Battle et al v. South Carolina Department of Corrections et al

Filing 81

ORDER adopting in part 57 Report and Recommendation. Defendants' 24 Summary Judgment Motion is GRANTED in part and DENIED in part. Defendants' motion for summary judgment is granted only as to Plaintiff Jabari Moore's claims brought under 42 U.S.C. § 1983. Accordingly, Plaintiff Moore's federal claims are dismissed without prejudice. Plaintiff Moore's remaining state law claims are REMANDED to the Court of Common Pleas of Lee County, South Carolina. Additionally, the court finds that the remaining Plaintiffs' claims should be SEVERED into separate actions. Plaintiff Battle will continue under the instant civil action number. The Clerk of Court is directed to assign new civil action numbers to each of the other individual Plaintiffs. Signed by Honorable Timothy M Cain on 02/26/2019.(hada, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Korell Battle, Darnell Brown,
Jeffrey Brown, Ronnie Drake,
Lance Myles, John Mack, and
Jabari Moore,
Plaintiffs,
v.
South Carolina Department of
Corrections, Warden Cecilia
Reynolds, individually and in her
official capacity as Warden of Lee
Correctional Institution, and Warden
Aaron Joyner, individually and in his
official capacity as Warden of Lee
Correctional Institution,
Defendants.

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C/A No. 2:18-cv-719-TMC

ORDER

Plaintiffs Korell Battle, Darnell Brown, Jeffrey Brown,1 Ronnie Drake, Lance Myles,
John Mack, and Jabari Moore, state prisoners represented by counsel, filed this action alleging
that while Plaintiffs were housed at the Lee Correctional Institution (“LCI”) they were assaulted
by other inmates and asserting failure to protect claims against Defendants South Carolina
Department of Corrections (“SCDC”), Warden Cecilia Reynolds, and Warden Aaron Joyner
pursuant to 42 U.S.C. § 1983 and state law. (ECF No. 21).2 In accordance with 28 U.S.C. §
636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter was referred to a magistrate judge for
pretrial handling. Defendants filed a motion to sever (ECF No. 23) and a motion for summary

1

Jeffrey Brown’s first name is spelled in different ways in the record. Compare, e.g.
ECF Nos. 77, 79 with ECF Nos. 21 , 34-7. The Amended Compliant lists his first name as
Jeffrey as does his affidavit. (ECF Nos. 21, 34-7). Accordingly, the court has used that spelling
throughout this order.
2

This action was originally filed in state court and removed by Defendants to this court.
(ECF No. 1). Plaintiffs subsequently filed an amended complaint. (ECF No. 21).

judgment alleging that Plaintiffs did not exhaust their administrative remedies (ECF No. 24).
Plaintiffs filed responses opposing the motions (ECF Nos. 28, 34), and Defendants filed replies
(ECF Nos. 38, 49, 56).

On September 25, 2018, the magistrate judge held a telephone

conference on whether Plaintiffs had exhausted their administrative remedies. (ECF Nos. 52,
55).

Before the court is the magistrate judge’s Order and Report and Recommendation

(“Report”) recommending that the court deny Defendants’ summary judgment motion as to
Plaintiffs Battle, Darnell Brown, Jeffrey Brown, Drake, Lyles, and Mack, and that discovery on
exhaustion be allowed as to Plaintiff Moore (ECF No. 24). (ECF No. 57 at 36). Subsequently,
the parties communicated to the magistrate judge that no further briefing was needed as to
Moore because “it appears that there is no further evidence that would support finding that Mr.
Moore’s administrative remedies were unavailable. . . . ” (ECF No. 66). Therefore, in a docket
text entry, the magistrate judge recommended that the court grant Defendants’ summary
judgment as to Plaintiff Moore for failure to exhaust his administrative remedies and dismiss
Moore’s claims without prejudice. Id.
In her Report, the magistrate judge also denied Defendants’ motion to sever (ECF No.
23). (ECF No. 57 at 34-35).3 On January 9, 2019, the court entered a text order asking the
parties to show cause as to why the court should not sever the claims.

