Ham v. West et al

Filing 67

ORDER RULING ON REPORT AND RECOMMENDATION 63 . Plaintiffs claim against the First Set of Defendants is thereby DISMISSED without prejudice. The court GRANTS the Second Set of Defendants motion for summary judgment, and Plaintiffs claim against the Second Set of Defendants is DISMISSED withprejudice. Signed by Honorable J Michelle Childs on 2/14/2014. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Angelo Ham,

)
)
Plaintiff,
)
)
v.
)
)
C. West, Dillman, Jack Brown, C. Brown, )
Bruce Oberman, Anthony J. Padula, James )
C. Dean, Washington, Barbara Reames,
)
Doris Poole,
)
)
Defendants.
)
___________________________________ )

Civil Action No. 6:12-cv-03219-JMC

ORDER AND OPINION

On December 6, 2012, pro se Plaintiff Angelo Ham (“Plaintiff”) filed this 42 U.S.C. §
1983 action (ECF No. 1) alleging that Defendants failed to protect Plaintiff from an assault by
his cellmate on February 13, 2012. Id. at 3–4. Plaintiff has been granted leave to proceed in
forma pauperis in this matter. (ECF No. 4). This matter is now before the court upon two
Report and Recommendations by the magistrate judge. The first Report and Recommendation
(“the First Report”), filed January 4, 2013, recommended that the court partially summarily
dismiss Plaintiff’s complaint as to Defendants Jack Brown, C. Brown, Bruce Oberman, Anthony
J. Padula, James C. Dean, Washington, Barbara Reames, and Doris Poole (collectively referred
to as “the First Set of Defendants”). (ECF No. 10). The second Report and Recommendation
(“the Second Report”), filed October 28, 2013, recommended that the court grant summary
judgment for the remaining Defendants C. West and Dillman (collectively referred to as “the
Second Set of Defendants”). (ECF No. 63).
For the reasons stated herein, the court ACCEPTS the magistrate judge’s First Report
and Second Report. The court therefore DISMISSES Plaintiff’s Complaint as to the First Set of

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Defendants. The court also GRANTS the Second Set of Defendants’ motion for summary
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the factual and
procedural summation in the magistrate judge’s Report is accurate, and the court adopts this
summary as its own. However, a brief recitation of the background in this case is warranted.
Plaintiff is incarcerated at the Lee Correctional Institution (“LCI”), a facility managed by
the South Carolina Department of Corrections (“SCDC”). (ECF No. 1 at 2). Plaintiff filed this
action on November 8, 2012, asserting that Defendants failed to protect Plaintiff from a physical
attack from Plaintiff’s cellmate while Plaintiff was in security restraints. Id. at 3–4. Plaintiff
claimed that the Second Set of Defendants pulled Plaintiff for a shower but did not pull
Plaintiff’s cellmate because Plaintiff’s cellmate did not want to shower. Id. at 4. Plaintiff
alleged that after his shower, Defendant West placed him in security restraints and proceeded to
return Plaintiff to his cell. Id. Plaintiff stated that when Defendant West opened his cell door,
his cellmate rushed out of his cell and stabbed Plaintiff in the head, shoulder, and neck with a
piece of steel. Id.
The magistrate judge issued the First Report on January 4, 2013, recommending that the
court summarily dismiss Plaintiff’s complaint against the First Set of Defendants for failure to
state a claim. (ECF No. 10 at 3). The magistrate judge explained that Plaintiff did not make any
specific allegations of personal wrongdoing against the First Set of Defendants. Id. at 4, 6. The
magistrate judge found that insofar as Plaintiff sought to hold the First Set of Defendants liable
as supervisors, the doctrines of respondeat superior and vicarious liability were unavailable to
this § 1983 action. Id. at 4. The magistrate judge concluded that to the extent Plaintiff alleged

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that he had not received a response regarding SCDC’s investigation into the incident, such
assertions did not give rise to a cognizable § 1983 claim. Id. at 7.
On January 17, 2013, Plaintiff filed Objections to the First Report (“First Objections”)
(ECF No. 14). In his First Objections, Plaintiff contends that Defendants Jack Brown, C. Brown,
and Dean are liable for their own negligent conduct as supervisors of the Second Set of
Defendants. Id. at 1–2. Plaintiff states that Defendants Jack Brown and C. Brown supervised the
Second Set of Defendants on the date of Plaintiff’s assault and that Defendant Dean was the
major at LCI responsible for security of the institution as a whole. Id. at 1–2. Plaintiff alleges
that Defendants Jack Brown, C. Brown, and Dean were aware that, in order to maintain prisoner
safety, two prisoners should not be housed in a cell together. Id. at 1. Plaintiff also claims that it
was Defendants Jack Brown, C. Brown, and Dean’s legal duty to ensure the proper training of
the Second Set of Defendants in preventing violence among prisoners. Id.
Plaintiff objects to summary dismissal of Defendants Reames, Poole, Washington,
Oberman, and Padula, apparently contending for the first time that these Defendants should have
issued a separation or caution notice following the incident. Id. at 2–3 (citing SCDC Policy OP21.04 ¶¶ 18–18.10). Plaintiff acknowledges, however, that he was removed from his cell and
placed with another prisoner in response to the incident. Id.
On March 28, 2013, the Second Set of Defendants moved for summary judgment.1 (ECF
No. 29). Plaintiff filed a response to the motion for summary judgment on August 5, 2013.
(ECF No. 61).

