Ward v. Blackwell et al
ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts and incorporates the Report and Recommendation of the Magistrate Judge 87 . Defendants' Motion for Summary Judgment 58 is GRANTED with respect to Plaintiff 39;s claims against Defendants in their official capacities and with respect to Plaintiff's claims against Blackwell and Ravenell. Defendants' Motion is DENIED as to Plaintiff's claim against Kicinski in his individual capacity.IT IS SO ORDERED. Signed by Honorable Donald C Coggins, Jr on 05/16/2018. (dsto, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
James Blackwell, Tamara Ravenell, Jacek
Matthew J. Ward,
C/A No. 4:17-cv-00367-DCC
This matter is before the Court on Defendants’ Motion for Summary Judgment. ECF
No. 58. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), (D.S.C.),
this matter was referred to United States Magistrate Judge Thomas E. Rogers, III, for pretrial proceedings. On February 6, 2018, the Magistrate Judge issued a Report and
Recommendation (“Report”) recommending that Plaintiff’s claims against all Defendants
in their official capacities be dismissed, that his claims against James Blackwell and
Tamara Ravenell in their individual capacities be dismissed, and that his claim against
Jacek Kicinski in his individual capacity survive the Motion. ECF No. 87. The Magistrate
Judge advised the parties of the procedures and requirements for filing objections to the
Report. Plaintiff and Defendants filed objections to the Report.
The Magistrate Judge makes only a recommendation to this Court.
recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report of the
Magistrate Judge to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit
the matter to the Magistrate Judge with instructions. See U.S.C. § 636(b). The Court will
review the Report only for clear error in the absence of an objection. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the
absence of 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.” (citation omitted)).
As an initial matter, neither Plaintiff nor Defendants object to the portion of the
Report recommending that Defendants Motion be granted regarding Plaintiff’s claims
against them in their official capacities. Upon review of the record,1 the applicable law, and
the Report, the Court finds no clear error and agrees with the Magistrate’s recommendation
that Defendants are entitled to summary judgment with respect to this claim.
Plaintiff objects to the recommendation that the Motion be granted with respect to
his claims against Blackwell and Ravenell in their individual capacities. Plaintiff asserts that
Blackwell and Ravenell should have known there was a high risk of injury as a result of
double-celling inmates. ECF No. 90 at 1. Moreover, he contends that Blackwell and
Ravenell failed to properly supervise and train Kicinski. Id. at 2. Finally, Plaintiff alleges
that he is unable to show evidence of habit because the Court did not compel discovery as
The Court notes that Plaintiff filed a brief Amended Complaint that appears to be
a supplement to his Complaint. Accordingly, the Court has considered the Complaint
and the Amended Complaint in its review of the Report.
requested. Id. at 2–3. The Court overrules Plaintiff’s objections.
Concerning Plaintiff’s allegations that Blackwell and Ravenell should have been
aware that he was at risk for harm because of double-celling and that they failed to
supervise or train Kicinski, the Court finds these claims were properly evaluated by the
Magistrate. In his Complaint, Plaintiff fails to present any evidence beyond his own
conclusory allegations that either Blackwell or Ravenell had actual or constructive
knowledge that Kicinski or other officers were deliberately indifferent to a specific and
known risk of harm to Plaintiff. See Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365
(4th Cir.1985), overruled on other grounds, 490 U.S. 228 (1989) (holding that conclusory
allegations or denials, without more, are insufficient to preclude granting the summary
judgment motion.); Green v. Beck, 539 F. App’x 78 (4th Cir. 2013) (holding that, in order
to maintain a claim for supervisory liability, a plaintiff must allege “that the supervisor had
actual or constructive knowledge that his subordinate[s were] engaged in conduct that
posed a pervasive and unreasonable risk of constitutional injury” to plaintiff, “the
supervisor’s response to the knowledge was so inadequate as to show deliberate
indifference to or tacit authorization of the alleged offensive practices,” and “there was an
affirmative causal link between the supervisor’s inaction and the particular constitutional
injury suffered by the plaintiff.” ).
Additionally, a defendant cannot be liable under § 1983 merely because they are a
supervisor or manager. The doctrines of vicarious liability and respondeat superior are not
applicable in § 1983 actions. See Vinnedge v. Gibbs, 550 F.2d 926, 927–29 (4th Cir. 1977);
see also Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981). Accordingly, Defendants are
entitled to summary judgment with respect to Plaintiff’s claims against Blackwell and
Defendants object to the Magistrate’s recommendation that their Motion be denied
with respect to Plaintiff’s claims against Kicinski in his individual capacity. ECF No. 93.
