Brown et al v. South Carolina Department of Corrections et al
Filing
78
ORDER adopting in part and rejecting in part 62 Report and Recommendation, denying 54 Motion for Summary Judgment, and granting in part and denying in part 55 Motion for Summary Judgment. Signed by Honorable David C Norton on September 3, 2020.(cdan, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
BRANDON D. BROWN,
)
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Plaintiff,
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vs.
)
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SOUTH CAROLINA DEPARTMENT OF )
CORRECTIONS, and RICHARD
)
COTHRAN, Warden, Turbeville
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Correctional Institution
)
)
Defendants.
)
____________________________________)
No. 2:18-cv-1022-DCN-MGB
ORDER
This matter is before the court on United States Magistrate Judge Mary Gordon
Baker’s report and recommendation (“R&R”), ECF No. 62, that the court deny
defendants South Carolina Department of Corrections (“SCDC”) and Richard Cothran’s
(“Cothran”) (collectively, “defendants”) first motion for summary judgment, ECF No. 54,
and grant in part and deny in part defendants’ second motion for summary judgment,
ECF No. 55. For the reasons set forth below, the court adopts in part and rejects in part
the R&R, denies defendants’ first motion for summary judgment, and grants in part and
denies in part defendants’ second motion for summary judgment.
I. BACKGROUND
A. Factual Background
The R&R ably recites the facts of this case and includes a thorough review of the
evidence consequential to the Magistrate Judge’s findings and recommendations.
Because neither party objects to the R&R’s presentation of the facts or relevant evidence,
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the court provides only a broad-strokes summary of those facts material to its legal
analysis in lieu of a more comprehensive recitation.
Plaintiff Brandon D. Brown (“Brown”) was an inmate at Turbeville Correctional
Institution (“Turbeville”) during the time period relevant to this action. Brown alleges
that on November 14, 2017, he was lying on his cell bunk when he was attacked by his
cellmate, a man who “weighed about 360 pounds.” ECF No. 1-1, Compl. ¶ 22.
According to the complaint, Brown’s cellmate stepped on Brown’s head, beat Brown
with his fists, bit Brown in the face and hands, and repeatedly hit Brown with a “lock-ina-sock”, a makeshift weapon made from locks allegedly available for purchase in
Turbeville’s canteen. Brown alleges that the beating “continued for at least what seemed
like 45 minutes,” and that throughout the duration of the attack, Brown and other inmates
on his wing hollered for correctional offers to come help. Id. at ¶ 26. Eventually, an
inmate who was a “dorm worker” heard the attack from the hallway and ran to alert the
correctional officer on duty, who went to the scene of the attack, entered Brown’s cell,
and restrained Brown’s cellmate, ending the attack. Id. at ¶ 27. According to Brown, the
attack persisted for forty-five minutes without officer intervention because “[t]he
correctional officer on duty was not on the wing during the attack[.]” Id. at ¶ 28.
Immediately following the attack, Brown, allegedly unconscious, was taken to a hospital
where he was treated before being released back to Turbeville.
B. Procedural History
This lawsuit was initially filed as a multi-plaintiff action on March 19, 2018 in the
Clarendon County Court of Common Pleas by a number of Turbeville inmates in the
custody of SCDC. Each of the plaintiff’s claims shared common allegations of
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widespread violence and understaffing at Turbeville. Defendants removed the multiplaintiff action to this court on April 13, 2018. ECF No. 1. Pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Local Civ. Rule 73.02 (D.S.C.), the court assigned the matter to
Magistrate Judge Baker, who severed the plaintiffs’ claims into several plaintiff-specific
actions on August 9, 2019. ECF No. 43. The instant action is one of those severed
matters. In his complaint, Brown brings four causes of action. Brown’s first claim
requests “temporary and permanent injunctive relief” against both defendants pursuant to
South Carolina state law and 18 U.S.C. § 1983. Compl. ¶¶ 89–92. Brown’s second and
third claims allege violations of his civil rights pursuant to § 1983 against Cothran. With
respect to his second claim, Brown alleges that Cothran violated his rights by, inter alia,
“allowing uncontrolled violence” in Turbeville, “failing to provide protection and
security” for Brown, and “allowing inmate[s] to have dangerous weapons.” Id. at ¶ 94.
With respect to his third claim, Brown alleges that Cothran, inter alia, failed to implement
appropriate procedures and customs at Turbeville and failed to “adequately train and
supervise his employees.” Id. at ¶¶ 98–99. Finally, Brown’s fourth cause of action
asserts a tort claim against SCDC pursuant to the South Carolina Tort Claims Act
(“SCTCA”) for negligence and gross negligence. Id. at ¶¶ 102–104. 1
On October 21, 2019, defendants filed two motions for summary judgment. ECF
Nos. 54 and 55. Brown responded to both motions, ECF Nos. 56 and 57, and defendants
1
The complaint is far from a model of clarity, and it fails to clearly distinguish
against which defendant its claims are directed. The R&R interpreted Brown’s claims as
the court states them here. Because neither party objects the R&R’s interpretation of the
complaint, the court adopts the R&R’s interpretation and finds that Brown’s first claim is
alleged against both defendants, that his second and third claims are alleged against
Cothran, and that his fourth claim is alleged against SCDC.
