings"—July of 2017. (Id.) However, McFadden testified that "usually" minutes are kept of every Monday morning meeting. (Id.)
McFadden further testified that if he had gone out of town and wanted to stay informed of what happened at Lieber while he was gone, he would ask to review "incident reports," "management information notes," and "meeting notes." (Id. at 26-27.) McFadden explained that management information notes are "basically a synopsis of all your incidents combined, [an] overall report of what took place" and could include reports of contraband and weapons seized. (Id. at 27.) He testified that management information notes could also include information about staffing issues that arose. (Id. at 28.)
McFadden then discussed the "audit process" at Lieber, also known as the "Management Review Program." (Id. at 28.) He explained there can be an internal audit, which would be "internal personnel at your facility," or an outside audit, which would be "others from outside of your agency." (Id. at 29.) During the deposition, Plaintiff's counsel produced to McFadden a copy of a past audit on "inmate assaults and security threat group activities." (Id. at 29-30.) Counsel stated it "was represented to [her] . . . [as] a Lieber audit." (Id. at 48.) She stated that one of the "headings" on the audit for "Perimeter of security" is dated July 25, 2017 to July 29, 2017, but counsel did not otherwise specify a date for the produced audit as a whole. (Id.) Regardless, McFadden confirmed that he was familiar with this type of audit. (Id. at 30.)
Relevant to this produced audit, McFadden defined "security threat group[s]" at Lieber as "[t]hose inmates that have been identified as either being affiliated with a gang by means of tattoos or tattoo paraphernalia . . . or activity." (Id. at 34.) He testified that "[e]very employee has a responsibility if they see or identify something that may be affiliated or an individual that many be affiliated with a threat group. . . . Our contraband staff . . . hone[s] [in] on that upon the entry of an inmate or during searches." (Id. at 35.) McFadden testified that he does not have anything to do with classifications. (Id. at 21.)
Plaintiff's counsel referenced the portion of the produced audit that stated, "Management information notes are entered into the CRT for every inmate assault reported by staff." (Id. at 31.) When counsel asked McFadden if there is a policy within SCDC "that requires that information be entered into the management information notes . . . for every inmate assault that's reported," McFadden replied that he "would think it would" be required by SCDC policy. (Id.) Plaintiff's counsel then referenced the portion of this particular audit that stated, "Level II and Level II [sic] institutions do not permit inmate cell-to-cell or ward-to-ward visitations," and asked McFadden if "that is a policy within" SCDC. (Id. at 32.) McFadden responded that he was "not sure if there's a policy to it or not." (Id.) However, McFadden testified that as Warden of Lieber, he did not permit inmates to visit cell, dorm to dorm, or wing to wing. (Id. at 32-33.) He testified that between wings "[t]here's a door that should be secured when it's not open movement." (Id. at 33.) He explained that "open movement" means "when there's a movement for that particular wing to exit it or enter. Other than that, that wing door should be secure." (Id.) He explained that when there is a "particular reason," to move an inmate from one wing to another, they would be accompanied by an escort. (Id. at 34.)
Again referencing the specific produced audit, Plaintiff's counsel asked McFadden what he would do, as Warden, when he saw a report that showed noncompliance "regarding permitting inmates to go cell to cell," or wing to wing, or "dorm to dorm visitation." (Id. at 36.) McFadden responded, "I would look at the report, I would look at what their findings were, and I would want to know exactly who, what, where it happened. . . . And, from that, we will take the appropriate action." (Id. at 36-37.) McFadden denied counsel's assertion that he "would want to know which correctional officer allowed an inmate from Wing-A to go over to Wing-B when they shouldn't have been allowed to do so." (Id. at 40.) He stated he would "need to know at that particular time . . . what was the finding, where it happened at, and then we need to make . . . some provisions to make sure that it's not happening broadly." (Id.) When pressed by counsel, McFadden testified he could not say that the audit team would "visit every dorm" during the audit process. (Id. at 41.) He testified that the audit's findings that inmates were inappropriately going from cell to cell or wing to wing would be based on the audit team's personal observations. (Id.)
McFadden testified that during the audit process, there is a "verbal briefing" at "the end of each day," and then "once the audit process is complete,  there's a report that will be generated and sent back to the warden." (Id. at 38-39.) McFadden explained that "at that point, the warden will have an opportunity to respond to whatever the findings were, in writing, on the corrective measures that they've taken according to the incident or their finding. And then it goes back." (Id. at 39.) When asked whether the report would give specific examples of instances where "inmates were permitted to go from dorm to dorm when they should have been allowed to," McFadden responded,"[y]ou're going to probably know that in your end-of-day briefing." (Id.) He testified he would "want" that oral briefing information to be included with the complete post-audit report. (Id.) McFadden confirmed that he would have been briefed on any portions of the audit finding noncompliance. (Id. at 44.)
McFadden testified that he has never gotten a copy of an audit report "from [his] facility, from what [he] can remember." (Id. at 47.) He testified he thought "there was an audit shortly after [he] got there," but he did not "remember whether [he] received a report . . . from that audit." (Id.) He continued,
Then there was an audit sometime in July, it might have been, of 2017, whereas [sic] we got the verbal day-to-day briefing, but never received the written part of
the audit to be able to respond . . . to what the findings were in order to correct whatever deficiency they were stating.(Id. at 47-48.)
McFadden then discussed his ability as Warden to make suggestions to headquarters regarding policies and changes that may need to be made. (Id. at 50.) Specifically, he testified
From time to time, you have a review process . . . whereas there may be several policies that [are] up for review. And so, once you review those policies, and you see that there may need to be some changes, because we would want to do it this way, and the policy's saying that way, then you can make that recommendation in red ink. . . . [I]t doesn't mean that it's going to change because everybody should be reviewing it, but you're just putting your suggestions in there for the suggestion changes.(Id.) He testified he would have kept a copy of any recommendations made, but he did not "recall" making any recommendations. (Id. at 51-52.)
When asked about the April 17, 2017 assault involving Plaintiff, McFadden testified he was not familiar with the incident. (Id. at 54.) He testified that if an investigation of the incident had occurred, he would "get the finding of Police Services." (Id. at 55.) Counsel asked McFadden whether he would discipline an officer who was found to have "unlocked the door and left it unlock[ed]" when the inmate on inmate assault occurred. (Id. at 56.) McFadden responded, "If the protocol requires that. I mean, I would have to evaluate everything." (Id.)
McFadden described his involvement in the grievance procedure as follows: "I don't participate in the grievance process, other than, once a document comes to me [from the inmate grievance coordinator] for signature or review, then . . . based on their findings, . . . I either sign it agreeing or disagreeing with whatever's on the paperwork or documentation." (Id. at 57.) McFadden testified that inmate on inmate assault would be considered "criminal activity," and the "protocol is Police Services is going to be notified" after such an incident. (Id. at 57-58.) He testified that whether an inmate files a grievance about it or not, Police Services would be notified of such an incident. (Id. at 58.) McFadden further testified, "Our job is to report . . . what took place and see if we can get somebody assigned to the case." (Id.)
