Opinion
C. A. 22-3174-RMG-PJG
11-20-2023
Christopher Chad Duncan, Plaintiff, v. Officer Cobb, Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Plaintiff Christopher Chad Duncan, a self-represented state pretrial detainee, filed this civil rights action pursuant to 42 U.S.C. § 1983. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendant's motion for summary judgment. (ECF No. 61.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Duncan of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendant's motion. (ECF No. 62.) Duncan filed a response in opposition to the motion (ECF No. 68), and the defendant filed a reply (ECF No. 71). Having reviewed the record presented and the applicable law, the court concludes that the defendant's motion should be granted.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. Duncan is an inmate in the Cherokee County Detention Center. On August 26, 2022, Duncan submitted a grievance alleging that on August 21, 2022, an unidentified officer asked him sexually explicit questions that implied that Duncan was gay. Duncan did not identify the officer, noting in the grievance that he was scared of retaliation. (Def.'s Mot. Summ. J. Ex. B, ECF No. 61-5 at 2.) In a follow-up grievance filed on September 9, 2022, Duncan identified Cherokee County Detention Center Officer Joshua Cobb as the officer who asked him sexually explicit questions. Duncan indicated that Cobb did this in front of other inmates. Duncan also indicated that Cobb stood next to him while Duncan tried to file a PREAcomplaint about it, which made Duncan feel threatened.
Prison Rape Elimination Act, 34 U.S.C. §§ 30301 et seq.
Duncan brings this action pursuant to 42 U.S.C. § 1983 seeking damages for deliberate indifference to a risk of violence in violation of the Fourteenth Amendment. In his Complaint, which is not verified, Duncan alleges that Cobb's questions resulted in Duncan's receiving taunts based on sex because he was “disturbed and belittled” in front of his peers. (Compl., ECF No. 1 at 5.) Duncan alleged that he is now sexually harassed daily by other inmates and he is now at risk of sexual assault.
In light of Duncan's pro se status, the court construed the complaint as asserting a claim for deliberate indifference to a risk of violence. (ECF No. 12.) The parties were provided the opportunity to object to the court's construction but neither party objected. (ECF No. 24.)
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), 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 federal claim, nor can the court 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).
B. Cobb's Motion for Summary Judgment
Cobb argues that Duncan fails to put forth evidence from which a reasonable jury could conclude that Cobb was deliberately indifferent to a risk of violence to Duncan. The court agrees.
A legal action under 42 U.S.C. § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). To state a claim under § 1983, a plaintiff must allege: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Here, Duncan's sole claim is that Cobb was deliberately indifferent to a risk of violence against Duncan.
Claims of pretrial detainees against detention center officials regarding conditions of confinement are evaluated under the Due Process Clause of the Fourteenth Amendment rather than under the Eighth Amendment's proscription against cruel and unusual punishment. See Bell v. Wolfish, 441 U.S. 520, 535 & n.16 (1979); Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). “The due process rights of a pretrial detainee are at least as great as the eighth amendment protections available to the convicted prisoner; while the convicted prisoner is entitled to protection only against punishment that is ‘cruel and unusual,' the pretrial detainee, who has yet to be adjudicated guilty of any crime, may not be subjected to any form of ‘punishment.' ” Martin, 849 F.2d at 870; see also Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992). Further, “the fact that [the] detention interferes with the detainee's understandable desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into ‘punishment.' ” Bell, 441 U.S. at 537.
The United States Court of Appeals for the Fourth Circuit has held that the standard for determining whether detention center officials have violated a pretrial detainee's right to due process is deliberate indifference. See Hill, 979 F.2d at 991. Although these claims are analyzed under the Fourteenth Amendment, case law interpreting the standard of “deliberate indifference” under the Eighth Amendment is instructive. See, e.g., Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001) (stating that whether the plaintiff is a pretrial detainee or a convicted prisoner, the “standard in either case is the same-that is, whether a government official has been ‘deliberately indifferent to any [of his] serious medical needs' ”) (quoting Belcher v. Oliver, 898 F.2d 32, 34 (4th Cir. 1990)).
Generally, to establish a claim based on alleged deliberate indifference, an inmate must establish two requirements: (1) objectively, the deprivation suffered or injury inflicted was “sufficiently serious,” and (2) subjectively, the prison officials acted with a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994); Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996); see also Anderson v. Kingsley, 877 F.3d 539, 545 (4th Cir. 2017) (“Farmer defines deliberate indifference as the intentional taking of a risk that the defendant knows might cause harm while lacking any intent to cause such harm.”). “What must be established with regard to each component ‘varies according to the nature of the alleged constitutional violation.' ” Williams, 77 F.3d at 761 (quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992)).
