Ferola v. Byars et al

Filing 106

ORDER adopting in part Report and Recommendations re 96 Report and Recommendation; granting in part and denying in part 76 Motion for Summary Judgment. IT IS FURTHER ORDERED that William P. Tinkler, Esquire,12 of Motley Ri ce in Charleston, South Carolina, who is experienced and knowledgeable in these matters, is APPOINTED as counsel to assist Plaintiff in the instant case. Further details set forth in Order. Signed by Honorable R Bryan Harwell on 3/3/2015.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Michael J. Ferola, #291941,

)
)
Plaintiff,
)
)
v.
)
)
William R. Byars, Jr.; Gregory
)
Knowlin; Kenneth Sharp; Jerry Adger, )
Officer Fulton; and Michael Bowers, )
)
Defendants.
)
)

Civil Action No.: 9:13-cv-2413-RBH

ORDER

Plaintiff Michael J. Ferola, #291941 (“Plaintiff”), a state prisoner proceeding pro se, filed
this action pursuant to 42 U.S.C. § 1983 against Defendants William R. Byars, Jr.; Gregory
Knowlin; Kenneth Sharp; Jerry Adger; Officer Fulton; and Michael Bowers (“Defendants”) on
September 6, 2013.1 See Compl., ECF No. 1. On June 6, 2014, Defendants filed a motion for
summary judgment.

See Defs.’ Mot., ECF No. 76.

After requesting and receiving several

extensions, Plaintiff responded to Defendants’ motion on August 4, 2014. See Pl.’s Resp., ECF No.
94.
The matter is now before the Court after the issuance of the Report and Recommendation
(“R & R”) of United States Magistrate Judge Bristow Marchant.2 See R & R, ECF No. 96. In the R
& R, the Magistrate Judge recommends the Court grant in part and deny in part Defendants’ motion
for summary judgment. See id. at 18. The Magistrate Judge recommends Defendants’ motion be
1

Willie Eagleton; Maria Leggins; Captain Rogers; Lt. Powell; Lt. Brayboy; Lt. Wheller; Cpl.
Miller; Cpl. Conyers; Major West; Associate Warden Sellers; Associate Warden McFadden; and
Mrs. Graves were also named as Defendants, but were previously dismissed by the Court. See
Order, ECF No. 57. Mrs. Brackenberry and Ann Hallman were also named as Defendants, but were
voluntarily dismissed by Plaintiff. See Stipulation of Dismissal, ECF No. 47.
2
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate Judge for pretrial handling.

granted in toto as to Defendants Byars, Adger, and Bowers. See id. The Magistrate Judge further
recommends that Defendant Fulton be granted summary judgment as to Plaintiff’s denial of access
to courts claim and Defendants Knowlin and Sharp be granted summary judgment as to Plaintiff’s
conditions of confinement claim.

See id.

The Magistrate Judge recommends, however, that

summary judgment be denied for Plaintiff’s denial of access to courts claim as to Defendants
Knowlin and Sharp and Plaintiff’s conditions of confinement claim as to Defendant Fulton. See id.
Finally, the Magistrate Judge recommends that Plaintiff’s claim for injunctive relief be dismissed.
See id. at 19.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
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 R & R to which specific objection is made, and the Court
may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a
party makes only “general and conclusory objections that do not direct the [C]ourt to a specific
error in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the absence
of objections to the R & R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “‘satisfy itself that there is no clear error on the face of the record in

2

order to accept the recommendation.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
SUMMARY JUDGMENT STANDARD
Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). The moving party has the burden of proving that summary judgment is
appropriate. Once the moving party makes the showing, however, the opposing party must respond
to the motion with “specific facts showing there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
When no genuine issue of any material fact exists, summary judgment is appropriate.
Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from
the evidence must be viewed in the light most favorable to the non-moving party. Id. However,
“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.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)).
The moving party “bears the initial burden of pointing to the absence of a genuine issue of
material fact.” Temkin v. Frederick Cnty. Comm’rs, 845 F.2d 716, 718 (4th Cir. 1991) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If the moving party carries this burden, “the
burden then shifts to the non-moving party to come forward with fact sufficient to create a triable
issue of fact.” Id. at 718–19 (citing Anderson, 477 U.S. at 247–48). Moreover, “once the moving
party has met its burden, the nonmoving party must come forward with some evidence beyond the
mere allegations contained in the pleadings to show there is a genuine issue for trial.” Baber v.
Hosp. Corp. of Am., 977 F.2d 872, 874–75 (4th Cir. 1992). The nonmoving party may not rely on

