PRONIN v. DUFFEY et al

Filing 144

ORDER adopting in part and rejecting in part 127 Report and Recommendations and granting in part and denying in part 117 Motion for Summary Judgment. Signed by Honorable David C Norton on March 31, 2016.(rweh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
DMITRY PRONIN,

)
)
Plaintiff,
)
)
vs.
)
)
KAHLE VINING, DANIEL FALLEN,
)
JEROME BROOKS, SANDRA K.
)
LATHROP, JOHN BRYANT,
)
SHERILYN L. CHEEK, DEWICK
)
BRYANT, TROY JOHNSON,
)
CHARLES COLLIE, JORDAN
)
HOLLETT, WILLIAM REESE, TONY
)
THOMPSON, STAKLEN SMITH, PAUL )
WELLMAN, DANIEL TRENT, EDA
)
NEGRON-OLIVER, PHILLIP
)
COLEMAN, PHILLIP ROBERTSON,
)
WILLIAM JOHNSON, JAMES REID,
)
DWIGHT RATLEY, RANDOLPH
)
MIDDLEBROOK, CHAD TOLBERT,
)
BRANDON BURKETT, JERRY
)
HARRIOTT, JR., JOHN DOE
)
OFFICER #1, JOHN DOE OFFICER #2, )
and ARUNAVA SAGA,
)
)
Defendants.
)
)

No. 5:13-cv-03423-DCN

ORDER

This matter is before the court on Magistrate Judge Kaymani D. West’s
Report and Recommendation (“R&R”) that this court grant the motion for summary
judgment filed by all defendants of record.1 Plaintiff Dmitry Pronin (“Pronin”) filed a
written objection to the R&R. For the reasons set forth below, the court adopts in part
and rejects in part the R&R and grants in part and denies in part defendants’ motion
for summary judgment.
1

The two John Doe defendants who could not be identified are excluded.

1

I. BACKGROUND2
Pronin is presently confined in the United States Penitentiary, Administrative
Maximum Facility near Florence, Colorado. Pronin was formerly an inmate at FCIEdgefield (“Edgefield”) in Edgefield, South Carolina. Pronin alleges that in March
2012, fellow Edgefield inmate Larry Burns (“Burns”) was moved into Pronin’s cell.
Compl. 11. Within approximately two months “it became obvious to [Pronin] that
[Burns] was sexually perverse[], had homosexual desires that he was eager to fullfill
[sic] on [Pronin’s] account.” Id. Pronin contends that he filed two request-to-staffmember forms (“staff requests”) on May 18, 2012, notifying defendants John Bryant
(“John”) and Dewick Bryant (“Dewick”) of Burns’s sexually charged threats and
habitual drug abuse.3 Id. Pronin contends that he asked John and Dewick to interfere
and move him out of Burns’s cell, but these requests were ignored. Id. Burns
allegedly continued to threaten Pronin and began bragging about his “good
connections” with prison officers. Id. at 12. Pronin states that on June 5, 2012, he
filed a staff request to defendant Charles Collie regarding Burns’ drug use, followed
by renewed requests to John and Dewick on June 18 and June 19, 2012, respectively.
Pronin further states that on June 26, 2012, Burns purchased drugs from
defendant Sandra K. Lathrop (“Lathrop”) and that the next day, Burns told Pronin
that Lathrop and defendant Sherilyn Cheek (“Cheek”) had told Burns that Pronin was
registered as a sex offender. Id. Burns allegedly threatened to reveal this fact if
2

Pronin’s complaint originally brought ten distinct claims for relief; however, Pronin objects to
the magistrate courts recommendation on only one claim and has agreed to abandon the claims not
addressed in his objection. Pls.’ Objections 2. Therefore, the following section recites only those facts
relevant to Pronin’s remaining claim.
3
Pronin repeatedly notes Burns’s drug use in connection with his failure to protect claim. The
drug use allegations appear to have been connected to the alleged sexual threats inasmuch as Burns
would become “sexually provocative and use[] sexually charged language when he [was] high.”
Compl. Ex. 14.

