Ellerbe v. Thomas

Full title: Craig E. Ellerbe, Jr., Plaintiff, v. Lt. Jonathan Thomas, Lt. Kevin Borem…

Court: United States District Court, D. South Carolina

Date published: Mar 29, 2023

C/A 1:22-2598-JD-SVH (D.S.C. Mar. 29, 2023)

Opinion

C/A 1:22-2598-JD-SVH

03-29-2023

Craig E. Ellerbe, Jr., Plaintiff, v. Lt. Jonathan Thomas, Lt. Kevin Borem, Lt. Joseph Perks, Cpt. Daniel Harouff, A/W Susan Duffy, and Deputy Warden John Palmer, Defendants.

Shiva V. Hodges, United States Magistrate Judge

REPORT AND RECOMMENDATION

Shiva V. Hodges, United States Magistrate Judge

Craig E. Ellerbe, Jr. (“Plaintiff”) brings claims against various employees of the South Carolina Department of Corrections (“SCDC”) regarding three incidents alleged to have occurred in May 2020, October 2020, and January 202i, in which he alleges excessive force was deployed against him as a prisoner.

Plaintiff, proceeding pro se and in forma pauperis, sues Lt. Jonathan Thomas (“Thomas”), Lt. Devin Borem (“Borem”), Lt. Joseph Perks (“Perks”), Cpt. Daniel Harouff (“Harouff”), A/W Susan Duffy (“Duffy”), and Deputy Warden John Palmer (“Palmer”) (collectively “Defendants”), in their individual and official capacities, asserting claims pursuant to 42 U.S.C. § i983 for violations of his Fourth and Eighth Amendment rights. [ECF No. i]. Plaintiff seeks the following relief:

Actual and consequential damages, including damages for emotional distress, pain and suffering, special and punitive damages in an amount to be determined at trial, as well as attorney fees and cost associated with this action, as well as the officers involved be terminated.

Id. at 7.

The case is before the court on cross motions for summary judgment filed by Plaintiff [ECF No. 21] and Defendants [ECF No. 26]. Because Plaintiff is proceeding pro se, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised him of the dismissal procedures and the possible consequences if he failed to respond adequately to Defendants' motion. [ECF No. 28]. The motions are fully briefed [ECF Nos. 27, 30, 31, 32] and ripe for disposition.

All pretrial proceedings in this case were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.). Because the motions are dispositive, this report and recommendation is entered for review by the district judge. For the following reasons, the undersigned recommends the district judge deny Plaintiff's motion for summary judgment and grant in part and deny in part Defendants' motion for summary judgment, allowing Plaintiff's Eighth Amendment claim against Thomas and Borem to proceed concerning the January 2021 incident.

I. Factual Background

At all relevant times, Plaintiff has been incarcerated at Perry Correctional Institution (“Perry”). [See, e.g., ECF No. 26-2].¹In 2019, Plaintiff was placed in security detention (“SD”) in the Perry Restricted Housing Unit (“RHU”) based on an assault Plaintiff committed while housed at a previous correctional institution. [ECF No. 26-3]. Harouff attests that RHU is the second-most secure housing area within SCDC, and “[i]nmates within the RHU are housed individually, allowed out of their cells only for recreation and showers, receive their meals within their cells, are not allowed visits or use of the commissary, and are limited to one telephone call per week.” [ECF No. 2611 ¶ 4].

1 Defendants have submitted evidence concerning events that took place prior to the relevant time period discussed in the complaint, including Plaintiff's disciplinary history. [See, e.g., ECF No. 26-12 ¶¶ 3-13, ECF No. 26-13 at 1-18, see also ECF No. 26-1 at 1-3]. This evidence is not included in full in the factual background section and is discussed only to the extent necessary to resolve the pending motions for summary judgment.

A. May 2020 Incident

In May 2020, Perks conducted a random cell search on Plaintiff pursuant to RHU policy. [ECF No. 26-9 ¶ 5, ECF No. 26-10, ECF No. 26-11 ¶ 10]. RHU policy also requires that every RHU inmate at Plaintiff's custody level be strip searched prior to exiting his cell. [ECF No. 26-9 ¶ 5]. Perks states the following occurred:

Ellerbe refused to disrobe for a strip search at the cell door, so I had another officer restrain him and we took Ellerbe to the shower area to be strip searched while his cell was searched. This was part of an effort to efficiently get the cell search done and accomplished.

Ellerbe still refused to cooperate with a strip search while in the shower area. We then brought Ellerbe out into the hallway and removed his jumpsuit using a special “over/under” method to get it around his restraints, which involves a series of cuffing and uncuffing.

We could not remove his jumpsuit in the shower area because it is only large enough for one individual to fit in at a time.

In light of Ellerbe's multiple refusals to be strip searched, and our inability to locate anything in the jumpsuit when it was removed, I suspected he had contraband hidden inside his boxer shorts. So, I attempted to look in his boxers, but Ellerbe grabbed them and refused to let me look, becoming argumentative.

Deputy Warden Harouff had come onto the wing during this process, and instructed us to take Ellerbe back in his cell and do a strip search. So, we moved Ellerbe back inside his cell and a strip search was performed in the cell. Surprisingly, no contraband was located inside Ellerbe's boxers, or inside his cell.

Inmate Ellerbe was never naked in the hallway during this incident.

No female officers were present in the hallway during this incident.

[ECF No. 26-9 ¶¶ 6-12, see also ECF No. 26-10 (incident report completed by Perks dated June 24, 2020), ECF No. 26-11 ¶ 10, ECF No. 26-16 ¶ 4 (Thomas attesting that “[t]here was never a time when Ellerbe was naked in the hallway during that incident.”)].

On May 5, 2020, Plaintiff submitted an inmate request, stating he was “stripped searched in front of female officer” and that “other officers pulled down his boxers with force.” [ECF No. 21-1 at 2]. In response, Plaintiff was informed “[s]trip searches are not done in the presence of female officers” and that “[b]eing in the control room is not present.” Id.

Thereafter, Plaintiff filed a Prison Rape Elimination Act (“PREA”) complaint on May 30, 2020, that provides as follows:

I was pulled from my cell for no reason but for harassment, once on the wing walked in front of the shower. In plain view of the booth, with a female Ofc. Phillips clearly watching I was forcefully stripped by Lt. Perks. Once down to my boxers he forcefully tried to pull my boxers down exposing me. Once back in my cell he and 5 other ofc's watched as he pulled my boxers all the way down . . .

[ECF No. 26-15 at 1, see also id. at 3 (PREA inmate voluntary statement stating the same)].

Duffy, Perry's PREA compliance manager, oversees PREA complaints, and states as follows as to what occurred in response to Plaintiff's PREA complaint:

This grievance was forwarded to me on June 18, 2020. I interviewed inmate Ellerbe the following day, and he claimed he was being sexually harassed by Lt. Perks due to Lt. Perks forcefully pulling down his boxers in front of the female officer. . . . . Both his grievance and the voluntary statement noted Lt. Perks

“tried to pull” his boxers down in the hallway, as opposed to inmate Ellerbe actually being forced to be naked in the hallway. In other words, both show that inmate Ellerbe was not naked until in the privacy of his cell ....

I interviewed MHO Phillips, the female officer mentioned regarding the incident, on June 24, 2020. Mental health officers serve a dual function as a correctional officer and a mental health employee. She informed me she was in the control room on the day of the incident, and due to her location only saw inmate Ellerbe's head and the top of his bare shoulders during the entire encounter.

I interviewed Lt. Perks on June 24, 2020, and he subsequently drafted an incident report concerning the matter which embodies what he advised me of the incident ....

On June 25, 2020, I found inmate Ellerbe's June 2, 2020, PREA complaint to be unsubstantiated. This was not an event with sexual overtones. It was merely a case of Lt. Perks doing his job with an uncooperative inmate. Strip searches are a part of the daily routine in the RHU, and are not considered sexual harassment. Additionally, as noted within inmate Ellerbe's statement and original grievance, he was never forced to be naked in the hallway within view of any female officer ....

[ECF No. 26-14 ¶¶ 3, 8-11, ECF No. 26-15 at 5].²

2 Duffy also attests to a second PREA complaint filed by Plaintiff on June 8, 2020, in which Plaintiff asserted a new officer shined his flashlight between Plaintiff's legs and “said he was trying to see [his] bar in a highly sexual manner.'” [ECF No. 26-14 ¶¶ 12-15, ECF No. 26-15 at 6-9]. Duffy also found this incident unsubstantiated. See id.

Plaintiff has submitted multiple affidavits from other inmates swearing, under penalty of perjury, that they witnessed “seven different officers pull[ing] inmate Craig Ellerbe out of his cell an[d] strip[ping] him naked in front [of] everyone in the hallway,” including “forcefully [tearing] his cloth[e]s and boxers off him in front [of] everyone.” [ECF No. 1-1 at 15; Id. at 16 (“I . . . witnessed the following officers Lt. Thomas, Lt. Perks, Sgt. Lite, Sgt. Lane, Cpl. McCueen, and Cpl. Hester restrain Craig Ellerbe and pull him from his cell where they proceeded to take his jumpsuit and boxers off and strip him naked while on the wing in front of everyone including a mental health officer named Ms. Phillips”); Id. at 23 (“I witnessed them restraining Mr. Ellerbe pulling him out the cell across from my cell (I'm in cell #7 Mr. Ellerbe is in cell #10) the officers started strip searching Mr. Ellerbe forcefully in the middle of the wing in front of inmates and a female officer in the control booth. I waked away from the door because I did not want to see them ....”); see also ECF No. 21 at 2 (Plaintiff, in his motion for summary judgment, directing the court to “refer to signed affidavits submitted with complaint.”)].