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did not reply. On April 23, 2020, Magistrate Judge Baker issued the R&R, which
recommends that the court deny defendants’ first motion for summary judgment and
grant in part and deny in part defendants’ second motion for summary judgment. ECF
No. 62. On June 19, 2020, defendants filed objections to the R&R. ECF No. 70. Brown
failed to respond to defendants’ objections or lodge any objections of his own, and the
time to do each has now expired. As such, this matter is now ripe for the court’s review.
II. STANDARD
A. R&R
The Magistrate Judge only makes a recommendation to the court. Mathews v.
Weber, 423 U.S. 261, 270 (1976). The recommendation carries no presumptive weight,
and the responsibility to make a final determination remains with the court. Id. at 270-71.
The court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge . . . or recommit the matter to the
magistrate judge with instructions.” 28 U.S.C. § 636(b)(1). The court is charged with
making a de novo determination of any portion of the R&R to which a specific objection
is made. Id. However, de novo review is unnecessary when a party makes general and
conclusory objections without directing a court’s attention to a specific error in the
magistrate judge’s proposed findings. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
1982). In the absence of a specific objection, the court reviews the R&R only for clear
error. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(citation omitted). “A finding is ‘clearly erroneous’ when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm
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conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948).
B. Motion for Summary Judgment
Summary judgment shall be granted if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). “By its very terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
“Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. “[A]t the summary judgment stage the judge’s function is not himself to
weigh the evidence and determine the truth of the matter but to determine whether there
is a genuine issue for trial.” Id. at 249. The court should view the evidence in the light
most favorable to the non-moving party and draw all inferences in its favor. Id. at 255.
“The party seeking summary judgment shoulders the initial burden of
demonstrating to the district court that there is no genuine issue of material fact.” Major
v. Greenville Hous. Auth., 2012 WL 3000680, at *1 (D.S.C. Apr. 11, 2012).
Nevertheless, “when a properly supported motion for summary judgment is made, the
adverse party ‘must set forth specific facts showing that there is a genuine issue for trial.’
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” Id. (quoting Fed. R. Civ. P. 56(e)). The plain language of Federal Rule of Civil
Procedure 56(c) “mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “[C]onclusory allegations or denials, without more, are insufficient to preclude
the granting of the summary judgment motion.” Major, 2012 WL 2000680, at *1.
III. DISCUSSION
A. The R&R
Before delving into the disputed issues, the court briefly summarizes the findings
of the R&R to which the parties did not object. As indicated above, the R&R considered
two motions for summary judgment, both filed by defendants. In the first, defendants
argue that they are entitled to summary judgment because Brown failed to exhaust his
administrative remedies, a mandatory condition precedent to filing suit under the
Prisoner’s Litigation Reform Act, 42 U.S.C. § 1997e(a). ECF No. 54. In the alternative,
defendants’ first motion requests that the court hold an evidentiary hearing to determine
whether Brown exhausted his administrative remedies. Defendants’ second summary
judgment motion asserts a number of other grounds for relief—that defendants are
entitled to Eleventh Amendment immunity, that Cothran is entitled to qualified
immunity, that Brown’s constitutional claims fail as a matter of law, and that Brown’s
tort claims fail as a matter of law. ECF No. 55.
With respect to defendants’ first summary judgment motion, the R&R found that
Brown’s claims were not barred by the Prisoner’s Litigation Reform Act because
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although Brown failed to exhaust certain administrative remedies, his failure to do so is
excused because “administrative remedies were effectively unavailable” to Brown. ECF
No. 62 at 15 (citing Wilson v. Eagleton, 2018 WL 4908277, at *3 (D.S.C. Oct. 10,
2018)). Further, the R&R determined that an evidentiary hearing was not necessary to
resolve the exhaustion issue. Id. at 16. Accordingly, the R&R recommends that the court
deny defendants’ first motion for summary judgment without holding an evidentiary
hearing. Defendants failed to object to the R&R’s proposed resolution of their first
motion for summary judgment. The court has reviewed that portion of the R&R for clear
error and finds none. As such, the court adopts the R&R with respect to defendants’ first
motion for summary judgment and denies the motion. See Diamond, 416 F.3d at 315
(“[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.”).