The magistrate judge issued the Second Report on October 28, 2013,

recommending that the court grant summary judgment to the Second Set of Defendants. (ECF

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While the motion states that all Defendants have moved for summary judgment, (see ECF No.
29), it appears to the court that the motion addresses the action primarily as it relates to the
Second Set of Defendants (see, for example, ECF No. 29-1 at 8).
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No. 63). The magistrate judge found that the record indicated at the time Plaintiff was being
returned to his cell, Plaintiff’s cellmate appeared to be asleep. Id. at 2. The Second Report
explained that as Defendant West opened Plaintiff’s cell, Plaintiff’s cellmate suddenly threw off
his blanket and rushed to attack Plaintiff. Id. The Second Report detailed that in response to
Plaintiff’s cellmate’s attack, Defendant Dillman secured Plaintiff while Defendant West and
Officer Thompson chased and struggled with Plaintiff’s cellmate. Id. at 2–3. The magistrate
judge reported that in the course of attempting to secure Plaintiff’s cellmate, Officer Thompson
lost his balance and was dragged down stairs. Id. The Second Report informed that Defendant
West and Officer Thompson eventually restrained Plaintiff’s cellmate through the use of force.
Id. at 3.
The Second Report concluded that the record did not support a failure to protect claim
under § 1983. Id. at 5. The magistrate judge explained that to establish a failure to protect
claim, Plaintiff must show (1) that there was a serious or significant physical or emotional injury
and (2) that the Second Set of Defendants was deliberately indifferent to Plaintiff’s safety. Id. at
4 (citing Bacchus v. Scarborough, 466 F. App’x 269, 271 (4th Cir. 2012)). The magistrate judge
further explained that to establish deliberate indifference, Plaintiff must show that the Second Set
of Defendants knowingly disregarded an objectively serious risk of harm. Id. The Second
Report pointed out that a showing of mere negligence would be insufficient. Id. The magistrate
judge found that Plaintiff did not allege his cellmate had posed a serious safety risk nor did
Plaintiff claim that he warned the officers of any threat. Id. at 5. The magistrate judge found
that the record revealed the Second Set of Defendants placed themselves in between Plaintiff and
his cellmate during the attack. Id. For that reason, the Report concluded that Plaintiff’s claim of
a failure to protect fails as a matter of law. Id.

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The Second Report further found that the Second Set of Defendants was shielded from
liability in their official capacities by Eleventh Amendment immunity and was generally shielded
by qualified immunity. Id. at 6-7. The magistrate judge recommended that the court decline
supplemental jurisdiction over any claims Plaintiff may be stating under state law due to the
Second Report’s recommended dismissal of Plaintiff’s federal claims. Id. at 7 (citing 28 U.S.C.
§ 1367(c)(3)).
On November 7, 2013, Plaintiff filed Objections to the Second Report (“Second
Objections”). (ECF No. 65). In his Second Objections, Plaintiff contends that the Second Set of
Defendants was aware that Plaintiff’s cellmate was an assaultive inmate who had attacked
several prisoners in the past.

Id. at 2.

As such, Plaintiff argues that the Second Set of

Defendants knew that unlocking Plaintiff’s door would result in serious harm. Id. at 2–3.
Plaintiff also requests, in the event the court grants summary judgment, that he be allowed to
move under Local Civil Rules 83.01.IV.01 and 83.IV.02 to send this action to state court. Id. at
4.
STANDARD OF REVIEW
The magistrate judge’s Report and Recommendation is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The magistrate
judge makes only a recommendation to this court. The recommendation has no presumptive
weight. The responsibility to make a final determination remains with this court. See Mathews
v. Weber, 423 U.S. 261, 270-71 (1976).

