Murray v. Beaver

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:18-cv-00641-MR

ADRIAN D. MURRAY, )

)

Plaintiff, )

)

vs. ) ORDER

)

KENNETH A. BEAVER, et al., )

)

Defendants. )

________________________________ )

THIS MATTER comes before the Court on Defendants’ Motion for

Summary Judgment [Doc. 56] and on Plaintiff’s Cross-Motion for Summary

Judgment [Doc. 62].

I. PROCEDURAL BACKGROUND

Pro se Plaintiff Adrian D. Murray (“Plaintiff”) was formerly a prisoner of

the State of North Carolina incarcerated at Lanesboro Correctional Institution

(“Lanesboro”) in Polkton, North Carolina.1 Plaintiff filed this action on

November 29, 2018, pursuant to 42 U.S.C. § 1983, and filed a verified

Amended Complaint on May 24, 2019. [Docs. 1, 17]. In his Amended

Complaint, Plaintiff named four Defendants in their individual capacities: (1)

1 Lanesboro has since been converted to a women’s prison named Anson Correctional

Institution. Plaintiff was most recently housed at Scotland Correctional Institution in

Laurinburg, North Carolina, before his release from custody. [See Doc. 12].

John Doe, identified as the Warden of Lanesboro; (2) FNU Mott (hereinafter

“Defendant Mohl”), identified as a Sergeant at Lanesboro; (3) FNU McCoy,

identified as an officer of Lanesboro; and (4) David Guice, identified as the

Secretary of the N.C. Department of Public Safety (“NCDPS”).2 [Doc. 17].

Plaintiff alleged that Defendant McCoy allowed another inmate to fashion

weapons out of an exit sign grate in Plaintiff’s pod at Lanesboro and McCoy

either failed to report this incident to Defendant Mohl or Defendant Mohl

failed to act thereon. The inmate, in turn, sold one such weapon to a third

inmate who later violently attacked Plaintiff. Plaintiff also alleged that he filed

a grievance after this incident and Defendant Beaver and unknown staff

members retaliated by destroying evidence and falsifying reports related to

the attack. [Id.]. Plaintiff’s Eighth Amendment claims against Defendants

Beaver, McCoy, and Mohl based on the failure to protect; Plaintiff’s claims

against Defendant Beaver based on retaliation for filing grievances and

denial of access to the courts; and Plaintiff’s claim for punitive damages

2 The Doe Defendant has since been identified as Kenneth Beaver. Although Beaver was

not the Warden or Superintendent of Lanesboro, he responded to this lawsuit because,

during the relevant time of Plaintiff’s Amended Complaint (namely from July 2016 through

on or about September 30, 2016), he was the highest ranking official at Lanesboro. [Doc.

58-1 at ¶ 3: Beaver Dec.]. Defendant FNU “Mott” has since been identified as James

Mohl and Defendant FNU McCoy has since been identified as Monica McCoy. [Doc. 32].

survived initial review.3 [Doc. 19]. The Court appointed the North Carolina

Prisoner Legal Services (NCPLS) for the limited purpose of conducting

discovery on behalf of Plaintiff. [Doc. 41 at 2]. At the close of the discovery

period, NCPLS counsel advised the Court that she had assisted Plaintiff with

conducting discovery and moved to withdraw as counsel, which the Court

allowed. [Docs. 53-55].

On December 16, 2020, Defendants moved for summary judgment.

[Doc. 56]. In support of their motion, Defendants submitted a brief and their

declarations. [Docs. 57, 58-1 through 58-3]. On January 6, 2021, the Court

entered an order in accordance with Roseboro v. Garrison, 528 F.2d 309

(4th Cir. 1975), advising Plaintiff of the requirements for filing a response to

the summary judgment motion and the manner in which evidence could be

submitted to the Court. [Doc. 59]. Plaintiff filed a response, signed under

penalty of perjury, and a cross-motion for summary judgment based on

3 Plaintiff’s claims based on censorship of his mail and an unknown staff member’s failure

to deliver a grievance letter to Plaintiff’s family were dismissed on initial review. Also,

Defendant Guice was dismissed as a defendant in this matter for Plaintiff’s failure to state

a claim against him. [Doc. 19]. On initial review, the Court identified a separate surviving

claim against Defendant Beaver based on the denial of Plaintiff’s due process rights.

[Doc. 19 at 7]. Further examination of Plaintiff’s Amended Complaint, however, shows

that Plaintiff’s Fourteenth Amendment claim was bound with and based on Defendant

Beaver’s alleged denial of access to the courts and that Plaintiff did not allege a separate

due process violation by Defendant Beaver. These claims are, therefore, addressed

herein as a denial of access to the courts claim only. Plaintiff also asserted violation of

his rights under the Fifth and Fourteenth Amendments based on conditions of

confinement at Lanesboro. [See Doc. 17 at ¶ 62]. The Court allowed those claims to

pass initial review, [Doc. 19 at n.1], and addresses them below.

alleged spoliation of evidence. [Doc. 62].

This matter is now ripe for adjudication.

II. STANDARD OF REVIEW

Summary judgment shall be granted “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(a). A factual dispute is

genuine “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is material only if it might affect the outcome of the suit under

governing law. Id.