With respect to defendants’ second motion for summary judgment, the R&R
made several findings to which the parties do not object. First, the R&R found that “the
Eleventh Amendment bars [Brown]’s § 1983 claim for injunctive relief against SCDC
and bars [Brown]’s § 1983 claims for monetary damages [ ] against [ ] Cothran in his
official capacity.” ECF No. 62 at 20–21. Further, the R&R found that Eleventh
Amendment immunity does not extend to SCDC with respect to Brown’s tort claims
because “SDCD voluntarily removed this case to federal court” and thus “consented to
suit” for those claims. Id. at 21. Neither Brown nor defendants object to the R&R’s
findings or consequent recommendations on Eleventh Amendment immunity. Finding no
clear error in these findings, the court adopts them. As such, the court grants in part and
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denies in part defendants’ second summary judgment motion with respect to defendants’
defense of Eleventh Amendment immunity. Specifically, the court grants summary
judgment in favor of the defendants on Brown’s claim for injunctive relief under § 1983
against SCDC and on Brown’s § 1983 claims for monetary damages against Cothran to
the extent those claims are alleged against Cothran in his official capacity. Additionally,
the R&R found that Brown’s tort claim against SCDC depended on genuine issues of
material fact, making summary judgment unavailable. This finding also failed to elicit
objection and contains no clear error. As such, the court denies summary judgment on
Brown’s tort claims against SCDC. The R&R’s remaining recommendations garnered
specific objections and thus require de novo review, which the court conducts below.
To recap, after the court adopts the R&R’s unopposed findings, Brown’s
remaining claims are: (1) a claim for injunctive relief against Cothran in his official
capacity under § 1983 and against SCDC under South Carolina state law, (2) a § 1983
claim against Cothran in his individual capacity based on Cothran’s failure to protect
Brown, (3) a § 1983 claim against Cothran in his individual capacity for failing to
adequately train and supervise his employees, and (4) a claim against SCDC for
negligence and gross negligence under the SCTCA. The court now turns to the findings
of the R&R to which defendants did specifically object.
B. Objections
Defendants have lodged four objections to the R&R. Defendants’ first, second,
and third objections concern Brown’s § 1983 claims against Cothran in his individual
capacity, arguing that the R&R failed to properly analyze the issue of deliberate
indifference, failed to consider certain dispositive evidence, and wrongly relied on other,
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improper evidence. Defendants’ fourth objection relates to Brown’s claim for injunctive
relief against Cothran. Although defendants failed to address the claim in their summary
judgment motion, they now argue that Brown’s claim for injunctive relief must fail as a
matter of law. The court addresses each objection in turn.
1. Deliberate Indifference
The R&R found that the viability of Brown’s first § 1983 claim depends on
whether Brown can show that Cothran violated his rights under the Eighth Amendment, 2
which in this case requires a showing that Cothran had knowledge of a substantial risk to
Brown’s safety, and that Cothran was deliberately indifferent to that risk. The R&R
concluded that both prongs depend on genuine issues of material fact, making summary
judgment inappropriate. Defendants object, arguing that the evidence shows that Cothran
was not deliberately indifferent as a matter of law. The court agrees with the R&R,
overrules defendants’ objection, and adopts the R&R in this respect.
A civil action under § 1983 allows “a party who has been deprived of a federal
right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at
Monterey, Ltd., 526 U.S. 687, 707 (1999). To state a claim under § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by the Constitution or laws of the
United States was violated, and (2) that the alleged violation was committed by a person
2
Brown’s complaint alleges violations of his rights under the Eighth and
Fourteenth Amendments. As a preliminary finding, the R&R noted that “because
[Brown] is a state prisoner and not a pre-trial detainee, his allegations [ ] implicate the
Eighth Amendment’s proscription against cruel and unusual punishment, not the
Fourteenth Amendment’s requirement of due process.” ECF No. 60 at 20. Brown did
not object to this finding, and the court agrees with the R&R. As such, the court
dismisses Brown’s § 1983 claims to the extent that they allege violations of his
Fourteenth Amendment rights. As discussed below, Brown’s § 1983 claims remain
viable under the Eighth Amendment.
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acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). There is no
dispute that Cothran, in his individual capacity, is a proper § 1983 defendant because he
was acting under the color of state law in his position as warden of Turbeville. Instead,
the question before the court is whether Cothran violated Brown’s constitutional rights.
In this case, Brown’s allegations against Cothran implicate the Eighth Amendment. See
Helling v. McKinney, 509 U.S. 25, 31 (1993) (“The treatment a prisoner receives in
prison and the conditions under which he is confined are subject to scrutiny under the
Eighth Amendment.”).
The Eighth Amendment guarantees the right of the people to be free from the
infliction of “cruel and unusual punishments[.]” U.S. Const. Amend. VIII. The Eighth
Amendment’s promise imposes upon prison officials the duty to “provide humane
conditions of confinement” to the incarcerated. Farmer v. Brennan, 511 U.S. 825, 832
(1994). While this duty “does not mandate comfortable prisons,” Rhodes v. Chapman,
452 U.S. 337, 349 (1981), it does require officials to “take reasonable measures to
guarantee the safety of the inmates,” Hudson v. Palmer, 468 U.S. 517, 526–527 (1984),
which includes a responsibility “to protect prisoners from violence at the hands of other
prisoners,” Farmer, 511 U.S. at 833. Recognizing that prisons “are places of involuntary
confinement of persons who have a demonstrated proclivity for antisocial criminal, and
often violent, conduct,” Hudson 468 U.S. at 526, the Supreme Court has noted that the
Eighth Amendment does not impose upon prison officials a duty to ensure complete
safety, but it does mandate that officials “are not free to let the state of nature take its
course,” Farmer, 511 U.S. at 832, 844.