(ECF No. 78). The

parties timely filed responses. (ECF Nos. 79 and 80).
II. Applicable Law
Summary judgment is appropriate only “if the movant shows that there is no genuine

3

The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 27071 (1976). The court need not conduct a de novo review when a party makes only “general and
conclusory objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In that
case, the court reviews the Report only for clear error. See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
2

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). In deciding whether a genuine issue of material fact exists, the evidence of
the non-moving party is to be believed and all justifiable inferences must be drawn in his favor.
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. A litigant “cannot create a genuine issue of material fact through mere
speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985). “Where the record taken as a whole could not lead a rational trier of fact to find
for the non-moving party, disposition by summary judgment is appropriate.” Monahan v. Cnty.
of Chesterfield, 95 F.3d 1263, 1265 (4th Cir. 1996).
III. Discussion
Plaintiffs were all victims of assaults by other inmates while housed at LCI.4 Plaintiffs
allege Defendants failed to protect them from the other inmates. In their Amended Complaint,
Plaintiffs allege causes of action for: 1) temporary and permanent injunctive relief; 2) claims
pursuant to 42 U.S.C. §1983; and 3) violations of the South Carolina Torts Claims Act specifically alleging “a separate cause of action for each named Plaintiff and each separate
incident set forth herein above.” (ECF No. 21 at 9-13).5
As an initial matter, as stated above, the magistrate judge recommends that the court

4

Plaintiff Battle is currently being housed at Broad River Correctional Institution.
Plaintiff Darnell Brown is currently being housed at McCormick Correctional Institution.
Plaintiff Jeffrey Brown is currently being housed at Ridgeland Correctional Institution. Plaintiffs
Drake, Lyles, and Mack continue to be housed at LCI. (ECF No. 21 at 2, 21).
5

The court notes that an injunction is a form of relief and not an independent cause of
action. See Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1127 (11th Cir. 2005)
(holding that “an injunction is a type of relief rather than an independent cause of action.”); see
also In re Bldg. Materials Corp. of Am. Shingle Prods. Liab. Litig., MDL No.
8:11-mm-02000-JMC, No. 8:11-cvv-02785-JMC, 2013 WL 139520, *13 (D.S.C. Jan. 10, 2013).
3

grant Defendants’s summary judgment as to Plaintiff Moore. (ECF No. 66). Neither party has
filed any objections to this recommendation.6 Accordingly, finding no clear error, the court
adopts this part of the Report, grants summary judgment to Defendants on Moore’s § 1983
claims, and remands Moore’s state law claims to state court.
A. Exhaustion
The Prison Litigation Reform Act (“PLRA”) mandates that an inmate exhaust “such
administrative remedies as are available” before bringing suit under § 1983. 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.”). This requirement
“applies to all inmate suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). Moreover, exhaustion is required even when a prisoner seeks
remedies, such as money damages, that are not available in the administrative proceedings. See
Booth v. Churner, 532 U.S. 731, 740-41 (2001). To satisfy this requirement, a plaintiff must
avail himself of every level of available administrative review, which means “using all steps that
the agency holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 9106) (internal
quotation marks and citation omitted).

“Proper exhaustion demands compliance with an

agency's deadlines and other critical procedural rules because no adjudicative system can
function effectively without imposing some orderly structure on the course of its proceedings.”

6

In their Reply to Defendants’ Objections, Plaintiffs state that “Moore is not part of this
opposition.” (ECF No. 77 at 2 n.1). Further, in their response to the court’s text order about
severance, Plaintiffs state that the magistrate judge recommends that summary judgment be
granted on Moore’s claims and, if the court adopts the Report, Moore’s state law claims will be
remanded to state court, and he will no longer be included in this action. (ECF No. 79 at 1 n.1).
Nowhere in Plaintiffs’ filings does Moore object to the magistrate judge’s recommendation that
summary judgment be granted as to his § 1983 claims.
4

