Garrett v. Fowler et al

Filing 376

ORDER agreeing in part with the 343 Report and Recommendation. Defendants Campbell and Monaco are dismissed without prejudice. Summary Judgment is granted as to Defendant Berry and Garrett's excessive force, retaliation , and deliberate indifference claims against Defendants Fowler, Lasley, DeGeorgis, Golden, Bilyeu, Blackburn. Myers, Jennings, and Rice are dismissed with prejudice. Further, 350 motion for temporary restraining order is dismissed as moot. Signed by Honorable Cameron McGowan Currie on 6/11/2021. (mmcd) Modified on 6/11/2021 to edit docket text(mmcd).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Robert Louis Garrett, Jr.,

C/A. No. 0:18-1417-CMC-PJG

Plaintiff
v.
Randall Fowler, Jr; Lasley; DeGeorgis;
Wantonta Golden; Jeff Bilyeu; R. Blackburn;
Kenneth Myers; James Jennings; Nathan Rice;
Christopher Monaco; Sgt. Campbell; Lt.
Rendell Berry,

Order

Defendants.
Plaintiff Robert Louis Garrett, Jr. (“Garrett”) brings this pro se action alleging violations
of his constitutional rights while incarcerated in the South Carolina Department of Corrections
(“SCDC”). In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), D.S.C.,
the matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings.
This matter is before the court on Defendants’ Motions for Summary Judgment. ECF Nos.
269 (Motion by Defendants Bilyeu, Blackburn, DeGeorgis, Fowler, Golden, Jennings, Myers, and
Rice), 333 (Motion by Defendant Berry). Because Garrett is proceeding pro se, the Magistrate
Judge entered orders pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising
him of the importance of the motions and the need to file adequate responses. ECF Nos. 270, 334.
Garrett moved for and was granted numerous, lengthy extensions in which to respond. ECF Nos.
275, 281, 297, 312, 314, 315, 321, 322. He was warned a failure to respond would subject his case
to dismissal for failure to prosecute or that the motions may be decided on the record presented in

support of the motions if he failed to file a response. Nonetheless, Garrett did not file a response
to either of the summary judgment motions.
On January 29, 2021, the Magistrate Judge issued a Report and Recommendation
(“Report”) recommending Defendant Berry’s motion for summary judgment be granted, and the
motion of Defendants Fowler, Lasley, DeGeorgis, Golden, Bilyeu, Blackburn, Myers, Jennings,
and Rice be granted in part and denied in part. ECF No. 343. It also recommends dismissing
Defendants Monaco and Campbell without prejudice. The Magistrate Judge advised the parties of
the procedures and requirements for filing objections to the Report and the serious consequences
if they failed to do so.
Defendants Fowler, et al moved for and received multiple extensions of time to file
objections, and did so March 8, 2021. ECF No. 366. On February 16, 2021, the court received
two motions from Garrett: a motion for extension of time to file objections, and a motion for
temporary restraining order, requesting permission to use the ADA Typewriter at his facility
despite the lockdown. ECF Nos. 350, 351. The court directed Defendants to respond to Garrett’s
motion for temporary restraining order (ECF No. 352) and granted Garrett an extension to file
objections through April 2, 2021 (plus three mailing days). ECF No. 357. Defendants filed a
response to the motion for temporary restraining order noting a typewriter had been provided to
Garrett. ECF No. 367. Garrett thereafter filed a “status report” noting his typewriter ink ribbon
ran dry and he requested but had not been provided new ink ribbons, and a motion for extension
of time to file objections. ECF Nos. 371, 372. The court granted his extension request, making
his objections due April 30, 2021, and requesting the Department of Corrections supply Garrett a
typewriter ink ribbon no later than April 19, 2021. ECF No. 373. As of June 1, 2021, the court
has not received any objections or any further filings from Garrett.
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1. Standard
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and the court
may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). The
court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of 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.’”)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
2. Background 1
Garrett alleges an incident of excessive force while he was housed at Perry Correctional
Institution (“PCI”). ECF No. 231, Am Compl. He alleges Defendant Fowler began harassing
Garrett in a sexual way around May or June 2015, and Garrett complained to Fowler’s supervisors,
Defendants Blackburn and Bilyeu, and wrote a request to staff (“RTS”) regarding the harassment
to Defendants Golden, Blackburn, and Bilyeu, who then delivered the RTS to Defendant Lasley.
Although Garrett states Defendant Fowler then stopped harassing him, an incident occurred on or
around June 19, 2015, which resulted in Garrett being sprayed with chemical munitions during a