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An Eighth Amendment failure-to-protect claim requires that a prisoner make two
showings. First, the prisoner must show “a serious deprivation of his rights, ” Danser v.
Stansberry, 772 F.3d 340, 346 (4th Cir. 2014), meaning that the “prison official’s act or
omission [ ] result[s] in the denial of the minimal civilized measure of life’s necessities,”
Farmer, 511 U.S. at 834. A prisoner can make such a showing “in the form of a serious
or significant physical or emotional injury.” Danser, 772 F.3d at 346 (internal quotation
marks and citations omitted). In this case, defendants do not dispute that Brown’s
injuries establish a “sufficiently serious” deprivation of his rights, such that he satisfies
the first element of his failure-to-protect claim under the Eighth Amendment. Farmer,
511 U.S. at 834.
The second element, central to defendants’ objections, requires a prisoner to show
that the prison official has a “sufficiently culpable state of mind,” meaning that the
official acted intentionally or with “deliberate indifference” to inmate health or safety.
Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)) (internal quotation marks
omitted). The Supreme Court has determined that “deliberate indifference l[ies]
somewhere between the poles of negligence at one end and purpose or knowledge at the
other,” and is most fairly categorized as “recklessly disregarding [a known] risk.” Id. at
836. Determining whether a prison official was deliberately indifferent involves a twopronged, subjective inquiry. A prison official acts with deliberate indifference where (1)
“he knows that inmates face a substantial risk of serious harm,” and (2) he “disregards
that risk by failing to take reasonable measures to abate it.” Id. at 847. A plaintiff must
show that the prison official had actual knowledge with respect to both prongs.
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Given the difficulty in obtaining direct evidence of deliberate indifference, the
law is clear that “[w]hether a prison official acted with ‘deliberate indifference’ . . . can
be proven through direct or circumstantial evidence.” Cox v. Quinn, 828 F.3d 227, 236
(4th Cir. 2016). Both prongs of the deliberate indifference inquiry are questions of fact
“subject to demonstration in the usual ways, including inference from circumstantial
evidence.” Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (quoting
Farmer, 511 U.S. at 842). Thus, with respect to the first prong, “a factfinder may
conclude that [an officer] knew of a substantial risk from the very fact that the risk was
obvious.” Farmer, 511 U.S. at 842. And similarly, with respect to the second prong, “a
factfinder may conclude that the official’s response to a perceived risk was so patently
inadequate as to justify an inference that the official actually recognized that his response
to the risk was inappropriate under the circumstances.” Parrish, 372 F.3d at 303. The
“heavy” burden of showing deliberate indifference lies with the prisoner. Pyles v. Fahim,
771 F.3d 403, 409 (7th Cir. 2014) (citing Whitley v. Albers, 475 U.S. 312, 325 (1986)).
With respect to the first prong of the deliberate indifference inquiry, the R&R
found that whether Cothran had knowledge of a substantial risk of serious harm depends
on genuine issues of material fact. Defendants do not object to this finding. With respect
to the second prong, the R&R found that whether Cothran disregarded the risk by failing
to take reasonable measures to abate it also depended on genuine issues of material fact,
making summary judgment unavailable. It is with the R&R’s finding on this prong that
defendants take issue. In their first objection, defendants argue that the R&R conducted
an improper deliberate indifference analysis with respect to the second prong of the
inquiry because the R&R (1) “ignored [ ] the evidence Defendants submitted to show
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[that] they took steps to counteract the perceived staffing shortages and security-related
issues” and (2) failed to consider the fact that “Brown did not submit any evidence to
refute Defendants’ actions, show [that] their actions were not reasonable, or show what
more Defendants should have done.” ECF No. 70 at 6. There are problems with
defendants’ argument both in fact and in law.
First, the law. Under the second prong of the deliberate indifference inquiry,
Brown must show that Cothran “disregard[ed] th[e] risk [of injury] by failing to take
reasonable measures to abate it.” Farmer, 511 U.S. at 847. In their objections,
defendants improperly bifurcate the prong, arguing that Brown must present evidence
that defendants disregarded the risk and evidence that Cothran’s response was not
reasonable. What the law makes clear, and what defendants misunderstand, is that these
showings represent two sides of the same coin. In other words, evidence that Cothran
disregarded a risk of injury is evidence that Cothran’s response to the risk was not
reasonable. Once a prisoner introduces evidence that a prison official disregarded a risk
to prisoner safety, the law imposes no additional burden on the prisoner to present direct
evidence that the prison official’s response to the risk was unreasonable. The law is clear
that the inquiry is singular and does not require a prisoner to jump two hurdles. See
Hallinan v. Scarantino, 2020 WL 3105094, at *14 (E.D.N.C. June 11, 2020)
(“Accordingly, as to the deliberate indifference analysis, the only issue is whether [the
prison officials] knew of and disregarded the risk of harm, or, framed differently, whether
they responded reasonably to the risk.”).
