Hollabaugh v. Byers et al

Filing 76

ORDER adopting Report and Recommendations re 73 Report and Recommendation. It is, therefore, ORDERED that Defendants Motion for Summary Judgment (ECF No. 62) is DENIED with respect to the failure to protect claim and GRANTE D with respect to the retaliation claim. It is further ORDERD that Plaintiffs Motion for Summary Judgment (ECF No. 63) is DENIED. Plaintiffs failure to protect claim may proceed. Signed by Honorable Bruce Howe Hendricks on 5/16/2016.(cwhi, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
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Civil Action No.: 9:14-1324-BHH
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Plaintiff, )
)
)
vs.
ORDER AND OPINION
)
)
)
Leroy Cartledge, Warden; Scott
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Lewis, Associate Warden of
)
Operations; Officers John Doe and
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Officers Jane Doe,
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Defendants. )
______________________________ )
Donald L. Hollabaugh,

On April 11, 2014, Plaintiff filed this 42 U.S.C. § 1983 action alleging that
Defendants1 violated his Eighth and Fourteenth Amendment rights while Plaintiff was an
inmate at the McCormick Correctional Institution (“MCI”). In accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 D.S.C., this matter was referred to United States
Magistrate Bristow Marchant, for consideration of pretrial matters. The Magistrate Judge
prepared a thorough Report and Recommendation (“Report”) which recommends that
both Plaintiff’s and Defendants’ motions for summary judgment with respect to Plaintiff’s
failure to protect claim be denied. He further recommends that Defendant’s motion for
summary judgment with respect to Plaintiff’s retaliation claim be granted. (ECF No. 73.)
Defendants filed timely objections to the Report. (ECF No. 75.) For the reasons set forth
herein, the Court adopts the Report.

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Defendants William R. Byers, Robert E, Ward, Lieutenant Aiken, and Officer Harris were dismissed from
this action after a stipulation of dismissal with prejudice was entered with respect to these parties. (ECF
Nos. 66; 67.) Accordingly, the Court refers to Leroy Cartledge (“Cartledge”), Scott Lewis (“Lewis”), and
Officers John Doe and Officers Jane Doe as “Defendants”.

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BACKGROUND AND PROCEDURAL HISTORY
The Report sets forth in detail the relevant facts and standards of law, and the
Court incorporates them and summarizes below only in relevant part. Plaintiff filed this
matter on April 11, 2014, alleging violations of his constitutional rights. (ECF No. 1.)
Specifically, Plaintiff brings a § 1983 claim under the Eighth Amendment for “failure to
protect” and a § 1983 claim under the Fourteenth Amendment for violation of his right to
“substantive due process.” (Id. at 8, 10.) On December 16, 2015, Defendants moved for
summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF
No. 62.) Plaintiff moved for summary judgment on December 21, 2015. (ECF No. 63.)
After consideration of the responses filed in opposition to the motions for summary
judgment (ECF Nos. 68; 69) and Defendants’ reply (ECF No. 72), the Magistrate Judge
issued a Report recommending that the motions for summary judgment be denied with
respect to the failure to protect claim and Defendants’ motion for summary judgment be
granted with respect to the retaliation claim. (ECF No. 73.) The Court has reviewed the
objections to the Report, but finds them to be without merit. Therefore, it will enter
judgment accordingly.2
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The
recommendation has no presumptive weight. The responsibility for making a final
determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of any portions of the Report

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 As always, the Court says only what is necessary to address Defendants’ objections against the already
meaningful backdrop of a thorough Report of the Magistrate Judge, incorporated entirely by specific
reference, herein, to the degree not inconsistent. Exhaustive recitation of law and fact exists there. 

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and Recommendation to which a specific objection is made. The Court may accept,
reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge
or may recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. §
636(b)(1). The Court need not conduct a de novo review when a party makes only
“general and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate
Judge’s conclusions are reviewed only for clear error. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
DISCUSSION
Defendants have objected to the Magistrate Judge’s recommendation that (1)
genuine issues of material fact preclude granting summary judgment on Plaintiff’s failure
to protect claim and (2) Defendants Cartledge and Lewis are not entitled to qualified
immunity.
Respectfully, Defendants’ objections are largely restatements of arguments made
to, and rejected by, the Magistrate Judge. See Hendrix v. Colvin, 2013 WL 2407126, at
*4 (D.S.C. June 3, 2013); see also Jackson v. Astrue, 2011 WL 1883026 (W.D.N.C. May
17, 2011); Aldrich v. Bock, 327 F. Supp.2d 743, 747 (E.D. Mich. 2004). “Examining anew
arguments already assessed in the report of a magistrate judge would waste judicial
resources; parties must explain why the magistrate judge’s report is erroneous, rather
than simply rehashing their prior filings and stating the report’s assessment was wrong.”
Hendrix, 2013 WL 2407126, at *4. Absent proper objections, the district court must “‘only