3

beliefs, conjecture, speculation, of conclusory allegations to defeat a motion for summary judgment.
See id.; Doyle v. Sentry, Inc., 877 F. Supp. 1002, 1005 (E.D. Va. 1995). Rather, the nonmoving
party is required to submit evidence of specific facts by way of affidavits, depositions,
interrogatories, or admissions to demonstrate the existence of a genuine and material factual issue
for trial. See Fed. R. Civ. P. 56(c), (e); Baber, 977 F.2d at 875 (citing Celotex, 477 U.S. at 324)).
The nonmovant’s proof must meet “the substantive evidentiary standard of proof that would apply
at a trial on the merits.” Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993); DeLeon
v. St. Joseph Hosp., Inc., 871 F.2d 1229, 1223 n.7 (4th Cir. 1989).
FACTUAL BACKGROUND
The facts of this case, including citations to the record, were completely and accurately set
forth in the R & R. See ECF No. 96 at 2–9. Briefly stated, there are two remaining causes of action
pending against the Defendants: (1) denial of access to the courts and (2) conditions of
confinement/failure to protect. With regard to the first claim, Plaintiff asserts that “prison officials”
refused to allow him to send legal documents to three inmates he was attempting to serve with an
assault claim he had filed in state court. See Compl., ECF No. 1 at 4–8. Moreover, he asserts he
sent various mailings to the mailroom that the mailroom either failed to deliver or tampered with,
resulting in him missing court deadlines. See id. Plaintiff’s second claim alleges that he got into a
verbal altercation with another inmate, Joseph Cannon (“Cannon”), after he submitted information
to the Associate Warden about Cannon. See id. at 9. He alleges that Cannon threatened him in the
presence of Defendant Fulton, but no corrective action was taken. See id. Plaintiff alleges that he
was assaulted by Cannon soon after. See id. He asserts that he called to Defendant Fulton for help
while he was being assaulted, but she did nothing. See id. He was taken to medical and examined
by Dr. Paul Drago, who referred him to an outside hospital for facial contusions and “head injury

4

with concussion.” See id. at 10. Plaintiff seeks monetary damages as well as unspecified injunctive
relief for the alleged violations of his constitutional rights. See id. at 21.
DISCUSSION
I.

R & R and Objections
In the R & R, the Magistrate Judge first recommends the Court dismiss Defendant Byars in

his individual capacity. See ECF No. 96 at 10–11. The Magistrate Judge noted that Plaintiff has
failed to present sufficient evidence to create a genuine issue of fact as to whether this Defendant
violated his constitutional rights. See id. at 10. The Magistrate Judge then recommends the Court
find that summary judgment should be denied on Plaintiff’s denial of access to Courts claim as to
Defendants Knowlin and Sharp. See id. at 13. However, the Magistrate Judge recommends
summary judgment be granted on this claim as to Defendants Adger, Fulton, Bowers, and Byars (in
his official capacity), as Plaintiff provided no allegations or evidence connecting them to this claim.
See id. at 13–14. Finally, the Magistrate Judge recommends the Court find that Plaintiff provided
sufficient evidence to survive summary judgment on his conditions of confinement claim, but only
as to Defendant Fulton. See id. at 14–18. Accordingly, the Magistrate Judge recommends that
summary judgment be granted in Defendants’ Sharp, Knowlin, Adger, Bowers, and Byars’ (in his
official capacity) favor on this claim. See id. at 17–18. Finally, the Magistrate Judge recommends
that Plaintiff’s claim for injunctive relief be dismissed. See id. at 19
Plaintiff timely filed objections to the R & R. In his objections, Plaintiff only takes issue
with the Court’s findings as to Defendant Byars. Plaintiff asserts Defendant Byars was aware of the
Defendants’ “illegal enforcement” of the mail policy, and thus had constructive knowledge that his
employees “were engaging in unconstitutional conduct.” See Pl.’s Objs., ECF No. 101 at 2.
Plaintiff argues that Defendant Byars’ “failure to act” resulted in him being unable to serve a