Moreover, the law is clear that the second prong of the deliberate indifference
inquiry, whether the prison official disregarded the risk, can be proven through
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circumstantial evidence. See Farmer, 511 U.S. at 842 (finding that the deliberate
indifference inquiry is “a question of fact” that can be proven through “inference from
circumstantial evidence”); see also Parrish, 372 F.3d at 303 (finding that a prisoner can
demonstrate that a prison official disregarded a risk to prisoner safety through
circumstantial evidence showing that the response to the risk was “patently inadequate”).
As such, the law places no requirement on Brown to present direct evidence that
“refute[s] Defendants’ actions, show[s] [that defendants’] actions were not reasonable, or
show[s] what more Defendants should have done.” ECF No. 70 at 6. The defendants’
failure to cite any legal support for its proposition is unsurprising, as no court has ever
required a prisoner to shoulder a burden so cumbersome. In requiring Brown to make
such a showing, defendants impermissibly heighten Brown’s burden to establish a
failure-to-protect claim. To survive summary judgment, the law requires that Brown
present sufficient evidence to create a genuine issue of material fact as to whether
Cothran disregarded a risk to prisoner safety. Through his presentation of circumstantial
evidence, which the court discusses below, Brown has done just that.
Turning to the facts, Brown has presented evidence that Cothran disregarded the
risk to prisoner safety in the form of circumstantial evidence demonstrating that Cothran
and Turbeville management’s response to the understaffing crisis repeatedly failed to
abate the risk. The docket includes a report (“the Roth Report”), drafted by Tim Roth in
connection with a settlement of different case, that details the staffing levels at
institutions run by SCDC. As the R&R noted, the Roth Report contains considerable
evidence of a staffing crisis at Turbeville. See, e.g., ECF No. 64-2 at 233 (“Security
staffing levels have been a critical concern at Turbeville for an extended period.”).
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Further, the Roth Report contains evidence that, during the time period in which Brown’s
attack occurred, the staffing shortage led to increased contraband possession at
Turbeville, putting it well over the national average. Id. at 237 (“As shown in the chart,
weapons and cell phone related incidents at Turbeville have exceeded the average
identified for the level 2 facilities reviewed.”). Turbeville also experienced higher rates
of violence as a result of the staffing shortage. Id. at 238 (“At Turbeville[,] the number of
assault[-]related incidents involving inmates-on-employees reported in 2015, 2016 and
2017 was higher than the overall average reported for all the other level 2 facilities. The
number of inmate-on-inmate assaults was similar to the average. The chart below reflects
assaults occur at a higher than acceptable level.”). Further, Brown has presented a report
prepared by his expert, James Aiken, a former warden, deputy warden, and deputy
regional administrator in South Carolina. In his report, Aiken opines that “key critical
indicators [ ] should have caused Defendants alarm and immediately required urgent
actions to stabilize the critical security posture and status of the facility,” and that “the
critical failures would have been avoided and abated only if appropriate elementary
actions were taken by Defendants.” ECF No. 24-1 at 20.3
In response to this evidence, defendants argue that they “took corrective action
and/or actions to combat said issues” and that their response to the risk to prisoner safety
was reasonable as a matter of law. ECF No. 70 at 7. Defendants are correct that
evidence in the record reflects that Cothran and Turbeville management implemented
several measures as a response to—or, more accurately, as a consequence of— the
3
To the extent that defendants object to the R&R’s reliance on Aiken’s report, the
court addresses that concern below, in its discussion of defendants’ third objection.
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staffing crisis. For example, defendants note that the Roth Report includes a description
of certain “operational initiatives” that Turbeville management implemented “in response
to staffing levels.” ECF No. 64-2 at 235–237. The problem with this argument is twofold. First, the Roth Report reflects data and findings gathered from 2015 to 2017, during
which time the “operational initiatives” were in already in place. Brown’s evidence of
understaffing, increased violence, decreased inmate supervision, and increased
contraband possession at Turbeville demonstrates that the increased risk to prisoner
safety existed after Cothran and Turbeville management implemented responsive
measures. In other words, the problems associated with understaffing persisted and the
risk to prisoner safety remained substantial in spite of the “operational initiatives” on
which defendants now rely. As the law makes clear, the repeated failure of these
measures to abate the risk to prisoner safety is itself circumstantial evidence of the
“patent[] inadequacy” of Cothran’s response. See Parrish, 372 F.3d at 303 (finding that a
prisoner can show a prison official’s disregard of a perceived risk through the “patent[]
inadequa[cy]” of his response). While it is true that a prison official will not be liable
under the Eighth Amendment where he “responded reasonably to the risk, even if the
harm was not averted,” Farmer, 511 U.S. at 844, evidence that the official’s response
repeatedly failed to abate the risk is itself circumstantial evidence that the response was
not reasonable. Such evidence, as Brown has presented here, creates a genuine issue as
to whether Cothran disregarded the risk to prisoner safety by failing to take reasonable
measures to abate it.