The court is charged with making a de novo

determination of those portions of the Report and Recommendation to which specific objections
are made, and the court may accept, reject, or modify, in whole or in part, the magistrate judge’s
recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1). Failure to

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file specific objections constitutes a waiver of a party’s right to further judicial review, including
appellate review, if the recommendation is accepted by the district judge. See United States v.
Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the
magistrate judge’s Report, this court is not required to give any explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
DISCUSSION
As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments
that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
The First Report’s Recommendation to Summarily Dismiss the First Set of Defendants
In his First Objections, Plaintiff states that he seeks to hold Defendants Jack Brown, C.
Brown, and Dean liable (as supervisors of the Second Set of Defendants) for not properly
training the Second Set of Defendants and for allowing two prisoners to be housed in the same
cell. The court finds that while Plaintiff’s objections more clearly set out his allegations against
Defendants Jack Brown, C. Brown, and Dean, Plaintiff still does not state a claim. In order to
state a failure to protect claim against these prison supervisors, Plaintiff must show that
Defendants Jack Brown, C. Brown, and Dean were aware of a pervasive and unreasonable risk of
harm and that they acted obdurately or wantonly with respect to those conditions. Moore v.
Winebrenner, 927 F.2d 1312, 1315–1316 (4th Cir. 1991). The court finds that Plaintiff has not
alleged facts to support a showing of a pervasive risk. Moreover, at best, Plaintiff asserts that
Defendants Jack Brown, C. Brown, and Dean acted negligently with regard to his safety. As

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such, Plaintiff’s claim against these defendants fails as a matter of law. Id. at 1316 (holding that
negligent conduct does not amount to the constitutional violation of a failure to protect).
Plaintiff also states for the first time in his First Objections that Defendants Reames,
Poole, Washington, Oberman, and Padula have failed to protect him by not issuing a separation
or caution notice following Plaintiff’s assault. This allegation without more is insufficient to
state a claim against these defendants. Plaintiff has not stated that he has been seriously harmed
due to the absence of a separation or caution notice. See Bacchus, 466 F. App’x at 271
(explaining that for a failure to protect claim a prisoner must show serious physical or emotional
injury). Moreover, Plaintiff has not alleged facts from which the court could reasonably infer
that Defendants Reames, Poole, Washington, Oberman, and Padula have been deliberately
indifferent to Plaintiff’s safety. See id. (discussing that the second element for a failure to protect
claim is a showing of deliberate indifference).
Therefore, the court accepts the recommendation of the First Report and summarily
dismisses Plaintiff’s claims against the First Set of Defendants.
The Second Report’s Recommendation to Grant the Second Set of Defendants’ Motion for
Summary Judgment
In his Second Objections, Plaintiff contends his failure to protect claim should survive
summary judgment because the Second Set of Defendants was aware that Plaintiff’s cellmate
was an assaultive prisoner who had attacked several other prisoners in the past. For that reason,
Plaintiff further argues, the Second Set of Defendants should not have unlocked Plaintiff’s cell
door in a manner that allowed Plaintiff’s attack to occur. The court finds that at most Plaintiff
has made a showing of negligence on the part of the Second Set of Defendants, which is not
sufficient to state a failure to protect claim. Bacchus, 466 F. App’x at 271.

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While Plaintiff alleges that the Second Set of Defendants was aware of Plaintiff’s
cellmate’s past assaults and his generally violent nature, there is no evidence in the record from
which such conclusion may permissibly be drawn. To the contrary, the record indicates that
Plaintiff’s cellmate’s attack took the Second Set of Defendants by surprise, and that in their
efforts to gain control over the situation, they too suffered injuries.

The Second Set of

Defendants’ behavior throughout the course of the incident does not suggest that they knowingly
disregarded an objectively serious risk. See Bacchus, 466 F. App’x at 271 (affirming the district
court’s grant of summary judgment for a failure to protect claim where nothing in the record
indicated a prison official knew of a meaningful risk to the plaintiff’s safety and where the record
demonstrated the officers intervened by physically separating those involved in the conflict).
Thus, the court accepts the magistrate judge’s recommendation and grants summary
judgment to the Second Set of Defendants. The court declines supplemental jurisdiction over
any claim Plaintiff may have stated under state law in light of the dismissal of Plaintiff’s federal
claims. See 28 U.S.C. § 1367(c)(3). The court denies Plaintiff’s request to move pursuant to
Local Civil Rules 83.01.IV.01 and 83.IV.02 for a remand to state court because neither the local
rules nor 28 U.S.C. §§ 1446 or 1447 gives the court authority to send an action filed by a
plaintiff in federal court to state court. See Hinson v. Norwest Fin. S. Carolina, Inc., 239 F.3d
611, 617 (4th Cir. 2001) (“[A] case originally filed in federal court cannot be remanded to State
court[.]”) (citing Carnegie-Mellon University v. Cohill, 484 U.S. 343, 351 (1988)). Therefore, if
Plaintiff seeks to raise claims related to his assault under state law he must file an action in state
court.

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CONCLUSION
Based on the aforementioned reasons and after a thorough review of the Reports and the
record in this case, the court ACCEPTS the magistrate judge’s First and Second Reports (ECF
Nos. 10, 63). Plaintiff’s claim against the First Set of Defendants is thereby DISMISSED
without prejudice. The court GRANTS the Second Set of Defendants’ motion for summary
judgment, and Plaintiff’s claim against the Second Set of Defendants is DISMISSED with
prejudice.
IT IS SO ORDERED.

United States District Judge

February 14, 2014
Greenville, South Carolina

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