5

defendant in a state court action, Shawn Johnson, who has still not been served to this day. See id.
Plaintiff argues that there was a policy “of denying me access to inmates named as a defendant” and
that this was unconstitutional. See id. at 3. He asks the Court to review the filings and reinstate
William Byars as a Defendant. See id.
Defendants also timely filed objections to the R & R. Defendants first take issue with the
Magistrate Judge’s findings regarding the access to courts claim. Defendants argue that Plaintiff
has failed to allege any personal involvement of Defendants Sharp and Knowlin in denying him
access to the courts. See Def.’s Objs., ECF No. 102 at 1. Defendants contend that Plaintiff has
provided no evidence of their involvement with outgoing mail from the institution, and that Warden
Knowlin should not be penalized for upholding a legitimate, reasonable policy on prisoner
communications in denying Plaintiff’s request for inmate Johnson’s mailing address. See ECF No.
102 at 2. Defendants note that Plaintiff petitioned the state court for an order directing the prison to
give him the addresses he needed, and was given a remedy. See id. at 3. Defendants argue that the
prison should not be penalized by following its security protocol and refusing this request prior to
direction from the Court. See id.
Defendants then argue that Plaintiff has failed to show that he, or anyone on his behalf,
asked Defendant Fulton for protection or informed her of a valid threat against him. See id.
Defendants argue that Plaintiff has not met his burden of showing that Defendant Fulton was
deliberately indifferent as he has not provided any evidence that Fulton was aware of a threat to
Plaintiff or that she was nearby when the assault occurred, yet failed to act. See id. at 3–5.
Defendants note that failure to perceive a risk does not give rise to a claim, and Plaintiff’s

6

speculation is not sufficient to create a disputed issue of material fact. See id. at 5. Finally,
Defendants note that Fulton is entitled to qualified immunity.3 See id.
Plaintiff timely filed a reply to Defendants’ objections. See Pl.’s Reply, ECF No. 103.
Plaintiff asserts that the Magistrate Judge did not err in recommending denial of summary judgment
in light of the affidavits he attached in support of his claims. See id. at 1. Plaintiff argues that there
are several questions of fact properly left to the jury. See id. at 1–2. Finally, Plaintiff asserts that
Defendant Fulton is not entitled to qualified immunity. See id. at 2.
III.

Analysis
The parties have not objected to several of the Magistrate Judge’s recommendations. First,

neither party has taken issue with the Magistrate Judge’s recommendation that Defendants Adger
and Bowers be granted summary judgment in toto and dismissed as party Defendants. Finding no
clear error, the Court adopts the Magistrate Judge’s analysis on this issue as its own and will grant
summary judgment in their favor. Moreover, no party has objected to the Magistrate Judge’s
recommendation that Defendant Fuller be granted summary judgment as to Plaintiff’s denial of
access to Court’s claim. Again, finding no clear error, the Court adopts the Magistrate Judge’s
analysis as its own and will grant summary judgment in Defendant Fuller’s favor as to Plaintiff’s
denial of access to courts claim.

Next, no party has objected to the Magistrate Judge’s

recommendation that Defendants Knowlin, Sharp, and Byars (in his official capacity) be granted
summary judgment as to Plaintiff’s conditions of confinement claim. Finding no clear error, the
Court also adopts this analysis of the Magistrate Judge’s as its own and will grant summary
judgment in these Defendants’ favor on the conditions of confinement claim. Finally, no party has
objected to the Magistrate Judge’s recommendation that Plaintiff’s claim for injunctive relief be