The movant has the “initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving

party. The nonmoving party “must set forth specific facts showing that there

is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may not

rely upon mere allegations or denials of allegations in his pleadings to defeat

a motion for summary judgment.4 Id. at 324. Rather, the nonmoving party

must oppose a proper summary judgment motion with citation to

“depositions, documents, electronically stored information, affidavits or

declarations, stipulations …, admissions, interrogatory answers, or other

materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). Namely, the

nonmoving party must present sufficient evidence from which “a reasonable

jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at

248; accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th

Cir. 1995).

When ruling on a summary judgment motion, a court must view the

evidence and any inferences from the evidence in the light most favorable to

the nonmoving party. Anderson, 477 U.S. at 255. A nonmovant, however,

cannot create a genuine issue of material fact through speculation or a

compilation of inferences. Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir.

2010). “‘Where the record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party, there is no genuine issue for trial.’” Ricci

4 The Fourth Circuit, however, recently made clear that a district court is to consider

verified prisoner complaints as affidavits on summary judgment “when the allegations

contained therein are based on personal knowledge.” Goodman v. Diggs, 986 F.3d 493,

498 (4th Cir. 2021).

v. DeStefano, 129 S. Ct. 2658, 2677 (2009) (quoting Matsushita v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986)).

The evidentiary forecast before the Court now consists of the materials

submitted by Defendants, Plaintiff’s response, and the allegations in

Plaintiff’s verified Amended Complaint made on his personal knowledge.

III. FACTUAL BACKGROUND

In this case, Plaintiff asserts claims under the Eighth Amendment

based on the prison official Defendants McCoy and Mohl’s failure to protect

him and based on Defendant Beaver’s failure to maintain adequate staffing;

and against Defendant Beaver for denial of access to the courts and for

retaliation for filing grievances under the First Amendment. Plaintiff also

makes various allegations of gross negligence against Defendants Beaver

and Mohl based on their alleged failure to properly train and supervise

subordinate staff.

The forecast of evidence in the light most favorable to the non-movant

is as follows:

This matter arises from an incident that occurred on August 28, 2016

at Lanesboro wherein Plaintiff was repeatedly stabbed by a fellow inmate,

as well as certain events occurring in the months before and weeks after this

assault. At the relevant times, Defendant Beaver was the Assistant

Superintendent at Lanesboro and, from July 2016 through on or about

September 30, 2016, was the highest ranking official at Lanesboro. [Doc.

58-1 at ¶ 2: Beaver Dec.]. Defendant McCoy was a correctional officer

assigned to Lee Unit at Lanesboro. [Doc. 58-2 at ¶ 4: McCoy Dec.]. McCoy

was responsible for overseeing inmates in that housing unit. [Id.]. Among

other things, McCoy’s duties included making rounds and standing post in

the control booth. [Id. at ¶ 5]. When Lanesboro staffing levels allowed,

rounds were required to be made hourly. [Id. at ¶ 7]. McCoy always made

rounds when required as dictated by staffing levels. [Id.].

As a correctional officer, McCoy was instructed and trained to follow all

policies and procedures related to keeping inmates safe. [Doc. 58-1 at ¶ 8].

This included checking all exit sign grates and other grates while making

rounds to ensure they were not removed or otherwise tampered with. [Id.].

When McCoy was a control booth officer, she monitored activity in three

pods, documented rounds, and monitored the corridor floor. [Doc. 58-2 at ¶

10]. McCoy monitored activity via video monitors and by watching through

the control booth’s windows. [Id.]. Defendant Mohl was a Sergeant at

Lanesboro and was responsible for supervising correctional officers

assigned to Lee Unit.5 [Doc. 58-3 at ¶¶ 2,4: Mohl Dec.].

In late June 2016, Plaintiff was housed in Alpha POD in Lee Unit. [Id.

at ¶ 13]. During the time that Plaintiff was on Lee Unit, a “culture of violence”

had evolved at Lanesboro “due to staffs’ habitual failures to follow safety

[and] security protocols [and] procedures.” [Doc. 17]. Plaintiff was assigned

to bunk 44, which is the last bunk in the row and next to one of two bathrooms

upstairs. [Id.]. There was an emergency exit, which was marked by an exit

sign, less than two feet from the foot of Plaintiff’s bunk. [Doc. 17 at ¶ 14].

The exit sign was covered by “an approximately 1 ½[’] x 8’ x 4’ wire grate”

(“Exit Sign Grate”). [Id.]. There were six such emergency exits and grates

in Alpha POD. [Id.]. At the head of Plaintiff’s bunk was a structural support

column attached to which there was an “emergency/fire strobe light covered

by an approximately 6’ x 4’ x 4’ wire grate” (“Strobe Light Grate”). [Id. at ¶

15].

One day in late June 2016, Plaintiff saw another inmate attempting to

remove and take the Exit Sign Grate. The inmate’s efforts were thwarted,

5 Defendant Mohl attests that, as a supervisor, he always instructed and trained his staff

to follow all policies and procedures related to keeping inmates safe. [Doc. 58-3 at ¶ 5].