1

The facts are taken in the light favorable to the non-moving party, Garrett, where support is found
in the record.
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cell extraction. Garrett alleges Defendants Blackburn, Fowler, Rice, Bilyeu, Myers, and Jennings
were involved in the cell extraction, and one of the officers sexually assaulted him by using
handcuffs or a hand to “probe his anus.” He alleges he was violated again after he stopped
resisting, but was then taken to the medical department and the hospital where medical staff
administered a rape kit. He alleges he was denied medical care and that this incident was in
retaliation for his reporting Defendant Fowler’s sexual harassment.
The court construed Garrett’s Amended Complaint as alleging claims for excessive force,
deliberate indifference, and retaliation under 42 U.S.C. § 1983. Specifically, he asserts claims of
excessive force and retaliation against Defendants DeGeorgis, Blackburn, Fowler, Rice, Myers,
and Jennings for an incident occurring on or about June 19, 2015 at PCI, during which he was
sexually assaulted by an unidentified officer. He alleges Defendant Golden did not take steps to
prevent the assault. Garrett alleges the incident was in retaliation for his filing charges against
Defendant Fowler for sexually harassing him, and that Defendants were deliberately indifferent to
his mental and physical health as a result of this incident. He seeks monetary and injunctive relief.
3. Discussion
The Magistrate Judge recommends dismissal of Defendant Campbell without prejudice for
failure to serve pursuant to Rule 4(m). ECF No. 343. The Report further recommends dismissal
of Defendants Berry and Monaco because the Amended Complaint fails to state a claim upon
which relief can be granted, as they had no involvement in the alleged constitutional violations.2
The Report further recommends Garrett’s retaliation claims proceed, as Defendants did not appear

2

Although Garrett said he would “write a supplemental complaint to provide details” when he
added those Defendants, no such supplement has been filed.
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to have moved for summary judgment on those claims. Regarding the excessive force claims, the
Report found Defendants should be granted summary judgment as to the use of chemical munitions
and use of force to remove Garrett from his cell during the extraction. However, the Report
recommended the excessive force claim regarding the alleged sexual assault proceed, despite
Garrett being unable to name a specific officer responsible, as none of the Defendants provided an
affidavit they were not involved in the alleged assault or did not commit it. 3 The Report found the
claims for deliberate indifference to medical needs should also be dismissed. Finally, although the
Report found Defendants have not established they are entitled to qualified immunity, to the extent
Garrett seeks monetary relief against SCDC employees in their official capacities, the Report
recommends dismissal as they are arms of the state and thus entitled to Eleventh Amendment
immunity.
Defendants object to the Report’s recommendation summary judgment be denied as to
Defendants Fowler, Lasley, DeGeorgis, Bilyeu, Blackburn, Myers, Jennings, and Rice on the
sexual assault excessive force claim. ECF No. 366. Specifically, they argue the Magistrate Judge
should have dismissed the claim for failure to prosecute; that Garrett’s claim of sexual assault
“falls far short of the egregious type of harm prohibited by the Eighth Amendment,” that Garrett’s
claims of sexual assault were determined to be unfounded (bolstered by a video of the cell
extraction), and that the use of force was appropriate.

They also argue Plaintiff’s claims of

retaliation fail and should be dismissed. They do not object to the recommendation of summary
judgment as to Plaintiff’s remaining claims.