Id. “An inmate's failure to exhaust administrative remedies is an affirmative defense to be
pleaded and proven by the defendant.” Anderson v. XYZ Corr. Health Servs., 407 F.3d 674, 683
(4th Cir. 2005).
The administrative remedies are dictated by the prison. See Jones v. Bock, 549 U.S. 199,
218 (2007). The parties agree that SCDC grievance procedure is as follows. An inmate seeking
to complain of prison conditions must first attempt to informally resolve the complaint within
eight working days of the incident by filing a Request to Staff Member form. (ECF Nos. 24-9 at
7; 34-1 at 7 ). Informal resolution is not required, however, when the matter involves allegations
of criminal activity. Id. With respect to criminal activity complaints, the inmate must file a Step
1 grievance within five working days of the incident. Id. If the inmate’s complaint is not
resolved by the Request to Staff Member, an inmate must file a Step 1 grievance within five
working days of receiving a response. Id. If an informal resolution is not possible, an inmate
must file a Step 1 Grievance with prison staff within five working days of the incident. Id. If an
inmate is not satisfied with the Step 1 response, he may appeal the Step 1 decision by filing a
Step 2 grievance with the warden. Id. at 9.
In her Report, the magistrate judge determines that Plaintiffs’ failure to exhaust was not
apparent from the face of the Amended Complaint (ECF No. 57 at 4), and she then addresses
each Plaintiffs’ claims and analyzes whether Defendants are entitled to summary judgment based
on failure to exhaust, id. at 9-30. It is undisputed that Plaintiffs Drake, Jeffrey Brown, and
Darnell Brown did not submit any grievances regarding their assaults. (ECF No. 57 at 9).

In

response to Defendants’ summary judgment motion, these Plaintiffs submitted affidavits in
which they aver that they were threatened and told not to file any grievances, and/or they did not
file any grievances because they feared retaliation. (ECF Nos. 34-5 at 3-4; 34-7 at 2-3; 34-9 at
2-3). In reply, Defendants contend that the court should disregard these conclusory and selfserving affidavits. (ECF No. 49 at 20). Further, Defendants argue that the actions of these
5

Plaintiffs belies their averments because these Plaintiffs have filed numerous grievances and are
prolific users of the SCDC grievance system. Id. at 4, 5, 7, 19, 22. As to these Plaintiffs, the
magistrate judge “finds that these Plaintiffs have shown the administrative remedy procedure
was not available to them” and that the “fear of retaliation was sufficiently serious that it would
deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance.” (ECF
No. 57 at 12). In conclusion, she finds that “these Plaintiffs’ claims should be deemed exhausted
and denies summary judgment as to their claims.” Id. at 13.
As to Plaintiff Battle, it is undisputed that he filed grievances following his assault. (ECF
No. 57 at 15). Defendants, however, argue that Battle’s grievances did not encompass the claims
he is now raising. (ECF No. 49 at 15). On January 4, 2017, Battle submitted a Step 1 grievance
stating: “I was in bed asleep, staff unlocked door without permission and 10 guys attacked me
and almost kill me” and “[i]f [LCI] would have had doorknobs, no way them guys could have
ran up in my room.”

(ECF No. 34-10 at 3).

The Associate Warden responded that the

maintenance supervisor advised that doorknobs were once used when inmates had keys to their
cells, but currently there are no doorknobs in any SCDC prison. Id. Battle then filed a Step 2
grievance asserting that other prisons do have doorknobs because he has spoken to other inmates
who say there are still doorknobs in SCDC prisons. Id. Battle asserted that if one prison has
doorknobs, all prison should have doorknobs. Id. The Associate Warden responded that the
agency found it was cost effective to remove doorknobs and key locks from all cell doors
Agency-wide. Id. Defendants contend that Battle successfully exhausted his administrative
remedies on the use of doorknobs in the prisons. (ECF NO. 49 at 15). However, they argue that
Battle did not exhaust his administrative remedies regarding his failure to protect claim. Id.
In response to Defendants’ summary judgment motion, Battle submitted an affidavit in
which he avers that he believed he could not seek money damages in a grievance, “so [he] made
the statement in [his] grievance that [he] thought doorknobs on the cell door would have helped
6

prevent the attack on [him]” and that, in response, SCDC failed to address the underlying
problem, which was that a correctional officer had unlocked his cell door to let his attackers into
his cell. (ECF No. 43 at 2-3). He also states that he believes the grievances he filed were not
kept confidential by correctional officers and, as a result, he was attacked a second time by other
inmates after a transfer to McCormick Correctional Institution several months later. Id. at 2. In
her Report, the magistrate judge finds that Battles’s grievances satisfies the exhaustion
requirement, id. at 17, and, alternatively, she finds the prison grievance system was a dead end
rendering the administrative remedies unavailable for Battle, id. at 18. She concludes that
“Battle’s claims should be deemed exhausted and denies summary judgment as to his claims. Id.
at 19.
As to Plaintiff Mack, it is undisputed that he filed grievances (ECF No. 57 at 19), but
Defendants contend that they were untimely and unrelated to the claims that he is now alleging
(ECF No. 49 at 8, 19).