Moreover, the “operational initiatives” described in the Roth Report are more
accurately described as natural consequences of a staffing shortage than active measures
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implemented to abate the risk to prisoner safety. The Roth Report states that Turbeville,
in an effort to “maintain minimum operations at the facility”, took certain measures,
including expanding staff responsibilities, increasing staff hours, removing shift breaks,
restricting prison access to common areas, and increasing time spent in lockdown. ECF
No. 64-2 at 235–237. While some of these measures relate to prisoner safety, others are
simply natural consequences of having less staff. For example, one of the “initiatives”
listed is that “post assignments go unfilled.” Id. at 236. The court has a hard time
imagining that allowing posts to be unmanned constitutes a “reasonable response”
designed to abate the risk to prisoner safety. Further, the Roth Report reflects that many
of the responsive measures taken failed: for example, the Roth Report notes that
Turbeville’s initiative to expand staff responsibilities “result[ed] in fewer and less
thorough pat-down searches, fewer building inspections, limited inmate escorts, delays
and or cancellations in program and service delivery.” Id. at 235. Therefore, not only
has Brown presented evidence that creates a genuine issue of material fact as to this issue,
but defendants’ counter-evidence hardly establishes as a matter of law that Cothran took
reasonable steps to abate the risk to prisoner safety. In short, there is no dispute that
Cothran and Turbeville responded to staffing crisis; however, the evidence that
demonstrates the failure of that response creates a genuine issue of material fact as to
whether Cothran’s response was so “patently inadequate” as to constitute a conscious
disregard of the risk. As such, the court adopts the finding of the R&R and rejects
defendants’ first objection.4
4
Defendants also argue in their first objection that “Brown [ ] offer[s] no factual
evidence that corrective action was reasonably available to Cothran.” ECF No. 70 at 11.
Of course, the law does not require Brown to show the availability of reasonable
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2. Qualified Immunity
After determining that factual disputes preclude summary judgment on the issue
of deliberate indifference, the R&R found that Cothran is not entitled to qualified
immunity for Brown’s § 1983 claims. Specifically, the R&R stated that because
“[q]uestions of fact exist with regards to whether Cothran violated [Brown]’s clearly
established rights, [the Magistrate Judge] cannot determine at this time whether Cothran’s
actions were objectively reasonable.” ECF No. 62 at 43–44 (citing Kane v. Beaufort Cty.
Sheriffs Dep’t, 2015 WL 404570, at *5 (D.S.C. Jan. 29, 2015)). As such, the R&R found
summary judgment to be inappropriate. Defendants object, relying on the same flawed
theory that undergirds their first objection. The court agrees with the R&R that genuine
issues of material fact preclude Cothran’s qualified immunity defense and therefore
rejects defendants’ second objection.
The doctrine of qualified immunity protects government officials “from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether an official is entitled to a
defense of qualified immunity, the court engages in a two-step sequence. “First, a court
must decide whether the facts that a plaintiff has alleged or shown make out a violation of
a constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal citations
omitted)). “Second, if the plaintiff has satisfied this first step, the court must decide
responses. The law only requires Brown to show that Cothran disregarded a substantial
and known risk to prisoner safety. Moreover, defendants do not cite to any specific
evidence demonstrating the unavailability of reasonable measures. For the reasons
discussed above, Brown has made sufficient showing to create a genuine issue of material
fact with respect to that issue.
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whether the right at issue was ‘clearly established’ at the time of defendant’s alleged
misconduct.” Id. Because “[d]isputed facts are treated no differently in this portion of
the qualified immunity analysis than in any other context,” the Fourth Circuit has made
clear that “summary judgment on qualified immunity grounds is improper as long as
there remains any material factual dispute regarding the actual conduct of the
defendants.” Vathekan v. Prince George’s Cty., 154 F.3d 173, 180 (4th Cir. 1998) (citing
Buonocore v. Harris, 65 F.3d 347, 359 (4th Cir. 1995)).
Defendants do not object to the R&R’s analysis on the first step of the inquiry.
Instead, defendant object to the R&R’s analysis of the second step, arguing that “it would
not have been clear to an objectively reasonable prison official that his actions violated
Brown’s constitutional rights” because “[Cothran] took steps to combat the risk of harm
caused by understaffing and security-related issues . . . .” ECF No. 70 at 16–17. In other
words, defendants mirror the argument of their first objection, contending that because
Cothran responded reasonably to the risk of harm as a matter of law, he could not have
known that his actions violated Brown’s constitutional rights. Defendants’ second
objection fails for the same reason as their first objection—genuine issues of material fact
preclude a finding that Cothran’s response to the risk to prisoner safety was reasonable.
Because the court has concluded that genuine issues of material fact exist with respect to
Cothran’s response, it must conclude that Cothran is not entitled to qualified immunity.
