Ellerbe v. Cook et al
Filing
66
ORDER AND REPORT AND RECOMMENDATION denying Plaintiff's 39 motion to transfer and recommending this case be stayed pending resolution of Plaintiff's criminal charges. It is further recommended that Plaintiff be or dered to apprise the court of the status of the criminal proceedings every six months and to notify the court when the criminal charges are resolved and the stay can be lifted. It is also recommended that Defendants' 50 motion for summary jud gment and Plaintiff's motions 42 to compel and to 63 submit evidence be denied without prejudice as premature at this time. (Objections to R&R due by 3/26/2021. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. ) Motion terminated: 39 MOTION for Transfer. Signed by Magistrate Judge Shiva V. Hodges on 3/12/2021. (lbak)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Craig E. Ellerbe, Jr.,
Plaintiff,
vs.
Lieutenant Larry Cook,
Corrections Officer Raycharm J.
Burkett, Corrections Officer
Thomas M. Pattman, Corrections
Officer Micquel X. Cleveland,
Corrections Officer James E.
Henderson, II, Corrections Officer
Martin A. Delk, and Warden
Michael Stephan, each in their
individual and official capacities,
Defendants.
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C/A No.: 1:20-1630-JD-SVH
ORDER AND REPORT AND
RECOMMENDATION
Craig E. Ellerbe, Jr. (“Plaintiff”), proceeding pro se and in forma
pauperis, filed this action pursuant to 42 U.S.C. § 1983 and South Carolina
law, alleging violations of his rights while an inmate at the Broad River
Correctional Institution (“BRCI”) of the South Carolina Department of
Corrections (“SCDC”). He sues Larry Cook (“Cook”), Raycharm J. Burkett
(“Burkett”), Thomas M. Pattman (“Pattman”), Micquel X. Cleveland
(“Cleveland”), James E. Henderson, II (“Henderson”), Martin A. Delk
(“Delk”), and Michael Stephan (“Stephan”) (collectively “Defendants”). More
specifically, Plaintiff asserts violations of his Eighth and Fourteenth
Amendment rights, as well as violation of the South Carolina Tort Claims
Act, S.C. Code Ann. § 15-78-70 (“SCTCA”), based on the alleged excessive
force employed by some of the defendants against him on April 24, 2019.
This matter comes before the court on Defendants’ motion for summary
judgment. [ECF No. 50, see also ECF Nos. 58, 59 (response and reply to
Defendants’ motion for summary judgment)]. 1 Also before the court are
Plaintiff’s motions to transfer, compel, and submit evidence. [ECF Nos. 39,
42, 63, see also ECF Nos. 46, 47 (response and reply to Plaintiff’s motion to
compel)]. Finally, Plaintiff has submitted a letter indicating he seeks to stay
the instant action pending resolution of a related criminal case currently
before the Court of General Sessions for Richland County (“state court”). [See
ECF No. 48, see also ECF No. 49 (Defendants’ response to Plaintiff’s letter)].
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ.
Rule 73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the
undersigned for all pretrial proceedings. For the following reasons, the
undersigned denies Plaintiff’s motion to transfer, recommends the district
judge stay the case pending resolution of Plaintiff’s underlying criminal
matter, and deny as premature Defendant’s motion for summary judgment
and Plaintiff’s motions to compel and to submit evidence.
Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court
advised Plaintiff of the dismissal procedures and the possible consequences if
he failed to respond adequately to Defendants’ motion. [ECF No. 51].
1
2
I.
Factual and Procedural Background
The parties agree that an incident occurred on April 24, 2019, but
disagree on who initiated the altercation, with each side alleging they were
attacked without provocation by the other while Plaintiff was housed in his
cell at BRCI. [See, e.g., ECF No. 28 at 6–7 (Plaintiff’s alleging in unverified
amended complaint that Cook, Burkett, Pattman, Cleveland, Henderson, and
Delk went to his cell and attacked him), ECF No. 50 at 2 (Defendants
alleging that the same officers were performing random, routine cell checks
when Plaintiff attacked them)]. 2 The parties agree that following the
incident, criminal charges were brought against Plaintiff for attempted
murder and carrying of a weapon by an inmate, and these charges are
currently pending before the state court. 3
Defendants have submitted affidavits from Delk, Burkett, Cleveland, Cook,
and Henderson in support of their version of the facts. [ECF No. 50-4].