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Pronin refused to perform sexual acts on him. Id. Pronin states that he spoke to John
on June 28, 2012, who told him that there were no cells available, that he was too
busy, and that Pronin should speak to him later. Id. at 12–13. On July 12, 2012, after
a third cellmate was moved out of the cell, Burns’ threats allegedly intensified. Id. at
13. Shortly thereafter, on July 15, 2012, Pronin contends that Burns pressed a knife
to the right side of his neck and raped him. Id. at 13.
On the basis of such allegations, Pronin brings a claim for “failure to protect”
against John and Dewick, arguing that John and Dewick knew of the specific threat
Burns posed, but did nothing about it. Pl.’s Objections 3. On March 2, 2015,
defendants filed the instant motion for summary judgment. Pronin filed a response on
March 10, 2015, and defendants filed a reply on March 20, 2015. The magistrate
judge issued the R&R on August 31, 2015, recommending the court grant summary
judgment on all claims and dismiss the case. Pronin filed his objection to the R&R
on October 2, 2015, and defendants replied to his objection on October 19, 2015. The
matter is now ripe for the court’s review.
II. STANDARD
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s report to which specific, written objections are made, and may
accept, reject, or modify, in whole or in part, the recommendations contained in that
report. 28 U.S.C. § 636(b)(1). The magistrate judge’s recommendation does not
carry presumptive weight, and it is the responsibility of this court to make a final
determination. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). A party’s failure to

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object may be treated as agreement with the conclusions of the magistrate judge. See
Thomas v. Arn, 474 U.S. 140, 150 (1985).
Pronin initially appeared pro se in this case.4 Federal district courts are
charged with liberally construing complaints filed by pro se litigants to allow the
development of a potentially meritorious case. See Haines v. Kerner, 404 U.S. 519,
521 (1972). The requirement of liberal construction does not mean that the court can
ignore a clear failure in the pleadings to allege facts which set forth a cognizable
claim, nor does it mean the court can assume the existence of a genuine issue of
material fact where none exists. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th
Cir. 1990).
Summary judgment shall be granted if the movant shows that there is no
genuine dispute as to any issue of material fact and that it is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the ECF of
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“[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. At the summary judgment stage, the court must view the
evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in his favor. Id. at 255.

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Pronin filed his complaint and initial response to the defendants’ motion pro se, but was
represented by counsel when he filed his objections to the R&R. Therefore, the court is not required to
liberally construe Pronin’s objections to the R&R, but has liberally construed all materials submitted
pro se.

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III. DISCUSSION
Pronin’s objections only address his failure to protect claim against John and
Dewick. Pl.’s Objections 2. In addition to the fact that “[a] party’s failure to object
may be treated as agreement with the conclusions of the magistrate judge,” see
Thomas, 474 U.S. at 150, Pronin has explicitly agreed to abandon the claims not
addressed by his objections. Pl.’s Objections 2 n.1. Therefore, after reviewing the
record for clear error and finding none, the court adopts the R&R with respect to all
claims, other than Pronin’s failure to protect claim against John and Dewick, and
grants defendants’ motion for summary judgment on such claims.
With regard to the failure to protect claim, Pronin does not contest the
magistrate judge’s determination that “a claim for failure to protect from violence[]
[requires] an inmate [to] show: (1) ‘that he is incarcerated under conditions posing a
substantial risk of serious harm,’ [] and (2) that the prison officials had a ‘sufficiently
culpable state of mind.’” R&R at 21 (quoting Farmer v. Brennan, 511 U.S. 825, 833
(1994)). There is also no dispute that, in this case, Pronin must show that John and
Dewick acted with “deliberate indifference.” Id. (quoting Farmer, 511 U.S. at 834);
Pl.’s Objections at 3 (citing Young v. City of Mount Ranier, 238 F.3d 567, 575–76
(4th Cir. 2001)). Pronin’s objection simply turns on whether the evidence is
sufficient to create a question of material fact under that standard.
In support of his claim, Pronin offers his own sworn declarations, Compl. Exs.
1, 16–18; ECF No. 122-3, Pronin Dec. in Opp. ¶¶ 1–9, as well as a number of staff
request forms which he claims to have filed in an attempt to prevent Burns’s actions.5

5

Pronin initially argued that John’s declaration and Dewick’s answers to interrogatories also
provide evidentiary support for his claim; however, Pronin does not appear to challenge the R&R’s

5

Compl. Exs. 11–15; Pl.’s Resp. Ex. 5. The magistrate judge found that these
submissions could not be considered at the summary judgment stage, because: (i) the
declarations were self-serving; and (ii) the staff requests were unauthenticated, as
there was no evidence they were actually filed with John, Dewick, or any other staff
member. R&R at 23. Therefore, the R&R determined, there was no evidence that
any defendant was aware that Pronin was incarcerated under conditions posing a
substantial risk of serious harm. Id.
A. Pronin’s Declarations
While it is true that “a party may not rest on self-serving conclusory
allegations to survive summary judgment,” Smith v. Beck, 2011 WL 65962, at *7
(M.D.N.C. Jan. 10, 2011) report and recommendation adopted, 2012 WL 1340766
(M.D.N.C. Apr. 18, 2012) aff’d, 577 F. App’x 196 (4th Cir. 2014) (emphasis added),
the court does not find the allegations at issue to be “conclusory.”

