Green v. Capers et al

Filing 101

ORDER granting in part and denying in part 59 Motion for Summary Judgment; adopting in part and rejecting in part Report and Recommendations re 91 Report and Recommendation.; finding as moot 96 Motion for Extension of Time Signed by Honorable David C Norton on March 27, 2017.(rweh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
DEMETRIUS L. GREEN,

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Plaintiff,
vs.
MS. CAPERS, Jail Administrator;
MR. BROOKS, Jail Guard; and
MS. ELMORE, Jail Guard,
Defendants.

No. 8:16-cv-00126-DCN
ORDER

This matter is before the court on Magistrate Judge Jacquelyn D. Austin’s
Report and Recommendation (“R&R”) that this court grant defendants’ Ms. Capers
(“Capers”), Mr. Brooks (“Brooker”),1 and Ms. Elmore’s (“Elmore,” together with
Capers and Brooks, “defendants”) motion for summary judgment. Plaintiff
Demetrius L. Green (“Green”) 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.
I. BACKGROUND2
At all times relevant to the factual allegations underlying this action, Green
was housed at the Allendale County Detention Center (“ACDC”). Upon his arrival at

1

Defendant Brooks’s name is actually Brooker. The court follows the
magistrate judge’s practice of referring to the defendant’s actual name, rather than the
name identified in the caption of this case.
2
Except as otherwise noted, the following facts are drawn from the R&R’s
background section.
1

ACDC in 2013, Green alleges he was placed in “the lock down unit”3 because of the
seriousness of the charges against him—attempted murder and possession of a
firearm during a violent crime. Green contends that his placement in the lock down
unit was discriminatory because other detainees were placed in the regular jail
population, despite facing similar or worse charges.
On September 9, 2013, detainee Barry Grant (“Grant”) was placed in the lock
down unit. Green requested that he or Grant be moved because of the seriousness of
the charges against Grant. Green’s request received no response, and on September
14, 2013, he and Grant engaged in a fight. ECF No. 59-4. In response to this fight,
Capers ordered Green and Grant to be kept apart, but Capers did not move either
detainee out of the lock down unit.
On November 5, 2013, Brooker and Elmore failed to keep Grant and Green
separated; Green walked out of his cell, and Grant attacked him with a razor. Green
suffered serious injuries to his head and eye, and was rushed to the hospital for
treatment. Green’s injuries eventually required surgery, and his left eye is now
permanently damaged. Green alleges that defendants were deliberately indifferent
and reckless in failing to keep him safe from Grant, arguing that defendants knew that
Grant was not locked in his cell when they allowed Green to walk out of his own cell.
Green filed the instant action on January 13, 2016, alleging that Capers
discriminated against Green in violation of the Fourteenth Amendment by initially
assigning him to the lock down unit and later failing to move either him or Grant
3

The court understands that “lock down” is a status, not a section of the
facility. What Green refers to as the lock down unit is actually just the maximum
security section of the facility. However, the court adopts Green’s vernacular for ease
of reference.
2

from the lock down unit. ECF No. 1 at 5. Green also alleges that defendants violated
his Fourteenth Amendment rights, along with his Eighth Amendment right to be free
from cruel or unusual punishment, by allowing him to leave his cell while they knew
Grant was not secured. Id. Green seeks declaratory relief, as well as damages.
Defendants filed the instant motion for summary judgment on July 1, 2016.
ECF No. 59. The court issued a Roseboro Order on July 5, 2016. ECF No. 60.
Green filed a response to defendants’ motion on September 29, 2016, ECF No. 83,
and defendants filed a reply on October 11, 2016. ECF No. 85. Green then filed an
“Affidavit in Opposition” on October 24, 2016, which the magistrate judge construed
as a sur-reply. ECF No. 88. The magistrate judge issued her R&R on January 19,
2017, ECF No. 91, and Green filed his objections on March 13, 2017. ECF No. 97.
Green also filed a motion to postpone this court’s decision until he can provide the
court with certain additional discovery.4 ECF No. 96. At this point, the matter
became ripe for the court’s consideration. Nevertheless, defendants filed an untimely
reply to Green’s objections on March 27, 2017. ECF No. 99.
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