Plaintiff also states in his unverified complaint³that

While outside my cell in plain view of other inmates on the wing, also a female officer in the Booth[,] I was forcefully stripped naked by Lt. J Perks. Ofc's including Lt. J. Thomas were also surrounding

me. Once placed back in the cell[,] I was forcefully stripped against while officers made sexual comments and jokes. This was all supervised by Cpt. D. Harouff.

[ECF No. 1 at 8].

3 In this Circuit, verified complaints by pro se litigants are to be considered as affidavits when the allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). However, Plaintiff's complaint, motion for summary judgment, and response to Defendants' motion for summary judgment are not verified. [See ECF Nos. 1, 21, 31]. Therefore, the undersigned does not rely on the allegations contained in these documents in recommending resolution of the pending motions for summary judgments, but includes certain allegations for clarity.

B. October 2020 Incident

On October 12, 2020, use of force was authorized to be used against Plaintiff. [ECF No. 26-13 at 20]. As recorded by Palmer, the deputy warden at the time:

I, Deputy Warden Palmer, authorized Lt Burzinski [(“Burzinski”)) for form a forced cell movement team to place inmate Craig Ellerbe 364003 on control cell. It was reported to me the morning of the 12th the inmate had been cursing and threatening both MHO Brandhorst and Ofc Poitevien. During the lunch meal, approximately 10:00 AM, the inmate covered his observation window with his sheet and refused to move it. QMHP Mr Martin [(“Martin”)] reported to the dorm and was successful at conflict resolution. Then at approximately 2:15 PM inmate Ellerbe began covering his observation window again with items in his cell. QMHP Martin attempted conflict resolution a second time but inmate Ellerbe refused to comply. I assisted Lt Burzinski with the use of force. Upon arriving the inmate was given a directive to comply. When he did not Lt Burzinski administered chemicals from his MKIV. Inmate Ellerbe was sitting on his toilet covered by his blanket. I authorized Lt Burzinski to escalate to the MK9 as the MKIV had no effect. Approximately 2 minutes after Lt Burzinksi utilized the MK9 the inmate complied. I assisted Ofc Poitevien with removing property and decontaminating the cell. I recovered a deodorant bottle stuff with mattress foam that inmate had been using to combat the chemicals.

[ECF No. 26-13 at 20, see also ECF No. 26-4, ECF No. 26-5 (Martin's behavior health contact note describing his unsuccessful efforts at conflict resolution with Plaintiff), ECF No. 26-12 ¶¶ 14-22 (Palmer attesting to the events in question), ECF No. 26-13 at 21 (picture of the confiscated deodorant bottle stuffed with mattress foam)].

Defendants have submitted a video recording the planned use of force. [ECF No. 26-13 at 19, see also ECF No. 30]. The video and the incident report completed by Palmer is consistent with Palmer's affidavit account of what occurred, including the actions taken, the statements made by all persons involved, and the use of chemical munitions, including the length of time and frequency those munitions were employed:

Following the team briefing, Lt. Burzinski led the team to Ellerbe's cell door, ordered him to come to the door voluntarily and be restrained, and warned him chemical munitions would be used if he refused to comply.

Lt. Burzinski opened the outer door and asked Ellerbe if he was coming to the door to be cuffed. Ellerbe responded, “Not right now.” Lt. Burzinski then deployed a burst of spray from his MK4 canister which lasted approximately 1.5 seconds. Ellerbe was observed sitting in his cell using an SCDC blanket and a deodorant tube stuffed with mattress foam as a makeshift air filter to protect himself from the effects of the OC.

The outer door was closed and a waiting period of approximately three and a half minutes ensued. After this period Inmate Ellerbe was again ordered to come to the door and be restrained, and the outer door was opened again. Because Ellerbe still refused to comply and was actively protecting himself from the effects of the OC, Lt. Burzinski administered a burst of approximately 3.0 seconds from an MK9 canister.

Lt. Burzinski closed the outer door and another waiting period began. A little after two minutes I asked Ellerbe several times if he was going to come be cuffed, and Ellerbe agreed to comply. I handed the restraints I was carrying to another officer and Ellerbe was restrained, then escorted to the shower area for decontamination. Ellerbe exited the shower after only thirty seconds or so, and an officer asked if he wanted more, referring to more decontamination. Ellerbe replied that if he wasn't handcuffed he would do more, meaning washing himself off. He was then walked to the medical area to receive a post-use of force medical exam.

[ECF No. 26-12 ¶¶ 16-19, see also ECF No. 26-13 at 20 (incident report completed by Palmer)]. Palmer added that he and another officer decontaminated Plaintiff's cell and removed his property “to establish it as a control cell.” [ECF No. 26-12 ¶ 21].

Plaintiff has submitted evidence that following the incident, he was seen in medical for a “post use of force visit,” in which his blood pressure, temperature, and pulse were found to be normal. [ECF No. 21-1 at 8]. Defendants have submitted the full medical record, reflecting the following comments:

Inmate seen in medical room s/p use of chemical munitions. Inmate decontaminated in shower prior to medical exam. NAD. Gait steady. Skin wet from shower. Alert and oriented X4. Speech clear and appropriate: Breathing regular, even and nonlabored. Regular sls2. Lungs CTA upper and lower BIL VSS. Skin on chest and face noted to be slightly reddened. BIL eyes clear. Denies any injuries. C/o not feeling well and reports that he feels like he needs a breathing treatment. Informed inmate that from his assessment at this time, breathing treatment was not indicated. Inmate was encouraged to continue decontaminating in his room and was

informed that he has been scheduled for a COVID-19 test in the morning. Inmate instructed to notify medical if any new symptoms present. Inmate verbalized understanding and ambulated back to his cell with steady gait in NAD.

[ECF No. 26-6, see also ECF No. 26-7 (recording that later in the week, Plaintiff “calmed down and apologized for his actions” regarding the earlier planned use of force that occurred)].

Plaintiff states in his unverified complaint that

One day in or around October 2020 while using the restroom, a forced movement team came to my cell, at which time I was sprayed excessively with a small can of OC spray as well as a crow[]d control contaminant MK-9. With what I was told to be about 800 gram[s] was used. This was overseen by Defendant J. Palmer and Cpt. Harouff.

[ECF No. 1 at 8].

C. January 2021 Incident

On the morning of January 7, 2021, Borem attempted to pull Plaintiff for a blood draw, but Plaintiff refused to be strip searched in a manner consistent with RHU policy. [ECF No. 26-20 ¶ 2]. Borem attests that because Plaintiff refused to be strip searched pursuant to policy and was argumentative, calling Borem names, Borem told Plaintiff he would not be coming out of his cell for the blood draw. Id. ¶¶ 2-3.

Later in the morning, Thomas was informed that Plaintiff had covered his cell window and would not respond to staff. [ECF No. 26-16 ¶ 5, see also ECF No. 26-17 at 1 (incident report)]. Thomas and another officer determined a jumpsuit was covering the window, opened the outer door, removed the jumpsuit, and went to close the outer door. [ECF No. 26-16 ¶ 5]. At that time, Plaintiff hit the door, “causing it to open and strike” Thomas' left arm near the wrist. Id.

Thereafter, at about 7:30 a.m., Thomas and Borem arranged to escort Plaintiff to see mental health after being informed Plaintiff had threatened suicide. [ECF No. 26-16 ¶ 6, ECF No. 26-20 ¶ 4].

Thomas attests that Plaintiff cooperated with being restrained, but then the following occurred:

As we proceeded down the hall, Lt. Borem held the restriction chain while I had a hand on Ellerbe's right bicep. As a matter of habit, as escorting officers we tend to do this in case the inmate slips. Despite the encounter at his door earlier, Ellerbe was being cooperative and not resisting, so I didn't have a strong grip on his bicep.

As we passed through the doorway of sallyport 3, Ellerbe slammed his body into me out of the blue, then charged forward. I weighed around 310 pounds at the time, but because of Ellerbe's size and strength it was still quite a hit.⁴ Lt. Borem grabbed Ellerbe's left bicep when he rammed into me, and I was trying to hold Ellerbe, but because he was pulling forward we all fell towards the sallyport 2 door. Since Ellerbe was cuffed behind his back he hit the door headfirst, in his forehead area.

We got Ellerbe on the ground and used our hands to hold him down. Lt. Borem radioed for assistance, and medical was also called because Ellerbe was bleeding from his forehead. Ellerbe was stunned after hitting his head, and was not resisting anymore. Sgt. Freeman, Dep. Warden Palmer, and Capt. Toth all responded to help. Ellerbe was evaluated by nurse Harouff and it was determined he needed stitches.

[ECF No. 26-16 ¶¶ 7-9, see also ECF No. 26-17 at 2 (Thomas' incident report stating “[a]s we passed through the doorway of sallyport 3 inmate Ellerbe shoved his body into mine pushing me against the door frame. Myself and Lt Borem attempted to gain control of the inmate but he began charging forward the three of us fell into the sally port 2 door. From that point myself and Lt Borem were able to place the inmate on the ground and radio for assistance.”)].

4 Thomas attests that Plaintiff “is a large, athletic-looking man,” with SCDC records showing he is 6'3” in height and 289 in weight. [ECF No. 26-16 ¶ 2].

Borem recounts what occurred as follows:

As we escorted Ellerbe through the Sallyport 3 door, heading towards Sallyport 2, Ellerbe called Lt. Thomas a “fucking faggot” and shoulder-checked him hard. Lt. Thomas was to Ellerbe's right, holding his upper arm.