When asked to review Plaintiff's grievances specific to the assault at issue, McFadden stated, "he's talking in the grievance about insufficient staff, . . . [b]ut not a whole lot about assault." (Id. at 61.) He further testified,
if this inmate was assaulted, and he didn't know who it was, by whatever means that we found out, then . . . an incident report would be generated. The inmate also will have the opportunity to . . . be forthcoming about the incident in itself in order for us to be able to assist him as much as we possibly can.(Id. at 62.) He testified he would "conduct an investigation" if the inmate gave him "enough information to be able to conduct the investigation." (Id.) At the same time, McFadden recognized there may be cases where an inmate cannot identify his assailant by name. (Id. at 63.) He explained,
in this case, if he's saying he's been assaulted, then we need to do whatever we can do to help him. But we need cooperation from him in order to be able to identify the person that may have assaulted him, or even be able to get him where he needs to be to make sure he's safe from that point forward.(Id.)
h. Plaintiff's Expert Reports
Plaintiff has submitted two expert reports drafted by his expert James Aiken, a former Warden, Deputy Warden, and Deputy Regional Administrator in South Carolina. Mr. Aiken has over 45 years of experience "in the management of confinement facilities and correctional systems." (Dkt. No. 123-1 at 3.) His career has focused in part on "the assessment and restoration of facilities and systems that have experienced chronic and acute security, operational critical events and management shortfalls." (Id.) In his expert reports, Mr. Aiken opines, inter alia, that: (1) Defendants consistently failed to follow their existing policies and procedures and failed to employ reasonably sound correctional practices regarding basic safety, security and protection for the Plaintiffs; (2) Defendants were on notice and knew about these failures and the danger these failures would pose to the Plaintiffs; and (3) Defendants should have taken certain actions to reasonably prevent, detect, respond and contain the security failures that caused the incidents at issue.
Mr. Aiken's initial expert report pertains to all the plaintiffs that were originally included in the multi-plaintiff action removed to this Court on November 8, 2017. His supplemental expert report pertains to all the cases that were included in the Global Status Conference.
Mr. Aiken bases his opinions in part on the documentation of contraband confiscated by SCDC during the quarters ending on December 31, 2016 and June 30, 2017. (Id. at 15.) Specifically, Mr. Aiken notes that during the quarter ending on December 31, 2016, 241 weapons were confiscated, and during the quarter ending on June 30, 2017, 157 weapons were confiscated. (Id.) Mr. Aiken does not expressly state whether these numbers are specific to Lieber. Rather, he states this information is "contained in the South Carolina Department of Corrections Quarterly Report of Confiscated Property." (Id.) Mr. Aiken opines that the "yield of confiscated weapons operationally validates that the institution was unsecured and operationally advancing further into critical life endangerment status." (Id.) He opines that these levels of contraband placed Defendants "on specific notice that the institution was in critical default mode which promoted, facilitated and caused the critical events of life endangerment against [Plaintiffs]." (Id.)
Mr. Aiken also states here that the "staff meeting minutes did not reflect or memorialize corrective accountable actions were taken to address security issues relative to the safety of staff and inmates. The meeting notes merely identified symptoms of actual and potential life endangerment issues or avoided discussion of substantive critical failures in the security delivery systems." (Id. at 15-16.) He opines that Defendants should have ensured the safety and well-being of staff and inmates by, inter alia, (1) identifying the "specific security problems in definitive, objective and measurable terms"; (2) identifying the "specific solutions to the security issues that will have a causal and positive direct measurable impact upon the problem"; and (3) identifying and allocating "the specific resources required to ensure the appropriate solutions are achieved." (Id. at 16.) Mr. Aiken opines that the assaults suffered by Plaintiff "occurred at a chronic level for a high security prison without basic sight and sound security supervision of staff as well as the redundant inability and disregard for the identification and adjudication of the predator inmate population." (Id. at 16-17.)
In the second supplemental expert report, Mr. Aiken discusses the findings in the Roth Report. He opines, inter alia, that
The Roth Report further validates that there are blatant and obvious causal and easily predictable interconnections of perilous life endangerment attacks to Plaintiffs and staffing critical failures. . . . The Defendant and Wardens did not take basic security and safety staffing measures that would have reasonably prevented these violent critical attacks. . . .(Second Supplemental Expert Report at 12, 14.)
Defendant and Wardens were placed on specific notice of the life endangerment staffing peril and did not take effective actions (providing basic inmate supervision, contraband control and gang management) to correct the critical life endangerment peril.
i. Other Documented Incidents at Lieber
As noted, prior to severance, this case was originally a multi-plaintiff action. Accordingly, the record includes documents related to the assaults allegedly suffered by certain other plaintiffs at Lieber in April and May of 2016. These documents show the following:
A "MIN Narrative" for inmate Cedric Robinson dated April 21, 2016, states that Robinson told Sargent Deborah Cole on April 21, 2016, that "he was stabbed earlier and he was in pain." (Dkt. No. 63-11.) Robinson was then escorted to medical. (Id.) He "stated that several inmates attacked him near his assigned cell Edisto A-43. . . . The inmate was transported to Trident Hospital for further treatment." (Id.)
On May 18, 2016, inmate Keith Simpson submitted a Step 1 grievance stating he was "assaulted by unknown persons" on May 7, 2016. (Dkt. No. 63-18 at 3.) The grievance further states, "My grievance is why the state won't hire more personnel. If more personnel had been available, this issue possibly might not have happened. Without proper personnel in place, the state is not providing proper security for the wards of the state." (Id.) Under "Warden's Decision and Reason," it states, "Your grievance has been processed," and explains the grievance is being returned because Simpson failed to provide an answered Request to Staff Form or responses to Automated Request to Staff. (Id. at 4.) It directs Simpson to resubmit his grievance "on a new 10-5 Step 1 Grievance Form." (Id.)
On May 21, 2016, Simpson submitted a kiosk request stating he was "assaulted by unknown persons in Cooper B Side" on May 7, 2016. (Dkt. No. 63-17.) The request further states, "Why the state won't hire more personnel. If more personnel had been available, this issue possibly might not have happened. Without proper personnel in place, the state is not providing proper security for the wards of the state." (Id.) The "request response" dated June 2, 2016, states "We are always looking for people to hire. It's not easy trying to find the right people to work in a prison." (Id.)