Although Plaintiff has submitted relevant evidence in support of his claims,
such as his medical records from the incident day, he has submitted no
evidence that directly addresses what actions were taken by whom. [See ECF
No. 58-1, ECF No. 63, ECF No. 63-1].
3 This court takes judicial notice of Plaintiff’s criminal cases. See Colonial
Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the
most frequent use of judicial notice is in noticing the content of court
records.’”). As stated above, currently pending before the state court are two
charges against Plaintiff, attempted murder and carrying a weapon by an
inmate, case numbers 2019A4010500111 and 2019A4010500112. See Public
Index
for
the
Richland
County
Clerk
of
Court
Office
(https://publicindex.sccourts.org/Richland/PublicIndex/PISearch.aspx,
last
visited on March 11, 2020).
2
3
Plaintiff was transferred from BRCI to Perry Correctional Institution
(“PCI”) during the pendency of this action. [See ECF No. 50-2]. On October 9,
2020, Plaintiff filed a motion to transfer, requesting a transfer from PCI to a
different institution. [ECF No. 39]. On October 21, 2020, Plaintiff filed a
motion to compel [ECF No. 42], stating he requested, but had not received,
photographs of himself following the incident and documents regarding any
investigation of the incident. See id. Defendants respond they are not in
possession of this evidence and that “any and all documents and photographs
regarding that incident have been turned over” to SCDC Police Service
Division and “the criminal investigation is still pending which prohibits any
documents from being released at this time.” [See ECF No. 46 at 2, see also
ECF No. 47 at 1 (Plaintiff stating that “[w]ithout the things requested, all the
plaintiff has is his words and medical notes and records”)]. 4
On November 19, 2020, Defendants’ counsel attempted to depose
Plaintiff. Defendants have submitted excerpts from that deposition in which
Plaintiff has submitted evidence that his counsel in the pending criminal
matter has tried to secure the same evidence, including evidence in support of
the pending criminal charges against Plaintiff, and was provided with
information from opposing counsel indicating that some of the evidence
sought does not exist. [See ECF No. 58-1 at 6 (Ruston W. Neely, assistant
solicitor, stating in state court as follows: “That is my understanding, is that
that’s the only media [one picture of the alleged weapon] that’s—that we have
as discovery and that have been provided to the defense. Certainly that is
very strange for an attempted murder case of this nature to not have any
victim photos of the injury or any videos.”)].
4
4
Defendants’ counsel discovered that Plaintiff was represented by counsel in
the underlying criminal matter, including the following exchange:
Q: And I don’t know if I can talk to you about that incident, now
knowing that you have a specific attorney, when that attorney
doesn’t know that this deposition’s going on; does that make
sense? . . . .
A: Right. But from the way I feel about it, my understanding of
it, is that my version of the truth and facts will remain the same
whether I’m talking to you or to a judge in a criminal
investigation or anybody else of that type . . . .
Q: [W]e might need to adjourn this, get in touch with your
criminal attorney, make sure she’s ok with the deposition going
forward or see if she wants to be involved in that deposition in
the future . . . .
[See ECF No. 50-1]. Thereafter, the deposition ended, Plaintiff’s criminal
attorney was contacted by email, and she informed Defendants’ counsel on
December 2, 2020, also through email, that Plaintiff “is pleading the Fifth
Amendment Privilege to prevent his deposition at this point.” [See ECF No.
50-5 at 2]. 5
On December 21, 2020, Plaintiff filed a letter with the court stating as
follows:
I am not aware if the attorney for the defendant made it known
to the court that he and my attorney for related criminal charges
thought the case should be stayed pending outcome of those
Plaintiff argues his criminal attorney had no authority to communicate to
Defendants’ counsel that Plaintiff is pleading the Fifth Amendment and
Plaintiff “had every intention to complete the deposition,” as evidenced by the
conversation that occurred during the deposition. [ECF No. 58 at 4].