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satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir.
2005) (quoting Fed. R. Civ. P. 72 Advisory Committee’s Note).
The Court has considered Defendants’ objections de novo and finds them
insufficient to reject the recommendations of the Magistrate Judge. In his thorough
twenty-two page Report, the Magistrate Judge engaged in a thoughtful and
comprehensive analysis of Plaintiff’s claims. Relevant to Defendants’ objections, the
Magistrate Judge first found that there was “a genuine issue of fact as to whether the
Defendants Cartledge and Lewis approved a policy that they knew subjected inmates to
greater risk of intimidation and assault, thereby allowing an environment of violence and
intimidation to occur and subjecting Plaintiff to an excessive risk to his health or safety.”
(ECF No. 73 at 16.) He therefore found summary judgment was improper on the failure
to protect claim. See Pruitt v. Moore, No. 3:02-0395-24, 2003 WL 23851094, at *9
(D.S.C. July 7, 2003) (“Deliberate or callous indifference on the part of prison officials to
a specific known risk of harm states an Eighth Amendment claim.”); see also Farmer v.
Brennan, 511 U.S. 825, 837 (1994) (to be found liable for deliberate indifference under
the Eighth Amendment, “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”).
To make this finding, the Magistrate Judge expressly relied on the following
evidence: (1) that “Cartledge and Lewis both knew of and allowed a system to be put in
place where inmate cells were unlocked during the course of the day with minimal

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supervision and oversight . . .”; (2) the testimony of other inmates showing “that the
implementation of the ‘no-lock’ system by the Defendants had created a very dangerous
atmosphere for inmates, and that both Defendants knew of the inmates fears and
complaints about how vulnerable the system had made them to attack, violence, and
extortion”; and (3) Plaintiff’s testimony that “he had personally complained to both
Cartledge and Lewis about this situation and the danger it posed to inmates such as
himself, but that neither Defendant took any corrective action.” (Id. at 16–17.)
Here, Defendants object to the Magistrate Judge’s analysis of the failure to protect
claim, arguing that he: (1) considered Lewis’s testimony “out of context”; (2) improperly
relied on Plaintiff’s exhibit showing the number of assaults and contraband violations at
MCI from 2005 forward; and (3) erred in considering the opinions of other inmates on
matters outside the scope of their personal knowledge. (ECF No. 75 at 3–6.) These
objections are without merit.
First, the Magistrate Judge’s account of the evidence in the record does not
indicate that he misconstrued Lewis’s deposition testimony. The Magistrate Judge
engaged in an exhaustive account of the evidence in the record prior to discussing
Plaintiff’s failure to protect claim. He noted that “while Lewis conceded that there is a
higher risk to employees and inmates when they are outside of a locked cell than when
they are inside of a locked cell, when asked if he had noticed any increase or decrease
in violent attacks within cells after [the administration implemented the new locking
system], Lewis testified that he did not recollect it being any more one way than the
other.” (ECF No. 73 at 8–9.)

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In arguing that the Magistrate Judge misconstrued Lewis’ deposition testimony,
Defendants point to the portion in which he was asked,
Q: “But you agree that there’s a higher risk to employees and inmates
when they are outside of a locked cell than when they’re inside of a locked
cell, right?
A: Okay. You can say that.
(ECF No. 75-1 at 3.)
Upon review, the Court does not find that the Magistrate Judge took Lewis’
testimony “out of context.” Further, there is no indication that the Magistrate Judge relied
on this testimony to find that a genuine issue of material fact exists as to the failure to
protect claim. Likewise, there is no indication that the Magistrate Judge relied on
Plaintiff’s exhibit regarding assaults and contraband violations at MCI to deny summary
judgment. Again, the Magistrate Judge noted this exhibit only during his account of the
evidence in the record. He merely acknowledged that “Plaintiff has [] submitted an exhibit
showing the number of assaults and contraband (weapons) violations at MCI for various
years dating back to 2005.” (ECF No. 73 at 11.)
Finally, contrary to Defendants’ assertion, the Magistrate Judge did not rely on
testimony from the other inmates that fell outside of their personal knowledge, thereby
requiring that the inmates be “qualified as experts.” (ECF No. 75 at 5.)  Under Fed. R.
Evid. 701, a witness who is not testifying as an expert may express opinions or
inferences that are (1) rationally based on the perceptions of the witness and (2) helpful
to a clear understanding of the witness’s testimony or the determination of a fact in issue.
The inmates’ testimony relied on by the Magistrate Judge fits within these parameters.