On June 4, 2016, Simpson submitted another Step 1 grievance stating he was "assaulted by unknown persons in Cooper B Side" on May 7, 2016. (Dkt. No. 63-18 at 1.) The request further states, "Why the state won't hire more personnel? If more personnel had been available, this issue possibly might not have happened. Without the proper personnel in place, the state is not providing proper security for the wards of the state." (Id.) Under "Specify how and when informal resolution was attempted by grievant," Simpson writes, "I wrote security and got a reply on June 2, 2016 . . ." (Id.) The inmate grievance coordinator responded to this Step 1 grievance on July 5, 2016, stating in part, "Your allegations of being assaulted by an unknown person cannot be substantiated. SCDC will continue to monitor security in particular and in general the issue that you have raised. Predicated on the information available, your grievance is denied. If you are not satisfied with my response, you may exercise the option that is set forth below in paragraph 5." (Id. at 2.)
a. Violation of Plaintiff's Fifth and Fourteenth Amendment Rights
In his brief, Plaintiff states that "Defendants failed to protect the Plaintiffs from violence in violation of the Plaintiff's Fifth, Eighth, and Fourteenth Amendments." (Dkt. No. 123 at 10.) According to Plaintiff, his claims "for violations cruel and unusual punishment are based on Defendant Warden McFadden's deliberate indifferent actions in failing to ensure health and safety of the Plaintiff, in subjecting the Plaintiff to bodily harm, and allowing them to be in an uncontrolled violent environment despite having knowledge that it would subject them to harm." (Id. at 11.) Plaintiff states this his "Fourteenth Amendment claims seek redress for acts that violate personal immunities that are fundamental to the Plaintiffs." (Id.) He cites City of Canton v. Harris, 489 U.S. 378, 388 (1989), to support his statement that
A Due process claim brought by prisoners can be based on deprivations caused by the government's failure to train, supervise or adequately hire its employees as well as cruel and usual punishment and require a showing that the government's inaction was a custom, policy, or practice, and that the government's deliberate inaction caused the injuries.(Id.)
As an initial matter, because Plaintiff is a state prisoner and not a pre-trial detainee, his allegations of deliberate indifference and failure to protect implicate the Eighth Amendment's proscription against cruel and unusual punishment, not the Fourteenth Amendment's requirement of due process. Bowman v. Ozmint, No. 0:08-2517-PMD-PJG, 2009 WL 3065180, at *12 (D.S.C. Sept. 22, 2009), aff'd, 369 F. App'x 416 (4th Cir. 2010); ("[A]s Bowman is a state prisoner and not a pre-trial detainee, his allegations of deliberate indifference and failure to protect implicate the Eighth Amendment's proscription against cruel and unusual punishment . . . not the Fourteenth Amendment's requirement of due process."); see also Heyward v. Price, No. 6:18-CV-00150-JMC, 2019 WL 1416880, at *5 (D.S.C. Mar. 29, 2019), appeal docketed, No. 19-6460 (4th Cir. April 10, 2019) ("Although Plaintiff has alleged a violation of rights under the Fourth, Eighth, and Fourteenth Amendments, he is a convicted prisoner and, therefore, only the Eighth Amendment is relevant to the court's analysis. "); James v. S.C. Dep't of Corr., No. CIV.A. 3:08-664-HFF-JRM, 2009 WL 1147994, at *4 (D.S.C. Apr. 27, 2009) ("Defendants have analyzed Plaintiff's claims under the Fourteenth Amendment. Plaintiff, however, appears to have been a convicted inmate at the time of the alleged incidents such that his claims are properly analyzed under the Eighth Amendment."). Plaintiff's reliance on City of Canton v. Harris is therefore misplaced, as the Harris court analyzed a pretrial detainee's claim of deliberate indifference under the Fourteenth Amendment. Further, Plaintiff makes no independent allegation that his Fifth and Fourteenth Amendment due process rights were violated in his Complaint or his brief. Rather, he restates his allegations of deliberate indifference and failure to train, which are more appropriately addressed under the Eighth Amendment, as discussed above. Accordingly, the undersigned recommends granting Defendants summary judgment on Plaintiff's claims for violation of his Fifth and Fourteenth Amendment rights and dismissing those claims.
Technically, the Fourteenth Amendment is applicable but only to the extent that the Eighth Amendment protection against infliction of cruel and unusual punishments is enforced against states through the Fourteenth Amendment. See Hewins v. Loftis, No. 615-cv-04320-MGL-JDA, 2016 WL 11410920, at *5 (D.S.C. May 19, 2016), adopted by, 2016 WL 4035461 (D.S.C. July 28, 2016).
b. Violation of Plaintiff's Seventh Amendment Rights
The Complaint alleges that "[t]his is an action for relief brought pursuant to . . . [inter alia] the . . . Seventh . . . Amendment . . . to the United States Constitution." (Dkt. No. 1-1 at 1.) The Seventh Amendment guarantees the right to a jury trial. Trainor v. Qwest Govt Servs., Inc., No. 1:18-cv-1557, 2019 WL 3459231, at *3 (E.D. Va. July 31, 2019) ("The Seventh Amendment right to a jury 'is of course a fundamental one.'" (quoting Leasing Serv. Corp. v. Crane, 804 F.2d 828, 832 (4th Cir. 1986)). Here, the Complaint makes no allegations as to how McFadden violated Plaintiff's Seventh Amendment right to a jury trial, and Plaintiff does not mention this claim in his briefing. Accordingly, the undersigned recommends granting summary judgment to the extent Plaintiff alleges a violation of his Seventh Amendment rights and dismissing this claim.
c. Violation of Plaintiff's Eighth Amendment Rights
In light of the foregoing, it is clear that Plaintiff's § 1983 claims for violation of his constitutional rights should be analyzed under the Eighth Amendment. Relevant here, Plaintiff alleges that Warden McFadden acted "in a deliberate indifferent manner" by, inter alia, "allowing uncontrolled violence in the correctional institution"; "failing to provide protection and security for the Plaintiff"; and "allowing inmates to have dangerous weapons." (Dkt. No. 1-1 at 16.) Plaintiff also alleges Warden McFadden failed "to adequately train and supervise" SCDC employees, and he "implicitly or explicitly adopted and implemented careless and reckless policies, customs, and practices, including . . . failing to prevent inmates from obtaining and possessing dangerous weapons." (Id. at 18.)
1. Legal Standards
i. Failure to Protect
The Eighth Amendment requires prison officials to "protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. 825, 833 (1994). Officials must take "reasonable measures to guarantee the safety of the inmates." Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). In other words, "[t]he government and its officials are not free to let the state of nature take its course." Farmer, 511 U.S. at 833. Nonetheless, "[t]he burden is on the prisoner to demonstrate that prison officials violated the Eighth Amendment, and that burden is a heavy one." Pyles v. Fahim, 771 F.3d 403, 408-09 (7th Cir. 2014) (citing Whitley v. Albers, 475 U.S. 312, 325 (1986)). Not every "injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials responsible for the victim's safety." Farmer, 511 U.S. at 834. Instead, the Supreme Court has outlined two requirements for an Eighth Amendment failure to protect claim. First, "a prison official's act or omission must result in the denial of 'the minimal civilized measure of life's necessities.'" Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). In other words, the denial of the prisoner's constitutional rights must be "sufficiently serious." Id.; see also Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014) ("a prisoner must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury") (internal quotation marks omitted). Second, the prison official must have a "sufficiently culpable state of mind," id., which means the official either purposefully caused the harm or acted with "deliberate indifference," Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). A prison official demonstrates deliberate indifference if he "knows of and disregards an excessive risk to inmate health or safety." Id.