4

Because the discovery Green seeks would only impact one of the two claims
at issue in this case, and the court denies defendants’ motion for summary judgment
on this claim, the court sees no reason to wait on the requested discovery.
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determination. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). A party’s failure to
object may be treated as agreement with the conclusions of the magistrate judge. See
Thomas v. Arn, 474 U.S. 140, 150 (1985).
Green appears pro se in this case. 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.
III. DISCUSSION
The magistrate judge read Green’s complaint to allege two distinct claims
under 42 U.S.C. § 1983: (1) a discrimination claim, based on his placement in the

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lock down unit; and (2) a failure-to-protect claim, based on defendants’ deliberate
indifference in allowing Grant to attack Green on November 5, 2013.5 R&R at 8.
The magistrate judge first recommended that the court reject defendants’ contention
that Green failed to exhaust his administrative remedies with respect to these claims,
pointing out that defendants failed to provide an affidavit from a records custodian at
ACDC, or any other evidence, to support this argument. Id. at 9. The court agrees
with this recommendation, and adopts the magistrate judge’s analysis on the matter.6
The court next addresses the merits of Green’s claims.
A.

Discrimination Claim

Green claims that his assignment to the lock down unit was discriminatory
because other inmates facing similar charges were assigned to the medium security
unit. The magistrate judge determined that Green “fail[ed] to set forth any specific,
non-conclusory factual allegations which establish improper motive,” and “failed to
5

Green lists a variety of state law concepts in his complaint—“contributory
negligence, discrimination, . . . , breach of duty, and gross negligence.” Compl.
¶ 17(Q). Defendants argued that any state law claims must be dismissed because they
are barred by the South Carolina Tort Claims Act and because Green failed to identify
any specific duty owed to him. ECF No. 59-1 at 18–20. The magistrate judge found
that Green failed to plead any state law claims. R&R at 8 n.6. In his objections,
Green agrees that his claims are for “discrimination and failure to protect.” Pl.’s
Objections 9 n.12. Therefore, this issue appears to be resolved. To the extent Green
contends he has alleged any other claims, the court agrees with the magistrate judge’s
conclusion that Green has failed to plead such claims.
6
Green seeks both monetary and declaratory relief. The R&R did not
specifically discuss the application of the Eleventh Amendment to Green’s request for
declaratory relief, but the court finds that it nevertheless reached the correct result.
“While the Eleventh Amendment bars any award of damages on plaintiff's official
capacity claims, plaintiff may pursue injunctive and declaratory relief if he can
establish ‘a substantial likelihood of harm in the future.’” Christian v. Magill, No.
0:15-cv-03379-DCN, 2016 WL 4975020, at *7 (D.S.C. Sept. 19, 2016) (quoting
Haggwood v. Magill, No. 5:15-cv-3271, 2016 WL 4149986, at *4 (D.S.C. Aug. 3,
2016)). Here, there is no indication that Green will face any risk of future harm from
defendants, largely because Green is no longer being held at ACDC.
5

show that his security classification cannot be justified by a valid prison or security
interest.” Id. at 12. The court agrees.
“The Equal Protection Clause generally requires the government to treat
similarly situated people alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473
U.S. 432, 439 (1985). To show an equal protection violation in a prison setting, a
plaintiff must demonstrate that he was treated differently from similarly situated
inmates, that the discrimination was intentional or purposeful, and that the disparity
cannot be justified by any valid prison or security interest. See Morrison v.
Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).
Capers has provided an affidavit stating that she rejected Green’s request to
transfer out of the lock down unit because his initial assignment was justified by “the
seriousness of his charges, his prior history at ACDC, and [Capers’s] knowledge of
the population of the medium security section at the time.” ECF No. 59-3, Capers
Aff. ¶ 6. Specifically, Capers avers that she “knew there to be ‘bad blood’ between []
Green and several other inmates being housed in the medium security section.” Id.
The ACDC classification policy indicates that cell assignments will be based on
factors such as “age, criminal sophistication, seriousness of offense, assaultive/nonassaultive behavior and medical conditions.” ECF No. 59-2. Thus, even assuming
other similarly-charged inmates were assigned to the medium security area, Green’s
discrimination claim would likely fail because the ACDC classification policy allows
for other factors to be considered in the assignment process and Capers has stated that
she relied on such factors. Green protests that Capers has not provided evidence that
he had any “bad blood” with other inmates at ACDC, Pl.’s Objections 24, but a sworn