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As recounted by the Magistrate Judge, inmates Martin Bullock (“Bullock”), Carroll
Mace (“Mace”), Dean Mattox (“Mattox”), and Leon Woodford (“Woodford”) testified to
how they were impacted by the cell security system at MCI. For example, Bullock
testified that after the new deadbolt security system was implemented he had to nap with
“one eye open[]” because the cell doors were not locked and inmates could come in and
out of your cell at any time.3 (ECF No. 63-4 at 1.) He also generally testified about how
dangerous it was at MCI, with searches routinely turning up weapons that were seized
from inmates. (Id. at 2–3.) Mace testified that the atmosphere at MCI was a “gladiator
situation.” (ECF No. 63-11 at 1.) Mattox testified that he personally witnessed robberies,
thefts, and stabbings. (ECF No. 63-12 at 3–4.) Woodford testified that there was “a lot of
gang activity” at MCI and that the inmates “felt that [they] were at risk.” (ECF No. 63-16
at 1.)
In addition, inmate Jessie Edmond (“Edmond”) testified to his belief that Lewis
and Cartledge knew of the inmates’ fears and complaints about the new cell security
system. Specifically, Edmond testified that he heard other people complain to Cartledge
and Lewis about how the lock system was not working and that everyone was “scared
crapless.” (ECF No. 63-7 at 6.) He also testified that he had spoken with Cartledge about
gang activity and how gang members had access to people in their cells and were
threatening both Edmond and others with “knives and stuff.” (Id. at 9–11.)
Upon review, the Court finds there is no indication that the Magistrate Judge relied
on anything other than the inmates’ lay opinion testimony to find that such testimony

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The Magistrate Judge attributed this testimony to inmate Philip Brown. (ECF No. 73 at 11.) However, this
was a scrivener’s error, as inmate Bullock in fact made these statements. Defendants do not object to this
error and the Court finds it to be harmless.

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created a genuine issue of material fact on the failure to protect claim. Further,
Defendants’ assertion that the testimony of Mace and Woodford is irrelevant because
they were not housed at MCI when the attack on Plaintiff occurred, is without merit. (ECF
No. 75 at 5.) These inmates’ testimony as to the dangerous environment at MCI is
directly relevant to the issue of whether Lewis and Cartledge were aware of specific facts
from which an inference could be drawn that Plaintiff was subject to a substantial risk of
serious harm. See Farmer, 511 U.S. at 837.
After finding the existence of a genuine issue of material fact on the failure to
protect claim, the Magistrate Judge determined that Cartledge and Lewis were not
entitled to qualified immunity on this claim. (ECF No. 73 at 20.) Defendants’ objection
here fails to point to any specific error by the Magistrate Judge. Rather, Defendants
largely restate arguments made to, and rejected by, the Magistrate Judge. Defendants
object that Cartledge and Lewis are entitled to qualified immunity because “Plaintiff fails
to show that these Defendants violated any clearly established constitutional rights of
which a reasonable official in their position should have been aware.” (ECF No. 75 at 8.)
However, as correctly explained by the Magistrate Jude, “it was certainly clearly
established during the time period at issue that even supervisory personnel can be
subject to liability for having either direct knowledge of, or having created a policy or
practice exercised by their subordinates, sufficient to create a situation from which an
inference could be drawn that a substantial risk of harm existed and being deliberately or
callously indifferent to that substantial risk of serious harm.” (ECF No. 73 at 20.) The
Magistrate Judge further correctly found that “Plaintiff’s evidence is sufficient to create a

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genuine issue of fact as to whether such a situation existed in this case.” (Id. at 21.)
Accordingly, Cartledge and Lewis are not entitled to qualified immunity on the failure to
protect claim. Defendants’ objection fails to establish any error in the Magistrate Judge’s
findings here and is therefore overruled.
For the reasons stated above, the Court finds that the Report properly disposes of
the issues raised in the motions for summary judgment. Defendants’ objections are
therefore overruled. Whatever additional objections Defendants may mean, they are
simply renewals of arguments considered, and properly rejected, in the Report.
CONCLUSION
After careful consideration of the relevant motions, responses, and objections, the
Court adopts the Report and Recommendation. It is, therefore, ORDERED that
Defendants’ Motion for Summary Judgment (ECF No. 62) is DENIED with respect to the
failure to protect claim and GRANTED with respect to the retaliation claim. It is further
ORDERD that Plaintiff’s Motion for Summary Judgment (ECF No. 63) is DENIED.
Plaintiff’s failure to protect claim may proceed.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
Greenville, South Carolina
May 16, 2016

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