A prison official is deliberately indifferent if he has actual knowledge of a substantial risk of harm to a prisoner and disregards that substantial risk. Farmer, 511 U.S. at 847; Parrish v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (observing that "deliberate indifference" requires actual knowledge and disregard of a substantial risk of serious injury). A prison official is not liable if he or she "knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent." Farmer, 511 U.S. at 844; see also Rich v. Bruce, 129 F.3d 336, 338 (4th Cir. 1997) (finding that a prison official was not liable, because he did not actually draw the inference that the inmate was exposed to a substantial risk of serious harm). A showing of mere negligence does not qualify as deliberate indifference. Davidson v. Cannon, 474 U.S. 344, 347 (1986); see Whitley, 475 U.S. at 319 (("[C]onduct that does not purport to be punishment at all must involve more than ordinary lack for due care . . . . [O]bduracy and wantonness, not inadvertence . . . characterize the conduct prohibited by [the Eighth Amendment]."); see also Moore v. Winebrenner, 927 F.2d 1312, 1316 (4th Cir. 1991) (citing Fourth Circuit cases adopting the Supreme Court's reasoning in Whitley).
A prison official's subjective actual knowledge can be proven through circumstantial evidence, for example, that the "substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus 'must have known' about it." Farmer, 511 U.S. at 842. The Fourth Circuit Court of Appeals recently reiterated that the subjective knowledge component is nuanced. See Makdessi v. Fields, 789 F.3d 126, 137-38 (4th Cir. 2015) (finding that the district court failed to appreciate nuances with respect to this component). The Fourth Circuit acknowledged that the "'actual knowledge' standard required to find prison officials deliberately indifferent to a substantial risk of serious injury may be proven by circumstantial evidence." Id. at 129. "Prison officials may not simply bury their heads in the sand and thereby skirt liability." Id. "Rather, they may be held accountable when a risk is so obvious that it had to have been known." Id. Therefore, "even under this subjective standard, a prison official cannot hide behind an excuse that he was unaware of a risk, no matter how obvious." Id. at 133; see also Porter v. Clarke, 923 F.3d 348, 361 (4th Cir. 2019), as amended (May 6, 2019) ("[A]n obvious risk of harm justifies an inference that a prison official subjectively disregarded a substantial risk of serious harm to the inmate." (quoting Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir. 2011)).
In short, direct evidence of actual knowledge is not required. Farmer, 511 U.S. at 842. The question is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial "risk of serious damage to his future health . . . and it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk." Farmer, 511 U.S. at 843.
However, because prison officials who lacked knowledge of a risk cannot be said to have inflicted punishment, it remains open to the officials to prove that they were unaware of an obvious risk to inmate health or safety. For example, they may show "that they did not know of the underlying facts indicating a sufficiently substantial danger and that they were therefore unaware of a danger, or that they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent." Farmer, 511 U.S. at 844. In addition, prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, "even if the harm was not averted" because a prison official's duty is to ensure "reasonable safety." Id. (quoting Helling v. McKinney, 509 U.S. 25, 33 (1993)). This standard "incorporates due regard for prison officials' 'unenviable task of keeping dangerous men in safe custody under humane conditions.'" Id. (quoting Spain v. Procunier, 600 F.2d 189, 193 (9th Cir. 1979)) (Kennedy, J.). Absent successful rebuttal, prison officials may be held liable for obvious risks they must have known. Makdessi, 789 F.3d at 133 (citing Farmer, 511 U.S. at 842).
ii. Supervisory Liability
"A state official can be in a § 1983 suit in three ways: in his personal capacity, his official capacity, or in a more limited way, his supervisory capacity." King v. Rubenstein, 825 F.3d 206, 223-24 (4th Cir. 2016); see also Harbeck v. Smith, 814 F. Supp. 2d 608, 626-27 (E.D. Va. 2011) ("supervisors can be held liable 'in their individual capacities only for their personal wrongdoing or supervisory actions that violated constitutional norms'" (quoting Clark v. Md. Dep't of Pub. Safety & Corr. Servs., 316 Fed. App'x. 279, 282 (4th Cir. 2009)); see also Toomer v. Baltimore City Det. Ctr., No. 12-cv-0083, 2014 WL 4678712, at *5 (D. Md. Sept. 18, 2014) (considering liability of defendant supervisors both for personal liability and supervisory liability). As discussed above, the Court has found McFadden is entitled to immunity under the Eleventh Amendment for any federal claims brought against him in his official capacity as the warden of an SCDC correctional institution. Thus, McFadden is only subject to Plaintiff's § 1983 claims in his personal and supervisory capacities.
For personal liability, "it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); see also Armstrong v. City of Greensboro, 190 F. Supp. 3d 450, 464 (M.D.N.C. 2016) ("Personal involvement and affirmative misconduct or tacit authorization are necessary to establish the direct liability of a supervisor."); Harbeck, 814 F. Supp. 2d at 627 ("To establish  personal wrongdoing, the individual 'must have had personal knowledge of and involvement in the alleged deprivation of appellant's rights in order to be liable.'" (quoting Wright v. Collins, 766 F.2d 841, 850 (4th Cir.1985)); cf. Toomer, 2014 WL 4678712, at *4 ("Any attempt to hold [Defendants] personally liable on the basis of failure to protect is unavailing because Plaintiff's allegations do not support that any of these three Defendants knew of a specific threat to Plaintiff's safety and then acted with deliberate indifference to that knowledge.").
Meanwhile, a supervisor can be liable where (1) he knew that his subordinate "was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury"; (2) his response showed "deliberate indifference to or tacit authorization of the alleged offensive practices"; and (3) that there was an "affirmative causal link" between his inaction and the constitutional injury." Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal quotation marks omitted).
In the context of a failure to protect claim premised on supervisory liability, Plaintiff "assumes a heavy burden of proof," as he "not only must demonstrate that the prisoners face a pervasive and unreasonable risk of harm from some specified source, but he must show that the supervisor's corrective inaction amounts to deliberate indifference or tacit authorization of the offensive practices." Slakan, 737 F.2d at 373. Generally, a plaintiff cannot satisfy this heavy burden of proof "by pointing to a single incident or isolated incidents." Id. But, "[a] supervisor's continued inaction in the face of documented widespread abuses . . . provides an independent basis for finding he either was deliberately indifferent or acquiesced in the constitutionally offensive conduct of his subordinates." Id. (citations omitted).Toomer, 2014 WL 4678712, at *5.