Defendant Mohl claims that if he learned that a staff member failed to follow such policies

and procedures, he would correct that staff member immediately and inform the staff

member that there would be consequences for another such failure. [Id.].

however, when Officer McCoy entered the POD to perform her “mandated

safety [and] security rounds.” [Id. at ¶ 16]. The inmate left the grate hanging

precariously over the top of the exit door, secured to the wall by only one of

the four mounting pegs. [Id. at ¶ 17]. As part of her duties and pursuant to

NCDPS Policy & Procedure (“NCDPS Policy”), Chapter F, Section .1600,

Management of Security Posts,6 Defendant McCoy was required to secure

exits and to inspect and ensure facility fixtures, such as wire grates covering

exits signs, were in their proper place and secured. [Id. at ¶ 18]. While

McCoy was making her rounds, Plaintiff observed her noticing the grate “was

unusually out of place, scrutinizing the grate for several moments before

continuing her rounds.” [Id. at ¶ 19]. After McCoy left Alpha POD, the inmate

resumed his efforts and was able to completely remove the Exit Sign Grate.

He also removed the Strobe Light Grate. [Id. at ¶ 20]. The inmate

immediately began to dismantle the grates and to sell pieces thereof,

6 Plaintiff cites to various NCDPS policies throughout his Amended Complaint and in his

summary judgment materials. [See Docs. 17, 62]. Although Plaintiff has not submitted

any polices in support of his position on summary judgment, he does incorporate NCDPS

Policy and “Lanesboro [Standard Operating Procedure (SOP)]” “by reference due to court

protective order.” [Doc. 62 at 2]. Lanesboro SOP is not part of the record in this matter.

NCDPS Policy is, however, available online at ncdps.gov/adult-

corrections/prisons/policy-procedure-manual. For the sake of economy and for purposes

of this motion only, the Court will take judicial notice of NCDPS Policy. The Court notes,

however, that the versions of the policies that would have been effective at the relevant

times are not available online and the Court, therefore, relies on the currently available

Policy.

including selling a piece to an inmate who later stabbed Plaintiff with the

grate piece. [Id. at ¶¶ 22-23].

McCoy returned for security rounds two hours later. [Id. at ¶¶ 21, 24].

She entered Alpha POD and, upon reaching the exit door next to Plaintiff’s

bunk, she stopped and said, “What the hell,” looking back and forth between

where the grate used to be and the Plaintiff. The Plaintiff responded, “yeah,

it’s gone.” [Id. at ¶ 24]. She continued her rounds and existed the POD.7

[Id.].

McCoy was required to report the grate being out of place, and then

missing completely, pursuant to NCDPS Policy, Ch. 5, § .1604(k). [Id. at ¶

25]. McCoy either failed to report the issues with the grate to her supervisor,

Defendant Mohl, or Mohl failed to act on McCoy’s report. [Id. at ¶ 26]. Over

the next 20 to 30 days, all but two of the six wire grates covering exit signs

and several of the eighteen or so strobe light grates were taken by inmates

and converted into shanks. [Id. at ¶ 27].

In late June 2016, Mohl was informed that some of the exit sign grates

and other grates on Lee Unit were missing. Mohl also personally noticed

that some grates were missing. [Doc. 58-3 at ¶ 7]. Mohl immediately made

7 Defendant McCoy, on the other hand, attests that, while she worked as a correctional

officer at Lanesboro, she “never saw that any grates were removed without authorization

or were otherwise tampered with.” [Doc. 58-2 at ¶ 9].

sure that the maintenance staff was notified and instructed to remove all

remaining grates so those grates could not be removed or tampered with by

inmates. [Id.]. Mohl also made sure that he and his officers “remained on

the lookout for any metal pieces from missing grates.” [Id.]. Defendant

Beaver attests that he did not have personal knowledge that any exit sign or

other grates at Lanesboro had been removed or tampered with by inmates.

Beaver also attests that he did not know that pieces of any such grates were

distributed to other inmates. [Doc. 58-1 at ¶ 5].

On August 28, 2016 at approximately 11:50 p.m. in Alpha POD in Lee

Unit, an inmate attacked Plaintiff, using a piece of a grate the inmate

acquired in June 2016. [Doc. 17 at ¶¶ 34-35]. There is no evidence that the

shank was from the grate near Plaintiff’s bed or from some other grate. The

inmate stabbed Plaintiff many times all over his body and repeatedly tried to

stab Plaintiff’s eyes. [Id. at ¶¶ 36-52]. From his bunk, Plaintiff was able to

see inside the control booth. [Id. at ¶ 54]. Right before the assault, Plaintiff

noticed that McCoy was manning the control booth with her back to Alpha

POD and the monitors and, as such he asserts that she was “improperly

distracted” from her duties contrary to NCDPS policy. [Id. at ¶ 55 (citing

NCDPS Policy, Ch. F, § .1603(e), § .1604(c), § .1605(a), (d), and (k); and §

.1605(p))]. The assault was readily viewable by McCoy on the Alpha POD

camera monitors in the control booth, but McCoy was “holding a

conversation with someone who stood … in the opposite direction … of the

monitors.” [Id. at ¶ 57].

Eventually, Plaintiff was able to get up and make his way downstairs

to safety while the other inmate continued to threaten Plaintiff. [Id. at ¶ 63;

see id. at ¶ 53]. Plaintiff pushed the emergency call button and watched

McCoy in the control booth ignore the buzzer, continuing her conversation

with her back to Alpha POD and the camera monitors, again in violation of

NCDPS policy. [Id. at ¶ 63]. Plaintiff pushed the call button at least two more

times before McCoy returned her attention to her post duties. She asked

Plaintiff over the intercom what he needed. Plaintiff responded by holding

up a bloody rag. She finally opened the door, allowing Plaintiff to get to

safety and to seek medical care. [Id.]. During the assault, there was no floor

officer on duty because Lee Unit was understaffed that day.8 [Id. at ¶ 65].