Pronin’s

Complaint and his Declaration in Opposition include the specific dates and content of
the requests made to both John and Dewick. Pronin Dec. in Opp. ¶¶ 2, 4, 5. This
specificity, as well as the content of such requests, distinguishes the instant case from
Smith v. Beck, 2011 WL 65962, at *7. In Beck, the plaintiff claimed that prison
officials had failed to protect him from sexual assault by a prison supervisor. Id. at
*6. “In his affidavit, [the plaintiff] contend[ed] that he made several requests to
[defendant] for another job assignment to get away from [the supervisor].” Id. at *7.
However, the Beck opinion gives little indication as to whether the plaintiff described
those requests in detail, and goes on to state that the more important consideration is

refusal to recognize such evidentiary support in his objections. In any event, the court finds that
nothing in either source supports Pronin’s claims. See Pl.’s Response Exs. 4, 8.

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the fact that “[the] [p]laintiff never reported the alleged sexual abuse to any prison
official.” Id. Here, in contrast, Pronin has not only described the circumstances
surrounding his requests in relative detail, he has also provided copies of the requests
themselves. As discussed in greater detail below, the contents of such requests were
sufficient to put John and Dewick on notice of the threat Burns posed to Pronin,
because they discussed that issue directly. Compl. Exs. 11–15; Pl.’s Resp. Ex. 5.
Thus, while the allegations contained in Pronin’s declarations may be “self-serving,”
they are not “conclusory.”
The Fourth Circuit has stated that a party may survive summary judgment
even where the “evidence consist[s] exclusive of so-called ‘self-serving’ declarations
from [the plaintiff] himself.” Mann v. Failey, 578 F. App’x 267, 272 n.2 (4th Cir.
2014); see also Wilson v. Davis, No. 9:13-cv-3495, 2014 WL 6983381, at *8 (D.S.C.
Dec. 10, 2014) (“[T]he undersigned cannot find that the [defendant] is entitled to
summary judgment on [p]laintiff’s retaliation claim where there are conflicting sworn
statements as to what happened and why.”). The Mann court noted that this rule is
especially important “in cases with pro se prisoner plaintiffs, where events take place
with only prison guards present, and an inmate has little control of his situation and
movement, and few means of establishing facts, other than recounting evidence
himself.” Id. (internal quotation marks omitted).
More recently, the Fourth Circuit reaffirmed the use of an inmate’s affidavit
testimony to avoid summary judgment in Raynor v. Pugh, No. 14-7746, 2016 WL
1056091, at *5 (4th Cir. Mar. 17, 2016). In that case, the inmate-plaintiff brought a
failure to protect claim against a prison official, alleging that the official acted with

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deliberately indifference in failing to take any action to prevent another inmate from
attacking the plaintiff, despite the attacker first telling the official he would carry out
such an attack. Id. at *4. The Fourth Circuit relied on the plaintiff’s verified
complaint to establish a question of fact as to whether this incident gave the defendant
“actual knowledge of an excessive risk to the plaintiff’s safety.” 6 Id. (internal
quotations omitted).
In light of Mann and Raynor, the court finds that Pronin may rely on his own
declarations to establish John and Dewick’s “deliberate indifference” at the summary
judgment stage.
B. Pronin’s Staff Requests
The R&R also found that the staff requests could not be considered because
they were not properly authenticated, relying on Orsi v. Kirkwood, 999 F.2d 86, 92
(4th Cir. 1993). R&R at 23. However, Orsi was abrogated by the 2010 amendments
to Federal Rule of Civil Procedure 56, which no longer requires evidence to be
presented in admissible form to be considered on summary judgment. Grimes v.
Merritt, 2015 WL 5158722, at *4 (D. Md. Aug. 31, 2015).
Rule 56(c)(2) now provides that “[a] party may object that the material cited
to support or dispute a fact cannot be presented in a form that would be admissible in
6