Relatedly, to impose supervisory liability under § 1983 for failure to train subordinates, a plaintiff must plead and prove that: (1) the subordinates actually violated the plaintiff's constitutional or statutory rights; (2) the supervisor failed to train properly the subordinates thus illustrating a "deliberate indifference" to the rights of the persons with whom the subordinates come into contact; and (3) the failure to train actually caused the subordinates to violate the plaintiff's rights. Hubbard v. Byars, No. 8:14-cv-33-BHH, 2015 WL 337642, at *12 (D.S.C. Jan. 26, 2015) (quoting Brown v. Mitchell, 308 F.Supp.2d 682, 701 (E.D. Va. 2004)).
2. Analysis of Eighth Amendment Claims
As noted, Plaintiff alleges that McFadden was deliberately indifferent to his Eighth Amendment rights by, inter alia, failing to protect Plaintiff from the risk of harm from assault by other inmates with contraband weapons at Lieber, failing to properly train and supervise the prison staff, and failing to prevent inmates from obtaining and possessing dangerous weapons. Here, Defendants assert that Plaintiff cannot establish that McFadden "had actual subjective knowledge of a specific risk of harm to him." (Dkt. No. 119-1 at 8.) Defendants further assert that McFadden "lacks actual authority over training, staffing, hiring or retention of employees at Lieber Correctional, and is therefore entitled to qualified immunity." (Id. at 13.) They argue that Plaintiff "seeks to impose liability on Warden McFadden by virtue of his status rather than on the basis of his actual control at Lieber Correctional." (Id. at 14 (emphasis in original).) Finally, Defendants argue that McFadden is entitled to qualified immunity here because he "had no direct involvement in [Plaintiff's] injuries, and he was not consciously indifferent to an excessive risk of harm." (Id. at 7.)
To the extent Plaintiff attempts to bring a § 1983 claim for deliberate indifference to his serious medical needs, such a claim fails. "Deliberate indifference to a serious medical need requires proof that, objectively, the prisoner plaintiff was suffering from a serious medical need and that, subjectively, the prison staff were aware of the need for medical attention but failed to either provide it or ensure it was available." Coates v. Summerfield, No. 18-cv-3281, 2019 WL 4392539, at *2 (D. Md. Sept. 13, 2019) (citing Farmer v. Brennan, 511 U.S. 825, 834-7 (1994)). To the extent the Complaint alleges such a claim, Plaintiff appears to have abandoned it. Plaintiff does not mention this claim in his briefing, nor does he offer any evidence that would support such a claim. Thus, the undersigned recommends Plaintiff has failed to establish a genuine issue of material fact as to a § 1983 claim for deliberate indifference to a serious medical need.
Contrary to Defendants' assertion, there is a genuine issue of material fact as to whether McFadden had actual knowledge of a substantial risk of harm to Plaintiff and disregarded that substantial risk. Farmer, 511 U.S. at 847. More specifically, Plaintiff has offered evidence that supports his assertion that a substantial risk of serious harm was longstanding, pervasive, and well-documented before Plaintiff was attacked on April 17, 2017. As an initial matter, the Roth Report demonstrates that during the time period relevant to this case, Lieber was severely understaffed and it experienced an extremely high number of contraband related incidents and incidents of inmate-on-inmate assault. As the Roth Report states, "Staffing levels at Lieber during the review period and for an extended period prior have been extremely deficient to effectively establish a contraband control plan on their own to make a significant impact on reducing the volume of contraband at the facility." (Roth Report at 123 (emphasis added).) While Defendants argue that the Roth Report could not have provided the requisite notice because it "was not issued until March 2018," the undersigned does not find that the Roth Report in and of itself is the critical evidence. Rather, it is the information contained within the Roth Report that establishes the longstanding, pervasive, and well-documented nature of the risk of harm to inmates at Lieber.
More specifically, the Roth Report gathered statistics on Lieber's staffing levels, contraband levels, and the number of assaults that occurred during the time period most relevant to this action, 2015-2017. For example, the Roth Report detailed that in 2015 there were 30 instances of inmate-on-inmate assault at Lieber, in 2016 there were 45 instances of inmate-on-inmate assault, and in 2017 there were 30 instances of inmate-on-inmate assault. (Roth Report at 124.) The Report remarked that "[a]t Lieber the total number of reported inmate-on-inmate assaults during 2015-2017 was the highest of the level 3 facilities." (Id.) Similarly, with respect to contraband at Lieber, the Roth Report detailed that in 2015, there were 141 weapon and cell phone incidents at Lieber, compared with the overall average of 69 incidents; in 2016, there were 126 weapon and cell phone incidents at Lieber, compared with the overall average of 73 incidents; and in 2017, there were 108 weapon and cell phone incidents at Lieber, compared with the overall average of 56 incidents. (Id. at 122.)
Based on McFadden's deposition testimony, these statistics would have been made available to him as Warden of Lieber through, inter alia, incident reports, inspection reports, contraband reports, and management information notes, as well as through his role as being "responsible for the whole operations of the facility, day-to-day operations." (Dkt. No. 119-3 at 14, 22-23, 26-27, 65.) For example, McFadden testified that he is "the only one that reviews" incident reports. He also confirmed there are other reports that members of his staff have to complete on a regular basis that come to his office for his review, including "inspections" and "contraband reports." (Id. at 22-23.) McFadden testified that "[j]ust about every area ha[s] some form of document that need to be reviewed by me." (Id. at 23.) From McFadden's knowledge of the high numbers of contraband related incidents and incidents of inmate-on-inmate assaults at Lieber, a reasonable juror could find that McFadden "knew of a substantial risk from the very fact that the risk was obvious." Farmer, 511 U.S. at 842; see also Porter, 923 F.3d at 361 ("[A]n obvious risk of harm justifies an inference that a prison official subjectively disregarded a substantial risk of serious harm to the inmate."). As the Supreme Court stated in Farmer, "it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk." Id. at 843.
McFadden's deposition testimony establishes he was Warden at Lieber from 2012 through August of 2017. (Dkt. No. 119-3 at 11-12.)
