Wilson v. Davis et al

Filing 47

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting in part and denying in part 24 Motion for Summary Judgment. The motion is granted as to the claims against Defendant James, and she is d ismissed from this action. The motion is also granted as to Plaintiffs request for relief that Defendant Davis be terminated. The motion is denied as to Plaintiff's retaliation claim against Defendant Davis. Signed by Honorable Richard M Gergel on 12/10/2014.(cwhi, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

John Ervin Wilson, Jr.,

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)
Plaintiff,
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vs.
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Deputy Warden Willie Davis and Catherine )
James,
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Defendants.
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)

No.9: 13-cv-3495-RMG
ORDER

This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge (Dkt. No. 29), recommending that Defendants' Motion for Summary Judgment
(Dkt. No. 24) be granted in part and denied in part. For the reasons stated below, the Court
adopts the R & R as an order of this Court.
Back~roundl

In his verified Complaint, Plaintiff alleges that Defendant Davis, Deputy Warden of the
Lee Correctional Institution, placed Plaintiff in the "Super Max" unit in retaliation for engaging
in activity protected by the First Amendment. In particular, Plaintiff has produced evidence that
he filed grievances and was involved in litigation regarding prison conditions and helped or
advised other prisoners on litigation matters and filing grievances. Plaintiff also alleges that
Defendant James, the prison Grievance Coordinator, violated his First Amendment rights by

I The R & R contains a detailed section regarding the facts of the case and the evidence in
the record. (Dkt. No. 29). Because the Court adopts the R & R, it does not recite all of these
details here but provides a brief summary.

failing to file and process his grievances. Plaintiff seeks monetary damages and that both
Defendants be terminated.
The Magistrate Judge recommended granting summary judgment as to the claims against
Defendant James and as to Plaintiffs request that Defendant Davis be terminated. (Dkt. No. 29).
However, the Magistrate recommended that the Court deny summary judgment as to Plaintiffs
Section 1983 claim against Defendant Davis for monetary damages. Defendants filed a timely
objection to the R & R. (Dkt. No. 36). Plaintiff did not file any objections to the R & R, but did
reply to the Defendants' objections. (Dkt. No. 41).

LeKal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261,270-71 (1976). The Court may "accept, reject, or
modifY, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.C. § 636(b)(1). This Court is charged with making a de novo determination of those portions
ofthe R & R or specified proposed findings or recommendations to which objection is made.

Diamondv. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28 U.S.C.

§ 636(b)(I».
However, as to portions of the R & R to which no objection is made, this Court "must
'only satisfY itself that there is no clear error on the face of the record in order to accept the
recommendation.'" Id. (quoting Fed. R. Civ. P 72 advisory committee note). Moreover, in the
absence of specific objections, the Court need not give any explanation for adopting the

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Magistrate Judge's analysis and recommendation. See Camby v. Davis, 718 F.2d 198, 199-200
(4th Cir. 1983).

Discussion
A. Recommendations to which there were no objections.
Plaintiff does not object to the R & R's recommendation of granting summary judgment
as to the claims against Defendant James. After reviewing the record, the Court finds that the
Magistrate Judge applied the appropriate law to the operative facts and adopts the R & R as to
these claims. Similarly, the Plaintiff does not object to the Magistrate Judge's recommendation
that the Plaintiffs request that the Defendants be terminated is without merit and should be
dismissed. The Court agrees and dismisses this claim for relief.

B. Section 1983 Claim against Defendant Davis
To establish a retaliation claim, Plaintiff must show: "(1) his speech was protected; (2)
the defendants' alleged retaliatory action adversely affected his constitutionally protected speech;
and (3) a causal relationship exists between the his speech and the defendants' retaliatory action."

Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685-86 (4th Cir.2000). Defendant does not
object to the Magistrate Judge's finding that Plaintiffs involvement in litigation, filing
grievances and/or helping other inmates file grievances is protected activity. (See Dkt. No. 36).
Defendant objects that (1) Plaintiff has put forward no evidence of causality because the
declarations of other inmates are inadmissible hearsay and (2) Plaintiff has not put forward
evidence that his transfer to Super Max adversely affected his protected speech. (/d.). The Court
addresses each in turn.

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1. Declarations of Other Inmates
Plaintiff put forward affidavits by other inmates who testify that they heard prison guards
state Defendant Davis did not like Plaintiff's "paperwork" and litigation activity and heard
guards tell Plaintiff that Davis placed him in Super Max because of his continuous complaints
about the conditions of his confinement. Defendants did not file a reply brief or otherwise object
to this testimony before the Magistrate Judge; thus, the Magistrate Judge considered the
testimony. Defendant Davis now claims on objection to the R & R that this testimony is
inadmissible hearsay, which should not be considered. (Dkt. No. 36 at 1-3). Defendant admits
that Davis's statements themselves are not hearsay but contend that it is hearsay when the prison
guards relate Davis' statements. Despite the argument not being raised before the Magistrate, the
Court must consider the argument here. See United States v. George, 971 F.2d 1113, 1118 (4th
Cir. 1992) (When a proper objection is made to a particular issue, "a district court is required to
consider all arguments directed to that issue, regardless of whether they were raised before the
magistrate.").
First, the statements are not necessarily hearsay. Rule 801 (d)(2)(D) provides that a
statement "made by a party's agent or employee on a matter within the scope of that relationship
and while it existed" is not hearsay. This rule is applicable when the defendant is an individual
as well as when the defendant is an entity. In particular, if an individual "has supervisory or
day-to-day directive authority over other employees, their statements should be admissible
against him." Christopher Mueller & Laird Kirkpatrick, Federal Evidence § 8:54 (4th ed. 2014);