See Vathekan, 154 F.3d at 180 (“[S]ummary judgment on qualified immunity grounds is
improper as long as there remains any material factual dispute regarding the actual
conduct of the defendants.”); see also Cox, 828 F.3d at 239 (“It has long been established
that jail officials have a duty to protect inmates from a substantial and known risk of
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harm, including harm inflicted by other prisoners.”). In short, the same issues of fact that
preclude summary judgment on Brown’s § 1983 claim preclude Cothran’s qualified
immunity defense. Thus, the court rejects defendants’ second objection. 5
3. James Aiken’s Expert Report
In recommending that the court deny summary judgment with respect to Brown’s
§ 1983 claims, the R&R relied in part on the report of Brown’s expert, Aiken.
Defendants object generally to the R&R’s reliance on Aiken’s report, arguing that the
report is mere “ipse dixit” and that “the R&R immediately and without reasoning,
analysis, or methodology [ ] swallows the conclusory statements of [Aiken].” ECF No.
70 at 19. Puzzlingly, however, defendants do not object to any specific analysis of the
R&R or any portion of Aiken’s expert report. In other words, while defendants generally
object to the R&R’s reliance on Aiken’s report, their objection fails to point the court to
any specific error.6 Instead, defendants include nine pages of law on the admissibility of
expert testimony but fail to articulate a single sentence that applies that law to Aiken’s
report. Put differently, defendants argue that Aiken’s report is nothing more than legal
5
Defendants’ second objection also argues that Cothran should be entitled to
qualified immunity because Cothran “could not have envisioned the R&R’s half[-]baked
res ipsa loquitur version of § 1983 liability.” ECF No. 70 at 18. The court dignifies this
argument with a response only to note its hypocrisy. The R&R analyzes the law and
evidence relevant to Brown’s § 1983 claims in a twenty-four page discussion that
culminates in its finding that genuine issues of material fact preclude summary judgment.
The Magistrate Judge’s well-reasoned and thorough analysis correctly applies wellestablished law to the material evidence and does nothing to create a new, “half-baked”
theory of liability. Ignoring the glass house around them, defendants rely on an argument
to which a description of “half-baked” would denote a considerable upgrade.
6
Defendants’ third objection does include citation to a specific sentence of the
R&R, see ECF No. 70 at 19; however, that citation supports a tangential argument
unrelated to Aiken’s report and does not reflect a portion of the R&R that relies on
Aiken’s report. As such, the defendants’ citation to the R&R in their third objection does
not reflect a specific objection to the R&R’s reliance on Aiken’s report.
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conclusions devoid of substantive analysis, while simultaneously supporting that legal
conclusion with over 3,000 words of law and not a single word of substantive analysis.
The irony is not lost on the court. 7
In the absence of a specific objection, the court reviews the R&R’s reliance on
Aiken’s report for clear error, giving consideration to defendants’ general argument that
the report is inadmissible as a legal conclusion under Fed. R. Evid. 702 and Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The objective of FRE 702 and
Daubert’s gatekeeping requirement “is to ensure the reliability and relevancy of expert
testimony.” Kumho Tire, 526 U.S. at 152. “[T]he test of reliability is flexible,” and “the
law grants a district court the same broad latitude when it decides how to determine
reliability as it enjoys in respect to its ultimate reliability determination.” Id. at 142
(citing General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997)). The Supreme Court has
made clear that a sufficiently reliable basis for admissible expert testimony can exist in a
number of forms, including the expert’s experience. Id. at 156. To be sure, “opinion
testimony that states a legal standard or draws a legal conclusion by applying law to the
facts is generally inadmissible.” United States v. McIver, 470 F.3d 550, 562 (4th Cir.
2006). However, the law is clear that an expert may close the analytical gap between his
observations and his conclusions through “extensive and specialized experience,” which
may provide a reliable basis for the testimony. Kumho Tire, 526 U.S. at 156.
7
Strangely enough, defendants’ objection includes analysis into the opinion of an
expert that has not been named in this case, who provided an expert opinion, presumably
in a different case, about deformed ductwork. See ECF No. 70 at 25 (“McGinley simply
states that he would expect the ductwork to have been deformed due to over
pressurization.”). This clear cut-and-paste error from defendants’ counsel underscores the
perfunctory nature of their third objection. The court suggests that defendants’ attorneys
actually read their brief before they file it.