3

Defendants, however, do not provide any additional argument or analysis on qualified immunity.
7

dismissed as to all Defendants. Finding no clear error, the Court adopts this recommendation as
well and will dismiss Plaintiff’s claim for injunctive relief.
Accordingly, the only remaining claims for the Court to consider are as follows: (1)
Plaintiff’s denial of access to courts claim as to Defendants Byars, Knowlin and Sharp and (2)
Plaintiff’s conditions of confinement/failure to protect claim as to Defendant Fulton.4 The Court
will address these claims, and the parties’ arguments, in turn.
1. Defendant Byars
The Magistrate Judge first recommends that Defendant Byars be dismissed in his individual
capacity. As he notes, Plaintiff has not alleged that he was personally involved in, or played any
role in, the alleged constitutional deprivations set forth in the Complaint. See ECF No. 96 at 10.
Moreover, the doctrines of respondeat superior and vicarious liability are not applicable in § 1983
claims. See id. The Magistrate Judge also noted that the mail policy is supported by legitimate
penological interests, and thus, to the extent Byars would be deemed responsible for approval of the
policy, he is entitled to summary judgment as a party Defendant in his official capacity to the extent
Plaintiff seeks injunctive relief to prohibit the general implementation and enforcement of the
policy. See id. at 11–12 n.6. As the Magistrate Judge explained, however, this issue does not
appear to be before the Court. See id.
In stating a proper claim against a defendant in his or her individual capacity under § 1983,
the Court notes that a plaintiff must affirmatively show that the defendant “had personal knowledge

4

The remaining claims are against these defendants in their individual capacities. To the extent
Plaintiff sought to sue these employees of the South Carolina Department of Corrections in their
official capacity, they are entitled to Eleventh Amendment immunity from monetary damages. See
Green v. Williams, No. 4:13-1019-MGL, 2014 WL 6666638, at *1 (D.S.C. Nov. 24, 2014) (noting
the same). Plaintiff noted as much in his response in opposition to summary judgment, conceding
that these defendants are only being sued “individually and not as employees of the state.” See ECF
No. 94-1 at 7.
8

and involvement in the alleged deprivation” of plaintiff’s constitutional rights. Wright v. Collins,
766 F.2d 841, 850 (4th Cir. 1985) (citing Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)).
Moreover, a claim based upon the doctrine of respondeat superior does not give rise to a § 1983
claim. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691–94 (1978). “Because vicarious liability is
inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009).
Plaintiff argues in his objections Byars was in fact personally involved in denying him
access to the Courts, as he knew the mail policy was illegally enforced and he had “constructive
knowledge” that his employees were denying his constitutional rights. See ECF No. 101 at 1–2.
Prior to his objections, however, Plaintiff had not alleged any involvement by Byars at all.
Moreover, Plaintiff cites to no evidence supporting this generalized assertion in his objections.
Plaintiff has simply repeated the language from the R & R stating that “in order for Byars to be
liable in this case, Plaintiff must have evidence to show specific wrongdoing on the part of this
Defendant, such as that he had actual or constructive knowledge that his subordinates were
engaging in unconstitutional conduct.” See ECF No. 96 at 11 (citations omitted). Plaintiff has not
provided any such evidence. Accordingly, the Court agrees that Defendant Byars is entitled to
dismissal as a party Defendant in his individual capacity.
The Court also agrees with the Magistrate Judge that Defendant Byars is entitled to
summary judgment to the extent the denial of access to courts claim is asserted against him in his
official capacity. Plaintiff has not addressed the Magistrate Judge’s findings on this point, aside
from the generalized assertion that Defendant Byars should be reinstated as a Defendant. However,
to the extent this could be construed as a proper objection the Court finds it is without merit. Aside

