James Raynor v. G. Pugh

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-01117-LMB-JFA. [999776286]. [14-7746]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7746

JAMES HERMAN RAYNOR,
Plaintiff - Appellant,
v.
G. PUGH, Housing Unit #1 Manager,
Defendant - Appellee,
and
HAROLD W. CLARK,
MARIE VARGO, Ms.,

Director

of

Department

of

Corrections;

Defendants.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:13-cv-01117-LMB-JFA)

Argued:

December 8, 2015

Decided:

March 17, 2016

Before MOTZ, KING, and KEENAN, Circuit Judges.

Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge King joined.
Judge Keenan wrote a
separate opinion concurring in part and concurring in the
judgment.

ARGUED: Brian David Schmalzbach, MCGUIREWOODS LLP, Richmond,
Virginia, for Appellant.
Trevor Stephen Cox, OFFICE OF THE

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ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
ON BRIEF: John D. Adams, Katherine Mims Crocker, MCGUIREWOODS
LLP, Richmond, Virginia, for Appellant.
Mark R. Herring,
Attorney General of Virginia, Cynthia E. Hudson, Chief Deputy
Attorney General, Linda L. Bryant, Deputy Attorney General,
Public Safety & Enforcement, Richard C. Vorhis, Senior Assistant
Attorney
General,
J.
Michael
Parsons,
Assistant
Attorney
General, Stuart A. Raphael, Solicitor General of Virginia,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.

2

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DIANA GRIBBON MOTZ, Circuit Judge:
James Herman Raynor, an inmate at a Virginia correctional
facility,
(2012),

brought

alleging

this
that

action
a

pursuant

prison

to

official

42

U.S.C.

violated

§

the

1983

Eighth

Amendment by failing to protect Raynor from an attack by another
inmate.

The district court granted the official’s motion for

summary judgment.

For the reasons that follow, we vacate and

remand for further proceedings.

I.
Raynor, an inmate at Sussex II State Prison, suffers from
medical ailments, including seizures, blackouts, “blood issues,”
“heart issues,” and “breath[ing] issues.”
Raynor,

who

was

housed

with

inmate

K.

In November 2012,

Mullins,

asked

prison

officials to move him to a different cell with a “caretaker”
inmate

who

had

conditions.
with

G.

That

day,

volunteered

to

assist

him

with

his

health

On January 10, 2013, Raynor renewed his request

Pugh,
Pugh

the

Prison

informed

Housing
Mullins

Manager

that

he,

for

Raynor’s

instead

of

unit.

Raynor,

would have to relocate to a different cell.
According

to

Raynor,

Mullins

then

threatened

Raynor

in

front of Pugh, saying, “it’s on,” that they were both “going to
seg[regated

housing],”

and

that

[Raynor].”

Raynor alleges that, in response, Pugh stated that
3

he

“would

physically

assault

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he did not care what Mullins did and ordered both men back into
their cell.

Soon after, Mullins smashed Raynor’s television and

punched him in the face multiple times, knocking him to the
ground.

Raynor alleges that Pugh watched the entire assault and

did not call for assistance or take any action until after the
attack

had

ended.

Raynor

also

alleges

significant injury from the assault.

that

he

sustained

a

In addition to temporary

facial injuries and bruising, when Mullins knocked him to the
ground, the impact assertedly damaged his spine and tailbone.
As

a

result

of

that

spinal

injury,

he

alleges

that

he

now

suffers constant and severe pain, numbness, and loss of control
of his legs, and will be confined to a wheelchair for the rest
of his life.
After exhausting his administrative remedies, Raynor filed
this

complaint

pursuant

Raynor

alleges,

and

Pugh’s

deliberate

to

42

realleges

U.S.C.
in

indifference

to

an

§

1983

amended

Raynor’s

against

Pugh. 1

complaint,
safety,

and

that
the

resulting injuries, constituted cruel and unusual punishment in
violation of the Eighth Amendment.

1

Raynor also named as defendants Director of the Virginia
Department of Corrections Harold Clarke and Sussex II Warden
Marie Vargo.
The district court dismissed the claims against
these defendants because Raynor had failed to allege facts
supporting supervisory liability.
Raynor does not appeal those
dismissals.
4

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As

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evidence

submitted

a

of

verified

Pugh’s

Pg: 5 of 18

deliberate

complaint

and

a

indifference,

corroborating

from another inmate, who had witnessed the assault.