In reply, Mack submitted an affidavit in which he avers that a

correctional officer told him that there would be repercussions if he filed a grievance. (ECF No.
34-13 at 2). Mack states that he believed this was a threat and that he could be hurt or killed if
he filed a grievance. Id.

Mack avers that he subsequently filed a Step 1 grievance about the

assault after the officer filed an untruthful incident report about the assault. Id. This grievance
was deemed untimely and returned unprocessed. Id. The magistrate judge “finds that John
Mack has shown the administrative remedy procedure was not available to him” because he
feared repercussions, id. at 21, and, alternatively, she finds the administrative remedies were a
dead end and deems them unavailable, id. at 22. She concludes that “Mack’s claims should be
deemed exhausted and denies summary judgment as to his claims.” Id. at 22.
As to Plaintiff Lyles, it is undisputed that he filed grievances regarding his attack. (ECF
No. 57 at 23). He contends that he submitted a Request to Staff, and, after receiving no response
(ECF No. 34-17 at 2-3), he filed a Step 1 grievance in which he stated the following:
7

On February 9, 2016, I was assaulted in my cell F1 2154 by another inmate(s). I
was hit in my left eye with a [sp] medal object. I was bleeding [sp]
instantaneously nonstop. Officer Ocean was working the F1 A unit when it
happened. My door was left open they was supposed to be locked. Different and
multiple inmates was in my cell while I was being assaulted. Ocean did not report
the incident when it happened. Later that night when 2nd shift arrived, I laid
halfway knocked out and the night officers did not take me to medical either. The
following day, February 10, unit Lt. Scott & Capt. Richardson took me to medical
to be examined. I told them both I had been assaulted. Dr. Pate stated my health
conditions were fine and all I needed for my eye was liquid glue. He also
deprived me of a technical shot as well. My eye was still bleeding severely.
Around 12am February 11, Sgt. Lucky came to my cell and packed me up and
escorted me to medical. I arrived at Toumey around 3 am. Catscan said I have
multiple injuries included fractures in my left eye and side of face. Action
Requested by plaintiff: SCDC, Medical staff, unit wing staff to be held
accountable for negligence and failure to protect.
(ECF No. 49-5 at 5). The warden responded as follows:
Your grievance alleging that Ofc. Ocean left the door opened and you were
assaulted was forwarded to the Office of Inspector General Police for review.
You gave a different story to Medical telling them you were injured during a
basketball game when you were elbowed in the eye. Therefore, PS will not be
opening a case on this incident. Your grievance is denied. If not satisfied with my
response, see Step 5 below. You have the opportunity to appeal to appropriate
official. Complete the Step 2 Grievance form and submit to IGC within 5 days.
Id. at 5-6. Lyles then filed a Step 2 grievance stating:
I did not receive proper medical treatment when I went to medical to be examined
by staff. They release me back to general population to the same unit that incident
took place in. On February 10 is when I receive the first visit to medical. Almost
24 hrs after the assault took place (February 9, 2016). On February 11, 2016
around 2-3am, I was transported to Tuomey hospital for injury. Tuomey
performed CAT Scan test and results show there are fractures in my face was
caused by metal weapon striking. After returning from hospital, I was placed on
RHU at Lee because of assault and victimized. Photographs while at medical
showed I was assaulted. Being that I was deprived medical treatment for the first
24 hrs has initiated interior nerve damage to my mouth as well. I'm currently
receiving access evaluation for injury.
Id. at 6. On August 8, 2016, Lyles received a response to his Step 2 grievance stating:
Your concern has been reviewed. You stated in this grievance that on February 9,
2016 you were assaulted in your cell by another inmate. You stated you were hit
the eye with a metal object. Your grievance was forwarded to Police Services for
review. It was determined that no investigation was warranted. I have review your
medical encounter #92 dated February 10, 2016. During this visit to medical, you
8