In addition, in the spring of 2016, roughly eleven months before the incident at issue, at least two other inmate-on-inmate attacks were documented at Lieber. A management information note dated April 21, 2016, states that an inmate was "stabbed" by "several inmates . . . near his assigned cell." (Dkt. No. 63-11.) In May 2016, another inmate filed several grievances pertaining to his May 7, 2016 "assault by unknown persons in Cooper B Side" and grieving that "[i]f more personnel had been available, this issue possibly might not have happened. Without proper personnel in place, the state is not providing proper security for the wards of the state." (Dkt. Nos. 63-17; 63-18 at 1, 3.) McFadden's deposition testimony indicates he would have reviewed the management information note and grievances in his role as Warden. (Dkt. No. 119-3 at 26-27, 57-58.) Moreover, McFadden testified that he did not permit inmates to visit cell to cell, dorm to dorm, or wing to wing. (Dkt. No. 119-3 at 32-33.) He further testified that between wings "[t]here's a door that should be secured when it's not open movement." (Id. at 33.) He stated that when there is a "particular reason," to move an inmate from one wing to another, they would be accompanied by an escort. (Id. at 34.) The above management information note and grievances indicate Lieber security staff was not complying with the policy described by McFadden. Yet there is no evidence McFadden investigated these alleged policy violations in April or May of 2016, or at any time. SCDC Policy OP-22.24 states that "[a]ny problems or noncompliance [with Post Orders] noted will be reported to the Warden in writing so that immediate corrective action can be taken. Wardens will be responsible for reporting on the actions taken to ensure staff compliance or to correct any noted problem area." (Id.)
Mr. Aiken's opinion testimony further indicates that McFadden failed to take appropriate action in light of the risk "to the safety of staff and inmates." (Dkt. No. 123-1 at 15-16.) He first notes that, after reviewing certain staff meeting minutes, the "minutes did not reflect or memorialize corrective accountable actions were taken to address security issues relative to the safety of staff and inmates. The meeting notes merely identified symptoms of actual and potential life endangerment issues or avoided discussion of substantive critical failures in the security delivery systems." (Id. at 15-16.) Mr. Aiken opines that Defendants should have taken specific steps to address the security issues—steps that McFadden did not take. (Id. at 16.)
While Defendants are correct that an expert's legal conclusions are generally inadmissible, the portion of Mr. Aiken's expert opinion testimony cited here does not constitute a legal conclusion. (Dkt. No. 119-1 at 11); see United States v. McIver, 470 F.3d 550, 562 (4th Cir. 2006) ("[O]pinion testimony that states a legal standard or draws a legal conclusion by applying law to the facts is generally inadmissible.").
Defendants' assertion that McFadden is entitled to qualified immunity because he "lacks actual authority over training, staffing, hiring or retention of employees at Lieber" is without merit. (Dkt. No. 119-1 at 13.) The SCDC policies in the record do not establish that McFadden "does not . . . have the authority to hire, train, promote, discipline, evaluate, and fire" Lieber's employees, as a matter of law. Rather, the policies provided by the parties indicate that the wardens of SCDC institutions are directly involved with these employment-related actions. For example, SCDC Policy OP-22.24 states that "[a]ny problems or noncompliance [with Post Orders] noted will be reported to the Warden in writing so that immediate corrective action can be taken. Wardens will be responsible for reporting on the actions taken to ensure staff compliance or to correct any noted problem area." (Dkt. No. 123-5 at 5.) Relatedly, SCDC Policy ADM-17.01 addresses "Employee Standards Training," and provides that "[a]ny employee who fails to meet his/her training requirements will be subject to corrective action by the appropriate Warden/Division Director/designee, and/or the Division Director of Training." (Dkt. No. 119-2 at 64.) SCDC Policy ADM 11.19 addresses "Employee Assistance Program," and provides that "[t]he employees['] appropriate Warden or Division Director, in consultation with the Division Director of Human Resources or designee, will be responsible for determining whether the employees['] job performance meets Agency requirements or if the employees['] deficiencies are too disruptive for effective operations." (Id. at 78.) SCDC Policy ADM-11.28 covers the "Applicant Selection Process, and includes an attachment which lists the "selecting officials" for various positions at SCDC. (Id. at 26.) Notably, the list states that for the positions of captains, lieutenants, sergeants, and corporals, the "Warden/Designee" is the selecting official. (Id.)
McFadden's deposition testimony further underscores his direct involvement with these contested employment-related actions. McFadden testified that as Warden, he is "basically responsible for the whole operations of the facility, day-to-day operations," which "covers a lot of ground." (Dkt. No. 119-3 at 14.) He further testified that he has "oversight of all staff . . . [t]o do as best they could to follow the guidelines, the policies, and the . . . laws of South Carolina." (Id. at 21.) McFadden testified that as Warden, he can "suggest . . . to the training academy" what should be included on the training schedule at Lieber. (Id. at 18.) With respect to disciplining the employees at Lieber, McFadden testified that he is "normally the reprimanding official." (Id. at 20.)
Given the above evidence, the undersigned recommends there is a genuine dispute of a material fact as to McFadden's deliberate indifference to a threat to Plaintiff's safety. Likewise, there is a genuine dispute of material fact as to whether McFadden sufficiently ensured that his staff were properly trained and that they adhered to prison policies. As noted, the record indicates that SCDC employees violated Lieber policy by allowing inmates to move unescorted from cell to cell and dorm to dorm. There is no evidence McFadden ever took any steps to address these apparent policy violations. Further, there is no evidence McFadden took steps to better train staff to address the high number of contraband related incidents and incidents of inmate-on-inmate assault at Lieber. See, e.g., Rivera v. Mathena, No. 18-6615, 2019 WL 6133727, at *5 (4th Cir. Nov. 19, 2019) (denying summary judgment on deliberate indifference claim, noting that "[o]nce prison officials become aware of a problem with prison conditions, they cannot simply ignore the problem, but should take corrective action when warranted" (quoting Williams v. Griffin, 952 F.2d 820, 826 (4th Cir. 1991)); Stephens v. S.C. Dep't of Corr., No. 4:17-cv-3482-JFA-TER, 2018 WL 3215644, at *3 (D.S.C. June 12, 2018) ("Plaintiffs' allegations that various correctional officers left their assigned wings unattended and, in some instances, left inmate room doors unlocked, are sufficient to state a claim that [defendant wardens] failed to properly train their subordinates in correct policies and procedures given the known incidents of violence within the facility."), adopted by, 2018 WL 3209709 (D.S.C. June 29, 2018). The above evidence also creates a genuine dispute of material fact as to whether McFadden adopted reckless policies, customs, or practices in failing to prevent inmates from obtaining and possessing dangerous weapons.
The above evidence also refutes Defendants' argument that Plaintiff seeks to impose liability on McFadden purely for his status as warden at Lieber, rather than his specific conduct. (Dkt. Nos. 199-1 at 11; 126 at 2-3.)