9

from Eleventh Amendment immunity, as the Magistrate Judge noted, the prison policy prohibiting
inmates from having access to the locations of other inmates is supported by legitimate penological
interests. See ECF No. 96 at 11–12 n.6. Accordingly, Byars is entitled to summary judgment in his
official capacity to the extent Plaintiff seeks injunctive relief to prohibit the enforcement of this
policy. See id.
2. Denial of Access to Courts
The Magistrate Judge then turned to Plaintiff’s claim for denial of access to Courts. As the
Magistrate Judge noted, Plaintiff alleged in his verified complaint5 that he was unable to serve a
defendant in a state court case and that several filings in that case were not received by the court due
to “defendants” interfering with his mail. Plaintiff asserts that the state court dismissed the SCDC
as a defendant due to it never receiving his response to that defendant’s motion for summary
judgment. Finally, Plaintiff alleges that he filed a notice of appeal of this decision, but that neither
the court nor defense counsel ever received this document. He asked to be able to refile the notice
of appeal but the request was denied by the court. See ECF No. 1 at 4–8. The Magistrate Judge
noted that the only evidence provided by Defendants on this issue was Defendant Knowlin’s
affidavit testimony regarding the purpose of policy prohibiting inmate to inmate correspondence
and the provision of inmate addresses to other inmates. See Knowlin Aff., ECF No. 76-4 at ¶¶ 1, 3.
The Magistrate Judge acknowledged that Plaintiff did not specifically reference Defendants
Knowlin and Sharp in these allegations. However, the Magistrate Judge found that his other
allegations and evidence establish that Defendant Knowlin (Warden of the institution) was aware of
Plaintiff’s request to serve the inmates at issue, and Defendant Sharp (Major at the institution) was

5

The Fourth Circuit has found that verified complaints of pro se litigants are considered as
affidavits and may, standing alone, defeat summary judgment when the allegations contained
therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (1991).
10

legally responsible for overseeing the operation of the Turbeville Correctional Institution (“TCI”).
The Magistrate Judge determined that this was sufficient for the claim to survive as to those
Defendants.
Defendants objected to this finding, asserting that Plaintiff failed to allege sufficient
personal involvement by these Defendants. See ECF No. 102 at 1–2. Moreover, Defendants argue
that Plaintiff has not presented any evidence that the delays in the mail were caused by the facility
as opposed to the U.S. mail or Plaintiff’s own delay in timely mailing. See id. at 2. Finally,
Defendants argue that Warden Knowlin properly denied Plaintiff’s request for inmate addresses
initially, and that the addresses were properly provided once the state court ordered them to be
disclosed to Plaintiff. See id. Defendants note that Knowlin should not be penalized for upholding
this reasonable policy, and that Plaintiff has provided no evidence the policy was applied arbitrarily
to him. See id. at 2–3. Plaintiff did not respond to these objections in his reply.
The Court finds Defendants’ argument persuasive on this point. After a thorough review of
the complaint, the Court agrees that Plaintiff has failed to state a denial of access to courts claim
against Defendants Knowlin and Sharp. To state a proper claim against a defendant in his or her
individual capacity under § 1983, a plaintiff must affirmatively show that the defendant “had
personal knowledge and involvement in the alleged deprivation” of plaintiff's constitutional rights.
Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (citing Vinnedge v. Gibbs, 550 F.2d 926, 928
(4th Cir. 1977)). Moreover, a claim based upon the doctrine of respondeat superior does not give
rise to a § 1983 claim. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691–94 (1978). “Because
vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

11

The Court agrees with Defendants that Plaintiff has not met this burden. Plaintiff does not
mention either Defendant Knowlin or Defendant Sharp in relation to his denial of access to courts
claim. See ECF No. 1 at 5–8. Plaintiff does assert in the very beginning of his complaint that
Defendant Knowlin is the warden of TCI and is “responsible for the operation and welfare of said
prison.” See id. at 2. Moreover, he contends that Defendant Sharp is the major at TCI and that he is
“responsible to oversee the operation of said institution.” See id. However, at no point does
Plaintiff detail any specific involvement of these Defendants with regard to his denial of access to
courts claim.
Plaintiff first provides allegations regarding his attempts to obtain the addresses of other
prisoners for service of process. In detailing this claim, Plaintiff specifically alleges that his request
“was denied by David Tatarsky legal counsel and prison officials.”6 See id. at 5. Plaintiff also
generally alleges that he was not given access to his legal work or lawbooks, but does not identify
any of the individuals who purportedly denied him access. See id. Plaintiff claims that he asked
again later if he could have access to his law books and that his request was denied by Defendant
Eagleton7 and David Tatarsky, legal counsel. See id. at 6. Similarly, Plaintiff asserts that he sent
various mailings to the TCI mailroom that say and were not mailed out.

See id.