This caused Lt. Thomas to lose his footing and collide into the control room wall. Ellerbe was pulling away from both of us as we tried to get him onto the ground, and we all fell towards the Sallyport 2 door. Ellerbe's head appeared to hit one of the bars on the door because he was handcuffed behind his back and couldn't break his fall in that direction.

After we hit the ground, inmate Ellerbe appeared to be stunned. He was no longer actively resisting, so Lt. Thomas and I just held him down on the ground. I called on the radio for medical and a camera in case Ellerbe became resistant again. I saw Ellerbe was bleeding from what appeared to me to be a laceration above his right eye.

[ECF No. 26-20 ¶¶ 5-7, see also ECF No. 26-12 ¶¶ 31-34 (Palmer attesting as to what occurred after Plaintiff was secured and Palmer arrived), ECF No. 2613 at 22 (incident report completed by Palmer)].

However, written notes, titled by Defendants as the “control room log sheet,” provide in relevant part as follows:

Spontaneous use of force: I/M Ellerbie Craig 364003 resisted Lt Borem and Lt Thomas while walking I/M to visitation. Lt Thomas and Borem took I/M to floor. I/M hit his head on table ....

[ECF No. 26-8 at 2, see also ECF No. 26-21 at 1 (Borem's incident report stating as follows: “As Lt. Thomas and I escorted inmate Ellerbe through sally port 3 toward sally port 2 inmate Ellerbe shoulder checked Lt. Thomas striking him in his left side calling him a “Fucking faggot!” This strike caused Lt. Thomas to lose his footing pushing him into the control room wall. At this time Lt. Thomas and I went to place inmate Ellerbe on the ground to control his assaultive behavior. While placing inmate Ellerbe on the ground inmate Ellerbe resisted and was pulling away from myself and Lt. Thomas. This action caused inmate Ellerbe to strike his head on the sally port 2 bars, which are on the door, while he was being placed to the ground.”)].

As recorded by nurse Donna Ashley-Harouff, the following occurred after Plaintiff was secured:

Call received from security requesting a nurse for post use of force and medical care.

Upon arrival I/M noted to be secured by security on the sally port floor. I/M noted to have small pool of blood under head. I/M alert and responsive. I/M able to assist with getting off floor and was able to ambulate to dorm exam room with no difficulty.

I/M presents as alert and oriented. Resp even an[d] unlabored. Skin warm and dry to touch. Perrla. I/M noted to have vertical gash to forehead appr 4.5 cm long to center of forehead and gash to R eyebrow appr 1.25 cm with irregular edges. No active bleeding at this time. I/M noted to have significant amount of coagulating blood to R side of face. Both wounds with depth requiring sutures. Pressure dressing applied to both wounds using 4x4s and kerlex. No bleed through noted. I/M tolerated well. Vo Ms. Enloe send I/M to ER via van for evaluation and treatment. Security notified and transportation arrangements made. I/M alert, oriented and in no acute distress at time of departure.

I/M also with complaint of discomfort to R shoulder. I/M noted to have several superficial abrasions to R shoulder. No active bleeding noted. No obvious deformity or discoloration noted. Unable to assess ROM due to restraints. Will further assess when I/M returns and is unrestrained.

[ECF No. 21-1 at 14].

The following was also recorded on January 11, 2021, in Plaintiff's medical records:

Counselor receives a call that Mr. Ellerbe “is suicidal and wants to talk to mental health.” Counselor is told he will be sent to the hospital due to injuries he received during UOF. Counselor meets with Mr. Ellerbe after his visit to the hospital he reports he has “16 stitches in my head.” His forehead area is wrapped with an ace bandage. When asked what happened, Mr. Ellerbe says, “all this started with Borem. I think he is a homosexual. I wanted to trade my socks for my boxers and Borem would not let me. I think he

wanted me to bend over.” Mr. Ellerbe states, “they did not feed me and it made me mad. I told them I'm suicidal and when they came to get me they slammed my head into the bars.”

Counselor asks if he still wants to harm himself and he responds by saying, “I just got my head busted open, why would I do that?” He adds, “I'm no longer suicidal. I just want to eat something and lay down” ....

Id. at 15.

SCDC review of the incident is as follows:

Force was immediately necessary to regain control of an inmate under escort who body-checked an escort officer into a wall, “charged forward” to avert officer control, and effectively stopped sally-port operations and restrictive housing unit movement, and deprived the balance of the institution of a-level responders. The level of force used, empty-hand control, was appropriate for the level of resistance presented; taking the inmate to the ground was a reasonable amount of force. Delaying force could have resulted in a successive strike by the inmate, possible seizure of the lead chain (weapon), and extended interruption of RHU operations, as no protective barrier stood between the officers and the inmate and the sally-port limited officers to a confined space with the inmate.

It is unclear how the control room officer did not witness this incident and so did not submit an incident report.

[ECF No. 21-1 at 17, see also ECF No. 26-18 (affidavit of Richard L. Turner (“Turner”), disciplinary hearing officer, who found Plaintiff's recounting of the events in question to lack credibility and who found Plaintiff guilty of “unauthorized body contact of an employee or member of the public which creates serious alarm, but does not result in bodily injury”), ECF No. 26-19 (disciplinary report and hearing record)].

As to this incident, Plaintiff states in his unverified complaint that

On or about Jan. 7, 2021, for no reason I was refused my scheduled blood draw and later my breakfast by Defendant Lt. K. Borem. When I ask to see a supervisory Lt. J. Thomas came and told me I wouldn't eat all day. Shortly after I ask to see mental health and both Lt. K. Borem and Lt. J. Thomas come fully restrained me and almost as soon as I exited my cell began to assault me and threaten me. Moments later once off the wing the[y] both ran my face into a metal bar door and continued to assault me until I lost consciousness. I as soon after sent to the hospital and got stiches and xrays also CT scans.

[ECF No. 1 at 9].

Plaintiff has provided sworn affidavits from other inmates attesting that on January 7, 2021, the following occurred:

The moment [Thomas and Borem] got him out of the room Lt. Thomas began to body bump Ellerbe as they walked down the hallway, aggressively bumping and shoving him. When they were out of my [sight] I heard inmate Ellerbe yell out in pain . . . It was then when I knew that [Plaintiff] had been assaulted ....

[ECF No. 1-1 at 17, Id. at 19 (same), Id. at 20 (same), Id. at 22 (same)].

On January 27, 2021, Plaintiff submitted the following inmate request:

Yesterday It. thomas came to my cell door and said he came to check out his handy work referring to what he did to my face and then said if you keep acting like a asshole ill show you what i do to assholes in a sexual manner blew a kiss and walked off. I have made multiple complaints about LT. thomas and need to be separated from him. I fear for my life and safety. Please help

[ECF No. 21-1 at 22 (errors in original), see also id. at 31 (inmate request dated January 28, 2021, stating Plaintiff has been sexually assaulted, harassed, and physically assaulted by Thomas and the PREA coordinator has not helped), id. at 23 (inmate request dated February 22, 2021 in which Plaintiff asserts that Thomas and Borem are harassing and retaliating against him)].

Concerning Plaintiff's allegations about Thomas and Borem, Duffy attests as follows:

On February l0, 2021, I received a message from inmate Ellerbe through the *22 system that Lt. Borem made sexual remarks to him the previous day, but he did not describe the specific remarks. The *22 system is available for any inmate to call internally and report anything they wish to report. It is not limited to PREA complaints. RHU inmates tell officers who patrol the wing they wish to make a *22 call, and the officers roll the phone to the inmate's cell and dial the number for them.

I met with inmate Ellerbe concerning his complaint against Lt. Borem the same day I received the message. He complained that his previous PREA allegations were not investigated by Police Services, and he was agitated about a prior use of force incident. As part of my investigation I provided inmate Ellerbe with a voluntary statement form for him to fill out. He began writing, but then stopped and refused to sign it. Inmate Ellerbe never specified what sexual remarks were purportedly made by Lt. Borem. Instead, he talked at length about wanting a transfer ....

I then interviewed Lt. Borem. He advised me another officer had requested his assistance with an uncooperative inmate who refused to remove an appendage from the food flap so it could be closed. Lt. Borem stated as he was trying to deal with that uncooperative inmate, inmate Ellerbe began loudly making comments about him and referring to him as a “pussy boy faggot.” Lt. Borem informed me he never even spoke to inmate Ellerbe . . . .

Based on inmate Ellerbe refusing to describe any particular sexual remark allegedly made by Lt. Borem, I concluded there was no PREA claim and drafted a disposition form to that effect ....

Inmate Ellerbe has never filed a PREA complaint against Lt. Thomas ....

[ECF No. 26-14 ¶¶ 16-21, ECF No. 21-1 at 24 (Duffy's incident report), ECF

No. 26-15 at 10 (same), Id. at 11 (Plaintiff's unfinished PREA inmate voluntary statement, Id. at 12 (Borem's incident report), Id. at 13 (disposition of PREA report), ECF No. 26-20 ¶¶ 10-14 (Borem attesting he did not speak to Plaintiff on February 9, 2021), ECF No. 26-21 at 2 (Borem's incident report)].

On March 30, 2021, Plaintiff submitted a grievance concerning Duffy, stating she was not “doing her job as PREA coordinator and following PREA policy and separating me from the officers I've complained about, leaving them free to retaliate against me,” also stating that she informed Plaintiff that “she will always believe her officers over an inmate no matter what.” [ECF No. 211 at 28].