8 Plaintiff alleges that staffing levels were the responsibility of Lanesboro’s “head/warden

and/or [Defendant] David Guice,” citing NCDPS Policy, Ch. F., § 1603(a). [Doc. 17 at ¶

66]. The provision provides, however, that, “[t]he Director of Prisons will ultimately be

responsible for determining the number of security staff required to provide a safe and

secure environment at each prison facility.” NCDPS Policy, Ch. F, § .1603(a). The Court

takes judicial notice that the Director of Prisons at the time of the incident at issue here

was George Solomon, who is not a defendant in this matter. Moreover, Defendant Beaver

attests that, as Assistant Superintendent, he had no control over how many correctional

staff were hired to work at Lanesboro. [Doc. 58-1 at ¶ 9].

After the assault, the Unit Manager reviewed video footage and determined

that Plaintiff had been assaulted by another inmate. [Id. at ¶ 58].

The same day as the assault, Plaintiff was placed in segregation and

remained there until November 1, 2016, when he was transferred to Tabor

Correctional Institution. [Id. at ¶ 69]. While in segregation at Lanesboro,

Plaintiff asked segregation staff for grievance forms, which he was denied.

[Id. at ¶¶ 70-71]. Plaintiff, therefore, attempted to access the grievance

procedure by writing his grievance complaint on regular notebook paper with

one carbon copy. He placed the carbon copy in an envelope and directed it

to Captain Tucker. The grievance, however, was never processed or

responded to. [Id. at ¶¶ 73-74]. Plaintiff attempted to mail the original

grievance papers home, but his grievance was slid under his cell door

approximately 20 days later with the postage torn off, opened, and marked

with a sticker stating, “not deliverable as addressed.” [Id. at ¶¶ 75-79]. The

mailing address was correct. [Id. at ¶ 80]. In his grievance, Plaintiff

requested that videos and investigation materials and witness statements be

preserved for further proceedings. [Id. at ¶ 90].

Sometime after the assault and Plaintiff’s attempt to file a grievance,

Lanesboro’s “head or designee (warden) and/or other unknown staff

member(s)” retaliated against Plaintiff. Plaintiff alleges, upon information

and belief, that the video of the assault and of McCoy in the control booth;

statements of Mohl, McCoy, and other staff members who investigated the

assault; photographs of Plaintiff’s injuries; and documents related to staff

shortages on August 28, 2016, were all destroyed. [Id. at ¶¶ 84-88]. Plaintiff

also alleges, upon information and belief, “under reporting and/or falsifying

reports to doc safety office.” [Id. at ¶ 89]. Plaintiff further alleges that

Defendant Beaver either authorized the destruction of evidence that would

disprove Defendants’ Affidavits and prove Plaintiff’s verified allegations or

“there was a failure to train and properly supervise subordinate staff, which

resulted in staff destroying evidence….”9,10 [Doc. 62 at 3-4].

9 Defendants’ forecast of evidence includes only the individual Defendants’ affidavits.

[See Docs. 58-1 through 58-3]. They submit no records of any incident reports, witness

statements, video footage, or other evidence related to the attack on Plaintiff.

10 In contrast to Plaintiff’s forecast of evidence, Defendant Beaver claims as follows. As

Assistant Superintendent at Lanesboro, Beaver always instructed and trained staff to

follow all policies and procedures related to keeping inmates safe. [Doc. 58-1 at ¶ 4]. If

Beaver became aware that a staff member failed to follow such policies and procedures,

Beaver would correct the staff member immediately and inform the staff member that he

or she would face consequences if there was another such failure. [Id.]. Beaver has

never destroyed any video of an inmate or staff assault; any video of McCoy; any written

statements of McCoy, Mohl, or anyone else; or photos of Plaintiff’s wounds or of any other

inmates. [Id. at ¶¶ 10-13]. Beaver is not aware of nor has he ever destroyed any

documents related to alleged staff shortages on August 28, 2016. [Id. at ¶ 14]. Beaver

has never prevented or tried to prevent an inmate from accessing the grievance process

or the courts. [Id. at ¶ 16]. Finally, Beaver claims he has never falsified reports to the

NCDPS. [Id.].

IV. DISCUSSION

A. Failure to Protect

Claims under 42 U.S.C. § 1983 based on an alleged failure to protect

fall within the Eighth Amendment’s prohibition against cruel and unusual

punishment. Under the Eighth Amendment, “prison officials have a duty …

to protect prisoners from violence at the hands of other prisoners.” Farmer

v. Brennan, 511 U.S. 825, 833 (1994) (quotation marks omitted). “It is not,

however, every injury suffered by one prisoner at the hands of another that

translates into constitutional liability for prison officials responsible for the

victim’s safety.” Id. at 834.

To be found liable under the Eighth Amendment based on a failure to

prevent harm, the prisoner first “must show that he was incarcerated under

conditions posing a substantial risk of serious harm.” Id. (citation omitted).