Plaintiff

specifically asserts that Defendant Baker and Defendant Outlaw8 were “not sending out my legal
mail.” See id. at 7. Moreover, he argues that Defendants Eagleton and Leggins9 were aware of his
complaints about the mail room and failed to take action to correct the problem. See id.

6

David Tatarsky is not a party to this lawsuit.
Defendant Willie Eagleton was previously dismissed by the Court.
8
Although Plaintiff refers to Baker and Outlaw as “Defendants,” they were not named as
Defendants to this suit.
9
Defendant Leggins was also previously dismissed by the Court.
7

12

Plaintiff’s complaint, however, fails to allege any specific individual or personal
involvement of either Defendant Knowlin or Defendant Sharp with regard to his denial of access to
courts claim (both the inmate address issue and the interference with mail issue).

The only

allegations are the generalized assertions that these Defendants were in charge of overseeing the
institution as a whole. However, Plaintiff makes no allegation that either of these Defendants “had
personal knowledge and involvement in the alleged deprivation” of his constitutional rights. Wright,
766 F.2d at 850 (citation omitted).
The Magistrate Judge notes that Plaintiff asserted that Defendant Knowlin “was aware of
Plaintiff’s request to serve the inmates at issue,” although this allegation does not appear to be
contained in the complaint.10 See ECF No. 96 at 13. Nevertheless, even if it were, it is insufficient
to survive summary judgment. Defendant Knowlin’s mere awareness of the request is not enough.
As previously noted, Plaintiff must show personal knowledge and involvement in the purported
denial of access to courts.11 In any event, to the extent Plaintiff alleges that Defendant Knowlin
prevented him from obtaining the inmate addresses, the Court notes that Knowlin was simply

10

The Magistrate Judge apparently reached this conclusion from Plaintiff’s statement in his
response in opposition to summary judgment that he “had written authorization from SCDC legal
counsel to correspond with these inmates and was denied access by the Defendant Knowlin.” See
ECF No. 94-1 at 1. Plaintiff does not provide any support for this statement, however, aside from
referring to a Step 1 grievance he attached to his response brief. This document makes no mention
of Knowlin and thus does not support his contention that Defendant Knowlin denied him access.
11
Moreover, although Defendants do not specifically argue in their objections that Defendant
Knowlin would be entitled to qualified immunity on this point, the Court notes that he likely would.
The right to obtain addresses of other inmates does not appear to be clearly established in reference
to an access to courts claim. See Saucier v. Katz, 533 U.S. 194, 232 (2001) (noting that Plaintiff
must allege facts sufficient to make out a violation of a constitutional right and show that the right
was clearly established at the time of Defendant’s alleged misconduct). Plaintiff himself notes that
legal counsel for SCDC initially informed him that he was not allowed to obtain the addresses of
other inmates. See ECF No. 1 at 5 (noting that Plaintiff requested a current address of an inmate
which was denied by David Tatarsky legal counsel”). Certainly to the extent he relied on the
determination of legal counsel in relation to the prison policy, he was not violating a clearly
established constitutional right.
13

following an existing policy of the institution, see Knowlin Aff., ECF No. 76-4 at ¶¶ 1–3, which
was reasonably related to legitimate penological interests, see Lovelace v. Lane, 472 F.3d 174, 199
(4th Cir. 2006) (quoting Turner, 482 U.S. 78, 84 (1987)). As Knowlin explained, the policy is
designed to curb violence, prevent gang activity within institutions, and prevent inciting unrest. See
ECF No. 76-4 at ¶¶ 2–3. Moreover, counsel for the SCDC appears to have been the party who
made the initial decision that Plaintiff not be allowed to obtain the addresses. See ECF No. 1 at 5
(noting that Plaintiff requested a current address of an inmate which was denied by David Tatarsky
legal counsel”).
The Court, therefore, disagrees with the Magistrate Judge’s analysis concerning Plaintiff’s
denial of access to courts claim as to Defendants Knowlin and Sharp. Accordingly, the Court
respectfully rejects that portion of the R & R and modifies it as reflected herein. The Court finds
that summary judgment should be granted in Defendants Knowlin and Sharp’s favor on this claim.
3. Conditions of Confinement
Finally, the Magistrate Judge found that Plaintiff’s conditions of confinement claim should
be allowed to go forward as to Defendant Fulton. As the Magistrate Judge explained, Plaintiff
alleged in his verified complaint that he got into a verbal altercation with Cannon and that Cannon,
in the presence of Fulton, threatened him and stated he was going to “beat [his] ass.” See ECF No.
1 at 9. Plaintiff also submitted affidavits from several fellow inmates who corroborate Plaintiff’s
version of events (i.e. that Cannon threated Plaintiff in front of Fulton and she took no corrective
action). See Wirtz Aff., ECF No. 94-2 at 4–5; Jones Aff., ECF No. 94-2 at 6. Plaintiff contends
that Cannon assaulted him in his cell and that Fulton was the officer on duty stationed “maybe (50)
feet away.” See ECF No. 1 at 9. Plaintiff asserts that he called for help while the assault took place,
but Fulton never got up to investigate. See id. Plaintiff alleges that Fulton was making a personal