On September 8, 2022, the following was recorded in an inmate request:

Request Details: Yesterday i spoke to an police services agent cotter who told me that police services is refusing to open an investigation into me being attacked by two officers at p.c.i. then when i told him i would like to press charges on the officer he attempted to intimidate me by tell me i would also be charged with an assault. I would like to speak to an police officer who didnt use to work at the prison with these same officer to speak to me, it is clear that agent cotter is attempting to cover for staff at perry.c.i. i would like charges filled on the two officers who attacked me. i also think this conversation was recorded without my knowledge by officer chandler. I fear further attempts to stop me from

pursuing criminal action against p.c.i. staff. I fear for my life remaining here at p.c.i ....

Request Responses: Agent Cotter spoke with Ellerbe in reference to the alleged assault by staff at Perry mention in his RTSM. Agent Cotter explained how the use of force was deemed justified by SCDC Officials, due to him assaulting the Officers by shoving them into the wall. They spoke of how he was found guilty in an administrative hearing for his actions, and that no evidence of staff misconduct was found that would warrant a criminal investigation. No Investigation is warranted at this time.

[ECF No. 21-1 at 25, see also id. at 26 (inmate request dated March 31, 2021 in which Plaintiff states he would like to legally pursue the matter)]

II. Discussion

A. Standard on Summary Judgment

The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

In considering a motion for summary judgment, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving 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. 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., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

When both parties file motions for summary judgment, as here, the court applies the same standards of review. As stated by the Fourth Circuit, “[t]o the extent that ‘cross-motions for summary judgment are before a court, the court examines each motion separately, employing the familiar standard under Rule 56 of the Federal Rules of Civil Procedure.'” T.H.E. Ins. Co. v. Davis, 54 F.4th 805, 818 (4th Cir. 2022) (citing Fusaro v. Howard, 19 F.4th 357, 366 (4th Cir. 2021)); see also Adjei v. Mayorkas, 59 F.4th 659, 664 (4th Cir. 2023) (“We review cross-motions for summary judgment under the same standard, considering ‘each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.'”) (citing White Coat Waste Project v. Greater Richmond Transit Co., 35 F.4th 179, 189 n.2 (4th Cir. 2022)).

B. Analysis

1. Eleventh Amendment Immunity

Plaintiff's claims are brought pursuant to 42 U.S.C. § 1983. A civil action brought pursuant to 42 U.S.C. § 1983 provides a means to vindicate violations of rights, privileges, or immunities secured by the Constitution and laws of the United States, but the statute is not, itself, a source of substantive rights. Albright v. Oliver, 510 U.S. 266, 271 (1994). “Section 1983 imposes liability on any person who, under the color of state law, deprives another person ‘of any rights, privileges, or immunities secured by the Constitution and laws.'” Doe v. Kidd, 501 F.3d 348, 355 (4th Cir. 2007) (citing 42 U.S.C. § 1983). “Under 42 U.S.C. § 1983, a plaintiff must establish three elements to state a cause of action: (1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law.” Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997).

The Eleventh Amendment provides, “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. Amend. XI. The United States Supreme Court has long held the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state, see Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001), unless the state has consented to the suit. See Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020). Congress has not abrogated the states' sovereign immunity under § 1983, Quern v. Jordan, 440 U.S. 332, 343 (1979), and South Carolina has not consented to suit in federal district court. See S.C. Code Ann. § 15-78-20(e) (“Nothing in this chapter is construed as a waiver of the state's or political subdivision's immunity from suit in federal court under the Eleventh Amendment to the Constitution of the United States nor as consent to be sued in any state court beyond the boundaries of the State of South Carolina.”).

Here, Plaintiff “is not entitled to monetary damages under § 1983 against Defendants in their official capacities.” Moneyhan v. Keller, 563 Fed.Appx. 256, 258 (4th Cir. 2014) (citing Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (holding that Eleventh Amendment bars suits against non-consenting state, its agencies, and its officers acting in their official capacities)); see also, e.g., Simpson v. S.C. Dep't of Corr., C/A No. 2:19-2245-RMG, 2020 WL 582321, at *2 n.1 (D.S.C. Feb. 6, 2020) (noting that “Eleventh Amendment immunity extends to arm[s] of the State, including state agencies and state officers acting in their official capacity” and that SCDC is a “state agency” and thus “an arm of the State of South Carolina.”) (citations omitted)). However, suits for damages against state officials sued in their individual capacity are not barred by the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21, 30-31 (1991) (“[T]he Eleventh Amendment does not erect a barrier against suits to impose ‘individual and personal liability' on state officials under § 1983.”) (citation omitted).

For these reasons, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to damages claims brought by Plaintiff against Defendants in their official capacities.

2. May 2020 Incident

Plaintiff asserts both his Eighth Amendment and Fourth Amendment rights were violated when he was strip searched in May 2020. The court will address each argument in turn below.⁵

5 Defendants seek dismissal as to Plaintiff's Fourth Amendment claims, arguing that his excessive force claims are more properly analyzed under the Eighth, and not the Fourth, Amendment. [See ECF No. 26-1 at 7-8]. However, as further discussed above, the Supreme Court and the Fourth Circuit have recognized prisoners retain a limited Fourth Amendment right in the context of strip searches. See, e.g., Wright v. Rich, 836 Fed.Appx. 179, 180 n.1 (4th Cir. 2021). Therefore, the undersigned addresses the substance of Plaintiff's Fourth Amendment claim, where, here, the parties have filed cross motions for summary judgment. See, e.g., Moore v. Equitrans, L.P., 27 F.4th 211, 224 (4th Cir. 2022) (“Thus, ‘district courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.'”) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986))). To the extent that Plaintiff asserts Fourth Amendment claims otherwise, the undersigned agrees with Defendants that these claims are more properly analyzed under the Eighth Amendment and recommends dismissal of Plaintiff's remaining Fourth Amendment claims, to the extent any are asserted. See, e.g., Henderson v. Cleveland, C/A No. 4:20-2726-SAL-TER, 2023 WL 1805422, at *3 (D.S.C. Jan. 20, 2023) (“Excessive force claims brought by convicted prisoners are governed by the Eighth Amendment's prohibition against cruel and unusual punishment.”) (citing Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015)).

To state a claim for excessive force in violation of the Eighth Amendment, a prisoner must show (1) that “the prison official[s] acted with a sufficiently culpable state of mind (subjective component)” and (2) that “the deprivation suffered or injury inflicted on the inmate was sufficiently serious (objective component).” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citing Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996)). “[T]he ‘core judicial inquiry' regarding the subjective component of an excessive force claim is ‘whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'” Parker v. Stevenson, 625 Fed.Appx. 196, 198 (4th Cir. 2015) (quoting Iko, 535 F.3d at 239). Factors relevant to determining the prison official's state of mind include: “(1) the necessity for the application of force; (2) the relationship between the need for force and the amount of force used; (3) the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them at the time; and (4) the efforts made to temper the severity of the force applied.” Tedder v. Johnson, 527 Fed.Appx. 269, 272 (4th Cir. 2013) (quotations omitted) (citing Whitley v. Albers, 475 U.S. 312, 321 (1986), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010) (per curiam)).

Additionally, under the qualified immunity defense, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity ensures that “[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Whether an officer is entitled to qualified immunity is a question of law for the court and, when there are no relevant disputed material facts, a court should rule on the qualified immunity issue at the summary judgment stage. Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005) (“Ordinarily, the question of qualified immunity should be decided at the summary judgment stage.”).

To resolve a qualified immunity defense, the court must (1) determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendant's conduct violated a constitutional right, and (2) determine whether the right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts may address the two prongs of the qualified immunity analysis in whichever order is appropriate in light of the circumstances of the particular case at hand. Id.

As to the strip search at issue, the parties discuss two factual disputes: (1) whether Plaintiff was strip searched in the hallway and (2) whether Plaintiff was strip searched in front of a female officer. As to the former, evidence presented by Plaintiff in support of his contention that he was strip searched in the hallway via statements made by other inmates is contravened by Plaintiff's own PREA complaint and PREA voluntary statement in which Plaintiff stated Perks “tried to pull” Plaintiff's boxers down in the hallway. As to the latter, Defendants have submitted undisputed evidence that Phillips, located in the control room, only could see the top of Plaintiff's head and shoulders, and Plaintiff assertion that he was in “plain view” of Phillips appears to be speculative at best. See, e.g., Matherly v. Andrews, 859 F.3d 264, 280 (4th Cir. 2017) (“Conclusory or speculative allegations do not suffice to oppose a properly supported motion for summary judgment, nor does a mere scintilla of evidence.”) (citations omitted)).

However, even if Plaintiff's version of events were taken as true-that his clothes were removed in the hallway in view of a female officer-Plaintiff does not address Defendants' evidence that Plaintiff repeatedly refused to comply with efforts to perform the search in more private locations-efforts that were made to temper the severity of the force applied. Additionally, there was a necessity for an application of force based on Plaintiff refusal. The amount of force used was limited, in that Plaintiff makes no allegations that his body was manipulated or was physically invaded. Finally, it appears undisputed that the RHU policy implicated here, requiring strip searches when prisoners at Plaintiff's security level exit their cells, is employed to counter the reasonable threat to the safety of staff and inmates perceived by the SCDC. [See, e.g., ECF No. 26-11 ¶ 8 (“The reason for such stringent security practices is because RHU inmates are recognized to present a heightened risk of danger to staff and to other inmates. In addition to the concern of an inmate possessing a homemade weapon or factory-made handcuff key, SCDC works diligently to locate and seize homemade handcuff keys which may be produced.”)].