5
5
charges. I don’t know the proper format to file such a motion, and
the defendant’s attorney said he would file such a motion.
[ECF No. 48]. Defendants, in response, argue Plaintiff’s representations are
not true and that Defendants did not agree this matter should be stayed or
that they would file any motion to that effect. [ECF No. 49].
On January 4, 2021, Defendants f i l e d
judgment,
arguing
(1)
summary
judgment
a motion for summary
is
appropriate
following
Plaintiff’s invocation of the Fifth Amendment, (2) the only evidence in the
record shows Plaintiff’s rights were not deprived, (3) Defendants are
entitled to qualified immunity, and, at the least, (4) Stephan, as warden, is
entitled to summary judgment. [ECF No. 50]. On March 8, 2021, Plaintiff
filed a motion to submit evidence. [ECF No. 63].
II.
Discussion
A.
Standard on Summary Judgment
The court shall grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears the
initial burden of demonstrating that summary judgment is appropriate; if the
movant carries its burden, then the burden shifts to the non-movant to set
forth specific facts showing that there is a genuine issue for trial. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). If a movant asserts that a fact
6
cannot be disputed, it must support that assertion either by “citing to
particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials;” or “showing . . . that an adverse
party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1).
In considering a motion for summary judgment, the evidence of the
non-moving party is to be believed and all justifiable inferences must be
drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude
the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Id. at 248. Further, while the federal court
is charged with liberally construing a complaint filed by a pro se litigant to
allow the development of a potentially meritorious case, see, e.g., Cruz v.
Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not
mean that the court can ignore a clear failure in the pleadings to allege facts
that set forth a federal claim, nor can the court assume the existence of a
genuine issue of material fact when none exists. Weller v. Dep’t of Soc. Servs.,
901 F.2d 387 (4th Cir. 1990).
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B.
Analysis
Defendants’ primary argument in support of their motion for summary
judgment is Plaintiff should not be allowed to file suit against Defendants
and then use the Fifth Amendment as both “sword and shield.” [See, e.g.,
ECF No. 59 at 3 (citing In re Edmond, 934 F.2d 1304, 1308 (4th Cir. 1991)
(“the Fifth Amendment privilege cannot be invoked as a shield to oppose
depositions while discarding it for the limited purpose of making statements
to support a summary judgment motion”))].
As stated above, Plaintiff argues he did not intend to invoke his Fifth
Amendment rights and his counsel in the related, but separate, criminal
matter had no authority to do so on his behalf in the present case. Setting
aside these legitimate concerns, case law Defendants cite in support of their
argument does not address the current issue before the court, whether a
plaintiff’s invocation of the Fifth Amendment warrants grant of summary
judgment where a related criminal matter is pending in state court. 6 Instead,
For example, in Edmond, the court was addressing “a party [who] seeks to
invoke the Fifth Amendment to avoid discovery while offering an affidavit to
compel a certain result on summary judgment.” 934 F. 2d at 1308; see also
DIRECTV, Inc. v. Adkins, 311 F. Supp. 2d 544, 548–49 (W.D. Va. 2004)
(same). The court discerns no such selective assertion of a Fifth Amendment
privilege here. Additional case law offered by Defendants is likewise
inapposite where, here, Plaintiff has offered no affidavit or other evidence in
support of his claims and argues he has been unable to do so because
Defendants have not produced the needed discovery. See, e.g., ePlus Tech.,
Inc. v. Aboud, 313 F.3d 166, 179 (4th Cir. 2002) (“In a civil proceeding, a fact6
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the case law of this circuit indicates that because Plaintiff has a related,
pending criminal matter, a stay would be most appropriate. See, e.g., Davis v.
Richland Cty., C/A No. 4:12-3429-RMG, 2014 WL 3805802, at *5 (D.S.C. July
30, 2014) (staying case including claim for excessive force against law
enforcement where the claim was at issue in plaintiff’s pending criminal
cases); Lee v. Singleton, C/A No. 8:11-2983-JMC-KFM, 2012 WL 1896062, at
*17 (D.S.C. Jan. 9, 2012), report and recommendation adopted, C/A No. 8:11CV-2983-JMC, 2012 WL 1895998 (D.S.C. May 24, 2012) (same); Risher v.
