Dizzley v. Moss
| Decision Date | 05 June 2020 |
| Docket Number | C/A No. 8:18-cv-01692-SAL |
| Parties | Terron Gerhard Dizzley, Plaintiff, v. Lt. Moss, Lt. Lambert, Lt. Thomas, Lt. Yeldel, Officer Henderson, Capt. Terry, Nurse Brewer, Lt. Heflen, Officer Davis, Officer Harris, Sgt. Kelly, Ass. Warden Robertson, Officer Scales, Eddie Calaham, Lt. Wright, Officer McCurry, Major Marshall, Lt. Cook, Defendants. |
| Court | U.S. District Court — District of South Carolina |
This matter is before the court for review of the Report and Recommendation of United States Magistrate Judge Jacquelyn D. Austin, made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.) (the "Report").
Plaintiff Terron Gerhard Dizzley ("Plaintiff"), as a pro se state prisoner, filed this action pursuant to 42 U.S.C. § 1983, alleging various current and former employees of the South Carolina Department of Corrections ("SCDC") violated his constitutional rights by not separating him from his cellmate, by failing to properly intervene during a knife attack in October 2017, by failing to render proper medical treatment, and for using improper force against him in March 2018. Defendants1 filed a motion for summary judgment on April 2, 2019, Plaintiff filed his response onMay 31, 2019, and Defendants filed a reply. [ECF Nos. 90, 111, 115.] On September 30, 2019, the Magistrate Judge issued the Report, recommending that this court grant in part and deny in part Defendants' motion. [ECF No. 147.] More specifically, the Report recommends denying Defendants' motion as to Plaintiff's Eighth Amendment claim against Defendant Terry in his individual capacity as it relates to the October 2017 incident. Id.
Attached to the Report was the notice of right to file objections. Defendants filed objections on October 14, 2019, and Plaintiff filed objections on November 1, 2019. [ECF Nos. 149, 156.] Defendants replied to Plaintiff's objections November 7, 2019. [ECF No. 159.] Plaintiff filed additional attachments2 to his objections on November 8, 2019. [ECF No. 161.] The matter is ripe for consideration by this court.
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 this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of only those portions of the Report that have been specifically objected to,and the court may accept, reject, or modify the Report, in whole or in part. 28 U.S.C. § 636(b)(1). In the absence of objections, the court is not required to provide an explanation for adopting the Report and must "only 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, 315 (4th Cir. 2005) ().
"An objection is specific if it 'enables the district judge to focus attention on those issues—factual and legal—that are at the heart of the parties' dispute.'" Dunlap v. TM Trucking of the Carolinas, LLC, No. 0:15-cv-04009, 2017 WL 6345402, at *5 n.6 (D.S.C. Dec. 12, 2017) (citation omitted). A specific objection "requires more than a reassertion of arguments from the [pleading] or a mere citation to legal authorities." Sims v. Lewis, No. 6:17-cv-3344, 2019 WL 1365298, at *2 (D.S.C. Mar. 26, 2019). It must "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). Thus, "[i]n the absence of specific objections . . . this court is not required to give any explanation for adopting the recommendation." Field v. McMaster, 663 F. Supp. 2d 449, 451-52 (4th Cir. 2009).
The Report sets forth in detail the relevant facts and standards of law on this matter, and this court incorporates those facts and standards without a recitation. The objections of each party, however, are addressed in turn below.
Defendants object to the Report only to the extent it recommends denial of summary judgment on the Eighth Amendment claim against Defendant Terry in relation to the October 2017 incident. The Report concluded that Defendant Terry is not entitled to summary judgment because hisaffidavit fails to show an absence of a genuine dispute of material fact as to Plaintiff's claim. [ECF No. 147 at p.24.] This court agrees with the Report.