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affidavit, based on the affiant’s personal knowledge, constitutes evidence at the
summary judgment stage. Fed. R. Civ. P. 56. It is Green who has failed to provide
any evidence to dispute Capers’s explanation of his assignment.
Indeed, Green has failed to present sufficient evidence to support his central
factual assertion—that other, similarly-charged inmates were housed in the medium
security portion of the facility.7 Green relies on an unsigned “affidavit” from “Kattin
Taylor,” which avers that Taylor and five other inmates facing attempted murder
charges were housed in the “regular unit.” ECF No. 97-1 at 26. Of course, an
affidavit must be signed to be considered at the summary judgment stage. Bradley v.
S.C. Dep’t of Corr., No. 3:08-cv-2510, 2010 WL 883729, at *4 (D.S.C. Mar. 5, 2010)
(“Such a statement, lacking any indicia that the purported affiant swore or declared
the information to be true under penalty of perjury, is not properly considered by the
court on a motion for summary judgment.”), aff’d, 385 F. App’x 345 (4th Cir. 2010).
Green also offers the declaration of Marquis Breeland (“Breeland”), who states that
he was charged with “murder/murder and weapons/possession of a weapon during a

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Green’s allegations were offered in a verified complaint. “[A] verified
complaint is the equivalent of an opposing affidavit for summary judgment purposes,
when the allegations contained therein are based on personal knowledge.” Williams
v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). Thus, it is not exactly true that Green
failed to provide any evidence. However, the allegations in Green’s complaint are
insufficient to preclude summary judgment on the discrimination claim. For one
thing, Green simply alleges that other inmates in the medium security section had
similar or worse charges. Compl. ¶ 2(B). This allegation is too conclusory to create a
genuine issue of material fact. Smith v. Beck, 2011 WL 65962, at *7 (M.D.N.C. Jan.
10, 2011) (finding that plaintiff’s claim that he made several requests to get away
from abusive supervisor too “self-serving” and “conclusory” to preclude summary
judgment, noting there was no other evidence of the alleged requests) report and
recommendation adopted, 2012 WL 1340766 (M.D.N.C. Apr. 18, 2012) aff’d, 577 F.
App’x 196 (4th Cir. 2014).
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violent crime,”8 and that he, like Green, was initially assigned to the lock up unit at
ACDC. ECF No. 97-1 at 28. Thus, Breeland’s declaration indicates that Green’s
initial assignment was not discriminatory. Breeland does state that he was eventually
moved to the medium security section, which might suggest that Capers’s decision to
reject Green’s transfer request was discriminatory. But, as noted above, Capers’s
affidavit sufficiently explains her reasons for rejecting Green’s transfer request.
Therefore, the court adopts the magistrate judge’s recommendation and grants the
defendants summary judgment on Green’s intentional discrimination claim.
B.