The Raynor plaintiff also alleged that the official was actually present for the attack and
watched the entire incident. Raynor, 2016 WL 1056091, at *5. While the plaintiff had a corroborating
affidavit from another inmate to support this allegation, id., the court specifically noted that either
incident—the attacker’s statement to the defendant or the defendant’s actual presence during the
attack—would have been “independent grounds for establishing [the defendant’s] subjective
knowledge of the risk of assault.” Id. at *4. Moreover, when discussing the evidentiary support for this
second allegation, the court quoted Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979) for the
proposition that “where ‘affidavits present conflicting versions of the facts which require credibility
determinations,’ summary judgment cannot lie.” Raynor, 2016 WL 1056091, at *5 (quoting Davis,
600 F.2d at 460). Notably, Davis was a case in which the inmate-plaintiff’s only support for his
allegation was his own affidavit and verified complaint, Davis, 600 F.2d at 459–60, further indicating
that the corroborating affidavit in Raynor was unnecessary for summary judgment purposes.

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evidence.” Thus, “facts in support of or opposition to a motion for summary
judgment need not be in admissible form; the new requirement is that the party
identifies facts that could be put in admissible form.” Grimes, 2015 WL 5158722, at
*4 (quoting Wake v. Nat’l R .R. Passenger Corp., 2013 WL 5423978 at *1 (D. Md.
September 26, 2013)). When a party’s evidentiary support is challenged on the
grounds of admissibility, the party bears the burden of “either authenticat[ing] the
documents or propos[ing] a method to do so at trial.” Id. (quoting Foreword
Magazine, Inc. v. OverDrive, Inc., 2011 WL 5169384, at *2 (W.D. Mich. October 31,
2011)). Thus, “the objection [now] contemplated by the amended Rule is not that the
material ‘has not’ been submitted in admissible form, but that it ‘cannot’ be.” Rivers
v. Burnette, No. 4:13-cv-01914, 2015 WL 535623, at *8 n.2 (D.S.C. Feb. 10, 2015)
(quoting Kobe v. Haley, No. 3:11-cv-1146, 2013 WL 4067921, at *6 (D.S.C. Aug.
12, 2013)).
“To establish that evidence is authentic, a proponent need only present
‘evidence sufficient to support a finding that the matter in question is what the
proponent claims.’” United States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009)
(quoting Fed. R. Evid. 901(a)). “The burden to authenticate under Rule 901 is not
high—only a prima facie showing is required.” Id. “The district court’s role is to
serve as gatekeeper in assessing whether the proponent has offered a satisfactory
foundation from which the jury could reasonably find that the evidence is authentic.”
Id. Rule 901(b)(1) explicitly provides that a document may be authenticated by
“testimony of a witness with knowledge,” and affidavits have long been recognized

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as a “permissible form of authentication at summary judgment.” Tillery v. Borden,
2010 WL 2132226, at *4 (D. Md. May 25, 2010).
Defendants appear to suggest that Pronin cannot authenticate the staff requests
through his own declarations or testimony. See Defs.’ Reply to Pls.’ Objections at 3
(stating that the nonmoving party’s entitlement to the benefit of all inferences and
credibility determinations on summary judgment “do[es] not extend to the
authenticity of the material presented in opposition to the motion for summary
judgment”). This may be true in instances where the plaintiff is unable to
authenticate the document in question through his own testimony, but in this case,
defendants’ argument conflicts with Fourth Circuit precedent requiring only a “prima
facie showing” of authenticity under Rule 901. Vidacak, 553 F.3d at 349. Because
Rule 901(b)(1) provides for authentication through testimony of a witness with
knowledge, it is clear that Pronin’s own affidavits or testimony would be sufficient to
make such a prima facie showing. Whether that showing is sufficient to withstand
conflicting evidence on the issue of authenticity is a question for the jury to decide.
Here, Pronin has not submitted an affidavit specifically addressing the
authenticity of the staff requests, but he did include copies of the staff requests in his
complaint which he signed under penalty of perjury. Compl. at 11; Williams v.
Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (“[A] verified complaint is the equivalent
of an opposing affidavit for summary judgment purposes, when the allegations
contained therein are based on personal knowledge.”). Pronin’s Declaration in
Opposition, filed alongside his response to the instant motion, also specifically states
that he filed the staff requests with John and Dewick on May 18, 2012. Dec. in Opp.