Next, the prisoner must show that the prison official had a sufficiently

culpable state of mind. Id. (quotation marks and citation omitted). “In prison-

conditions cases, that state of mind is one of deliberate indifference to inmate

health or safety.” Id. (quotation omitted). “Deliberate indifference” is

measured subjectively. The Supreme Court has described the standard as

follows:

[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

the inference…. The Eighth Amendment does not

outlaw cruel and unusual “conditions”; it outlaws

cruel and unusual “punishments.” … But an official’s

failure to alleviate a significant risk that he should

have perceived but did not, while no cause for

commendation, cannot under our cases be

condemned as the infliction of punishment.

Farmer, 511 U.S. at 837-38. A prison official is not liable if he knew the

underlying facts but believed, even if unsoundly, that the risk to which the

facts gave rise was insubstantial or nonexistent. Farmer, 511 U.S. at 837.

Subjective awareness of a significant risk may be shown either through direct

or circumstantial evidence of actual knowledge. Makdessi v. Fields, 789

F.3d 126, 132-33 (4th Cir. 2015). However, “prison officials who actually

knew of a substantial risk to inmate safety may be found free from liability if

they responded reasonably to the risk, even if the harm ultimately was not

averted.” Farmer, 511 U.S. at 844. Nonetheless, the Supreme Court has

also noted that,

If an Eighth Amendment plaintiff presents evidence

showing that a substantial risk of inmate attacks was

longstanding, pervasive, well-documented, or

expressly noted by prison officials in the past, and the

circumstances suggest that the defendant-official

being sued had been exposed to information

concerning the risk and thus must have known about

it, then such evidence could be sufficient to permit a

trier of fact to find that the defendant-official had

actual knowledge of the risk.

Id. at 842-43 (quotation marks omitted).

Where prison official defendants in a failure to protect case are

supervisors without personal involvement in the incident, such supervisors

“may be held liable under a tacit authorization theory if that supervisor fails

to take action in response to a known pattern of comparable conduct

occurring before the incident at issue took place.” Danser v. Stansberry, 772

F.3d 340, 350 (4th 2014) (citation omitted). Furthermore, “the Eighth

Amendment requires more than some action: It requires reasonable action.”

Cox v. Quinn, 828 F.3d 227, 237 (4th Cir. 2016) (citing Farmer, 511 U.S. at

844, 114 S. Ct. 1970). Finally, “[w]hile occasional, isolated attacks by one

prisoner on another may not constitute cruel and unusual punishment, …

confinement in a prison where violence and terror reign is actionable.”

Woodhous v. Com. of Va., 487 F.2d 889, 890 (4th Cir. 1973) (internal citation

omitted).

The forecast of evidence here, when viewed in the light most favorable

to the Plaintiff, demonstrates that Defendant Mohl violated Plaintiff’s rights

under the Eighth Amendment. The forecast of evidence, however, is

insufficient to proceed to a jury on Plaintiff’s Eighth Amendment claims

against Defendants Beaver and McCoy.

1. Missing Grates

Defendant Mohl, in response to learning in late June 2016 that “some

of the exit-sign grates and other grates on Lee Unit at Lanesboro CI were

missing” and noticing some missing himself, made sure that maintenance

staff was notified and instructed to remove all remaining grates. Mohl also

made sure his officers “remained on the lookout for any metal pieces missing

from missing grates.”11 [Doc. 58-3 at ¶ 7].

From this forecast a jury could reasonably infer that Defendant Mohl

acted with deliberate indifference to a substantial risk of serious harm to the

Plaintiff. A jury could conclude that merely telling subordinate officers to be

“on the lookout” for dangerous weapons that were so obviously in the hands

of prisoners in a prison wrought with a “culture of violence” was entirely

unreasonable ̶ a woefully deficient remedial action to alleviate the

substantial risk. A jury could conclude that anything less than a thorough,

comprehensive unit-wide search for the metal pieces from these grates was

unreasonable. As such, genuine issues of fact on Plaintiff’s claim against

11 McCoy’s testimony that she never knew about any missing grates at Lanesboro conflicts

directly with Mohl’s testimony that he advised his officers to be on the lookout for the

missing grates. In any event, based on Plaintiff’s forecast of evidence, a reasonable jury

could find that McCoy knew about the missing grates.

Mohl based on his response to the missing grates remain for the jury.

The inquiry for Defendant McCoy is slightly different. “[C]onstitutional

torts, like their common law brethren, require a demonstration of both but-for

and proximate causation.” Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir.

2012). Accordingly, “subsequent acts of independent decision-makers …

may constitute intervening superseding causes that break the causal chain”

and insulate prison officials from § 1983 liability. Id.; Kane v. Lewis, 604 Fed.

App’x 229, 234-35 (4th Cir. 2015).

Here, the forecast of evidence is insufficient to show any proximate

cause connecting Defendant McCoy’s conduct related to the missing grates

and the Plaintiff’s injuries. Defendant Mohl admits to having been aware of

the missing grates, whether he learned of this from McCoy or otherwise, and

that he had even observed some grates missing himself. Accordingly,

regardless of whether McCoy reported the missing grate to Mohl, Mohl was

aware that grates were missing and acted, or failed to act, in response

thereto. Moreover, there is no forecast of evidence showing that MCoy had

any duty or authority relative to the missing grates beyond her duty to report

the missing grates to Mohl. If McCoy reported the missing grates, she took

“reasonable action” and thus was not deliberately indifferent. Cox 828 F.3d

at 237; Farmer 511 U.S. at 844. If McCoy failed to report the missing grates,

it was of no consequence because her superior, Mohl, learned of this danger

from some other source. As such, the intervening acts of Mohl, as McCoy’s

supervisor, under the circumstances here, break the causal chain and

insulate McCoy from § 1983 liability.