Failure-to-Protect Claims

The magistrate judge then addressed Green’s failure-to-protect claims under
the Eighth and Fourteenth Amendments. R&R at 13–18. The magistrate judge
separately analyzed the failure-to-protect claim against Capers and the claims against
Brooker and Elmore. With respect to the claim against Capers, the magistrate judge
recommended the court grant summary judgment because Green failed to present any
evidence to support a theory of supervisory liability. 9 The court has reviewed the
R&R and Green’s objections, and concludes that the magistrate’s position is correct.
The court therefore adopts the R&R’s analysis of this issue as its own.
However, the court has some concerns about plaintiff’s failure-to-protect
claims against Brooker and Elmore. There does not appear to be any dispute about
the proper legal standard by which these claims should be judged. As the magistrate

8

It is not exactly clear what Breeland’s charges were, but the court accepts
that they were at least as serious as Green’s.
9
The magistrate judge’s focus on the supervisory liability issue implicitly
recognizes that there is no plausible argument, much less evidence, that Capers was
directly responsible for the November 5, 2013 fight between Green and Grant.
8

judge explained, “[a] failure-to-protect claim brought by a pretrial detainee
constitutes a due process claim under the Fourteenth Amendment, but the same
standards apply as for an Eighth Amendment claim brought by a convicted prisoner.”
Id. at 15 (quoting King-Fields v. Leggett, 2014 WL 694969, at *10 (D. Md. Feb. 19,
2014)). Under the Eighth Amendment, “prison officials have a duty . . . to protect
prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511
U.S. 825, 833 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556,
558 (1st Cir. 1988)). To establish a failure-to-protect claim, an inmate must first
show “that he was ‘incarcerated under conditions posing a substantial risk of serious
harm.’” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (quoting Farmer, 511
U.S. at 834). Next, the inmate must show that the defendant acted with “‘deliberate
indifference’ to inmate health or safety.” Id. (quoting Farmer, 511 U.S. at 834).
Deliberate indifference requires “‘more than mere negligence,’ but ‘less than acts or
omissions [done] for the very purpose of causing harm or with knowledge that harm
will result.’” Id. (alternation in original) (quoting Farmer, 511 U.S. at 835). To
establish deliberate indifference, “the evidence must show that the official in question
subjectively recognized a substantial risk of harm,” and subjectively recognized that
his actions were ‘inappropriate in light of that risk.’” Parrish ex rel. Lee v. Cleveland,
372 F.3d 294, 303 (4th Cir. 2004) (quoting Rich v. Bruce, 129 F.3d 336, 340 n. 2 (4th
Cir.1997)). Importantly, however, a prison official’s subjective knowledge can be
proven by circumstantial evidence, Makdessi, 789 F.3d at 133, and “a factfinder may
conclude that a prison official knew of a substantial risk from the very fact that a risk
was obvious.” Farmer, 511 U.S. at 842.

9

The court finds there are questions of fact regarding Brooker and Elmore’s
knowledge of the risk Green faced when they failed to secure Grant before allowing
Green to leave his cell. The parties do not dispute that Capers ordered Grant and
Green to be kept apart after their first fight on September 14, 2013. Capers Aff. ¶ 9.
Nor is there any suggestion that Brooker and Elmore did not know Green was about
to leave his cell—indeed, it appears that Elmore was the one who unlocked Green’s
cell from the control booth. ECF No. 97-1 at 18. Instead, the defendants’ argument
is that they did not realize that Grant’s cell was unlocked because he had secretly
placed an object into the bolt hole of his cell door—which prevented the door from
actually locking—while he simultaneously held the door shut—which engaged the
magnetic sensors in the doorjamb, causing the warning light to indicate that the door
was locked. Id. ¶¶ 11, 12.
However, the court cannot accept Capers’s account of the incident, primarily
because it is not clear how Capers has personal knowledge of these events when she
was not there. Rule 56(e) requires affidavits filed in support of a summary judgment
motion to be “made on personal knowledge.” Capers cannot claim personal
knowledge of an incident simply because she is in charge of ACDC, or because the
incident was reported to her. See Henslee v. FNU Singleton, 2015 WL 4920260, at
*4 (W.D.N.C. Aug. 18, 2015) (granting in part a motion to strike prison
administrator’s affidavit, reasoning that the administrator’s “statements as to what
happened are not admissible because [he] simply was not there when the alleged