The record evidence indicates that the strip search performed on Plaintiff was to maintain discipline, and Plaintiff has failed to offer evidence otherwise, particularly any evidence that the strip search was performed “maliciously and sadistically for the very purpose of causing harm.” Farmer v. Brennan, 511 U.S. 825, 835 (1994).

To the extent Plaintiff alleges the officers, while conducting the strip searches, engaged in “sexual comments and jokes,” [see, e.g., ECF No. 31 at 3], Plaintiff has failed to submit any evidence as to the specific comments or jokes were made, by whom, or in what specific context. [See, e.g., ECF No. 1-1 at 15 (another prisoner attesting that “officers” have “stop[ped] in front [of Plaintiff's cell] door stating sexual comments”)]. Additionally, the Fourth Circuit has held that bullying, harassment, or other verbal abuse, without more, is insufficient to state a constitutional deprivation. See Henslee v. Lewis, 153 Fed.Appx. 178, 180 (4th Cir. 2005) (“Mere threats or verbal abuse . . ., without more, do not state a cognizable claim under § 1983”); see also Nelson v. S.C. Dep't of Corr., No. CA 6:12-2066-JFA-KFM, 2013 WL 4522788, at *6 (D.S.C. Aug. 26, 2013) (“to the extent the plaintiff claims Sergeants Simmons and Turbide harassed him during the [strip] search, such conduct is, at most, analogous to verbal abuse by guards, which, without more, fails to state a claim”) (collecting cases)).

Turning to Plaintiff's Fourth Amendment claim, in Bell v. Wolfish, 441 U.S. 520, 558 (1979), the Supreme Court held that requiring prisoners to undergo strip searches, including a visual body cavity search, after having contact with visitors was not an unreasonable search in violation of the Fourth Amendment. The body cavity search at issue in Bell required male inmates to “bend over to spread his buttocks for visual inspection.” Id. at 558 n.39. In determining whether such a search is reasonable under the Fourth Amendment, “[c]ourts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id. at 559.

Assessment of the Bell factors indicates the instant strip search was reasonable. The search at issue was limited in that there is no indication Plaintiff's body was manipulated in any way or that the search was physically invasive, notwithstanding Plaintiff's characterization of the search as “forceful.” Additionally, although Plaintiff claims a female officer witnessed the strip search, see Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981) (“involuntary exposure” of prisoner's genitals to members of the opposite sex “may be especially demeaning and humiliating” and should not occur unless “reasonably necessary”), Plaintiff does not address Defendants' evidence that the strip search was done pursuant to policy, that Plaintiff failed to comply with efforts to perform the search in more private locations, and appears to offer only speculation in support of his contention that the female officer could have seen him.⁶

6 Even assuming the female officers viewed Plaintiff's genitals at some point in the search, such exposure is not per se unconstitutional. See Lee, 641 F.2d at 1118-1121. Rather, the court must consider other factors such as institutional security. See, e.g., Farrell v. Cooper, No. 5:13-CT-3097-FL, 2016 WL 866324, at *5 (E.D. N.C. Mar. 3, 2016) (collecting cases); see also Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003) (“the strip search of a male prisoner in front of female officers, if conducted for a legitimate penological purpose, would fail to rise to the level of an Eighth Amendment violation”).

Turning to Plaintiff evidence that the strip search was performed in the hallway, whether a strip search is conducted in private is “especially relevant in determining whether a strip search is reasonable under the circumstances.” Polk v. Montgomery Cty., 782 F.2d 1196, 1201 (4th Cir. 1986). But, even if the search did occur in the hallway, Plaintiff fails to address Defendants' evidence that he repeatedly refused to submit to the search in more private locations. See, e.g., Cook v. McCabe, C/A No. 5:12-2608-RMG, 2013 WL 3552419, at *3 (D.S.C. July 11, 2013) (“In determining whether a certain act violated a prisoner's right to privacy, the court must determine if there was reasonable necessity for the act [R]easonable necessity is intertwined with penological interest: if an inmate's privacy can be maintained without compromising prison operations, then that privacy should be respected.”) (citations omitted)).

In sum, the record evidence does not indicate that Plaintiff's Eighth or Fourth Amendment rights were violated in the May 2020 incident, and Defendants are entitled to qualified immunity. Accordingly, the undersigned recommends the district judge deny Plaintiff's motion for summary judgment and grant Defendants' motion for summary judgment, dismissing Plaintiff's claims grounded in the Fourth and Eighth Amendments as to this incident.

3. Eighth Amendment Claim as to October 2020 Incident

Plaintiff argues in his motion for summary judgment as follow:

The next situation stated was on or about 10/12/20, when officers for no given reason planned a use of force to place the Plaintiff on control cell . . . This is usually done when an inmate violates policy in some serious way. The plaintiff however was not charged with any offence nor does any report give a reason for the planned use of force.

[ECF No. 21 at 4].

Plaintiff's position is not supported by the record evidence. As discussed above, in the video submitted by Defendants, in the incident report, and according to Palmer in his affidavit, the planned use of force occurred because of Plaintiff's threatening behavior towards officers, because he covered his window, and because he refused to comply with the directive immediately prior to the use of force to submit to being cuffed.

To state a claim for excessive force in violation of the Eighth Amendment, a prisoner must show (1) that “the prison official[s] acted with a sufficiently culpable state of mind (subjective component)” and (2) that “the deprivation suffered or injury inflicted on the inmate was sufficiently serious (objective component).” Iko, 535 F.3d at 238; see also Tedder, 527 Fed.Appx. at 272 (holding factors relevant to determining the prison official's state of mind include: “(1) the necessity for the application of force; (2) the relationship between the need for force and the amount of force used; (3) the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them at the time; and (4) the efforts made to temper the severity of the force applied”).

Regarding the first factor, given that Plaintiff repeatedly covered his cell window and refused to voluntarily be restrained in order to place him on control cell status, there was a need for the application of force to compel his cooperation. See Whitley, 475 U.S. at 321. “Correctional officers do not have to be under physical attack to justify the use of force; they can also use appropriate force ‘to preserve internal order by compelling compliance with prison rules and procedures.'” Shiheed v. Harding, 802 Fed.Appx. 765, 767 (4th Cir. 2020) (quoting Brooks v. Johnson, 924 F.3d 104, 113 (4th Cir. 2019)).

As to the relationship between the need for force and the amount of force used, the evidence shows that Plaintiff experienced a combined total of around 4.5 seconds of OC spray, first from the MK4 canister and then from the MK9 canister. Plaintiff has submitted the following evidence from a compliance review performed by Michael B. Pelfrey (“Pelfrey”) regarding the incident in question in support of his position that the amount of chemical munitions used was excessive:

COMPLIANCE REVIEW - POLICY VIOLATION AMOUNT OF CHEMICAL MUNITIONS USED EXCEEDS SCDC POLICY OP 22.01 GUIDELINES FOR TWO BURST OF MK2 WITH THE +/-SG ALLOWANCE PER BURST. 31G PER MANUFACTURER'S GUIDELINES IS CLOSER TO 4 APPLICATIONS.

SABRE RED CANISTER: 5601500 (MK4)

STARTING WEIGHT: 143 GRAMS

ENDING WEIGHT: 112 GRAMS

AMOUNT USED: 31 GRAMS

Created: 12/22/2020 08:17:53 (MICHAEL B PELFREY)

[ECF No. 21-1 at 7]. Plaintiff has not submitted evidence, however, as to the policy on the use of the MK4 or MK9 canisters, discussed more below, but notes that the record does not appear to contain information on how many grams were deployed from the MK9 canister, only the MK4. [ECF No. 31 at 4].

In response, Palmer attests as follows:

Both MK4 and MK9 contain the same percentage of OC. The MK4 canister is issued to SCDC staff and carried as part of their daily equipment. It sprays more in a stream pattern, while the MK9 sprays more of a cone-shaped pattern. The latter is commonly referred to by SCDC personnel as a “fogger.” It puts out a larger volume of OC, and SCDC policy both then and now allows its use under exigent circumstances.

At the time of this incident, training doctrine for SCDC regarding chemical munitions provided that bursts of up to five seconds were appropriate in a planned use of force situation, and up to a total of four applications were allowed even in the absence of exigent circumstances. A waiting period of three minutes between applications was standard practice. Under this policy, up to twenty total seconds of OC could be sprayed over a period of a little over nine minutes, even where no exigent circumstances existed.

Two days before this incident, SCDC adopted a new chemical munitions policy which incorporated a matrix produced by the OC manufacturer. This matrix details the presumptive grams per second delivered in each burst. While with the signature adopting the policy change SCDC converted to a standard of measuring a use of force incident in terms of one-second bursts, at the time of this incident everyone in SCDC, pursuant to SCDC's training standards at the time, was still operating under the “5 seconds or less” bursts in planned use of force incidents.

I am aware of and have reviewed the Compliance Review conducted by Michael Pelfrey on December 22, 2020, concerning the October 12, 2020, use of force involving Ellerbe. Mr. Pelfrey was a use of force reviewer within Quality Improvement and Risk Management (QIRM). QIRM operates out of Headquarters in Columbia, not within Perry or another institution.

Mr. Pelfrey's review in late December 2020 was based on his interpretation of the matrix which had been adopted two days prior to the October 12th incident, but on which no training had been conducted for any SCDC personnel prior to October 12, 2020.

This was simply a case of training not having caught up with policy, which occasionally occurs. It is also worth noting that Mr. Pelfrey's evaluation was based upon guidelines for MK2 spray, while here MK4 and MK9 were used.

[ECF No. 26-12 ¶¶ 23-27].