Furthermore, Plaintiff alleges only that McCoy either failed to report the

missing grate or Mohl failed to act on McCoy’s report. This evidence is too

speculative to go to the jury on a deliberate indifference claim against McCoy

based on the missing grates. See Emmett, 532 F.3d at 297. A nonmovant

cannot create a genuine issue of material fact by guesswork. For these

reasons, the Court will grant Defendant McCoy’s summary judgment motion

on Plaintiff’s deliberate indifference claim based on the missing grates.

Defendant Beaver, a supervisor who Plaintiff does not allege was

personally involved in the incident, may only be held liable under a tacit

authorization theory for failing “to take action in response to a known pattern

of comparable conduct occurring before the incident at issue took place.”

Danser, 772 F.3d at 350. At best, Plaintiff alleges that McCoy’s failure to

report the missing grate (or Mohl’s failure to act on such report) “indicates a

pattern or custom for Lanesboro staff to fail to follow safety [and] security

protocols.” [Doc. 17 at ¶ 28; see also id. at ¶ 61]. Defendant Beaver, on the

other hand, attests that he did not know that any exit sign or other grates had

been removed or tampered with by prisoners and did not know that pieces

of any such grates were distributed to other inmates. [Doc. 58-1 at ¶ 5].

While the Court could speculate regarding previous patterns of comparable

conduct at Lanesboro and Defendant Beaver’s responses, or lack of

responses, thereto, the forecast of evidence before the Court does not

support a claim against Defendant Beaver for the failure to protect Plaintiff.

Moreover, Defendant Beaver was the highest-ranking officer at Lanesboro

from only July 2016 through September 30, 2016, which would further

undermine inferences involving his tacit authorization of conditions at

Lanesboro.12 The Court, therefore, will grant Defendant Beaver’s motion for

summary judgment on this claim.

In sum, the forecast of evidence supporting Plaintiff’s Eighth

Amendment claim against Defendant Mohl based on the missing grates is

sufficient to go to the jury. The forecast of evidence on Plaintiff’s claims

against Defendants McCoy and Beaver on this issue, however, is not. These

claims will be dismissed.

12 Defendants construe Plaintiff’s Amended Complaint as asserting claims against

Defendants Mohl and Beaver based on respondeat superior. [Doc. 57 at 21-23]. The

Court does not so construe Plaintiff’s Amended Complaint and no such claims were

recognized on initial review. [See Doc. 19]. The Court, therefore, will not further address

these claims.

2. Inattention at Control Booth

Plaintiff also asserts an Eighth Amendment failure to prevent harm

claim against Defendant McCoy based on McCoy’s inattention at the control

booth during the attack on Plaintiff. The forecast of evidence shows that

Lanesboro had evolved into a “culture of violence” due to the staffs’ failure

to follow safety and security protocols and procedures.13 The forecast of

evidence also shows that McCoy was aware of at least one missing grate

near Plaintiff’s bed. From this, Plaintiff argues the inference that McCoy

knew about the likely prolific presence of metal shanks in Lee Unit. As

addressed supra, this is insufficient standing alone. Plaintiff seeks to

buttress this with a forecast of evidence that he witnessed McCoy being

inattentive at the control booth during and immediately after his assault. It

is, however, uncontroverted that while McCoy was on duty as a control booth

officer that she monitored activity in three different pods and a corridor.

There is no forecast of evidence as to what distracted McCoy’s attention

during the assault on Plaintiff. Plaintiff merely offers speculation that such

distraction was improper.

13 Plaintiff focuses much of his argument on whether the Defendants followed the safety

and security protocols and procedures. Such internal regulations, however, are not

relevant to an Eighth Amendment claim for deliberate indifference. As to the deliberate

indifference standard, Plaintiff’s forecast is lacking.

Based on this forecast no reasonable jury could conclude that

Defendant McCoy was deliberately indifferent to a substantial risk of serious

harm to Plaintiff. Without a forecast of evidence of what distracted McCoy

from monitoring Alpha POD during the assault on Plaintiff, and whether such

distraction was related to her other duties as control booth officer, the Plaintiff

has failed to show that McCoy had a “sufficiently culpable state of mind.”14

Farmer, 511 U.S. at 834. Moreover, there is no forecast of evidence of how

long the assault lasted or that McCoy could have prevented or shortened the

assault even with no distractions.

The Court will, therefore, grant Defendant McCoy’s motion for

summary judgment on Plaintiff’s deliberate indifference claim based on

McCoy’s inattention at the control booth.15

14 Plaintiff also asserts claims for deliberate indifference to a substantial risk of harm and

to a serious medical need based on McCoy’s failure to respond to Plaintiff’s attempts to

get to safety when Plaintiff used the emergency call button. [Doc. 17 at ¶¶ 63-64, 68].