3

However, any claim for excessive force against a Defendant in a supervisory capacity fails.
5

Although Garrett requested and received extensions of time in which to file objections, and
it appears SCDC officials allowed him to have the requested typewriter in his cell, the court has
received no objections from Garrett. 4
a. Defendant Campbell
As noted in the Report, service was authorized on Defendant Campbell but the summons
was returned unexecuted on December 17, 2019, noting “SCDC OGC cannot accept – could not
find this defendant.” ECF No. 249. The Magistrate Judge thereafter entered an Order directing
Garrett to complete and return an amended Form USM-285 by January 3, 2020. Although Garrett
returned a USM-285 form, it stated
someone from SCDC’s office of General Counsel can identify Sgt. Campbell from
Exhibit 1A and if he no longer works for SCDC they can just say that and provide
the U.S. Marshals Service with all of Sgt. Campbell’s personal identifiers (Date of
Birth, Picture, SSN, Driver’s License #, etc”. The U.S. Marshal’s Service can then
use the SCDMV Computer System to get Sgt. Campbell’s home address and then
serve him.
ECF No. 254. The Magistrate Judge then entered an order acknowledging the amended form for
Defendant Campbell, but finding Garrett did not comply with the court’s order to provide more
accurate information and declining to authorize further attempts of service on Defendant
Campbell. ECF No. 282. Garrett appealed this order to the District Court. ECF No. 294. On
June 9, 2020, the District Court agreed with the Magistrate Judge Garrett failed to provide
sufficient information to allow the U.S. Marshals Service to effect service upon Defendant Sgt.

4

The court notes it received typewritten Notices of Appeal in other cases filed by Garrett on March
15, 2020 – the date objections were originally due in this case. See, e.g., Case No. 19-1953, Garrett
v. Enloe, ECF No. 110.
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Campbell. ECF No. 312. Finding the Magistrate Judge’s ruling was not clearly erroneous or
contrary to law, the District Court affirmed. Id.
Garrett failed to provide sufficient information to properly serve Defendant Sgt. Campbell,
despite his responsibility to do so. Garrett further failed to follow the court’s instructions to
provide more accurate information. Accordingly, as Defendant Campbell was not served within
the time provided by Fed. R. Civ. P. 4(m), he is therefore dismissed without prejudice.
b. Defendants Berry and Monaco
Defendants Berry and Monaco were referenced only in Garrett’s Amended Complaint
regarding spoliation of his legal files, and Garrett noted he would “write a separate Supplemental
Complaint” to provide details on his claims against these Defendants. However, no Supplemental
Complaint or motion to file same was filed. The Amended Complaint does not state a claim against
Defendants Berry or Monaco. Defendant Monaco, therefore, is summarily dismissed pursuant to
§ 1915 and § 1915A, and he is dismissed without prejudice. Defendant Berry’s motion for
summary judgment (ECF No. 333) is granted, and he is dismissed with prejudice.
c. June 19, 2015 Incident of Excessive Force
The Magistrate Judge recommends denying summary judgment for Defendants Fowler,
Lasley, DeGeorgis, Golden, Bilyeu, Blackburn, Myers, Jennings and Rice as to the claim of sexual
assault 5 in the June 19, 2015 incident, but granting summary judgment to these Defendants as to
the use of chemical munitions and physical force during the cell extraction ECF No. 343 at 18.