Raynor

affidavit
To support

his claim of serious injury, Raynor offered copies of several
requests for medical attention for severe spinal pain, numbness,
and uncontrollable falling after January 10th, some of which
attribute these issues to the assault.

Raynor also submitted

six doctors’ reports describing spinal x-rays before and after
the assault, which he maintains describe damage to a different
section of his spine post-assault than had already been injured.
In an effort to further substantiate his claim, Raynor moved for
production

of

the

following

materials

from

the

prison:

the

security video of the incident, all prison reports related to
the assault, any prison policies or procedures detailing staff
responsibility for inmate safety, and any documents from the
prison’s investigation of the incident.
Although

Pugh

not

dispute

According to Pugh, Mullins made no threatening comments

inmates

had

gotten

before
along

the
in

other

assault,

the

past,

anticipate one would attack the other.

and
he

fact

attacked

Raynor.

presence

every

Mullins

he

Pugh’s

essentially

that

Raynor,

in

disputes

does

alleged

because
had

no

the

by

two

reason

to

Pugh contends that he

was in a different part of the housing unit during the alleged
assault and was only “later informed” of an “altercation.”
5

Pugh

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also

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maintains

that,

even

if

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he

had

been

present

during

an

attack, prison policy would have prevented him from physically
intervening without additional guards.

He maintains that Raynor

suffered only minor facial abrasions, as reflected in the “mild
abrasions”

noted

in

the

assault.

Pugh

argues

medical
that

report

Raynor

from

suffered

the

day

of

ongoing

the

spinal

problems due to a 2005 accident, so that to the extent Raynor
does currently suffer from chronic back pain, that pain is not
attributable to the asserted assault.

Finally, Pugh points to

the lack of any written grievances or medical forms from Raynor
complaining of back pain before August 2013, seven months after
the assault.
Pugh moved for summary judgment, arguing that “Raynor did
not suffer a serious or significant physical injury for which
Pugh would be liable under the Eighth Amendment,” that “Pugh did
not have a sufficiently culpable state of mind,” and that Pugh
was entitled to qualified immunity.

On the same day, Pugh also

moved for a protective order to stay discovery based on his
qualified

immunity

defense.

Raynor

opposed

both

motions,

reasserted his discovery requests, and filed a motion for an
examination by a back specialist.
The

district

court

denied

Raynor’s

motions

and

granted

Pugh’s discovery protective order without reaching the merits of
the

qualified

immunity

defense.
6

Seven

months

later,

still

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without resolving the issue of Pugh’s asserted immunity from
suit or ordering any discovery, the district court granted Pugh
summary

judgment.

The

court

acknowledged

that

the

parties

“dispute[d]” both “defendant’s motivation in not breaking up the
fight

between

plaintiff

and

Mullins”

and

whether

“suffered a severe injury to his spinal cord.”
concluded
asserted

that
lack

these
of

disputes

were

evidentiary

not

support

However, it

“genuine,”
for

Raynor

due

Raynor’s

to

an

claims.

Raynor timely noted this appeal.

II.
The Eighth Amendment’s prohibition on “cruel and unusual
punishments” imposes certain basic duties on prison officials.
Farmer v. Brennan, 511 U.S. 825, 832 (1994).

These include

maintaining

including

humane

conditions

of

confinement,

the

provision of adequate medical care and, relevant to this case,
“reasonable measures to guarantee the safety of the inmates.”
Id.

(internal

corrections
violence

quotation

officers

at

the

have

hands

“a
of

marks
duty
other

omitted).
to

Specifically,

protect

prisoners

prisoners,”

for

from

“[b]eing

violently assaulted in prison is simply not part of the penalty
that criminal offenders pay for their offenses against society.”
Id.

at

832,

834

(internal

quotation

omitted).
7

marks

and

alterations

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However, “not every injury suffered by a prisoner at the
hands of another translates into constitutional liability for
prison officials responsible for the victim’s safety.”

Makdessi

v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (internal quotation
marks

omitted).

A

plaintiff

must

satisfy

a

two-part

test,

consisting of both an objective and a subjective inquiry, for
liability to attach.
First, the inmate “must establish a serious deprivation of
his rights in the form of a serious or significant physical or
emotional injury,” or a substantial risk thereof.
Stansberry,

772

F.3d

340,

346-47

(4th

Cir.

2014)

Danser v.
(internal

quotation marks omitted); see Farmer, 511 U.S. at 834.

This

objective inquiry “requires a court to assess whether society
considers the risk that the prisoner complains of to be so grave
that it violates contemporary standards of decency to expose
anyone unwillingly to such a risk.”