Plaintiff, however, does not forecast evidence of having suffered any injury or damages

as a result thereof. These claims are, therefore, dismissed. See Emmett, 532 F.3d at

297.

15 Plaintiff also purports to assert violation of his rights under the Fifth and Fourteenth

Amendments based on Defendants’ failure to provide him with a reasonably safe housing

environment as evidenced by McCoy’s and Mohl’s alleged conduct. [Doc. 17 at ¶¶ 31,

62]. While prison conditions are certainly relevant to an Eighth Amendment inquiry, the

Plaintiff has presented no forecast to support such a claim. These claims will, therefore,

be dismissed.

3. Understaffing

Finally, Plaintiff asserts a deliberate indifference claim against

Defendant Beaver based on understaffing at Lanesboro. Plaintiff alleges

that Lanesboro was regularly understaffed, which caused Defendant McCoy

to be unable to perform timely security rounds in June 2016. [Doc. 1 at ¶

32]. Plaintiff also alleges that there was no floor officer on duty on August

28, 2016, the day Plaintiff was attacked, because Lee Unit was understaffed.

[Id. at ¶ 65]. Plaintiff alleges that “safe staffing levels” are the responsibility

of the Warden at Lanesboro and/or former Defendant Guice. [Id. at ¶ 66].

The relevant forecast of evidence, however, shows that the Director of

Prisons is “ultimately [ ] responsible for determining the number of security

staff required to provide a safe and secure environment at each prison

facility,” [NCDPS Policy, Ch. F, § .1603(a)], and that Defendant Beaver did

not control how many correctional staff were hired to work at Lanesboro,

[Doc. 58-1 at ¶ 9]. As such, even if understaffing could be the basis of a

deliberate indifference claim, the forecast of evidence does not support such

a claim against any Defendant named in this case. Accordingly, the Court

will grant summary judgment for Defendant Beaver on Plaintiff’s deliberate

indifference claim based on staffing levels.

B. Retaliation and Denial of Access to Courts

Plaintiff claims that Defendant Beaver violated his rights under the First

Amendment by retaliating against him for filing a grievance by destroying

evidence related to the incident and, thereby, denying Plaintiff access to the

courts. Specifically, Plaintiff alleges that “Lanesboros’ [sic] designee

(warden) and/or other unknown staff member(s)” violated Plaintiff’s right of

access to the courts in retaliation for Plaintiff filing a grievance by, upon

information and belief, destroying and falsifying evidence related to the

August 28, 2016 attack on Plaintiff and other records supportive of Plaintiff’s

claims here. [Doc. 17 at ¶¶ 82-88; see also Doc. 62 at 3-4]. Plaintiff presents

only these speculative allegations made on information and belief in support

of these claims, which are insufficient to meet the evidentiary burden on

summary judgment. See Goodman v. Diggs, 986 F.3d at 498 (verified

prisoner complaints are to be considered as affidavits on summary judgment

only “when the allegations contained therein are based on personal

knowledge”). Defendant Beaver, on the other hand, attests that he did not

destroy or falsify any evidence or statements related to the incident at issue

here. [Doc. 58-1 at ¶¶ 10-15]. Plaintiff’s conjecture is insufficient to refute

this testimony. As such, Plaintiff’s claim against Defendant Beaver on this

issue will be dismissed.

C. Failure to Train and Supervise

Plaintiff contends that Defendant McCoy’s conduct in the control booth

indicates that Defendant Beaver and Defendant Mohl were grossly negligent

in failing to properly train and supervise subordinate staff, including

Defendant McCoy, and in failing to correct staff’s habitual failures to follow

safety procedures. [Doc. 17 at ¶¶ 60-61, 64]. To the extent Plaintiff intended

to assert a separate claim on this issue, the forecast of evidence is

insufficient to go to the jury thereon. Even if Defendant McCoy was

inattentive to her duties in the control booth on a single occasion, without

more, Plaintiff’s evidence is insufficient to show a grossly negligent failure to

train or supervise McCoy. See Jordan v. Jackson, 15 F.3d 333, 341 (4th Cir.

1994) (“[N]either a policy or custom of deficient training nor the required

causal connection can be shown by proof of a single incident of

unconstitutional activity alone.”). The Court, therefore, will grant summary

judgment for Defendants Beaver and Mohl on this issue.

D. Punitive Damages

Plaintiff seeks punitive damages against Defendants in this matter.

[Doc. 17 at 20]. A jury may award punitive damages in an action under §

1983 “when the defendant’s conduct is shown to be motivated by evil motive

or intent, or when it involves reckless or callous indifference to the federally

protected rights of others.” Smith v. Wade, 461 U.S. 30 (1983). Defendants

argue that Plaintiff’s punitive damages claim is without merit because Plaintiff

failed to allege, and the evidence does not show, that Defendants acted with

evil motive or intent or with recklessness and callousness. [Doc. 57 at 20-

21]. Defendants ignore that Plaintiff’s claims for deliberate indifference

easily connote recklessness. Cooper v. Dyke, 814 F.2d 941, 948 (4th Cir.

1987) (“The callous indifference required for punitive damages is essentially

the same as the deliberate indifference required for a finding of liability on

the § 1983 claim.”). Although Plaintiff did not use certain technical terms to

state a punitive damages claim, his allegations, and the forecast of evidence,

support that Defendant Mohl acted with recklessness and callousness. As

such, Plaintiff’s claim for punitive damages against Defendant Mohl survives

summary judgment. Plaintiff’s punitive damages claim against Defendants

Beaver and McCoy will, of course, be dismissed as no claims of

constitutional violations against him remain.