5

In addition, the Report finds Defendants failed to demonstrate they are entitled to qualified
immunity on the sexual assault claim.
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The Report further recommends granting summary judgment on the deliberate indifference to
medical needs claim.
Defendants do not object to the recommendation of dismissal of the excessive force claim
based on use of chemical munitions or physical force, or the dismissal of the deliberate indifference
claim. They do object to the denial of summary judgment as to the sexual assault claim. As noted
above, Garrett has not filed objections.
i. Failure to Prosecute
Defendants argue the Amended Complaint should have been dismissed for failure to
prosecute. The court has dismissed other cases brought by Garrett for failure to prosecute after
the filing of a Motion for Summary Judgment. See Case Nos. 19-1859, Garrett v. Palmer, ECF
No. 91 (92 total docket entries through dismissal of case); 19-1952, Garrett v. Stephenson, ECF
No. 87 (88 docket entries); 19-1953, Garrett v. Enloe, ECF No. 101 (104 docket entries).
However, in the instant case, Garrett has filed numerous motions and maintained active
involvement (373 docket entries as of April 12, 2021). In addition, in those cases Garrett made no
filings after the respective Reports were filed but before the cases were closed, while in this case,
Garrett has filed a motion for temporary restraining order and motion for extension of time in
which to file objections to the Report, although ultimately he did not file objections. The court,
therefore, declines to dismiss the case for failure to prosecute.
ii. Use of Chemical Munitions and Physical Force during Cell
Extraction
The Report recommends granting summary judgment to Defendants Fowler, Lasley,
DeGeorgis, Golden, Bilyeu, Blackburn, Myers, Jennings, and Rice as to the use of chemical
munitions and physical force during the cell extraction on June 19, 2015. Defendants do not object
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to this recommendation, and Garrett has failed to file objections. The court, therefore, reviews the
recommendation on these claims for clear error. Finding none, summary judgment is granted for
Defendants on the claims of excessive force for use of chemical munitions and physical force in
restraining Garrett during the cell extraction, and they are dismissed with prejudice.
iii. Sexual Assault Claim
Next, Defendants assert the claim of sexual assault fails because the single claim of sexual
offensive touching was not “objectively, sufficiently serious” to constitute an Eighth Amendment
violation. ECF No. 366 at 4-5. In addition, they contend, the claim of sexual assault was
determined to be unfounded after an investigation by the Office of Inspector General for SCDC.
Id. at 5-6. A charge of filing a false police report was brought against Garrett based on his
unfounded allegations of sexual assault. Id. at 6. Finally, Defendants argue the video of the cell
extraction contradicts Garrett’s claim of sexual assault, and Garrett even admits in the video he
was not sexually assaulted. Id. at 6-7.
The court reviews de novo this portion of the report as Defendants raised objections.
Although neither the documentation regarding the investigation of Garrett’s sexual assault claim
nor the cell extraction video were produced with the motion for summary judgment, and were
attached only to the objections to the Magistrate Judge’s report, the court will consider this
outcome-determinative evidence.
The relevant statute states that a district court reviewing a magistrate judge's
recommendation must review de novo disputed portions of a magistrate's report and
“may also receive further evidence.” 28 U.S.C.A. § 636(b)(1) (West 1993)
(emphasis added). Because Congress used the permissive term “may” in
connection with the receipt of additional evidence, the question of whether to
consider such evidence rests within the sound discretion of the district court.

9

Doe v. Chao, 306 F.3d 170, 183 n. 9 (4th Cir. 2002); Blake v. Children's Attention Home, No.
CIV.A. 0:11-02825, 2013 WL 1281946, at *5 (D.S.C. Mar. 26, 2013) (“The court has discretion
to receive Plaintiff's new evidence as part of the review of the Magistrate Judge's Report and
Recommendations.”).
The video of the cell extraction contradicts Garrett’s assertions in his Amended Complaint
regarding the sexual assault claim. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing
parties tell two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.”). The video clearly shows the extraction team sprayed
chemical munitions and eventually entered Garrett’s cell because he refused to remove papers
from his cell window and refused all conflict resolution and directives to come to the door. ECF
No. 366-3 at 00:20-40, 03:10-04:40. Although the camera viewpoint is unable to show Garrett
during the cell breach because of the officers securing him, Garrett complains of officers touching
his toes and fingers but makes no mention of a sexual assault when he is on the ground or brought
to his feet. Id. at 14:00-18:00. Once on his feet Garrett states loudly, many times, that he is being
extracted because of sexual harassment; however, he explicitly admits after being restrained “I’m
glad I’m not being fondled right now, I’m not being sexually assaulted . . . I’m glad it hasn’t turned
into sexual assault.” Id. at 20:05, 20:36. Further, the investigative report shows that while Garrett
was taken to the hospital and examined after his allegations of sexual assault, the report was