As has been noted by this court, “[t]he failure of prison officials to follow their own policies or procedures, standing alone, does not amount to a constitutional violation.” Butler v. Bessinger, C/A No. 4:16-3662-RMG-TER, 2018 WL 387999, at *2 (D.S.C. Jan. 11, 2018) (citing Johnson v. S.C. Dep't of Corrections, C/A No. 3:06-2062-CMC-JRM, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007, United States v. Caceres, 440 U.S. 741 (1978)); see also Addison v. Catoe, C/A No. 1:16-1137-HMH-SVH, 2016 WL 4079981, at *1 (D.S.C. Aug. 1, 2016) (“Assuming, arguendo, that Defendants violated SCDC policy, Plaintiff must still show that Defendants violated his constitutional rights.”); Riccio v. Cnty. of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir. 1990) (if state law grants more procedural rights that the Constitution requires, a state's failure to abide by that law is not a federal due process issue); Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C. 1992) (violations of prison policies which fail to reach the level of a constitutional violation are not actionable under § 1983).

Here, Plaintiff has not submitted evidence that the amount of chemical munitions he was subjected to-the 4.5 seconds of OC spray with the spray from the MK4 canister consisting of 31 grams-constitutes an excessive amount of force in the current context. See, e.g., Marin v. Williams, C/A No. 2:19-01270-DCC, 2020 WL 6281535, at *7 (D.S.C. Oct. 27, 2020), aff'd, 848 Fed.Appx. 599 (4th Cir. 2021) (“Regarding the first burst of munitions, Defendants used force to protect Plaintiff from causing himself injury and only applied force after attempting to prevent Plaintiff from harming himself in another manner. With respect to the second burst of munitions, Defendants used force only after giving Plaintiff multiple verbal warnings, which Plaintiff ignored while continuing to resist Defendants. With respect to the relationship between the need and the amount of force that was used, the Court finds that one burst of chemical munitions was used in each incident and Plaintiff was restrained only when necessary to protect him from himself or transport him to the medical facility.”) (citations omitted)).⁷

7 Plaintiff cites to a case from this court in support of his position that excessive force was deployed, but this case is distinguishable, where, taking the facts in light most favorable to the plaintiff, the court found 321 grams of mace was used against the compliant prisoner, no warning was given, and the officer in question was demoted because of the incident, resulting in the court denying the officer's motion for summary judgment. Hill v. Johnson, C/A No. 5:18-1918-MGL-KDW, 2019 WL 6312374, at *4 (D.S.C. Oct. 25, 2019), report and recommendation adopted, C/A No. 5:18-01918-MGL-KDW, 2019 WL 6310732 (D.S.C. Nov. 25, 2019).

As to the third factor, Defendants note that Plaintiff is a large man, that his hands were not visible given his positioning within the cell, and that, as stated by Palmer, “[t]here have been numerous incidents where an inmate concealed a weapon to use against SCDC personnel during a forced cell extraction, and [Plaintiff] has a demonstrated history of violence, and of using homemade weapons against SCDC personnel.” [ECF No. 26-1 at 20 (citing ECF No. 26-12 ¶¶ 8-9, 28; ECF No. 26-13 at 10)]. According to Palmer, Plaintiff's physical size and history of violence, “combined with [Plaintiff's] efforts with the blanket and air filter to protect himself from the OC, and the reality that the MK4 spray had zero effect in producing compliance, [dictated] the use of the MK9 was not only justified, it was tactically the best option available at the time.” [No. 26-12 ¶ 28]. The alternative was to sling open the door and rush the inmate, “using a shield, sheer body mass, and physical strength to pin him to a wall or floor, overcome his efforts to resist, and apply handcuffs and leg restraints.” Id. ¶ 29. “Such a situation carries a significant risk of some type of physical harm to the inmate, and there is also a risk of harm to the officers involved despite their use of protective equipment.” Id. As the Fourth Circuit has recognized, a “limited application of mace may be much more humane and effective than a flesh to flesh confrontation with an inmate.” Williams, 77 F.3d at 763 (citations omitted).

Finally, there is also evidence the team attempted to temper the force used by complying with SCDC policy concerning waiting periods between OC applications. Plaintiff fails to note in his allegations that the OC applications to which he was subjected came three and half minutes apart from one another, during which he had time to comply with orders to go to the door and voluntarily be restrained.

Viewing the evidence in light most favorable to Plaintiff, no reasonable jury could find that the relevant officers acted maliciously or wantonly. The evidence shows Plaintiff's unwillingness to comply, the use of chemical munitions, but also significant breaks taken to allow Plaintiff to comply, and a cessation of all activity when Plaintiff complied. Additionally, Plaintiff was offered prompt, if brief, decontamination, as Plaintiff declined to wash more while in handcuffs, and Plaintiff was also provided prompt medical assistance indicating no injuries. See Williams, 77 F.3d at 762 (“The absence of serious injury is a relevant, but not dispositive, additional factor to be considered in the subjective analysis.”).⁸

8 To the extent that Plaintiff characterizes the facts differently as to this incident in briefing [see ECF No. 31 at 3-5], he has failed to submit any admissible evidence to support his version. See Fed.R.Civ.P. 56(c)(1); see also, e.g., Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by [video evidence], so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).

In sum, the record evidence does not indicate that Plaintiff's Eighth Amendment rights were violated in the October 2020 incident, and Defendants are entitled to qualified immunity. Accordingly, the undersigned recommends the district judge deny Plaintiff's motion for summary judgment and grant Defendants' motion for summary judgment as to this incident.

4. Eighth Amendment Claim as to January 2021 Incident

Defendants seek dismissal of Plaintiff's Eighth Amendment claim as to the January 2021 incident, in which he alleges he was assaulted by Thomas and Borem, solely on the basis that Plaintiff's claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994).

In Heck, the Supreme Court held that:

[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.

512 U.S. at 487. In so holding, the Heck court found that § 1983 actions for unlawful conviction or confinement necessarily require a finding that Plaintiff's prior criminal proceeding terminated in his favor. Id. at 484-86.

However, as explained by the Supreme Court in later cases, the Heckbar applies in the prison disciplinary context if (1) the “defect complained of by [Plaintiff] would, if established, necessarily imply the invalidity of the deprivation of his good-time credits[,]” Edwards v. Balisok, 520 U.S. 641, 646 (1997) and (2) if the restoration of those credits “necessarily” would “affect the duration of time to be served[.]” Muhammed v. Close, 540 U.S. 749, 754 (2004) (per curiam).

As recently explained by this court, considering similar circumstances where a prisoner brought a claim for excessive force against an SCDC officer:

Defendant maintains that the Supreme Court case of Heck v. Humphrey, 512 U.S. 477 (1994) bars Plaintiff's civil action for damages. ECF No. 61 at 1-3. Specifically, Defendant Truesdale argues that because Plaintiff pleaded guilty to “Threatening to Inflict Harm on/Assaulting an Employee” on April 9, 2019, at a disciplinary hearing, he is prohibited from bringing this action because a judgment in Plaintiff's favor would imply the invalidly of his conviction or sentence. Id. at 3. The undersigned disagrees.

In a recent order, a South Carolina district court addressed Heck and whether it barred an inmate's action. See Rhodes v. Sterling, 475 F.Supp.3d 470, 474-75 (D.S.C. 2020). There, the court, after carefully considering cases concerning the application of Heck and its progeny in challenges to disciplinary proceedings, concluded: “[T]he Heck line of cases bar only those section 1983 actions seeking to set aside disciplinary convictions where the court's decision to set aside the disciplinary conviction would have some impact on the underlying criminal conviction or corresponding sentence.” Id. Here, Plaintiff's case does not concern overturning or challenging Plaintiff's disciplinary conviction. Therefore, in accordance with Rhodes, the undersigned finds Heck and the other cases discussing the application of Heck would not bar Plaintiff's civil action in this instance. Thus, the undersigned recommends denying Defendant Truesdale summary judgment on this ground.

Sullivan v. Truesdale, C/A No. 5:20-03333-JD-KDW, 2021 WL 5334222, at *6 (D.S.C. Oct. 20, 2021), report and recommendation adopted, C/A No. 5:20-03333-JD-KDW, 2021 WL 5331323 (D.S.C. Nov. 16, 2021); see also Rhodes, 475 F.Supp.3d at 473-74 (“Others, in contrast, conclude that the Heck line of cases bar only those section 1983 actions seeking to set aside disciplinary convictions where the court's decision to set aside the disciplinary conviction would have some impact on the underlying criminal conviction or corresponding sentence. This court concludes that the latter is the correct interpretation of the Heck line of cases, and it takes this opportunity to explain how it came to its conclusion.”); Shaw v. Gillespie, C/A No. 9:19-01863-RBH, 2019 WL 5257954, at *1 n.3 (D.S.C. Oct. 17, 2019) (“Notably, Plaintiff's disciplinary hearing did not result in the loss of good-time credits or ‘threaten [any] consequence for his conviction or the duration of his sentence,' and therefore his § 1983 action is not barred by Heck v. Humphrey, 512 U.S. 477 (1994). See Muhammad v. Close, 540 U.S. 749, 751 & n.1 (2004) (‘[T]he incarceration that matters under Heck is the incarceration ordered by the original judgment of conviction, not special disciplinary confinement for infraction of prison rules.'); see, e.g., DeBrew v. Brooks, 475 Fed.Appx. 479, 480 n.* (4th Cir. 2012) (noting Heck did not bar the plaintiff's challenges to the validity of his disciplinary convictions).”).⁹

9 Case law cited by Defendants in support of their argument that Plaintiff's instant claim is barred by Heck does not discuss the Supreme Court's decision in Muhammed or the other relevant case law discussed above. [See ECF No. 26-1 at 22-31].