Plaintiff alleges that as he was attacked by his cellmate in October 2017, he screamed, "Open the door he's got a knife." [ECF No. 1-1 at p.3.] The door to his cell did not open, but Plaintiff claims Defendant Terry, along with several other officers arrived "carry[ing] guns[.]" Id. According to Plaintiff, Defendant Terry and the others "just stood outside [his] door" and "watched" for six or seven minutes while he continued to "scream[] for help." Id. Plaintiff claims he was able to apprehend his cellmate, but not before he was "covered in blood and [there was] blood all over the floor." Id. The officers, thereafter, opened the door. Id.
Defendant Terry's affidavit contradicts several of Plaintiff's unverified allegations, but not all of them. Defendant Terry states that he responded to a call for first responders in October 2017 and, to his "best recollection," the dorm officer was also there when he arrived. [ECF No. 90-7 at ¶ 2.] He does not "recall if other first responders arrived before or after [him]." Id. As he looked into the cell, he "did not observe any weapons," but he did observe the "inmates [] standing and grabbing or wrestling with each other." Id. "[A]t no time during or after this incident did [he] see any type of weapon." Id. Because he "did not observe any weapon and did not see the inmates strike each other, [he] waited until [he] had sufficient officers to open the cell door." Id.
What Defendant Terry's affidavit fails to dispute, however, is of utmost importance here. Specifically, he fails to dispute Plaintiff's contention that he was one of the heavily armed officers arriving on the scene or Plaintiff's contention that several other armed officers were present. He fails to dispute whether he heard Plaintiff continually screaming for help and stating that he was being attacked with a knife. Relatedly, he also does not deny waiting with several other officers for six or seven minutes before opening the cell door. And, finally, he fails to dispute whether hesaw Plaintiff or the cell covered in blood. As noted in the Report, this lack of testimony "leaves open the possibility that the incident occurred much as Plaintiff alleged." [ECF No. 147 at p.25.]
There are two parts to an Eighth Amendment claim for failure to protect. First, the plaintiff "must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury" or a substantial risk thereof. Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014) (internal quotations omitted). Second, the prison official must have a "sufficiently culpable state of mind, " meaning "deliberate indifference to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 834 (1994). This second part of the test is a subjective inquiry, but it may be proven by inference from circumstantial evidence. Id. at 842. In the end, the analysis comes down to "whether the [prison official] knows the plaintiff inmate faces a serious danger to his safety and they could avert the danger easily yet they fail to do so." Brown v. N.C. Dep't of Corrs., 612 F.3d 720, 723 (4th Cir. 2010). As recognized in the Report, Defendant Terry's affidavit leaves open a genuine dispute of material fact regarding whether Defendant Terry knew Plaintiff faced a substantial risk of serious harm. [ECF No. 147 at p.25.] A reasonable juror could conclude that Defendant Terry could have easily assisted Plaintiff by opening the cell door and, by merely standing and watching for six to seven minutes, Defendant Terry acted with deliberate indifference to the serious risk of harm Plaintiff faced. Id.
Defendants' objections to the Report do not change this result. While Walker v. Norris, 917 F.2d 1449 (6th Cir. 1990) involved, in some respects, more egregious facts3 than those presented here, the Report's reference to the decision is not erroneous. In Walker, there was evidence that the officers became aware of the existence of the knife during the incident. That same evidence does not exist here. However, in light of Plaintiff's contention that he was screaming and statinghe was being attacked by a knife, Defendant Terry must aver more than, "I did not see a knife." "Without a representation from [Defendant] Terry that he could see Rose's hands or that he had some other basis for knowing that what Plaintiff was screaming was untrue," this court cannot grant summary judgment in his favor.
Finally, the court agrees with the Report that it cannot grant summary judgment in favor of Defendant Terry on the basis of qualified immunity. Two of the cases cited by Defendants involved unarmed officers in situations in which intervention would place them in danger of physical harm. See Winfield v. Bass, 106 F.3d 525 (4th Cir. 1997) (); Arnold v. Jones, 891 F.2d 1370, 1372 (8th Cir. 1989) (). In this case, Defendant Terry's affidavit does not state that he was unarmed, nor does it affirmatively state that simply opening the door to alleviate the...
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