stated to medical staff that you were playing basketball and caught an elbow to
your right eye. Medical staff examined you and determined that your right eye
was swollen shut and cuts beneath your right eye and your right eyelid. You were
treated appropriately for your injuries that you sustained. You have not provided
any evidence of negligent on the part of SCDC. Without verifiable evidence,
further action is unwarranted. Therefore, your grievance is denied.
You may appeal this decision under the Administrative Procedures Act to the
Administrative Law Court within 30 days.
Id.. Lyles contends that he filed an appeal to the administrative law judge after his Step 2
grievance was denied. (ECF No. 34-17 at 3). He also states that “[t]he reason given for the
denial of [the] grievance was that [he] didn’t attach the Request to Staff form but [he] could not
attach a document that was not answered and returned to [him] by SCDC.” Id.
Defendants now argue that the Step 2 grievance “centered solely on [Lyles’] alleged
improper medical care.” (Dkt. No. 49 at 13.) As a result, Defendants contend that “Lyles
successfully completed and submitted timely grievances in this instance,” but he failed to
exhaust his administrative remedies regarding his failure to protect claim. Id. In her Report,
the magistrate judge determines that Lyles’s grievance “satisfies the exhaustion requirement.”
Id. at 26. Alternatively, she “finds that Lyles’s claims should be deemed exhausted and denies
summary judgment as to his claims.” Id.
In their objections, Defendants contend that the magistrate judge erred by not holding a
hearing to determine the disputed issues of fact regarding exhaustion. (ECF No. 68 at 4).
Defendants argue that the magistrate judge erred by accepting as true all of Plaintiffs’ affidavits
when deciding the exhaustion issue on the merits and by denying Defendants’ request for an
evidentiary hearing. Id. at 4-7, 12, 22, 25, 28. In their objections, Defendants request an
evidentiary hearing. Id. at 18, 28. Plaintiffs oppose Defendants’ request for a hearing because
they contend that the facts relating to whether they exhausted their claims are intertwined with
the merits of their § 1983 claims. (ECF No. 77 at 3, 6-11). Defendants also argue that they have
9

a Seventh Amendment right to a jury trial on these issues. Id. Finally, Defendants contend that
the magistrate judge did not make any factual findings on the merits. Id. at 12.
The court notes that Defendants do not argue that their summary judgment motion should
have been granted. Instead, they argue that the magistrate judge should not have decided the
exhaustion issue and that a hearing is necessary. Viewing the evidence in a light most favorable
to Plaintiffs, the court finds that genuine issues of material fact remain as to whether the
Plaintiffs’ administrative remedies were exhausted. Because there remain issues of fact as to
whether Plaintiffs exhausted their claims, the court denies Defendants’ summary judgment
motion.7 Accordingly, the court declines to adopt the parts of the Report that deem exhaustion to
be satisfied or unavailable.
Turning to whether an evidentiary hearing should be held or whether a jury should
determine the exhaustion issue, the court notes that the Fourth Circuit Court of Appeals recently
stated that “judges may resolve factual disputes relevant to the exhaustion issue without the
participation of a jury.” Woodhouse v. Duncan, 741 Fed. App’x 177, 178 (citing Small v.
Camden Cnty., 728 F.3d 265, 271 (3d Cir. 2013)).8

Accordingly, the court agrees with

7

While their summary judgment motion was pending before the magistrate judge,
Defendants requested that the magistrate judge stay the scheduling order deadlines until there
was a final adjudication of the exhaustion issues. (ECF No. 46). The magistrate judge noted that
Defendants, citing a Seventh Circuit Court of Appeals’ opinion, appeared to be arguing that an
evidentiary hearing would be necessary to resolve the exhaustion issue. (ECF No. 57 at 30-31).
The magistrate judge stated that in the Fourth Circuit district courts “have denied motions for
summary judgment on exhaustion grounds without conducting an evidentiary hearing.” (ECF
No. 57 at 31). The magistrate judge then denied Defendants’ motion for a stay and noted that
“the exhaustion issue has been largely resolved.” (ECF No. 57 at 32). The court disagrees.
When a court denies a summary judgment motion raising the failure to exhaust, the court finds
that there is genuine issue of material fact as to exhaustion, and the exhaustion issue has not been
resolved. Moreover, the court also notes that the issues were not resolved as the magistrate
judge did not rule on the motion, but rather recommended that the district court deny the
summary judgment motion.
8

Likewise, the Second, Third, Fifth, Seventh, Ninth, and Eleventh Circuits have held that
a plaintiff in a lawsuit governed by the PLRA is not entitled to a jury trial on the issue of
10