Defendants contend that Plaintiff’s allegations fail to establish either the requisite objective
or subjective component to maintain a claim for failure to protect. Specifically, Defendants
contend that Plaintiff has not established that he was exposed to a substantial risk of harm
in that if nothing was done, he would almost certainly be seriously harmed. Moreover,
regarding the subjective component, Defendants assert that Plaintiff failed to inform Kicinski
that he had been threatened with serious physical harm or that he feared for his life.
Defendants also argue that any investigation into whether Plaintiff should have been moved
would have taken too long to prevent the fight; they allege Kicinski had no authority to
remove Plaintiff from his cell without permission and that he followed procedure to stop the
fight once he realized that it had begun. The Court disagrees and overrules the objections.
To establish a failure to protect claim, a prisoner must make two showings: first, that
he suffered significant injury or was “incarcerated under conditions posing a substantial risk
The Court notes that Plaintiff generally alleges that these Defendants should
have been aware that he was at risk of harm because of the many instances of violence
that result from double-celling. As previously noted, a plaintiff’s conclusory allegations
without more are insufficient to foreclose summary judgment. See Ross, 759 F.2d at
365 . Moreover, to the extent Plaintiff intends to raise an objection to the Court’s prior
orders regarding discovery, any appeal of these Orders is untimely. See ECF No. 70
(Order denying Plaintiff’s Motion to Compel filed on December 21, 2017); Fed. R. Civ.
P. 72(a) (allowing 14 days to object to an magistrate judge’s ruling on a non-dispositive
of serious harm”; and second, that the prison official at issue had a “sufficiently culpable
state of mind.” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1970)). Under the first prong, the objective inquiry, “a
prisoner must allege a serious or significant physical or emotional injury resulting from the
challenged conditions, or demonstrate a substantial risk of such serious harm resulting from
the prisoner’s exposure to the challenged conditions.” De’Lonta v. Angelone, 330 F.3d 630,
634 (4th Cir. 2003) (internal citations omitted). The second showing is subjective and
requires proof of deliberate indifference. See Toomer v. Baltimore City Det. Ctr., No. DKC
12-0083, 2014 WL 4678712, at *3 (D. Md. Sept. 18, 2014) (“In order to prevail on a claim
of failure to protect from violence, [a plaintiff] must establish that [the defendants] exhibited
deliberate or callous indifference to a specific known risk of harm.” (citing Pressly v. Hutto,
816 F.2d 977, 979 (4th Cir. 1987)). Ultimately, “the test is whether the [prison officials]
know the plaintiff inmate faces a serious danger to his safety and they could avert the
danger easily yet they fail to do so.” Brown v. N.C. Dep’t of Corr., 612 F.3d 720. 723 (4th
Cir. 2010) (quoting Case v. Ahitow, 301 F.3d 605, 607 (7th Cir. 2002)).
Here, Plaintiff has alleged facts sufficient to survive Defendants’ Motion for Summary
Judgment. With respect to the objective component, Plaintiff alleges that he told Kicinski
twice that he and his cellmate were about to fight. As noted in the Report, Plaintiff and his
cellmate were arguing at the time that Kicinski was making his rounds and at least two
other inmates could tell that the argument was on the verge of escalating into a physical
confrontation. With respect to the subjective component, Plaintiff provides the affidavits of
two witnesses who aver that Kicinski told Plaintiff and his cellmate to “go ahead and fight”
and delayed responding to the fight until another officer arrived. ECF No. 78-2 at 5–10; see
Kartman v. Markle, 582 F. App’x 151, 154 (4th Cir. 2014) (finding that summary judgment
was appropriate where the plaintiff’s verified complaint provided undisputed evidence that
the defendant prison official saw plaintiff being assaulted and unreasonably delayed
breaking up the fight). Accordingly, Defendants’ Motion for Summary Judgment should be
denied with respect to this claim.3
Defendants also argue that Kicinski is entitled to qualified immunity. This is the
same argument raised in Defendants’ Motion. The Court finds that the Report accurately
states and applies the qualified immunity standard to the facts in this case and does not
repeat the analysis here.
Accordingly, the Court adopts and incorporates the Report and Recommendation
of the Magistrate Judge. Defendants’ Motion for Summary Judgment is GRANTED with
respect to Plaintiff’s claims against Defendants in their official capacities and with respect
to Plaintiff’s claims against Blackwell and Ravenell. Defendants’ Motion is DENIED as to
Plaintiff’s claim against Kicinski in his individual capacity.
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
Defendants’ argument that there would not have been time to move Plaintiff and
that Kicinski did not have the authority to remove him from his cell is not compelling. As
the Magistrate points out in the Report, Kicinski never notified his supervisors of his
request; thus, it is pure speculation to assume that Plaintiff could not have been moved
before the altercation.
May 16, 2018
Spartanburg, South Carolina
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.
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