14

phone call during the assault. See id. Fulton, on the other hand, provided an affidavit stating that
she was unaware of any threat to Plaintiff and that Plaintiff did not request protective custody. See
Fulton Aff., ECF No. 76-2 at ¶ 2. The Magistrate Judge found that the evidence presented by the
parties was sufficient to create a question of fact as to whether Fulton had knowledge of a threat to
Plaintiff and failed to act. See ECF No. 96 at 16.
Defendants objected, asserting that Plaintiff failed to present any evidence that Defendant
Fulton failed to protect him. See ECF No. 102 at 3. Defendants note that Plaintiff has not shown
that he asked Fulton for protection, and it is mere speculation that she should have heard the threat
or commotion. See id. Defendants reiterate that the affidavits provided by Plaintiff do not contend
that Fulton actually heard the threat, and no evidence details the noise level at the time or what
Fulton was doing at the time. See id. Defendants assert that Plaintiff has failed to meet his burden
of showing that Fulton knew of a threat to him, and it is speculation to assert that she was nearby
when the assault occurred. See id. at 4–5. Defendants note that if Fulton did not violate Plaintiff’s
constitutional rights, she is entitled to qualified immunity.
The Eighth Amendment imposes a duty on prison officials 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)) (internal quotation
marks omitted). To obtain relief under § 1983 on a claim for failure to protect from violence, an
inmate must show: (1) “serious or significant physical or emotional injury” resulting from that
failure, De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (quoting Strickler v. Waters, 989
F.2d 1375, 1379 (4th Cir. 1993)) (internal quotation marks omitted); and (2) that the prison officials
had a “sufficiently culpable state of mind,” which in this context is deliberate indifference, Farmer,
511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)) (internal quotation marks

15

omitted). A prison official “is deliberately indifferent to a substantial risk of harm to a [prisoner]
when that [official] ‘knows of and disregards’ the risk.” Parrish ex rel. Lee v. Cleveland, 372 F.3d
294, 302 (4th Cir. 2004) (quoting Farmer, 511 U.S. at 837).
It is not enough to prove that the official should have known of the risk; instead, “the official
must both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. “Whether a
prison official had the requisite knowledge of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from circumstantial evidence, . . . and a
factfinder may conclude that a prison official knew of a substantial risk from the very fact that the
risk was obvious.” Weatherholt v. Bradley, 316 Fed. App’x 300, 302 (4th Cir. 2009) (quoting
Farmer, 511 U.S. at 842) (internal quotation marks omitted). “While the obviousness of a risk is
not conclusive and a prison official may show that the obvious escaped him, . . . he would not
escape liability if the evidence showed that he merely refused to verify underlying facts that he
strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to
exist . . . .” Farmer, 511 U.S. at 843 n.8. A prison official also may not “escape liability for
deliberate indifference by showing that, while he was aware of an obvious, substantial risk to
inmate safety, he did not know that the complainant was especially likely to be assaulted by the
specific prisoner who eventually committed the assault.”

Id. at 843.