The court observes the United States Supreme Court has held that for a pretrial detainee to establish an excessive force claim under the Fourteenth Amendment, he need not show that the officer was subjectively aware that the use of force was excessive; rather, he need only show that the force purposely, knowingly, or recklessly used against him was objectively unreasonable. Kingsley v. Hendrickson, 576 U.S. 389 (2015). However, Kingsley did not address whether this standard applies to other claims by pretrial detainees pursuant to the Fourteenth Amendment, and, to date, the United States Court of Appeals for the Fourth Circuit has not considered this issue. See Mays v. Sprinkle, 992 F.3d 295, 302 n.4 (4th Cir. 2021) (noting that the Fourth Circuit has yet to address whether Kingsley applies to other deliberate indifference claims by pretrial detainees and collecting other circuit court of appeals cases that are split on the issue). The parties do not address this issue, and their arguments assume that a deliberate indifference claim includes a subjective element.
Prison and jail inmates have a constitutional right to be free from a risk of violence, including sexual assault. See Farmer v. Brennan, 511 U.S. at 833 (“[Gratuitously allowing the beating or rape of one prisoner by another serves no legitimate penological objective .... Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.”) (internal quotation marks and citations omitted); see also Makdessi v. Fields, 789 F.3d 126, 132-34 (4th Cir. 2015) (applying Famer to a prisoner's claim of deliberate indifference to sexual abuse). For such claims, the Fourth Circuit has stated that an inmate must show that he was subjected to a substantial risk of serious harm and that the defendants had actual knowledge of an excessive risk to the inmate's safety or that the risk was obvious. See Raynor v. Pugh, 817 F.3d 123, 128 (4th Cir. 2016) (“The defendant must ‘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.' ”) (quoting Farmer, 511 U.S. at 837); see also Makdessi, 789 F.3d at 132-34 (“A prison official's subjective actual knowledge can be proven through circumstantial evidence showing, for example, that the ‘substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known' about it.' ”) (quoting Farmer, 511 U.S. at 842).
The court here is concerned only with the risk of harm of sexual assault by other inmates created by Cobb's purported harassment of Duncan. That said, sexual harassment by a jail officer may be a cognizable § 1983 claim under the Fourteenth Amendment, though its limits are imprecise and unsettled. See, e.g., Wolfe v. Cooper, C. A. No. 8:08-CV-869-PMD-BHH, 2009 WL 2929438, at *3 (D.S.C. Sept. 2, 2009) (“A prison guard may violate the Eighth Amendment by sexually harassing or sexually assaulting an inmate. Sexual assault is ‘not a legitimate part of a prisoner's punishment, and the substantial physical and emotional harm suffered by a victim of such abuse are compensable injuries' under § 1983.”); but see Jackson v. Holley, 666 Fed.Appx. 242, 244 (4th Cir. 2016) (stating that the Eighth Amendment's protections “do not necessarily extend to mere verbal sexual harassment”). But as explained previously, the court here construed Duncan's Complaint as only claiming deliberate indifference to a risk of violence.
Here, Duncan fails to identify any evidence from which a reasonable jury could find that Cobb's purported comments created a risk that Duncan would be sexually assaulted by other inmates, much less that Cobb had actual knowledge that such a risk existed. Though Duncan alleges in his unverified Complaint that Cobb's comments caused him to be “sexually harassed on many occasions” and caused other inmates to “taunt [Cobb] sexually,” Duncan points to no admissible evidence to support those allegations. See Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (“A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.”) (internal quotations marks and alterations omitted). In other words, Duncan points to no evidence that a substantial risk of harm existed that was attributable to Cobb's comments.
The court notes that a dispute of fact exists as to whether Cobb even made comments about Duncan's sexuality. In support of his motion for summary judgment, Cobb filed an affidavit in which he swears that he never asked Duncan any questions concerning his sexuality, sexual preferences, or sexual activity. (Cobb Aff. ¶ 3, ECF No. 61-2 at 1.) Cobb also swears that he never observed Duncan being sexually harassed by other detainees, and Duncan never notified him that Duncan was being sexually harassed by other detainees. (Id. ¶ 4.) On the other hand, Duncan filed two grievances within a few days of the purported comments accusing Cobb of making the comments. Regardless, for the purpose of resolving this motion for summary judgment, the court assumes Cobb made the comments.
The only evidence Duncan submits in opposition to Cobb's motion for summary judgment does not support his claim that he was at risk of assault from other inmates because of Cobb's comments. In his response in opposition to Cobb's motion, Duncan includes an affidavit from another inmate-Joseph Upchurch-who swears that he assaulted Duncan on September 26, 2021. (Upchurch Aff., ECF No. 68-1 at 1.) But that assault occurred nearly one year before Cobb's comments, and regardless, Upchurch swears that he assaulted Duncan only because of Upchurch's personal problems. (Id.) Again, Duncan puts forth no evidence to support his claim that he was at risk of violence from other inmates because of Cobb's comments. Consequently, Cobb is entitled to judgment as a matter of law as to Duncan's sole claim against him.
RECOMMENDATION
Based on the foregoing, the court recommends that Cobb's motion for summary judgment be granted. (ECF No. 61.)
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead 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 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).