Helling v. McKinney, 509

U.S. 25, 36 (1993).
Second, an inmate must show that the prison official had a
“sufficiently culpable state of mind,” which, in this context,
consists

of

“deliberate
511

indifference

U.S.

at

834

to

inmate

(internal

health

quotation

or

safety.”

Farmer,

marks

omitted).

This subjective inquiry requires “evidence suggesting

that the prison official had actual knowledge of an excessive
risk to the plaintiff’s safety.”
8

Danser, 772 F.3d at 347.

The

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defendant must “be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he
must

also

draw

(emphasis added).
actual

knowledge

the

inference.”

Farmer,

511

U.S.

other

words,

837

An inmate can, however, prove an official’s
of

a

substantial

risk

“in

the

including inference from circumstantial evidence.”
In

at

“a

factfinder

may

conclude

usual

ways,

Id. at 842.

that

a

prison

official knew of a substantial risk from the very fact that the
risk was obvious.”
However,

Id.

“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.”
at 844.

Id.

In failure-to-protect cases, “prison guards have no

constitutional duty to intervene in the armed assault of one
inmate upon another when intervention would place the guards in
danger of physical harm.”

Prosser v. Ross, 70 F.3d 1005, 1008

(8th Cir. 1995); see also Winfield v. Bass, 106 F.3d 525, 532
(4th

Cir.

1997)

(en

banc)

constitutionally required.”).

(“[S]uch

heroic

measures

are

not

But “completely failing to take

any action” to stop an ongoing assault on a prisoner can amount
to

deliberate

indifference.

Winfield,

106

F.3d

at

532;

see

also, e.g., Odom v. S.C. Dep’t of Corr., 349 F.3d 765, 773 (4th
Cir. 2003) (“[A] correctional officer who stands by as a passive
observer and takes no action whatsoever to intervene during an
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assault violates the [Eighth Amendment] rights of the victim
inmate.”); Williams v. Mueller, 13 F.3d 1214, 1216 (8th Cir.
1994) (“A prison official acts with deliberate indifference to
an inmate’s safety when the official is present at the time of
an assault and fails to intervene or otherwise act to end the
assault.”);
deliberate

cf. Prosser,
indifference

70

F.3d

where

prison

at

1008-09

guard

ran

(finding
to

get

immediately after inmate threw first punch at plaintiff).
courts

have

found

that

“a

corrections

officer’s

no
help

Thus,

failure

to

intervene in a beating can be the basis of [§ 1983] liability”
if the officer had a reasonable opportunity to act and “simply
refused to do so.”

Smith v. Mensinger, 293 F.3d 641, 650 (3d.

Cir. 2002).

III.
With

these

principles

in

mind,

we

consider

whether

the

district court ignored genuine disputes of material fact and so
erroneously

granted

summary

judgment

to

Pugh.

court’s grant of summary judgment de novo.

We

review

a

PMB Prods., LLC v.

Mead Johnson & Co., 639 F.3d 111, 119 (4th Cir. 2011).

Summary

judgment is appropriate only “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
56(a).

Fed. R. Civ. P.

In deciding whether a genuine issue of material fact
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exists, “[t]he evidence of the non-movant is to be believed, and
all

justifiable

inferences

are

to

be

drawn

in

his

favor.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
For

the

objective-injury

prong,

Raynor

alleges

specific

facts describing the facial trauma and spinal injury caused by
Mullins’ attack.

Raynor also submitted his verified complaint,

describing the assault and his injuries in detail; several of
written

requests

to

the

prison

for

medical

attention,

complaining of severe back pain and numbness; and six medical
reports interpreting x-rays of his spine before and after the
assault. 2

He

offered a witnessing inmate’s affidavit, which

describes the impact from Mullins’ final blow that allegedly
caused Raynor’s spinal injury.

The witness swore that Raynor

“fell backwards and hit the floor on his buttocks.

He hit so

hard he bounced off the floor and then landed again after going
about

three

or

four

inches

off

2

the

floor.