Consistent with the above case law, the undersigned recommends the district judge deny Defendants' motion for summary judgment. The undersigned further recommends the district judge deny Plaintiff's motion for summary judgment as to this claim in that the parties have submitted differing accounts of the facts leading to Thomas and Borem's alleged use of force, precluding grant of summary judgment.

Defendants have offered the following accounts of what occurred in January 2021, leading to Plaintiff's injuries:

Thomas attesting that “Ellerbe slammed his body into me out of the blue, then charged forward .... we all fell towards the sally port 2 door . . . since Ellerbe was cuffed behind his back he hit the door headfirst ....”

Thomas' incident report stating “While walking to sallyport 2 inmate Ellerbe stated to me, ‘18 months, I get out in 18 months and I'm going to find you.' As we passed through the doorway of sallyport 3 inmate Ellerbe shoved his body into mine pushing me against the door frame. Myself and Lt Borem attempted to gain control of the inmate but he began charging forward the three of us fell into the sally port 2 door.”

Borem attesting that “As we escorted Ellerbe through the Sallyport 3 door, heading towards Sallyport 2, Ellerbe called Lt. Thomas a ‘fucking faggot' and shoulder-checked [Thomas] hard . . . [causing] Thomas to lose his lose his footing and collide into the control room wall. Ellerbe was pulling away from both of us as we tried to get him onto the ground, and we all fell towards the Sallyport 2 door. Ellerbe's head appeared to hit one of the bars on the door because he was handcuffed behind his back and couldn't break his fall in that direction ....”

Control room log sheet providing “Spontaneous use of force: I/M Ellerbie Craig 364003 resisted Lt Borem and Lt Thomas while walking I/M to visitation. Lt Thomas and Borem took I/M to floor. I/M hit his head on table ....”

Borem's incident report stating “Once inmate Ellerbe was pulled from his cell inmate Ellerbe began to threaten Lt. Thomas stating, ‘I got 18 months, pussy ass boy.' As Lt. Thomas and I escorted inmate Ellerbe through sally port 3 toward sally port 2 inmate Ellerbe shoulder checked Lt. Thomas striking him in his left side calling him a “Fucking faggot!” This strike caused Lt. Thomas to lose his footing pushing him into the control room wall. At this time Lt. Thomas and I went to place inmate Ellerbe on the ground to control his assaultive behavior. While placing inmate Ellerbe on the ground inmate Ellerbe resisted and was pulling away from myself and Lt. Thomas. This action caused inmate Ellerbe to strike his head on the sally port 2 bars, which are on the door, while he was being placed to the ground.”

[ECF No. 26-16 ¶¶ 6-9, ECF No. 26-17, ECF No. 26-20 ¶¶ 4-7, ECF No. 26-8 at 2, ECF No. 26-21 at 1; see also ECF No. 21-1 at 17 (“It is unclear how the control room officer did not witness this incident and so did not submit an incident report.”)].¹⁰

10 Defendants repeatedly note that Plaintiff's grievance omits reference to any alleged verbal threats made by Thomas and Borem during this incident. [See, e.g., ECF No. 27 at 20]. However, as seen above, Defendants' accounts also omit reference to Plaintiff's alleged verbal threats or allege inconsistently what threats were made. Defendants additionally fail to address Plaintiff's arguments that Defendants' representation of the event in question is inconsistent or unreliable, in that the control log sheet indicates Plaintiff hit his head on a table, versus the door as asserted by Thomas and Borem, and where one report notes it is unclear how the control room officer did not witness the event in question.

Plaintiff has offered affidavit evidence from other prisoners, stating as follows:

Tony L. Young (“Young”) Jr. attesting: “The moment they got him out of the room Lt. Thomas began to body bump Ellerbe as they walked down the hallway, aggressively bumping and shoving him.

When they were out my [sight] I heard inmate Ellerbe yell out in pain then I heard a loud bang and I heard Ellerbe scream loudly but the scream was muffed out just as fast as it begun. It was then I knew that Inmate Craig Ellerbe #364003 had been assaulted by Lt. Thomas and Lt. Borem. I then heard Lt. Thomas say ‘you go home in 18 months, it would be unfortunate to get killed the first week out.'. . . ”

Reginald Canty attesting: “Lt. Borem and Lt Thomas came and pull Ellebert out of his cell, while walking up the wing I witness Lt. Thomas bumping into Ellerbe aggressively then I heard Lt. Thomas say ‘you get out in 18 months, it would be a shame to die your first week' Lt. Borem was talking too. I then heard a loud thud then a little commotion for a few seconds then it was quiet.”

Quancey Harper attesting: “Lt. Borem and Lt. Thomas came back on the wing to pull Ellerbe out of his cell, I then heard Lt. Borem say to Ellerbe ‘if you so much as say a word while your outside this room I can promise you that we are going to fuck you up' and constantly threatening him while they were putting him in shackles and handcuffs. I also heard Lt. Thomas say ‘you go home in 18 months it would be a shame for you to die the 1^st week home.' . . . After they pulled him out of the room and off the wing where inmates on the wing could not see them, I heard both Lt. Borem and Lt. Thomas yelling loud and aggressively but I could not make out what they were saying from a distance, I then heard six or seven very loud thuds and bangs and Ellerbe screaming in agony.”

Jabari Abdul-Mubarak attesting: “on the way up the hall, I heard Lt. Thomas say that ‘It would be a shame for you to die when you get out.' I then heard I/M Ellerbe scream & I heard Lts. Thomas and Borem yelling “I told you.” I also heard what sounded like chains hitting against metal & concrete....”

[ECF No. 1-1 at 17-22].¹¹

11 Plaintiff also has submitted, in conjunction with his motion for summary judgment, multiple inmate requests in which he states he was assaulted by Thomas and Ellerbe. [See ECF No. 21-1 at 22-23, 25-26, 31 (“I have also been physically assaulted by [Thomas] and had to get 16 stitches in my head in my face as a result”)]. The court does not rely on the substance of these grievances in making the instant recommendation in that these grievances are not admissible. See, e.g., Bowman v. Johnson, C/A No. 3:08-449-HEH, 2011 WL 1167320, at *8 (E.D. Va. Mar. 24, 2011) (“Of course, the unsworn statements in Mr. Bowman's grievances and his opposing brief generally do not constitute admissible evidence.”) (citing United States v. White, 366 F.3d 291, 300 (4th Cir.2004) (emphasizing that unsworn argument does not constitute evidence)).

Although a close call, the undersigned recommends the district judge allow Plaintiff's Eighth Amendment claim as to this incident be allowed to proceed. First, the court is tasked both with taking evidence in light most favorable to Plaintiff in determining whether his claim survives under the familiar summary judgment standard and affording Petitioner's submissions an appropriately liberal construction afforded to pro se litigants. See, e.g., Folkes v. Nelsen, C/A No. 2:19-0760-RMG, 2020 WL 728698, at *3 (D.S.C. Feb. 12, 2020) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Additionally, although Plaintiff has failed to submit admissible evidence as to the moment of the alleged assault itself, the multiple accounts provided by other inmates indicate Thomas and Borem were the aggressors, threatening and physically interfering with Plaintiff in the moments leading to the alleged assault, as opposed to the accounts provided by Defendants, that Plaintiff attacked them unexpectedly and without provocation.¹²

12 Additionally, as noted above, Defendants have sought dismissal of this claim solely based on a Heck bar, an argument addressed above, and do not argue that this claim should be dismissed on the merits.

Given the above, the undersigned is unable to recommend the district court find as a matter of law that Thomas and Borem used no force or used force in a good faith effort to maintain or restore discipline and not for the purpose of causing harm. See Whitley, 475 U.S. at 320-21; see also Dean v. Jones, 984 F.3d 295, 306 (4th Cir. 2021) (holding “a reasonable jury crediting [plaintiff's] version of events could infer under Whitley that force was used not to protect officer safety but instead to retaliate ...., and for that reason, Officer Hobgood is not entitled to summary judgment on the merits of Dean's Eighth Amendment claim”).

For similar reasons, the undersigned declines to recommend Thomas and Borem are entitled to qualified immunity where, at the time in question, it was clearly established that an officer may not use unnecessary physical force against a restrained inmate who is compliant and not resisting. See, e.g., Thompson v. Commonwealth of Virginia, 878 F.3d 89, 105 (4th Cir. 2017) (“As is apparent from the case law of eleven federal courts of appeals, the Eighth Amendment protection against the malicious and sadistic infliction of pain and suffering applies in a diverse range of factual scenarios. That unifying thread provides fair notice to prison officials that they cannot, no matter their creativity, maliciously harm a prisoner on a whim or for reasons unrelated to the government's interest in maintaining order. That principle applies with particular clarity to cases such as this one, where the victim is restrained, allegedly compliant, and incapable of resisting or protecting himself, and otherwise presents no physical threat in any way.”); see also Wernert v. Green, 419 Fed.Appx. 337, 340 (4th Cir. 2011) (“takedown” of plaintiff that was “wanton” and “unnecessary,” rather than “a good faith effort to maintain and restore discipline,” constituted a constitutional violation);

In sum, the undersigned recommends the district judge deny both Plaintiff and Defendants' motions for summary judgment as to Plaintiff's Eighth Amendment claim regarding the January 2021 incident, allowing this claim to proceed against Thomas and Borem.