Chapman, C/A No. 2:16-00292-DCN-MGB, 2018 WL 7824448, at *3 (D.S.C.
Nov. 20, 2018), report and recommendation adopted, C/A No. 2:16-00292DCN, 2019 WL 926414 (D.S.C. Feb. 26, 2019) (same); Valencia v. Doe
Officers, C/A No. 6:13-634-MGL, 2014 WL 3687422, at *6 (D.S.C. July 23,
2014) (same); Dickerson v. City of Charleston Police Dep’t, C/A No. 1:10-1625TLW-SVH, 2011 WL 3880958, at *4 (D.S.C. Aug. 10, 2011), report and
finder is entitled to draw adverse inferences from a defendant’s invocation of
the privilege against self incrimination.”); United States v. Parcels of Land,
903 F.2d 36, 43 (1st Cir. 1990) (“We hold that the district court had ample
authority to strike Laliberte’s affidavit after he invoked the Fifth amendment
and refused to answer the government’s deposition questions.”). Finally, the
court rejects Defendants’ argument that, in this context, “Plaintiff’s decision
to remain silent is probative evidence that he attacked the officers.” [ECF No.
50 at 5 (citing United States v. Hale, 422 U.S. 171, 176 (1975) (“Silence gains
more probative weight where it persists in the face of accusation, since it is
assumed in such circumstances that the accused would be more likely than
not to dispute an untrue accusation. Failure to contest an assertion, however,
is considered evidence of acquiescence only if it would have been natural
under the circumstances to object to the assertion in question.”))].
9
recommendation adopted, C/A No. 1:10-1625-TLW-SVH, 2011 WL 3881041
(D.S.C. Sept. 2, 2011) (same).
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held
that a state prisoner cannot bring a 42 U.S.C. § 1983 suit for damages where
a judgment in favor of the prisoner would necessarily imply the invalidity of
his conviction or sentence. Id. at 486–87. In Wallace v. Kato, 549 U.S. 384
(2007), the Supreme Court clarified that Heck does not apply in the preconviction setting. Id. at 393. The Court went on to state that a stay of the 42
U.S.C. § 1983 action is appropriate in such instances:
If a plaintiff files a false-arrest claim before he has been convicted
(or files any other claim related to rulings that will likely be
made in a pending or anticipated criminal trial), it is within the
power of the district court, and in accord with common practice,
to stay the civil action until the criminal case or the likelihood of
a criminal case is ended . . . . If the plaintiff is ultimately
convicted, and if the stayed civil suit would impugn that
conviction, Heck will require dismissal; otherwise, the civil action
will proceed, absent some other bar to suit.
Id. at 393–94.
Here, Plaintiff is asking the federal court to make determinations
identical to the determinations that must also be made in the state court, i.e.,
whether he is guilty of attacking the officers or whether he is an innocent
party who was attacked. Based on the guidance of the Wallace court, the
undersigned recommends this case be stayed pending resolution of Plaintiff’s
criminal charges. It is further recommended that Plaintiff be ordered to
10
apprise the court of the status of the criminal proceedings every six months
and to notify the court when the criminal charges are resolved and the stay
can be lifted.
C.
Remaining Motions
In light of the undersigned’s recommendation that the case be stayed, it
is also recommended that Defendants’ motion for summary judgment and
Plaintiff’s motions to compel and to submit evidence be denied without
prejudice as premature at this time. 7
Regarding his motion to transfer, Plaintiff renews his request to be
transferred to another facility. The undersigned has previously denied
Plaintiff’s same request [ECF No. 27] and denies this motion for similar
reasons, as discussed below.
