Opinion
Civil Action 4:19-cv-3373-JD-TER
06-29-2021
JAMES MICHAEL FLEMMING, #229516, Plaintiff, v. OFFICER KELLY J. REYNOLDS, SGT. LINEN, and CPT. LINEN, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights. Presently before the Court are Defendant Linen and Holsinger's Motion for Judgment on the Pleadings (ECF No. 88) and Plaintiff's Motion for Summary Judgment (ECF No. 109). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. This report and recommendation is entered for review by the district judge.
Although Plaintiff captioned this filing as a motion for summary judgment, it reads more like a response to Defendants' motion. Thus, the court will treat it as both.
II. FACTUAL ALLEGATIONS
At the relevant times to the litigation, the Plaintiff was a patient at the Gilliam Psychiatric Hospital which is a part of Kirkland Correctional Institution. Am. Compl. p. 5 (ECF No. 82). Plaintiff alleges that correctional officer Kelly Reynolds engaged in conversations with him that were of a sexual nature and told him that she loved him. Am. Compl. pp. 5-6. Plaintiff alleges that Defendant Linen “got confirmation” of what was said to him by Reynolds, but that she failed to inform the proper personnel or do an incident report. Am. Compl. p. 6. Plaintiff further alleges that, in addition to engaging him in conversations of an “inappropriate sexual nature, ” Reynolds “coerced [him] into masturbating while she watched.” Am. Compl. p. 6. As to Defendant Holsinger, Plaintiff alleges that she was told by staff that Plaintiff and Reynolds “were having inappropriate conversations of [a] sexual nature, ” yet she failed to report it to the proper personnel. Am. Compl. p. 6.
Defendant Reynolds has been dismissed from this action pursuant to Fed.R.Civ.P. 4(m) for failure to timely serve. See Report and Recommendation (ECF No. 83); Order (ECF No. 116).
Plaintiff alleges that Defendants subjected him to cruel and unusual punishment and deliberate indifference by “taking the law in [their] own hands” and failing to report a PREA incident to the appropriate personnel. Am. Compl. p. 4.
III. STANDARD OF REVIEW
Defendants move to dismiss this action pursuant to Fed.R.Civ.P. 12(c). Rule 12(c) of the Federal Rules of Civil Procedure allows a party to move for judgment on the pleadings after the pleadings are closed. Such a motion should be granted when, accepting the facts set forth in the pleadings, the case can be decided as a matter of law. Tollison v. B & J Machinery Co., Inc., 812 F.Supp. 618, 619 (D.S.C.1993). See also S & S Const., Inc. of Anderson v. Reliance Ins. Co., 42 F.Supp.2d 622, 623 (D.S.C.1998). The standard is almost identical to the standard employed in considering a Rule 12(b)(6) motion “with the key difference being that on a 12(c) motion, the court is to consider the answer as well as the complaint.” Cont'l Cleaning Serv. v. United Parcel Serv., Inc., 1999 WL 1939249, *1 (M.D. N.C. 1999) (internal quotations omitted); see also Burbach Broad. Co. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir.2002). In addition to the complaint, the factual allegations of the answer are taken as true, to the extent “they have not been denied or do not conflict with the complaint.” Pledger v. North Carolina Dep't of Health & Human Servs., 7 F.Supp.2d 705, 707 (E.D. N.C. 1998); Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D. N.C. 1991) (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1368 (3d ed. 2004)).
The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:
[T]he pleading standard Rule 8 announces does not require “detailed factual allegations, ” but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.Iqbal, 556 U.S. at 677-78 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted); see also Bass v. Dupont, 324 F.3d 761, 765 (4th Cir.2003). The court may consider documents attached to a complaint or motion to dismiss “so long as they are integral to the complaint and authentic.” Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir.2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n. 1 (4th Cir.2006)).
IV. DISCUSSION
Defendants argue that the factual allegations in Plaintiff's amended complaint fail to give rise to a constitutional violation under § 1983 and the Prison Rape Elimination Act (PREA), 42 U.S.C. § 15601, does not give rise to a private right of action.
Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A legal action under § 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, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). To be successful on a claim under § 1983, a plaintiff must establish two essential elements: (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, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The parties do not dispute that they were acting under color of state law in their individual capacities at all times relevant to this action.