The case law in this circuit supports denying summary judgment as to these claims. The evidence here is similar to that in Wynn v. Perry, wherein the court found a genuine issue of material fact as to the plaintiff's Eighth Amendment failure to protect claim against the defendant prison administrator based on his assault by another inmate. No. 3:14-CV-625-FDW, 2018 WL 1077321, at *28 (W.D.N.C. Feb. 27, 2018). In finding an issue of material fact, the Wynn court noted that the plaintiff
has shown that a substantial risk of serious harm was longstanding, pervasive, and well-documented before the attack on him occurred. As Acting Administrator and Administrator at Lanesboro, Defendant Parsons knew via PA announcements, emails, phone calls, and incident reports, that inmate-on-inmate attacks with contraband weapons frequently occurred in the prison and were especially pervasive on the Union housing unit where Plaintiff was housed. Defendant Parsons had access to tools for reducing the danger in the housing units and there is a genuine dispute with regards to whether he took reasonable actions to reduce the threat to inmates' safety.Id. Notably, the court found no issue with the plaintiff's failure to establish that the prison administrator knew "of a specific risk" to the plaintiff posed by a specific inmate. The court quoted Farmer, 511 U.S. at 843, for the proposition that "a prison official may not avoid liability simply because he was unaware that Plaintiff was 'especially likely to be assaulted by the specific prisoner who eventually committed the assault.'" Id. The Wynn court further found that the evidence created "a dispute about whether Defendant Parsons sufficiently ensured that his staff were properly trained and that they adhered to security and safety policies. Material issues of fact preclude summary judgment for Defendant Parsons under these circumstances." Id.
Similarly, in Hollabaugh v. Cartledge, the court found a genuine issue of material fact as to the plaintiff's Eighth Amendment failure to protect claim against the defendant warden and defendant associate warden where the plaintiff alleged he was beaten and stabbed by other inmates after "his cell door was left unlocked and unsecured . . . in violation of SCDC policy." No. 9:14-cv-1324-BHH-BM, 2016 WL 11423538, at *2 (D.S.C. Mar. 7, 2016). The court denied the defendants summary judgment on this claim because the plaintiff had "presented evidence sufficient to create an inference that the Defendants were aware of the dangerous conditions that had been created at the prison by virtue of their policies and customs relating to cell access and freedom of movement, thereby resulting in a dangerous situation to the Plaintiff which ultimately led to his being assaulted." 2016 WL 11423538, at *8. Similar to the instant matter, the Hollabaugh defendants argued that "that they had no prior notice that Plaintiff was in danger or would be subjected to attack prior to the incident occurring." Id. at *8. The plaintiff further acknowledged that prior to the assault at issue, "he had never been threatened by any particular inmates nor was there any specific individual that he had concerns about." Id. at *5.
While Defendants heavily cite Blankenship v. Virginia, 432 F. Supp. 2d 607, 610 (E.D. Va. 2006), in support of their Motion, the undersigned finds their reliance on this case to be misguided. (Dkt. Nos. 119-1 at 8, 11-12, 18; 126 at 3.) In Blankenship, the court found the plaintiff failed to establish the subjective component of a deliberate indifference claim arising from an inmate on inmate assault. 432 F. Supp. 2d at 613. The plaintiff argued that the former prison superintendents had knowledge that the inmate was "at a significant risk of substantial harm" based on several audit reports, including one that advised, "[d]ue to staff vacancies Beaumont does not have enough staff on the units to provide protection, guidance, and supervision to the extent needed." Id. In rejecting this argument, the court stated,
The Court is of the opinion that the one sentence highlighted by Plaintiff concerning staffing issues, in an Audit Report dated more than six (6) months before the assault, does not rise to the level of persuasive evidence that a substantial risk of inmate attack was longstanding, pervasive or well-documented. This is especially true when one considers the fact that subsequent Audit Reports specifically indicate an overall improvement in the area of staffing and safety of the wards.Id. Contrary to the record in Blankenship, the evidence here demonstrates Lieber had consistently high numbers of contraband related incidents and incidents of inmate-on-inmate assaults for roughly three years prior to the incident at issue, with no significant improvement.
In light of the foregoing, the undersigned recommends McFadden is not entitled to summary judgment on Plaintiff's Eighth Amendment claims. The undersigned further recommends McFadden is not entitled to qualified immunity. It has long been established that prison officials have a duty to protect inmates from a substantial and known risk of harm, including harm inflicted by other prisoners. See Farmer, 511 U.S. at 833. Questions of fact exist with regards to whether McFadden violated Plaintiff's clearly established rights as discussed above, and therefore, the undersigned cannot determine at this time whether McFadden's actions were objectively reasonable. See, e.g., Kane v. Beaufort Cty. Sheriffs Dep't, No. 9:14-cv-508-RMG, 2015 WL 404570, at *5 (D.S.C. Jan. 29, 2015) ("summary judgment on qualified immunity grounds is improper as long as there remains any material factual dispute regarding the actual conduct of the defendants" (quoting Vathekan v. Prince George's Cnty., 154 F.3d 173, 180 (4th Cir. 1998)). Accordingly, the undersigned recommends that the Court deny McFadden summary judgment here on the grounds of qualified immunity. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (Defendant entitled to qualified immunity only insofar as the conduct alleged did not violate clearly established statutory or constitutional rights of which a reasonable person should have known); Newkirk v. Enzor, 674 Fed. Appx. 276 (4th Cir. 2017) (affirming denial of summary judgment on qualified immunity where facts remained in dispute).
D. Plaintiff's State Law Claims for Violation of SCTCA
Defendants' Motion states they "move . . . for an Order of Summary Judgment in favor of Defendants . . . on the ground that there is no genuine issue as to any material fact." (Dkt. No. 119.) However, Defendants make no argument for dismissal of Plaintiff's state law claims in their accompanying briefing. (Dkt. Nos. 119-1; 126.) Their only acknowledgement of Plaintiff's state law claims is a single sentence stating Plaintiff "seeks damages for state tort claims and federal civil rights." (Dkt. No. 119-1 at 1.) Given that Defendants have failed to expressly argue for the dismissal of Plaintiff's state law claims, the undersigned does not consider Plaintiff's state tort claims at length.
The Amended Complaint alleges that Warden McFadden and SCDC "acted in a negligent, grossly negligent, reckless, willful and wanton manner" in violation of the SCTCA by "allowing uncontrolled violence in the correctional institution, . . . failing to provide protection and security for the Plaintiff, [and] . . . in failing to discipline its correctional officers for violations of SCDC policies and procedures." (Dkt. No. 1 ¶¶ 122, 123.) In his brief, Plaintiff relies on the same evidence to support both his § 1983 claims and his state law claims. (Dkt. No. 123 at 4-9.) This evidence has been detailed above and discussed at length in the context of Plaintiff's Eighth Amendment claims. For the same reasons the undersigned recommends summary judgment be denied on Plaintiff's Eighth Amendment claims, summary judgment should also be denied to Defendants SCDC and McFadden on the state law claims. See A.P. ex rel. Bazerman v. Feaver, No. 04-15645, 2008 WL 3870697 at *12 (11th Cir. Aug. 21, 2008) ("[D]eliberate indifference requires a much higher standard of fault than mere or even gross negligence . . . ."); Bass v. S.C. Dep't of Soc. Servs., 414 S.C. 558, 571, 780 S.E.2d 252, 259 (2015) (gross negligence is a mixed question of law and fact and should be presented to the jury unless the evidence supports only one reasonable inference).