Mr. Raynor

then

Our friend in concurrence suggests that Raynor “has not
yet raised a genuine dispute” regarding his injury because his
x-ray reports would be difficult for a lay person to interpret.
However, when faced with documents purportedly related to a
material issue but inscrutable to the court, we cannot
“eliminate the possibility that genuine issues of material fact
exist.”
Matherly v. Andrews, No. 14-7691, slip op. at 20 (4th
Cir. March 16, 2016).
Rather, summary judgment “should be
granted only when it is perfectly clear that no issue of
material fact exists.”
Haulbrook v. Michelin N. Am., 252 F.3d
696, 702 (4th Cir. 2001).
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proceeded to slowly get up off the floor and had a dazed, pain
[sic] look on his face.”
Of course, Pugh does not concede the truth of these facts.
Rather, Pugh maintains that Raynor suffered no more than “mild
abrasions on [his] face and cheeks.”

Appellee’s Br. at 6.

Pugh

contends that, to the extent Raynor does suffer chronic back
pain, it is attributable to a 2005 accident.

Pugh also points

to the lack of written complaints about back pain from Raynor in
the first seven months following the assault, suggesting that
Raynor began concocting a written record of this pain only after
he filed his § 1983 complaint in August 2013.
might

ultimately

contrary

agree

evidence

as

with
to

Pugh,
material

but

A fact finder

Raynor

facts

has

offered

concerning

the

seriousness of his injury which, at present, preclude the grant
of summary judge to Pugh on this prong.
Similarly, as for the subjective inquiry -- whether Pugh
acted with deliberate indifference –- Raynor has also offered
evidence

preventing

the

grant

of

3

summary

judgment. 3

In

his

Part and parcel of our review of the district court’s
grant of summary judgment is Raynor’s claim that the court
improperly disregarded most of Raynor’s evidence. We agree that
the court erred in doing so.
For example, in assessing the
deliberate-indifference
prong,
the
court
ignored
Raynor’s
factual assertions about Mullins’ comments, concluding that
“nothing in plaintiff’s evidentiary submissions [] show[s] that
Pugh knew that Mullins posed a risk to plaintiff’s health or
safety.”
The court then stated that, “[i]n fact, Pugh stated
(Continued)
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verified complaint, Raynor alleges two independent grounds for
establishing Pugh’s subjective knowledge of the risk of assault.
First, in his verified complaint, Raynor alleges that Mullins
told Pugh he was going to attack Raynor and that Pugh responded
that he did not care what Mullins did.
as

true,

establishes

that

Pugh

had

This allegation, taken

“actual

excessive risk to the plaintiff’s safety.”

knowledge

of

an

Danser, 772 F.3d at

347; see e.g., Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir.
2000); Street v. Corr. Corp. of America, 102 F.3d 810, 815-16
(6th Cir. 1996).
Independent of this fact, Raynor also alleges that Pugh had
actual knowledge of the attack as it was happening because Pugh
watched the entire incident.

Because he did so without radioing

for assistance or taking any other action, in Raynor’s view Pugh
did not respond reasonably to the substantial risk to Raynor’s
safety.

The witnessing inmate’s affidavit corroborates Raynor’s

allegations, stating that during the assault Pugh stood watching

that the plaintiff had never mentioned having any problems with
Mullins, and that the two men ‘got along well’” -- apparently
crediting
only
Pugh’s
factual
assertions
while
ignoring
Raynor’s.
But, of course, the nonmoving party is entitled “to
have . . . his version of all that is in dispute accepted, all
internal conflicts in it resolved favorably to him, [and] the
most favorable of possible alternative inferences from it drawn
in his behalf.” Charbonnages de France v. Smith, 597 F.2d 406,
414 (4th Cir. 1979).
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“behind the first set of chase doors smil[ing] with a two way
radio in his hand . . . which he never used.”
Pugh again disputes this version of events.

He asserts

that he was outside of the housing unit during the assault and
saw no part of it.

But where “affidavits present conflicting

versions of the facts which require credibility determinations,”
summary

judgment

cannot

lie.

Davis,

600

F.2d

at

459-60

(reversing summary judgment where inmate alleged that “the guard
watched the knifing attack without acting to protect him,” but
the

guard

claimed

he

was

not

present);

see

also

Pressly

v.

Hutto, 816 F.2d 977, 979 (4th Cir. 1987). 4
In sum, genuine disputes of material fact underlie both
prongs

of

Raynor’s

claim.