Although Plaintiff does not specifically use the phrase “failure to protect, ” his claims against Defendants Linen and Holsinger appear to fall within that category of cases. Plaintiff alleges that Defendants knew that Plaintiff and Reynolds “were having inappropriate conversations of [a] sexual nature, ” yet they failed to report it to the proper personnel or otherwise take any action. Prison officials are required to fulfill “certain basic duties” including the duty to take “reasonable measures to guarantee the safety of the inmates.” Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). However, not every injury suffered by a prisoner translates into a constitutional violation. Farmer, 511 U.S. 825 at 833-34. To succeed on a claim for failure to protect, a prisoner must show: (1) “that he is incarcerated under conditions posing a substantial risk of serious harm” and (2) that prison officials exhibited deliberate indifference to his health or safety. Id. at 834. To meet the first prong, “a prisoner must allege a serious or significant physical or emotional injury resulting from the challenged conditions.” Id. To meet the second prong,
To the extent Plaintiff alleges that Defendants violated his constitutional rights by failing to follow some prison policy for reporting complaints, such a claim fails as well. See, e.g., 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).
a prisoner must demonstrate that the prison official had a “sufficiently culpable state of mind.” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). When an inmate makes a challenge under the Eighth Amendment, “the requisite state of mind is one of deliberate indifference to inmate health or safety.” Id. (internal quotation marks and citation omitted). A prison official demonstrates deliberate indifference if he “knows of and disregards an excessive risk to inmate health or safety.” Id. In other words, “the test is whether the guards know the plaintiff inmate faces a serious danger to his safety and they could avert the danger easily yet they fail to do so.” Case v. Ahitow, 301 F.3d 605, 607 (7th Cir. 2002).Brown v. N.C. Dep't of Corrs., 612 F.3d 720, 723 (4th Cir. 1994).
First, Plaintiff's conversations with Reynolds of an inappropriate sexual nature, even if unwanted, are not sufficiently serious from an objective perspective to give rise to a constitutional violation. “‘Although prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, the Eighth Amendment's protections do not necessarily extend to mere verbal sexual harassment.”” Jackson v. Holley, 666 Fed.Appx. 242, 244 (4th Cir. 2016) (quoting Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004)). In Jackson, the Fourth Circuit found that the plaintiff's allegations that the defendant sent the plaintiff a “sexually explicit and lurid” letter, posed seductively in front of him, whispered sexually explicit words to him, and “planted her groin area in [the plaintiff's] face while he was seated for his haircut in the barber's chair, ” were insufficient to rise to the level of an Eighth Amendment violation. Id. at 244.
The court also found that “[g]iven the lack of circuit authority regarding whether sexual harassment by prison officials amounts to a constitutional violation, we also find that it was not unreasonable for the defendant to have ‘failed to appreciate that h[er] conduct would violate [Jackson's] rights.'” Id. at 244 n.* (citing Meyers v. Baltimore Cnty., 713 F.3d 723, 731 (4th Cir. 2013)). Thus, the court found that the defendant was entitled to qualified immunity under the second prong of the qualified immunity analysis. Id.
Plaintiff also alleges that Reynolds coerced him into masturbating while she watched on numerous occasions. Even though this act did not include any physical contact between Plaintiff and Reynolds, “sexual abuse of inmates can violate the Eighth Amendment even in the absence of physical touching by a corrections officer.” Rafferty v. Trumbull Cty., Ohio, 915 F.3d 1087, 1096 (6th Cir. 2019) (concluding that allegations that corrections officer repeatedly ordered a female prisoner to expose her breasts and masturbate, even without any physical contact, were sufficiently serious to violate the Eighth Amendment). Thus, this act is sufficiently serious to pose a substantial risk of harm to Plaintiff.
However, Plaintiff does not allege that either Defendant was ever told that Reynolds coerced him to masturbate. Plaintiff specifically alleges,
On 9-27-2018, Reynolds told the Plaintiff that she and the Plaintiff were under investigation and that mental health techs Mrs. Brown and Mrs. Butler had informed “Unit Manager Ms. Holsinger” that the Plaintiff and “Reynolds” were having inappropriate conversations of a sexual nature. Reynolds then told the Plaintiff that she loved him and not to worry about it.
. . . Then Plaintiff informed Sgt. Linen of what Kelly J. Reynolds said, then she got confirmation from Reynolds about this incident and she fail [sic] to report or inform the appropriate personal [sic].”