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excessive force incident occurred”).10 Capers has otherwise failed to explain how she
acquired personal knowledge of the incident. Therefore, the court must disregard
Capers’s affidavit, to the extent it discusses the events surrounding Grant’s attack.
Defendants’ remaining evidence is insufficient to support summary judgment.
Brooker and Elmore did not offer any affidavits. However, their interrogatory
answers touch on certain aspects of the incident. For instance, Brooker states that he
was acting as backup to Officer Ricard Rollins (“Rollins”), who was performing
security checks on the lock down unit. ECF No. 97-1 at 22. Elmore also mentions
Rollins, stating that she relied on Rollins to tell her when Grant’s cell was secure. Id.
at 18. Elmore further states that she was in the control booth at the time of the
incident, where she monitored the security of cell doors on the monitors. Id. at 17.
This is roughly consistent with the account offered by plaintiff’s verified complaint,
which states that Brooker was checking the cell doors to see if they were locked and
Elmore was controlling the locks from the control room. Compl. ¶¶ 16(P), 17(Q).
Significantly, Brooker does not dispute Green’s claim that the security check required
the officers to push on the cell doors to make sure they were secure. ECF No. 97-1 at
22.
If Brooker was accompanying11 Rollins on a security check, a reasonable juror
could infer that Brooker would have realized that Grant’s door was not secured—

10

The same rationale applies to any discussion of the incident contained in
Capers’s interrogatory answers. Ambling Mgmt. Co. v. Univeristy View Partners,
LLC, 581 F. Supp. 2d 706, 720 (D. Md. 2008) (“For interrogatory answers to be
considered on summary judgment, they must satisfy the personal knowledge
requirement of Federal Rule of Civil Procedure 56(e).”).
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either because he would have seen the door move when it was pushed, or he would
have seen Grant holding the door closed. In fact, given that Capers’s account of the
incident must be disregarded, there is very little evidence to support defendants’
claim that the magnetic sensors on Grant’s door even engaged. Elmore does state that
“all the information provided to [her] at the time indicated that [Grant’s door] was
secured,” ECF No. 97-1 at 19, but this strikes the court as too conclusory an assertion
to rely on at the summary judgment stage. Compl. ¶ 15(O).
Ultimately, the court finds that defendants have failed to show that they are
entitled to summary judgment on the failure-to-protect claims against Brooker and
Elmore. The only thing that is clear is that Grant’s door was not locked. Capers’s
affidavit would have provided some valuable clarification of the remaining facts, if
she had any personal knowledge of the incident. Left with Green’s verified
complaint, and Elmore and Brooker’s somewhat evasive interrogatory responses, the
court believes that a reasonable jury could reach a wide-range of findings—including
that Elmore and Brooker knew that Grant was not secured in his cell. If Elmore and
Brooker knew Grant was not locked in his cell, they also very likely knew that they
should not let Green out of his cell based on Capers’s orders that the two be kept
apart due to their previous fight. Thus, the court concludes that there is a genuine
issue of fact as to whether Elmore and Brooker acted with deliberate indifference.12

11

To the extent acting as “backup” does not involve accompanying the officer
who is actually performing the checks, the court believes it was incumbent on
defendants to make that clear.
12
The magistrate judge also found that Elmore and Brooker were entitled to
qualified immunity. R&R at 18–20. Qualified immunity protects government
officials performing discretionary functions from civil damage suits as long as the
conduct in question does not “violate clearly established rights of which a reasonable
12

C.