Plaintiff argues the officers at PCI have engaged in acts of harassment
and retaliation for Plaintiff’s filing the instant case by sexually assaulting
him by stripping him of his clothes in front of multiple other people, are
actively preventing his access to the courts by denying him access to the law
library, lawbooks, or supplies, and are not providing him showers and proper
This recommendation is further buttressed by the Fourth Circuit’s recent
holding in Goodman v. Diggs, 986 F.3d 493 (4th Cir. 2021). In that case, the
court found “summary judgment was premature because outstanding
discovery requests existed on material issues” where the prisoner alleged
correctional officers employed excessive force and where the prisoner sought,
as does Plaintiff here, “photographs, records, reports, and eyewitness
testimony material to his Eighth Amendment claim.” Id. at 500.
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portions of food. [ECF No. 39]. Plaintiff swears under penalty of perjury to
the truth of allegations, submits declarations from other inmates, and details
the steps he has taken to inform multiple people at PCI of his claims. See id. 8
Defendants did not respond to Plaintiff’s motion.
As has been held by this court:
Only in extreme situations, not pleaded here, would a federal
court have the authority to order a State to transfer a prisoner
and then, usually, it would be in the discretion of the State to
select another appropriate facility. See Streeter v. Hopper, 618
F.2d 1178, 1182 (5th Cir.1980), Walker v. Lockhart, 713 F.2d
1378 (8th Cir.1983); Moore v. Schuetzle, 486 F.Supp.2d 969, 988–
982 (D.N.D.2007).
Moore v. Tillman, C/A No. 3:07-3209-RBH, 2008 WL 4442593, at *9 (D.S.C.
Sept. 25, 2008), aff’d, 329 F. App’x 460 (4th Cir. 2009).
Plaintiff’s second motion to transfer makes clearer than his first that,
although he has put forth troubling allegations, he has not alleged an
“extreme situation” as contemplated by the courts that have transferred
prisoners. See, e.g., Streeter, 618 F.2d at 1182 (finding “that the two
Petitioners’ lives and safety are in danger where they are presently being
In previously denying Plaintiff’s motion to transfer, the undersigned stated,
in part, that “Plaintiff has failed to submit any evidence in support of his
allegations, has not sworn as to the veracity of his allegations under penalty
of perjury, nor has indicated he properly brought this claim to the attention
of the institution in which he resides, stating only, without elaboration, that
the ‘wardens here don’t care’ and ‘have been informed of these issues.’ [ECF
No. 24]. Without more, the court is unable to grant Plaintiff’s motion to
transfer.” [ECF No. 27 at 5].
8
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incarcerated, and further that because of the particular and unusual facts of
their situation the safety of these two prisoners cannot be adequately
guaranteed while retained at the Reidsville facility”); Walker, 713 F.2d at
1383 (finding undisputed evidence, in part provided by Arkansas authorities,
that the prisoner “faces increased danger in the Arkansas prison system”);
see also Moore, 486 F.Supp.2d at 981–82 (“Moore has failed to produce any
evidence that would even remotely suggest that there is any risk of physical
danger or threat to his safety that would warrant a transfer of custody as was
done in Walker and Streeter.”). Accordingly, the undersigned denies
Plaintiff’s motion to transfer. 9
III.
Conclusion and Recommendation
For the foregoing reasons, the undersigned denies Plaintiff’s motion to
transfer [ECF No. 39] and recommends this case be stayed pending
resolution of Plaintiff’s criminal charges. It is further recommended that
Plaintiff be ordered to apprise the court of the status of the criminal
proceedings every six months and to notify the court when the criminal
Plaintiff indicates he is pursuing administrative remedies at PCI. The
undersigned notes that before Plaintiff can seek recourse in the courts,
under the Prison Litigation Reform Act, he must exhaust his available
administrative remedies. See 42 U.S.C. § 1997e(a) (“No action shall be
brought with respect to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are
exhausted.”).
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charges are resolved and the stay can be lifted. It is also recommended that
Defendants’ motion for summary judgment [ECF No. 50] and Plaintiff's
motions to compel and to submit evidence [ECF Nos. 42, 63] be denied
without prejudice as premature at this time.
IT IS SO ORDERED AND RECOMMENDED.
March 12, 2021
Columbia, South Carolina
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
“Notice of Right to File Objections to Report and Recommendation.”
14
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
901 Richland Street
Columbia, South Carolina 29201
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).
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