For reasons discussed above, the undersigned has recommended dismissal of any state law claims brought against Defendants Dennis, Kelly, and McKie. See supra section B.
E. Injunctive Relief
As discussed above, the undersigned has found that Plaintiff cannot establish any claims for injunctive relief under § 1983. See supra section A.
to redress the Defendants' above described ongoing deliberate indifference, reckless, malicious, wanton and grossly negligence [sic] in policies, practices, habits, customs, usages, training and supervision with respect to the rights of the Plaintiffs herein to be secure in their persons, to be properly protected, to receive humane treatment, to be provided necessary and appropriate medical care, to be protected from cruel and unusual punishment, and to  have their lives protected from unprovoked attacks and threats, among other rights of the Plaintiffs.(Dkt. No. 1-1 at 15.) According to the Amended Complaint,
Injunctive relief is necessary due to the nature of the threats against the Plaintiffs herein shown in that Plaintiffs will suffer irreparable harm if such injunction is not granted in that, as has previously occurred, he is at risk to be attacked and injured and possibly killed. The multitude of incidents of violence against the Plaintiffs as recited herein is a clear and definite indication that without Court intervention by way of injunctive relief the likelihood of repeated incidents will occur and monetary compensation cannot replace the loss of life.(Id.)
As an initial matter, Defendants first argue for the dismissal Plaintiff's claim for injunctive relief in their reply brief. (Dkt. No. 126 at 4-5.) The Fourth Circuit has made clear that ordinarily it is improper to consider arguments raised for the first time in a reply brief "because it would be unfair to the appellee and would risk an improvident or ill-advised opinion on the legal issues raised." Hunt v. Nuth, 57 F.3d 1327, 1338 (4th Cir. 1995); see also Moseley v. Branker, 550 F.3d 312, 325 n.7 (4th Cir. 2008) ("As a general rule, arguments not specifically raised and addressed in opening brief, but raised for the first time in reply, are deemed waived."); Brown v. City of Charleston, No. 2:11-CV-00466-DCN, 2013 WL 4499138, at *5 (D.S.C. Aug. 20, 2013) ("Arguments raised for the first time in a reply brief are normally deemed waived."). Thus, the undersigned could end the analysis of this claim here, as Defendants have waived any arguments for its dismissal. However, even if Defendants' arguments were properly before the Court, they would still fail.
Indeed, Defendants' initial brief does not mention Plaintiff's claim for injunctive relief at all. (Dkt. No. 119-1.)
Defendants first assert that the claim for injunctive relief is moot because Plaintiff has been transferred to a different SCDC institution. (Dkt. Nos. 126 at 4; 126-1.) The undersigned takes judicial notice that Bartlett is currently incarcerated at Evans Correctional Institution. See SCDC Incarcerated Inmate Search, https://public.doc.state.sc.us/scdc-public/ (enter the plaintiff's name). The record shows that Plaintiff's projected release date is February 7, 2023. (Dkt. No. 88-2 at 1.) "[A] case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the out-come." Powell v. McCormack, 395 U.S. 486, 496 (1969). Relevant here, "an inmate's transfer to a separate prison facility moots his requests for injunctive relief, so long as the transfer prevents the inmate from encountering those same allegedly unconstitutional prison conditions that gave rise to his original grievances." Turner v. Clelland, No. 1:15-cv-947, 2016 WL 6997500, at *13 (M.D.N.C. Nov. 30, 2016), adopted sub nom. Turner, Jr. v. Clelland, 2017 WL 913630 (M.D.N.C. Mar. 7, 2017) (citing, e.g., West v. Grams, 607 Fed. App'x. 561, 566 (7th Cir. 2015) (noting that "a prison transfer might moot a claim for injunctive relief if the transfer means that the inmate no longer is laboring under the allegedly unconstitutional policy or practice"); Wright v. Bennett, No. 5:08-CT-3129, 2010 WL 3075519, at *3 (E.D.N.C. Aug. 4, 2010) (explaining that "[t]he Fourth Circuit has consistently held that when a prisoner is no longer subject to the alleged unconstitutional condition, the claim is moot," and citing cases)); see also Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (concluding that the inmate's transfer to another prison rendered moot his claims for declaratory and injunctive relief, "since he is unlikely to return to [that prison]").
A federal court may take judicial notice of factual information located in postings on governmental websites in the United States. See Mitchell v. Newsom, Case No. 3:11-cv-0869-CMC-PJG, 2011 WL 2162723, at *3 n.1 (D.S.C. May 10, 2011) (collecting cases), adopted by 2011 WL 2162184 (D.S.C. June 1, 2011). --------
Here, the Roth Report provides compelling evidence that SCDC "faces a significant shortage in the number of security personnel available to meet the mission of the agency." (Roth Report at 1.) As discussed above, the Roth Report is dated March 2018 and provides a "security staffing assessment" for 13 SCDC institutions, including Lieber and Evans. Based on the widespread staffing issues at SCDC, the documented effects such staffing issues has on incidents of contraband and assaults, and the lack of evidence that any action has been taken to remedy these issues following the Roth Report, the undersigned finds Plaintiff's transfer from Lieber does not remove the possibility that Plaintiff will suffer similar future violations under federal law and state tort law while incarcerated. Cf. Turner, 2016 WL 6997500, at *13 (finding injunctive relief moot in part because plaintiff was transferred to a different prison institution and the "requests for injunctive relief involving ACI's staff do not purport to address any problem existing throughout the state prison system"). Accordingly, the undersigned recommends this claim not be denied as moot.
Defendants also argue for summary judgment on Plaintiff's claim for injunctive relief because Plaintiff "cannot demonstrate that his § 1983 claim is likely to succeed on . . . the merits." (Dkt. No. 126 at 5.) "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). As discussed above, the undersigned has recommended denying summary judgment on Plaintiff's § 1983 claims against McFadden. Accordingly, there is no basis to find Plaintiff cannot establish that he is likely to succeed on the merits.
For these reasons, the undersigned recommends that Plaintiff's claim for injunctive relief under South Carolina law should not be dismissed at this time.
For the foregoing reasons, it is RECOMMENDED that Defendants' Motion for Summary Judgment be GRANTED IN PART AND DENIED IN PART. (Dkt. No. 119.) Specifically, the undersigned recommends that summary judgment should be denied as to Plaintiff's § 1983 Eighth Amendment claims brought against Defendant McFadden in his individual capacity, his state law claims for negligence and gross negligence against SCDC and McFadden, and his state law claim for injunctive relief against SCDC and McFadden. The remainder of Plaintiff's claims should be dismissed with prejudice, and Defendants Dennis, Kelly, and McKie should be dismissed as party Defendants.
IT IS SO RECOMMENDED. February 5, 2020
Charleston, South Carolina
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
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 835
Charleston, South Carolina 29402
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).