Defendants that a judge should decide the exhaustion issue.
As to Plaintiffs’ assertion that the factual disputes concerning exhaustion are intertwined
with the merits of their underlying claims, the court finds there is no intertwining between
exhaustion and the underlying claims. In this case, the ultimate issue is whether Defendants
violated the Eighth and Fourteenth Amendments by failing to protect Plaintiffs from assaults by
other inmates. For the court to make a determination as to whether Plaintiffs exhausted their
claims, the court would not necessarily have to determine whether Plaintiffs were assaulted by
other inmates due to Defendants’ actions or inactions.
The existence of common factual issues is to be distinguished from the existence
of overlapping evidence. For purposes of the Seventh Amendment, the question
is whether factual issues overlap, thus requiring one trier-of-fact to decide a
disputed issue that must be decided by a subsequent jury, not whether the two
fact-finders will merely have to consider similar evidence in deciding distinct
issues.
Allison v. Citgo Petroleum Corp., 151 F.3d 402, 423 n.21 (5th Cir. 1998). The court finds that
the exhaustion issues here are not intertwined with the merits of Plaintiffs’ failure to protect
claims. Therefore, the court concludes that the exhaustion issue here should be determined by
the judge before a jury trial.
Typically, the judge should make this determination early on in the litigation after
discovery on only the exhaustion issue has taken place. See Pavey, 544 F.3d at 742 (holding that
“in the ordinary case discovery with respect to the merits should be deferred until the issue of
exhaustion is resolved. If merits discovery is allowed to begin before that resolution, the
statutory goal of sparing federal courts the burden of prisoner litigation until and unless the

exhaustion. See Small, 728 F.3d at 271; Messa v. Goord, 652 F.3d 305, 308-09 (2d Cir. 2011);
Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010); Pavey v. Conley, 544 F.3d 739, 742 (7th
Cir. 2008); Bryant v. Rich, 530 F.3d 1368, 1373-77 (11th Cir. 2008); Wyatt v. Terhune, 315 F.3d
1108, 1119-20 (9th Cir. 2003).
11

prisoner has exhausted his administrative remedies will not be achieved.”). Here, however, the
deadline to complete discovery is March 11, 2019. (ECF No. 73). At this point in the litigation,
with the discovery all but complete, the court does not believe that the issue of exhaustion needs
to be addressed at this time. However, if this action survives summary judgment on the merits,
the undersigned will decide the exhaustion issue prior to any jury trial.
B. Severance
As noted above, along with their summary judgment motion, Defendants filed a motion
to sever (ECF No. 23), which the magistrate judge denied without prejudice (ECF Nos. 57, 58).
Federal Rule of Civil Procedure 21 provides that “[o]n motion or on its own, the court may at
any time, on just terms, add or drop a party. The court may also sever any claim against a party.”
Fed. R. Civ. P. 21. After reviewing the record, on January 9, 2019, the court notified the parties
that it was considering severing Plaintiffs and their claims into separate actions and ordered the
parties to show cause as to why this action should not be severed. (ECF No. 78). As directed,
the parties filed briefs addressing this issue. (ECF Nos. 79, 80).
Plaintiffs have chosen to bring their claims together in a single lawsuit. Federal Rule of
Civil Procedure 20 addresses joinder of both plaintiffs and defendants. In regard to plaintiffs,
the rule provides that:
(1) Plaintiffs. Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the
alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in
the action.
Fed. R. Civ. P. 20(a)(1). The Fourth Circuit Court of Appeals has held that Rule 20 should be
construed in light of its purpose: “to promote trial convenience and expedite the final
determination of disputes, thereby preventing multiple lawsuits.” Saval v. BL Ltd., 710 F.2d
12

1027, 1031 (4th Cir. 1983) (quoting Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1332 (8th Cir.
1974)). While “absolute identity of events is unnecessary,” the transaction or occurrence test of
the rule permits only “reasonably related claims for relief by or against different parties to be
tried in a single proceeding.” Id. Whether joinder of plaintiffs is proper under Rule 20 is a
case-by-case determination committed to the sound discretion of the trial court. Id. In certain
limited circumstances Rule 21 severance may also be justified by “considerations of judicial
economy, case management, prejudice to parties, and fundamental fairness” - even where Rule
20 allows joinder. Barber v. Am.’s Wholesale Lender, 289 F.R.D. 364, 368 (M.D. Fla. 2013)
(citations omitted).
In determining whether severance is proper, courts consider: (1) whether
the issues sought to be tried separately are significantly different from one
another; (2) whether the separable issues require different witnesses and different
documentary proof; (3) whether the party opposing severance will be prejudiced
if it is granted; and (4) whether the party requesting severance will be prejudiced
if the claims are not severed.
Grayson Consulting, Inc. v. Cathcart, No. 2:07-cv-02992-DCN 2014 WL 1512029, *2 (citing
Equal Rights Ctr. v. Equity Residential, 483 F. Supp. 2d 482, 489 (D.Md. 2007)). Accordingly,
a court resolving a motion to sever must answer two questions: (1) whether joinder was proper
under Rule 20; and (2) whether severance is warranted under Rule 21.
Assuming arguendo that the PLRA does not prohibit multiple prisoners from bringing
one action, this court still finds that the plaintiffs’ joinder in one action is improper.9 Each of