see also Martha Graham Sch. and Dance Found., Inc. v. Martha Graham Ctr. o/Contemporary
Dance, Inc., 380 F.3d 624, 644 (2d. Cir. 2004) (list created by defendant's assistant admissible
under Rule 801 (d)(2)(D) against individual defendant); United States v. Agne, 214 F.3d 47,54­
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55 (1st. Cir. 2000) ("[J]fthe factors which normally make up an agency relationship are present,
the evidence should not be excluded simply because the statement is offered against a corporate
officer, rather than the corporation."); Lippay v. Christos, 996 F.2d 1490, 1498 (3d. Cir. 1993)
("[A]n agency relationship is established only where the party-opponent personally directed the
declarant's work on a continuing basis.") (internal quotations omitted); United States v. Paxon,
861 F.3d 730, 734 (D.C. Cir. 1988) (statements by vice president admissible under Rule
80 1(d)(2)(D) against president, personally).
The agency relationship is based on the notion that "the person against whom a statement
is offered has responsibility and authority actually to supervise or direct." Christopher Mueller &
Laird Kirkpatrick, Federal Evidence § 8:54 (4th ed. 2014). There are multiple ways to establish
such an agency, including "evidence that the declarant is directly responsible to the defendant,"
"that the declarant was hired by the defendant and worked on matters in which the defendant was
actively involved," or that defendant directed the declarant's work. Agne, 214 F.3d at 55. While
agency may be shown by a declarant that directly reports to defendant, a declarant may still be an
agent or employee if there are intermediate supervisors between the declarant and the defendant.

See United States v. Rioux, 97 F.3d 648, 660 (2d. Cir. 1996) (held that declarants were Sheriffs
agents even though Sheriff did not control the daily tasks of the declarants because the declarants
were ultimately "answerable and directly responsible to" Sheriff).
The exact relationship between the declarants and Defendant Davis is not clear on the
record before the Court. However, construing all inferences in favor of Plaintiff, it is likely the
prison guards at issue are the agents of Deputy Warden of the institution, making the statements
admissible under Rule 801(d)(2)(D). See Hoptowit v. Ray, 682 F.2d 1237, 1262 n.lO (9th Cir.
1982) (holding that, in a § 1983 action against individual officials in the state corrections system,
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Rule 80 1(d)(2)(D) applied to testimony of inmates concerning statements made by guards),

abrogated on other grounds by Sandin v. O'Connor, 515 U.S. 472 (1995). Thus, the Court
considers the declarations for the purposes of summary judgment?
Furthermore, these contested declarations are not the only evidence of retaliation
submitted by Plaintiff. Plaintiff has established a timeline of repeated grievances and complaints
leading up to the transfer to Super Max. Plaintiff has also submitted testimony that officers have
threatened to punish him for his actions. (Dkt. No. 1-2 at 1). This evidence along with the
inmate declarations create an issue of fact as to whether a causal relationship exists between
Plaintiff's protected activities and the transfer to Super Max.
B. Whether Retaliatory Action Adversely Affected Plaintiffs Protected Activities
Defendant also objects that Plaintiff has not offered evidence that he was unable to file
grievances or litigation when transferred to Super Max and that, therefore, he has not produced
evidence that the transfer "adversely affected his constitutionally protected activities." (Dkt. No.
36 at 4). However, whether a plaintiffs constitutionally protected activities were adversely
affected does not depend on ''the actual effect ofthe retaliatory conduct on a particular plaintiff."

Constantine v. Rectors and Visitors o/George Mason Un., 411 F.3d 474,500 (4th Cir. 2005).
The Fourth Circuit has rejected such a subjective standard because it "would expose public
officials to liability in some cases, but not in others, for the very same conduct, depending upon
the plaintiffs will to fight." Id.

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The Court agrees with Defendant that some of the statements made in these declarations

are pure speculation and that the declarants lack personal knowledge for these statements. (See,
e.g., Dkt. No. 1-2 at 1 ("It is my firm belief that John Wilson is be [sic] punished for teaching
inmates they're rights.")). The Court does not consider such statements in ruling on Defendant's
motion.
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Instead, the Fourth Circuit employs an objective test: "for purposes of a First Amendment
retaliation claim under § 1983, a plaintiff suffers adverse action if the defendant's allegedly
retaliatory conduct would likely deter 'a person of ordinary firmness' from the exercise of First
Amendment rights." Id.; see also McFadden v. Lewis, 517 F. App'x 149, 150 (4th Cir. 2013)
("The prisoner need not succumb entirely or even partially to the threat; it is sufficient that the
retaliation was intended to limit the prisoner's right of access to the court and was reasonably
calculated to have that effect.") (internal quotes omitted). Placement in Super Max would have
a chilling effect on an inmate's exercise of his First Amendment rights. See Smith v. Berlin, No.
3: 12-cv-7358, 2014 WL 4929468 at *18 (S.D. Wa. Sept. 30, 2014) ("Undoubtedly, placement in
isolation would have a chilling effect on an inmate's exercise of his right to access the courts and
would cause more than de minimis inconvenience."). Therefore, the Court finds that Plaintiff
has created an issue of fact as to this element of retaliation.

Conclusion
For the reasons stated above, th Court adopts the R & R (Dkt. No. 29) as an order of this
Court. Accordingly, Defendant's Motion for Summary Judgment (Dkt. No. 24) is GRANTED
IN PART AND DENIED IN PART. The motion is granted as to the claims against Defendant
James, and she is dismissed from this action. The motion is also granted as to Plaintiffs request
for relief that Defendant Davis be terminated. The motion is denied as to Plaintiff's retaliation
claim against Defendant Davis.
AND IT IS SO ORDERED.

December I D, 2014
Charleston, South Carolina

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