10

investigated, and the accusation was determined to be unfounded. ECF No. 366-2 at 3. Garrett
was charged with filing a false police report. 6 Id. at 32.
Based on the newly submitted evidence, the court finds granting summary judgment to
Defendants on the excessive force sexual assault claim is appropriate. Accordingly, Defendants’
motion for summary judgment is granted and Garrett’s excessive force claim is dismissed with
prejudice in its entirety, including the sexual assault claim.
d. Retaliation
The Magistrate Judge found Defendants acknowledged Garrett’s retaliation claims in their
summary judgment motion and memorandum, but did not actually move for summary judgment
as to any retaliation claims. Therefore, the Report recommended these claims proceed to trial.
ECF No. 343 at 9. Defendants object, arguing the video and investigative report show Garrett was
not subjected to use of force due to report of sexual harassment, as Garrett claims, but because he
refused directives from staff. ECF No. 366 at 8.
Based on the newly submitted evidence that was not before the Magistrate Judge, the court
finds the use of force on June 19, 2015 was due to Garrett’s refusal to remove paper from his
window, then refusal to engage in the conflict resolution process or to come to his cell door to be
handcuffed. These reasons are clear from the video, which contradicts the allegations of retaliation
in Garret’s Amended Complaint. See Scott, 550 U.S. at 380. Therefore, the court finds there is
no genuine issue of material fact regarding the reason for the use of force – it was not due to

6

It appears this state court charge was dismissed when Garrett appeared in the South Carolina
Court of General Sessions in the Thirteenth Judicial Circuit and was found guilty of contempt of
court for disruptive conduct and refusal to comply with instructions of the court. ECF No. 366-5.
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retaliation based on Garrett’s claims of sexual harassment. Summary judgment is appropriate for
Defendants on the retaliation claim, which is dismissed with prejudice.
e. Deliberate Indifference
The Magistrate Judge recommends dismissal of Garrett’s claims for deliberate indifference
to his medical needs following the June 19, 2015 use of force incident. ECF No. 343 at 20. The
Report notes none of the Defendants are medical personnel, and Garrett does not name any specific
defendants who were personally involved in depriving him of medical care or provide any further
details about how he was deprived of medical care.
As there are no objections to this recommendation by the Magistrate Judge, it is reviewed
for clear error. Finding none, the court grants summary judgment for all Defendants on the claim
of deliberate indifference to medical needs.
4. Motion for Temporary Restraining Order
Garrett has also filed a motion for temporary restraining order. ECF No. 350. Garrett
alleges his hand injury prevents him from handwriting documents without pain, and requests a
court order for use of the ADA typewriter at his facility. The court directed counsel for Defendants
to respond to the motion. ECF No. 352. Defendants filed a response in opposition, arguing Garrett
has not met the standard for a temporary restraining order but also noting one typewriter was
transferred to Garrett’s cell, despite the quarantine lockdown at his institution. ECF Nos. 367 at
4; 367-4 (affidavit of Associate Warden of Programs Brightharp, noting the typewriter was
provided to Garrett on or about February 25, 2021, and remains in his cell as of March 19, 2021).
Garrett filed a “status report” noting his typewriter ribbon had run out of ink and therefore
he was unable to use the typewriter. ECF No. 371. However, the court requested Defendants

12

provide Garrett with additional ink ribbon(s), and extended his time to file objections for this
reason. Garrett has failed to file any additional documents stating he did not receive an ink ribbon.
As Garrett has received access to a typewriter, and indeed has submitted typed filings in
several of his other cases, the court finds his motion for temporary restraining order is moot. The
motion for temporary restraining order (ECF No. 350) is dismissed.
5. Conclusion
After a review of the record, the applicable law, the Report and Recommendation of the
Magistrate Judge, and objections filed, the court agrees with the Report’s recommendations as to
all claims other than the sexual assault excessive force claim and the claim for retaliation. On
those two claims, the court declines to adopt the Report in light of newly produced, highly relevant
evidence. Accordingly, the court adopts the Report by reference in this Order as supplemented
above. Defendants Campbell and Monaco are dismissed without prejudice. Summary judgment
is granted as to Defendant Berry and the entirety of Garrett’s excessive force, retaliation, and
deliberate indifference claims against Defendants Fowler, Lasley, DeGeorgis, Golden, Bilyeu,
Blackburn, Myers, Jennings, and Rice are dismissed with prejudice. 7
IT IS SO ORDERED.

Columbia, South Carolina
June 11, 2021

7

s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge

The motion for temporary restraining order (ECF No. 350) is dismissed as moot.
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