9

Courts disagree as to whether it is permissible for multiple prisoner plaintiffs to join
their claims together in one action. The Fourth Circuit Court of Appeals has not addressed the
issue. The Eleventh Circuit has held that multiple-prisoner plaintiffs are precluded from
proceeding in one action under Rule 20. See Hubbard v. Haley, 262 F.3d 1194, 1198 (11th Cir.
2001). However, the Third, Sixth, and Seventh Circuits have allowed multiple
prisoner-plaintiffs to proceed together under Rule 20’s permissive joinder rule. See Hagan v.
Rogers, 570 F.3d 146, 152-57 (3rd Cir. 2009); Boriboune v. Berge, 391 F.3d 852, 856 (7th Cir.
2004); In re Prison Litigation Reform Act, 105 F.3d 1131, 1137-38 (6th Cir. 1997) (ordering the
filing fee be divided among prisoner litigants choosing to join in suits indicating that prisoners
were not barred from joining in one suit). It has been the practice in the district courts in the
13

Plaintiffs’ claims are unique to that particular Plaintiff, and each claim will require
individualized determinations, including inquiries relating to the nature and circumstances
surrounding the alleged attacks. Additionally, there are likely to be numerous legal issues that
are not common to all of the purported claims. Plaintiffs have failed to establish that their claims
arise out of the same transaction, occurrence, or series of transactions or occurrences as required
to meet the requirements for permissive joinder under Rule 20(a). Moreover, even if Plaintiffs
could satisfy the requirements for permissive joinder, the court finds that severance of their
claims is appropriate under Rule 21 in order to address concerns of fairness, prejudice,
expedience, and cost. Plaintiffs seek relief for separate and distinct incidents that involve
different Defendants at different times, and therefore do not arise out of the same transaction or
occurrence. Accordingly, the court finds that joinder of their claims is improper, and severs
Plaintiffs’ claims.10
IV. Conclusion
Based upon the foregoing, Defendants’ Summary Judgment Motion (ECF No. 24) is
GRANTED in part and DENIED in part. Defendants’ motion for summary judgment is
granted only as to Plaintiff Jabari Moore’s claims brought under 42 U.S.C. § 1983. Accordingly,
Plaintiff Moore’s federal claims are dismissed without prejudice. Plaintiff Moore’s remaining
state law claims are REMANDED to the Court of Common Pleas of Lee County, South

Fourth Circuit to not allow multiple pro se prisoner-plaintiffs to proceed together in a single
action. See Griffin v. Nettles, No. 4:18-cv-02469-RBH-TER, 2018 WL 4701293 (D.S.C. Nov.
22, 2013); Galeas v. United States, No. 5:14-CT-3225-F, 2015 WL 1433547, at *1 (E.D.N.C.
Mar. 27, 2015); Fleming v. Francis, No. 5:13-CV-21991, 2014 WL 2589755, at *1 (S.D.W. Va.
June 10, 2014); Watterson v. Terrell, No. 1:10CV184-RJC, 2010 WL 3522331, at *1 (W.D.N.C.
Sept. 7, 2010); Greene v. Phipps, No. 7:09-cv-00100, 2009 WL 3055232, at *6 (W.D. Va. Sept.
24, 2009).
10

Plaintiffs alternatively ask the court to delay severance until after discovery. (ECF No.
79 at 6). As noted earlier, discovery is nearly completed in this case. Accordingly, the court
declines to delay severance until discovery is completed.
14

Carolina.
Additionally, the court finds that the remaining Plaintiffs’ claims should be SEVERED
into separate actions. Plaintiff Battle will continue under the instant civil action number. The
Clerk of Court is directed to assign new civil action numbers to each of the other individual
Plaintiffs.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge

February 26, 2019
Anderson, South Carolina

.

15