A plaintiff's failure to

personally notify prison officials of an alleged risk to his safety is not dispositive as to the issue of
whether prison officials knew of the risk. Id. at 848–49.
A showing of negligence on the part of prison officials, however, does not rise to the level of
deliberate indifference. Davidson v. Cannon, 474 U.S. 344, 347–48 (1986); Grayson v. Peed, 195
F.3d 692, 695 (4th Cir. 1999). As the Supreme Court explained, “an official’s failure to alleviate a

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significant risk that he should have perceived but did not, while no cause for commendation, cannot
under our cases be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838.
After a thorough review of the record, the Court finds that the Magistrate Judge properly
determined that Plaintiff has presented sufficient evidence to survive summary judgment on the
conditions of confinement claim as to Defendant Fulton. As the Magistrate Judge explained,
Plaintiff alleged in his verified complaint that Cannon’s threat was made right in front of Defendant
Fulton. Moreover, he provided affidavits of two other inmates who confirmed that the threat was
made in Fulton’s presence, but that she took no action. It is undisputed that Plaintiff was assaulted
by Cannon not long after Cannon made the alleged threat. Defendant, however, denies having
knowledge of any threat against Plaintiff. She also asserts that Plaintiff never requested protection.
The Court finds that this is a classic question of fact properly left to the finder of fact. Plaintiff’s
evidence, if believed by the fact finder, could show that Defendant Fulton knew of the risk of harm,
yet disregarded it. As the Magistrate Judge noted, the Court must consider the evidence in the light
most favorable to Plaintiff at this juncture. In light of the conflicting evidence presented, the Court
finds that summary judgment is inappropriate. The credibility of Plaintiff and the other witnesses,
the weighing of the evidence, and drawing of legitimate inferences from the facts are functions for
the trier of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
CONCLUSION
The Court has thoroughly reviewed the entire record. For the reasons stated above, the
Court adopts in part and rejects in part the Magistrate Judge’s R & R.
IT IS THEREFORE ORDERED that Defendants’ motion for summary judgment is
GRANTED IN PART AND DENIED IN PART. Defendants’ motion is GRANTED in toto as to
Defendants Byars, Adger, Bowers, Knowlin, and Sharp and they are DISMISSED as party

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Defendants. Summary judgment is also GRANTED in Defendant Fulton’s favor as to Plaintiff’s
denial of access to Court’s claim. Summary judgment, however, is DENIED with regard to
Plaintiff’s conditions of confinement/failure to protect claim as to Defendant Fulton.
As Defendants’ Motion for Summary Judgment has been denied in part, the case should
proceed to trial on the surviving claim. According to 28 U.S.C. § 1915(e)(1), “[t]he court may
request an attorney to represent [a pro se Plaintiff] unable to afford counsel.” Specifically, “[i]f it is
apparent to the district court that a pro se litigant has a colorable claim but lacks the capacity to
present it, the district court should appoint counsel to assist him.” Leeke v. Collins, 574 F.2d 1147,
1153 (4th Cir. 1978). Additionally, the Court may use its discretion to appoint counsel for an
indigent in a civil action. Smith v. Blackledge, 451 F.2d 1201 (4th Cir. 1971). The Court finds that
the appointment of counsel is justified to ensure that the Plaintiff, who has limited resources and has
had no legal training, receives a fundamentally fair trial.
Thus, IT IS FURTHER ORDERED that William P. Tinkler, Esquire,12 of Motley Rice in
Charleston, South Carolina, who is experienced and knowledgeable in these matters, is
APPOINTED as counsel to assist Plaintiff in the instant case. Mr. Tinkler is ordered to contact
Plaintiff, who the Court believes is currently incarcerated at the Ridgeland Correctional Institution,
within thirty days. The Clerk of Court is directed to send a copy of this order appointing counsel to
both Plaintiff and Mr. Tinkler. Mr. Tinkler shall have access to court filings on ECF and shall
consult with opposing counsel within a reasonable period of time regarding (1) the need for any
limited discovery by Mr. Tinkler, (2) the mediation of the case, and (3) the submission of a short
proposed consent scheduling order, which should include deadlines for limited discovery and

12

The Court contacted Mr. Tinkler prior to the entry of this order to confirm his willingness to serve
as a courtesy to the Court.
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mediation. The proposed consent scheduling order shall be submitted as soon as possible in order
for the case to be disposed of in the future.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
March 3, 2015

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