Eleventh Amendment

The magistrate judge also recommended the court dismiss Green’s claims to
the extent they were brought against defendants in their official capacities. ECF No.
91 at 10. “The [E]leventh [A]mendment prohibits a federal court from entertaining
an action for any kind of relief where the defendant is a state or a state agency.”
Gulledge v. Smart, 691 F. Supp. 947, 954 (D.S.C. 1988), aff’d, 878 F.2d 379 (4th Cir.
1989). This rule extends to actions against state officials acting in their official
capacity. Id. However, defendants describe ACDC as a “county-operated facility.”
ECF No. 59-1 at 3 (emphasis added). Counties, unlike states, are not afforded
sovereign immunity. N. Ins. Co. of N.Y. v. Chatham Cty., Ga., 547 U.S. 189, 193
(2006) (“[T]his Court has repeatedly refused to extend sovereign immunity to
counties.”). The court notes that other “county” detention centers in South Carolina
have been held to be arms of the county sheriff’s office, and in turn, county sheriffs—
despite their title—have been found to be officers of the state. See Williams v.
Dorchester Cty. Det. Ctr., 987 F. Supp. 2d 690, 695 (D.S.C. 2013) (applying this
reasoning to find that director of Dorchester County Detention Center was immune
from suit in federal court in his official capacity). The court suspects that ACDC is

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Because the magistrate judge found no evidence that Elmore and Brooker violated
Green’s constitutional rights, she found it unnecessary to determine whether such
rights were clearly established. R&R at 20. Because the court finds a genuine issue
of fact as to whether Elmore and Brooker violated Green’s rights, it is necessary to
determine whether such rights were clearly established. The court has little trouble
finding that they were, as 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, 842 F.2d at 558).
Therefore, the court finds that Elmore and Brooker are not entitled to qualified
immunity.
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controlled by the Allendale County Sheriff’s Office, but the court cannot grant
summary judgment on a hunch. Therefore, the court finds there is a genuine issue of
fact as to whether the defendants can be sued in their official capacity.13
D.

Discovery Request

Green’s objections argue that the defendants’ description of the cell door’s
design is simply false. Green repeatedly claims that the magnetic sensors are not
located in the doorjamb, but in the locking mechanism itself—meaning that if the
door is prevented from locking, the magnetic sensors cannot touch and there is no
way the warning light would signal that the cell is secured. Pl.’s Objections 28.
Though Green’s description sounds like a much better design for a prison door, he
has failed to offer any evidence to support this argument. Green now requests an
opportunity to conduct more discovery on the issue, ECF No. 96,14 but the court’s
Roseboro order clearly explained that Green needed to present such evidence to the
magistrate judge. ECF No. 60. Thus, under normal circumstances, the court would
be disinclined to grant Green’s request.
Here, however, the court is convinced that this case could benefit from further
discovery. The court’s analysis was significantly hindered by its inability to consider
Capers’s description of the incident. If defendants were able to provide affidavits
from individuals who were actually involved in the incident, the result may well have

13

Of course, this finding only affects Elmore and Brooker because the
discrimination claim against Capers fails on the merits.
14
Green’s request was styled as a “motion for [an] extension of time” and
“second request for production of documents.” ECF No. 96. The court construes this
as a belated Rule 56(d) response.
14

been different.15 Further discovery might also give the defendants an opportunity to
confirm the court’s suspicion that ACDC is controlled by the Allendale County
Sheriff’s office. But if the court is going to allow defendants another bite at the
apple, Green is entitled to the same opportunity—especially on an issue as important
as the mechanics of the cell door.
Therefore, the court will deny defendants’ motion for summary judgment on
Green’s failure-to-protect claims against Elmore and Brooker. The court will remand
those claims to the magistrate judge, and the parties will be allowed to conduct
further discovery. When such discovery is complete, the parties will have another
opportunity to file dispositive motions.

15

This is by no means a guarantee. The court was also troubled by the
defendants’ inability or failure to describe exactly what Elmore and Brooker were
doing in the moments leading up to the incident and what information they had before
them at the time.
15

IV. CONCLUSION
For the foregoing reasons, the court ADOPTS the R&R in part and
REJECTS the R&R in part. The court GRANTS defendants’ motion for summary
judgment with respect to Green’s discrimination claims and the failure-to-protect
claim against Capers. The court DENIES defendants’ motion for summary judgment
with respect to Green’s failure-to-protect claims against Elmore and Brooker, and
REMANDS such claims to the magistrate judge, as set forth in greater detail above.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 27, 2017
Charleston, South Carolina

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