See

Anderson,

477

U.S.

at

248

(explaining that factual disputes are “genuine” “if the evidence
is such that a reasonable jury could return a verdict for the

4

These factual disputes also defeat Pugh’s claim to
qualified immunity at this early stage, for Raynor has alleged
facts that make out a violation of a clearly established
constitutional right.
See Pearson v. Callahan, 555 U.S. 223,
232 (2009).
Long before this 2013 attack, we had specifically
determined that a prison official who passively watches an
inmate assault without taking any action in response “violates
the rights of the victim inmate.”
Odom, 349 F.3d at 773; see
also, e.g., Winfield, 106 F.3d at 532; Brown v. N.C. Dep’t of
Corr., 612 F.3d 720, 723 (4th Cir. 2010); Davis v. Zahradnick,
600 F.2d 458, 459-60 (4th Cir. 1979); Gordon v. Leeke, 574 F.2d
1147, 1152 (4th Cir. 1978).

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nonmoving party”).

Pg: 15 of 18

Thus, on this record, the district court

erred in granting summary judgment to Pugh. 5

IV.
For the forgoing reasons, we vacate the judgment of the
district

court

and

remand

the

case

for

further

proceedings

consistent with this opinion.
VACATED AND REMANDED

5

Raynor also argues that the district court erred in
denying him any discovery. Generally, a court should not grant
summary judgment when, as here, outstanding discovery requests
on material issues exist. See Ingle ex rel. Estate of Ingle v.
Yelton, 439 F.3d 191, 196-97 (4th Cir. 2006).
The district
court stayed Raynor’s discovery requests pending resolution of
Pugh’s qualified immunity defense, in accord with Crawford-El v.
Britton. See 523 U.S. 574, 598 (1998). But, without ruling on
the (meritless at this stage) qualified immunity claim, the
court granted summary judgment on evidentiary grounds, faulting
Raynor for “not provid[ing] any evidence, other than his own
affidavit, to support his allegations.” In so doing, the court
erred.
On remand the district court should permit appropriate
discovery before entertaining any additional motions for summary
judgment.
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BARBARA MILANO KEENAN, Circuit Judge, concurring in part and
concurring in the judgment:
I agree with the majority’s conclusion that the district
court

erred

because

Raynor

should

have

been

afforded

an

opportunity to conduct discovery, and because a genuine dispute
exists regarding whether Pugh acted with a culpable state of
mind.

I write separately to state my view that given Raynor’s

complex

medical

history

causation

opinion,

regarding

the

he

cause

and

has
of

his

not

his

improper

yet

reliance

raised

alleged

a

injury.

genuine

on

lay

dispute

Nevertheless,

because that defect may be remedied during the course of future
discovery in this case, Raynor is entitled to have the district
court’s summary judgment award vacated.
I do not think that a reasonable jury could conclude from
the

present

record

that

Mullins’

attack,

rather

factors, caused Raynor’s alleged back injury.

than

other

Raynor’s complex

medical history includes seizures, cardiovascular issues, and a
back impairment that existed long before the attack.

Prior to

that event, Raynor had fallen multiple times, seeking medical
treatment for his back pain.
both

before

and

after

the

Moreover, various medical reports
attack

describe

Raynor’s

back

condition as being “degenerative” in nature.
A nonmoving party seeking to prevent summary judgment must
show a genuine dispute of fact using admissible evidence, not

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merely conclusory or speculative statements.
P. 56(c).

See Fed. R. Civ.

Raynor’s own interpretation of his x-ray reports, and

his speculation regarding the causes of his back pain and his
falls after the attack, constitute conclusory and inadmissible
lay opinion on issues requiring “scientific, technical, or other
specialized

knowledge.”

Fed.

R.

Evid.

701(c).

A

layperson

could not determine whether the “multilevel spondylosis” and the
“facet arthropathy” described in a post-attack report differs
from

the

“multilevel

lower

lumbar

facet

arthrosis”

“spondylosis” described in pre-attack reports.
expert

testimony,

a

lay

juror

would

be

and

the

Thus, without

unable

to

determine

whether any change in Raynor’s spinal condition was attributable
to Mullins’ attack.
Although, in many cases, an inference of causation may be
drawn based on temporal proximity between violent contact and a
particular
Raynor’s

injury,

medical

such

an

history

is

inference

is

sufficiently

unavailable
complex

that

here.
a

lay

juror could not rationally infer the cause of his existing back
problems.

Unlike an injury that appears immediately following a

violent impact, Raynor’s degenerative spinal condition existed
before the attack and worsened after multiple falls during the
seven

months

following

the

attack.

Nothing

in

the

record

indicates that this type of spinal condition can be caused by
acute physical trauma.

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Nevertheless, evidence revealed during future discovery may
yet

establish

causation.

material

facts

supporting

Raynor’s

claim

of

Therefore, I respectfully concur in the judgment in

this appeal.

18