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In this case, the R&R did not commit clear error in relying in part on Aiken’s
Report. Aiken clearly qualifies as an expert witness under Fed. R. Evid. 702—he began
his “correctional career” in 1971 and spent the next forty-five years in various
correctional-administration roles on both national and state levels. See ECF No. 24-1 at
23. As the R&R noted, Aiken “has over 47 years of experience in the assessment and
restoration of facilities and systems that have experienced chronic and acute security,
operational critical events and management shortfalls.” ECF No. 62 at 32 (citing ECF
No. 24-1 at 2–3) (internal quotation marks omitted). Aiken’s experience in the field of
correctional administration provides a reliable basis from which he reached his
conclusions. While Aiken’s report arguably contains some legal conclusions, see ECF
No. 24-1 (“In a confinement operational context, the Defendants South Carolina
Department of Corrections, and Warden Cothran were deliberately indifferent, callous,
wanton, and/or grossly negligent . . . .”), more numerous in the report are opinions based
on facts and data, interpreted through the lens of Aiken’s experience. The R&R makes
clear that it did not blindly accept Aiken’s opinions on the law, but rather afforded weight
to Aiken’s opinions that were rooted in his analysis of the facts. See, e.g., ECF No. 62 at
32 (“Mr. Aiken opines that ‘Defendants ignored clear and precise dangerous critical
security precursor/indicators (triggers) that were obviously apparent, clear and
precise.’”).
Moreover, the R&R relies on Aiken’s report to support its finding on the first
prong of the deliberate indifference analysis, whether Cothran knew of a substantial risk
to inmate safety. As discussed above, defendants do not substantively object to the
R&R’s finding on that prong. See ECF No. 70 at 5 (“While Defendants disagree with the
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conclusion of the R&R . . . the R&R discussed evidence in the record to find that a
genuine issue of material fact existed as to the first prong of the appropriate analysis.”).
The R&R does not cite to Aiken’s report in its analysis of the second prong of the
deliberate indifference analysis, whether Cothran disregarded the risk to prisoner safety,
the prong to which defendants’ objections apply. The court need not determine the
admissibility of each individual opinion in Aiken’s report. It is sufficient for the
purposes of this order to conclude that the R&R’s reliance on the report was not clearly
erroneous. So finding, the court rejects defendants’ generalized objection to the R&R’s
reliance on Aiken’s report.
Having rejected each of defendants’ objections relating to Brown’s § 1983 claims,
the court adopts the R&R’s recommendation that defendants’ second motion for
summary judgment be denied with respect to those claims. As such, Brown’s § 1983
claims against Cothran in his individual capacity survive summary judgment and
continue to trial. The court now turns to defendants’ final objection regarding Brown’s
claim for injunctive relief.
4. Brown’s Claims for Injunctive Relief
Brown’s complaint includes a claim for injunctive relief against both SCDC and
Cothran. With respect to SCDC, the R&R recommends denying defendants’ motion for
summary judgment with respect to Brown’s claim for injunctive relief, explaining that
“Defendants offer no argument for the dismissal of [Brown]’s claim for injunctive relief
against SCDC under state law.” ECF No. 62 at 48. Additionally, the R&R found that
summary judgment should be denied with respect to Brown’s claim for injunctive relief
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against Cothran in his official capacity because Cothran was not entitled to Eleventh
Amendment immunity, and defendants did not argue that the claim otherwise failed.
Now, defendants object to the R&R’s recommendation, arguing for the first time
that Brown’s claim for injunctive relief fails as a matter of law because “Brown has been
released from SCDC custody.” ECF No. 70 at 28. Further, defendants note that Brown’s
claim for injunctive relief against Cothran must fail because “Cothran has retired from
SCDC, and therefore is no longer a Warden at Turbeville[.]” Id. In support of their
argument, defendants point to Brown’s deposition testimony, in which he states that he
was at Turbeville for a period of five-and-a-half years, implying that he is no longer an
inmate there. ECF No. 54-2, Brown Depo. 6:2–5. Brown has not disputed this fact, and
there is no evidence in the record that indicates that Brown is currently an inmate at
Turbeville. Further, defendants are finally correct on the law. See Magee v. Waters, 810
F.2d 451, 452 (4th Cir. 1987) (finding that a prisoner’s transfer from the subject
correctional facility moots his claim for injunctive relief).
As such, the court finds itself at a procedural fork in the road8 and must choose
between the lesser of two evils. The court must either grant summary judgment on
Brown’s claim for injunctive relief in favor of a party who did not timely request it or
deny summary judgment on procedural grounds and send legally untenable claims to a
trier of fact. The court determines that the latter is the greater evil, so it proceeds with the
former. Thus, the court rejects the R&R’s recommendation with respect to Brown’s
8
take it.”
As the sagacious Yogi Berra once said, “When you come to a fork in the road,
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claim for injunctive relief, grants summary judgment in favor of defendants with respect
to the same, and dismisses the claim.
After the court’s resolution of the motions for summary judgment, three of
Brown’s claims survive and proceed to trial: (1) a § 1983 claim against Cothran in his
individual capacity based on Cothran’s failure to protect Brown, (3) a § 1983 claim
against Cothran in his individual capacity based on Cothran’s failure to adequately train
and supervise his employees, and (4) a claim against SCDC for negligence and gross
negligence under the SCTCA.
IV. CONCLUSION
For the foregoing reasons the court ADOPTS IN PART and REJECTS IN
PART the R&R, DENIES defendants’ first motion for summary judgment, and
GRANTS IN PART and DENIES IN PART defendants’ second motion for summary
judgment in accordance with this order.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 3, 2020
Charleston, South Carolina
25
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