Am. Compl. p. 7. To hold Defendants liable on a theory of failure to protect, Plaintiff must allege that they knew of a specific threat to Plaintiff's safety and then acted with deliberate indifference to that knowledge. See, e.g., Armstrong v. City of Greensboro, 190 F.Supp.3d 450, 464 (M.D. N.C. 2016) (“Personal involvement and affirmative misconduct or tacit authorization are necessary to establish the direct liability of a supervisor.”); Harbeck, 814 F.Supp.2d at 627 (“To establish [ ] personal wrongdoing, the individual ‘must have had personal knowledge of and involvement in the alleged deprivation of appellant's rights in order to be liable.' ”) (quoting Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985)); cf Toomer v. Baltimore City Det. Ctr., No. 12-cv-0083, 2014 WL 4678712, at *4 (D. Md. Sept. 18, 2014) (“Any attempt to hold [Defendants] personally liable on the basis of failure to protect is unavailing because Plaintiff's allegations do not support that any of these three Defendants knew of a specific threat to Plaintiff's safety and then acted with deliberate indifference to that knowledge.”). Because Defendants did not know that Reynolds coerced Plaintiff to engage in a sexual act, they cannot be held liable for failing to protect him from that harm.
Nevertheless, even if Defendants were made aware that Reynolds coerced Plaintiff to engage in a sexual act or if the sexual conversations they were told about could give rise to a constitutional violation, there are no allegations that Defendants were aware of any risk of harm to Plaintiff prior to these actions occurring or that the actions continued after Linen and Holsinger were made aware of them. See, e.g., Wilkins v. Upton, 639 Fed.Appx. 941, 945 (4th Cir. 2016) (holding that there was no basis for an Eighth Amendment claim against correctional officers that were not aware of an alleged assault until after it occurred); Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014) (“constitutional torts, like their common law brethren, require a demonstration of both but-for and proximate causation”); Delgado v. Solomon, No. 5:16-CT-3163-FL, 2020 WL 1528518, at *6 (E.D. N.C. Mar. 30, 2020) (noting that a failure to protect claim requires prior knowledge of a known risk of harm). “[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Farmer, 511 U.S. at 837. Here, even assuming the factual allegations are true, Plaintiff has failed to allege that Defendants Holsinger or Linen knew of and disregarded an excessive risk to Plaintiff's safety. Thus, dismissal of his failure to protect claim is appropriate.
In his amended complaint and more so in his motion for summary judgment, Plaintiff asserts that Defendants failed to follow SCDC policy after he notified them of Reynolds' actions. However, “the failure of prison officials to follow their own policies or procedures, standing alone, does not amount to a constitutional violation.” Johnson v. S.C. Dep't of Corr., No. 06-2062, 2007 WL 904826 at *12 (D.S.C. Mar. 21, 2007). In addition, Plaintiff asserts several times in his amended complaint that Defendants were negligent in failing to report Reynolds' actions, but negligence does not give rise to a constitutional violation. County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (“[T]he Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold” of constitutional protections).
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. “The PREA is intended to address the problem of rape in prison, authorizes grant money, and creates a commission to study the issue....” De'lonta v. Clarke, C/A No. 7:11-00483, 2013 WL 209489, at *3 (W.D. Va. Jan. 14, 2013) (citation omitted). However, the PREA did not create a private right of action allowing, in this instance, Plaintiff to bring a claim pursuant to the PREA against Defendants. See Byrd v. South Carolina Dep't of Corr., C/A No. 5:11-3340-MGL, 2013 WL 5309759, at *11 (D.S.C. Sept. 19, 2013) (“Because § 1983 itself does [not] create any rights, and the text and the structure of the PREA provide no indication that Congress intended to create a new individual rights, there is no basis for a private right of action for inmates to sue prison officials for noncompliance with the Act.”) (footnote and citations omitted); see also Hill v. Hickman County Jail, 2015 WL 5009301, *3 (M.D. Tenn. August 21, 2015) (collecting cases holding that there is no private right of action under PREA, and holding that “[t]o the extent the complaint might be construed as bringing a claim under the PREA, such claim must be dismissed”).
Finally, to the extent Plaintiff alleges that Defendants were negligent in their actions, the undersigned recommends that the court decline to exercise supplemental jurisdiction over any such state law claims. See 28 U.S.C. § 1367(c)(3); Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.1995) (holding district court did not abuse its discretion in declining to retain jurisdiction over the state law claims); see also, United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Revene v. Charles County Comm'rs, 882 F.2d 870, 875 (4th Cir.1989).
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion for Judgment on the Pleadings (ECF No. 88) be granted, Plaintiff's Motion for Summary Judgment (ECF No. 109) be denied, and this case be dismissed in its entirety.
The parties are directed to the important information on the following page.