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¶¶ 2, 5. Pronin clearly has the requisite personal knowledge to make such statements,
and if it came to it, he could formally authenticate the requests through testimony at
trial. See Fed. R. Evid. 901(b)(1). Therefore, the court finds that, even if the staff
requests remain technically unauthenticated, Pronin has sufficiently identified a
method for their authentication at trial.
C. Failure to Protect Claim
When the declarations and staff requests are considered, it is clear that Pronin
has provided sufficient evidence to survive summary judgment. To prevail on his
failure to protect claim, Pronin must prove: (i) that “he [was] incarcerated under
conditions posing a substantial risk of serious harm,” and (ii) that John and Dewick
acted with “‘deliberate indifference’ to [Pronin’s] health or safety.” See Farmer, 511
U.S. at 834. There is no question that the threat of sexual assault constitutes a
“substantial risk of serious harm,” see id. at 831, 849 (denying summary judgment in
case involving claim that prison officials placed plaintiff in general populations,
despite knowing that plaintiff “would be particularly vulnerable to sexual attack”),
and Pronin’s alleged staff requests are sufficient to create an issue of fact as to
whether John and Dewick “[knew] of and disregard[ed]” the risk that Burns would
sexually assault Pronin. See id. at 837. The staff requests specifically state that
Burns used “sexually provocative” language and that Pronin feared for his own
safety. Compl. Exs. 11, 12, 14, 15. Though the court would note that these
statements do not clearly disclose the specific threats Pronin claims to have received,7

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This failure to provide information on the specific threats issued by Burns is perhaps, in some
ironic way, indicative of the staff requests’ authenticity. If the staff requests were fabricated for the
purposes of this litigation—a possibility the court does not discount—one would expect them to
contain a somewhat clearer indication of the threat Burns posed.

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the court finds them sufficient to create a question of material fact as whether John
and Dewick were aware of the substantial risk Burns posed.8
In their response to Pronin’s objections, defendants note that Pronin could
have notified prison staff of Burns’s threats in a number of other ways which would
have been both more efficient and verifiable, yet Pronin conveniently claims to have
chosen “the only method of communication which could not be verified in this case.”
Defs.’ Reply to Pls.’ Objections 4–5. This is undoubtedly a forceful argument that
the ultimate factfinder will need to weigh against Pronin’s testimony. However, this
court is not entitled to weigh evidence at the summary judgment stage, and, as
defendants’ argument implicitly recognizes, there is no way to conclusively
determine whether the staff requests were actually sent on the basis of the current
record. Id. (recognizing the existence of a method of communication which could not
be verified). This is the touchstone of a question of material fact, and therefore,
Pronin’s claims cannot be decided by summary judgment.

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Like the Fourth Circuit in Raynor, this court finds that “[t]hese factual disputes also defeat
[defendants’] claim to qualified immunity at this early stage,’ because Pronin “has alleged facts that
make out a violation of a clearly established constitutional right.” Raynor, 2016 WL 1056091, at *6.
The Supreme Court has long recognized that “prison officials have a duty . . . to protect prisoners from
violence at the hands of other prisoners.” Farmer, 511 U.S. at 833 (quoting Cortes-Quinones v.
Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). The Farmer opinion clearly considers sexual
assault to be a form of violence which falls within this rule, stating that “gratuitously allowing the
beating or rape of one prisoner by another serves no ‘legitimate penological objectiv[e].’” Id. (quoting
Hudson v. Palmer, 468 U.S. 517, 546 (1984)). Therefore, the court finds that “the facts alleged, taken
in the light most favorable to the plaintiff, show that the defendants’ conduct violated a constitutional
right [] that [] was clearly established at the time of the alleged misconduct.” Odom v. U.S., No. 5:13cv-01231, 2014 WL 1234176, at *10 (D.S.C. Mar. 25, 2014) (citing Pearson v. Callahan, 555 U.S.
223, 232 (2009)). Thus, John and Dewick are not entitled to summary judgment on the issue of
qualified immunity.

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IV. CONCLUSION
For the foregoing reasons, the court REJECTS in part and ADOPTS in part
the R&R; DENIES defendants’ motion for summary judgment to the extent it relates
to Pronin’s failure to protect claim against John and Dewick, and GRANTS
defendants’ motion as to all other claims.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 31, 2016
Charleston, South Carolina

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