5. Supervisory Liability

Defendants seek dismissal as to any claims grounded in supervisory liability as to Harouff and Palmer. Plaintiff argues in his filings that Harouff and Palmer supervised or oversaw the first two incidents at issue in this case, the May 2020 and October 2020 incidents. [See ECF No. 1 at 8-9, see also ECF No. 21 at 4]. Given the recommendation above, finding no constitutional violation as to these incidents, any claim Plaintiff brings based on supervisory liability based on these incidents also lack merit. See Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416, 420 (4th Cir. 1996) (holding that absent an underlying constitutional violation, no § 1983 liability attaches to a supervisor).

Additionally, the doctrine of supervisory liability is generally inapplicable to § 1983 suits, such that an employer or supervisor is not liable for the acts of his employees, absent an official policy or custom that results in illegal action. See Monell v. Department of Social Services, 436 U.S. 658, 694 (1978); Fisher v. Washington Metro. Area Transit Authority, 690 F.2d 1133, 1142-43 (4th Cir. 1982). The Supreme Court explains that “[b]ecause vicarious liability is inapplicable to § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; see Slakan v. Porter, 737 F.2d 368, 372-74 (4th Cir. 1984) (finding officials may be held liable for the acts of their subordinates, if the official is aware of a pervasive, unreasonable risk of harm from a specified source and fails to take corrective action as a result of deliberate indifference or tacit authorization).

Plaintiff has failed to submit relevant evidence concerning any supervisory claim, such as evidence demonstrating a pattern of widespread abuse necessary to establish supervisory action or inaction giving rise to § 1983 liability. See Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir. 1983) (stating that “[g]enerally, a failure to supervise gives rise to § 1983 liability . . . only in those situations in which there is a history of widespread abuse”); Slakan, 737 F.2d at 373 (“A supervisor's continued inaction in the face of documented widespread abuses, however, provides an independent basis for finding he either was deliberately indifferent or acquiesced in the constitutionally offensive conduct of his subordinates.”); see also, e.g., Jones v. Al Canon Det. Ctr., C/A No. 5:1-04083-TLW, 2014 WL 6666728, at *4 (D.S.C. Nov. 21, 2014) (“The Slaken exception is not adequately pleaded in this case because . . . there are no allegations of any personal knowledge (or even subjective knowledge) on Sheriff Cannon's part of the problems that Plaintiff alleges he had with the medical department at the detention center. Thus, regardless of how pervasive the alleged problems at the detention center might be, Cannon cannot be found liable for them simply based on his job as the overall ‘supervisor.'”).

Accordingly, the undersigned recommends the district judge deny Plaintiff's motion for summary judgment and grant Defendants' motion for summary judgment as to any claims grounded in supervisory liability, dismissing Harouff and Palmer.

6. Claims as to Duffy

Although somewhat difficult to parse, Plaintiff's primary allegations against Duffy appears to be that she has failed to adequately respond to Plaintiff's PREA complaints. Plaintiff also argues that Duffy, in her role as associate warden, violated SCDC's PREA policy by letting “her own personal feelings about [Plaintiff] sway her decisions,” by failing to “aggressively and immediately” investigate PREA complaints, and by failing to immediately separate “alleged perpetrators,” asserting Duffy “should be held responsible not only for her lack of action as the institutional [PREA] coordinator but also as a supervisor.” [ECF No. 31 at 2]. Overall, Plaintiff alleges that he is subject to ongoing harassment, and Duffy has failed to intervene. [See, e.g., ECF No. 1 at 8-9].

The record does not support Plaintiff's arguments. First, as to the May 2020 incident, the record shows the Duffy conducted an investigation into Plaintiff's PREA complaint, interviewed multiple people, and concluded no violation occurred, particularly in light of “Ellerbe's statement and original grievance” where he stated “he was never forced to be naked in the hallway within view of any female officer ....” [ECF No. 26-14 ¶ 11].

As to the January 2021 incident and thereafter, as recounted by Duffy, Plaintiff was unable to describe the specific alleged comments at issue that Borem made and he refused to complete a PREA voluntary statement form. Notwithstanding, Duffy interviewed Borem, and concluded no PREA claim existed. Duffy also submitted undisputed evidence that Plaintiff has not filed a PREA complaint as to Thomas.

Finally, Duffy has submitted the following evidence:

SCDC maintains a PREA policy, GA-06.11, which provides that in “actual or suspected” cases of “sexual abuse” or “sexual harassment,” the “alleged perpetrator and alleged victim” are to be separated. Those provisions are found in Sections 2.3.1.1 and 2.3.2.1 of the policy. Additionally, in Section 6 the policy defines “sexual harassment” as “[r]epeated verbal comments or gestures of a sexual nature to an inmate.” This policy superseded OP-21.12, the prior policy, on July 8, 2020.

The wording of the policy dictates that when a complaint is received from an inmate concerning an officer's conduct, if the circumstances or allegations, or both, indicate no “actual” abuse or harassment took place, no separation between the officer and inmate takes place. In such cases, the lack of separation between “the alleged perpetrator and alleged victim” is completely within the provisions of the PREA policy.

If SCDC did otherwise, inmates would be able to control which officers work around them. As it pertains to the Restricted Housing Unit (“RHU”), inmates could simply falsely accuse the officers who strictly enforce RHU policies of PREA violations, and have these officers moved to a different wing or another area within Perry. This would eventually result in the only officers in the RHU being those the inmates find more acceptable, whether they are deemed to be less diligent at locating contraband or more subject to the inmates' attempts at manipulation. Such a situation would be untenable for the safety and security of the RHU, and the prison system overall.

[ECF No. 26-14 ¶¶ 4-6].

There is no evidence to support Plaintiff's claims against Duffy based on the theory of supervisory liability, as discussed in the previous section, or otherwise. See, e.g., Williamson v. Stirling, 912 F.3d 154, 170 (4th Cir. 2018) (“To establish personal liability under § 1983, . . . the plaintiff must ‘affirmatively show[] that the official charged acted personally in the deprivation of the plaintiff's rights.'”). Also, as discussed above, “[t]he failure of prison officials to follow their own policies or procedures, standing alone, does not amount to a constitutional violation.” Butler, 2018 WL 387999, at *2 (citations omitted) see also, e.g., Flemming v. Reynolds, C/A No. 4:19-3373-JD-TER, 2021 WL 3133463, at *5 (D.S.C. June 29, 2021) (“To the extent Plaintiff is attempting to allege a PREA violation, the claim fails because the PREA does not give rise to a private right of action.”), report and recommendation adopted, C/A No. 4:19-03373-JD-TER, 2021 WL 3131599 (D.S.C. July 23, 2021).

Accordingly, the undersigned recommends the district judge deny Plaintiff's motion for summary judgment and grant Defendants' motion for summary judgment as to any claims brought against Duffy, dismissing her from this action.

7. Remaining Allegations

Plaintiff repeatedly represents in his filings that he has been harassed and retaliated against because of having filed PREA complaints. [See, e.g., ECF No. 1-1 at 1-5, ECF No. 31 at 7]. However, the record indicates the only officer that Plaintiff has filed a PREA complaint about that is currently being sued is Borem. Plaintiff stated in this complaint that after the January 7, 2021 incident, on February 10, 2021, Plaintiff alleged that Borem made sexual comments to him but refused to specify what those remarks were and failed to complete a voluntary statement as part of the PREA investigation. Additionally, it is unclear what exact harassment and retaliation has occurred or how any such harassment or retaliation is related to Plaintiff's filing a PREA complaint. [See, e.g., ECF No. 1 at 8-9, ECF No. 21 at 8, ECF No. 31 at 7].

Accordingly, the undersigned recommends the district judge dismiss any claims Plaintiff may be asserting based on alleged harassment or retaliation for filing a PREA complaint. See, e.g., Martin v. Duffy, 977 F.3d 294, 299 (4th Cir. 2020) (“To state a colorable First Amendment retaliation claim, a plaintiff must allege that (1) [ ]he engaged in protected First Amendment activity, (2) the defendant[ ] took some action that adversely affected [his] First Amendment rights, and (3) there was a causal relationship between [his] protected activity and the defendant[‘s] conduct.”) (citations omitted)); Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996) (“In the prison context, we treat [retaliation] claims with skepticism because [e]very act of discipline by prison officials is by definition ‘retaliatory' in the sense that it responds directly to prisoner misconduct.”) (citations omitted)).¹³

13 Plaintiff's complaint is limited to allegations concerning the May 2020, October 2020, and January 2021 incidents, with additional limited allegations concerning harassment, as discussed above. [See ECF No. 1, ECF No. 1-1]. In his motion for summary judgment, however, Plaintiff includes additional allegations concerning the food at Perry and having his mattress removed from his cell, among other allegations not found in his complaint. [See, e.g., ECF No. 21 at 8-9]. To the extent that Plaintiff is asserting claims based on these allegations, the undersigned recommends the district judge dismiss them. See, e.g., Barclay White Skanska, Inc. v. Battelle Mem'l Inst., 262 Fed.Appx. 556, 563 (4th Cir. 2008) (“As we previously stated, notice pleading is designed to provide defendants with fair notice of the plaintiffs' claims and the grounds upon which those claims rest. Thus, Barclay White's complaint cannot be construed so liberally so as to deprive Battelle of notice. Additionally, despite the liberal pleading rules outlined by the Supreme Court, plaintiffs may not raise new claims without amending their complaints after discovery has begun.”) (citation omitted)).

III. Conclusion and Recommendation

Accordingly, the undersigned recommends the district judge deny Plaintiff's motion for summary judgment [ECF No. 21] and grant Defendants' motion for summary judgment in part [ECF No. 26], allowing only Plaintiff's Eighth Amendment claim against Thomas and Borem individually as to the January 2021 incident to proceed.

IT IS SO RECOMMENDED.

The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”

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).