E. Qualified Immunity

Additionally, Defendants argue they are entitled to qualified immunity.

[Doc. 57 at 23-24]. Qualified immunity shields “government officials

performing discretionary functions … 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). “It has long been established

that jail officials have a duty to protect inmates from a substantial and known

risk of harm, including harm inflicted by other prisoners.” Cox v. Quinn, 828

F.3d 227, 239 (4th Cir. 2016) (citing Farmer, 511 U.S. at 833). Here, the

forecast of evidence shows that Defendant Mohl learned that a significant

number of weapons were in the hands of prisoners yet failed to take any

meaningful action to locate the weapons. As such, Defendant Mohl enjoys

no immunity here as to the Eighth Amendment claim that remains against

him. Defendants Beaver and McCoy, on the other hand, are entitled to

qualified immunity because the forecast of evidence does not support any

constitutional violations by them under § 1983.

F. Plaintiff’s Cross-Motion for Summary Judgment

Plaintiff has moved for summary judgment “based upon, inter alia,

spoliation and prejudicial hinderance of pursuing this claim.” [Doc. 62 at 4].

As grounds, Plaintiff claims “[e]ither [Defendant] Beaver authorized the

destruction of evidence that would disprove defendant[s’] affidavits and

prove every allegation in plaintiffs [sic] verified complaint … or there was a

failure to train and properly supervise subordinate staff which resulted in staff

destroying evidence.” [Id. at 3-4].

“Spoliation refers to the destruction or material alteration of evidence

or to the failure to preserve property for another’s use as evidence in pending

or reasonably foreseeable litigation.” Silvestri v. General Motors Corp., 271

F.3d 583, 590 (4th Cir. 2001) (citations omitted). The spoliation of evidence

may give rise to court-imposed sanctions deriving from a court’s inherent

power to control the judicial process and litigation. Id. A court may, for

instance, order dismissal, grant summary judgment, or permit an adverse

evidentiary inference drawn against a party who destroys relevant evidence,

to “level the evidentiary playing field and for the purpose of sanctioning

improper conduct.” Hartford Ins. Co. of Midwest v. American Automatic

Sprinkley Systems, Inc., 23 F.Supp.2d 623, 626 (D. Md. 1998) (quoting

Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995)). The

adverse inference “suggests that the destroyed evidence would have been

favorable to the party responsible for its destruction.” Id. at 627 (citations

omitted). Acts of spoliation, however, do not themselves give rise in civil

cases to substantive claims or defenses. Silvestri, 271 F.3d at 590.

A party seeking sanctions for spoliation must prove the following

elements:

(1) [T]he party having control over the evidence had

an obligation to preserve it when it was destroyed or

altered; (2) the destruction or loss was accompanied

by a “culpable state of mind;” and (3) the evidence

that was destroyed or altered was “relevant” to the

claims or defenses of the party that sought the

discovery of the spoliated evidence, to the extent that

a reasonable factfinder could conclude that the lost

evidence would have supported the claims or

defenses of the party that sought it.

Goodman v. Praxair Services, Inc., 632 F.Supp.2d 494, 509 (2009) (quoting

Thompson v. U.S. Dep’t of Housing & Urban Development, 219 F.R.D. 93,

100 (D. Md. 2003)).

Here, Plaintiff moves for summary judgment in his favor based on

Defendant Beaver’s alleged destruction of evidence. Plaintiff argues that

Defendant Beaver had final authority to approve destruction of evidence,

including videos of the incident and photographs of Plaintiff’s injuries, and

that, upon information and belief, Beaver “authorized the destruction of

evidence that would disprove” Defendants’ affidavits and prove Plaintiff’s

case. [Doc. 62 at 2-3; Doc. 17 at ¶ 83]. Plaintiff also argues that he

“requested in his grievance, prior to their destruction that the videos and

photos be preserved for purposes of the present litigation,” but that

Defendant Beaver approved their destruction in retaliation for Plaintiff filing

a grievance, or attempting to file a grievance, regarding the incident. [Doc.

62 at 5; Doc. 17 at ¶¶ 82-83]. While it is certainly quite curious that

Defendants have submitted no prison records or other evidence related to

the attack on Plaintiff in support of their summary judgment motion other than

their bare affidavits, Plaintiff’s assertion of a causative link between his filing

of the grievance and the absence of the videos and photographs is

conjecture. Even though Plaintiff has met most of the elements for showing

spoliation, he has not shown at this stage of the proceedings that Defendant

Beaver destroyed or authorized the destruction of the evidence. Allegations

made on information and belief are without evidentiary value on summary

judgment. Goodman v. Diggs, 986 F.3d at 498. This is clearly insufficient to

grant judgment in Plaintiff’s favor. This is, however, without prejudice to

Plaintiff raising the issue at trial, for instance in a request for a spoliation

instruction, if the evidence warrants such. See Hartford Ins. Co., 23

F.Supp.2d at 626.

V. CONCLUSION

In sum, for the reasons stated herein, the Court denies summary

judgment for Defendant Mohl on Plaintiff’s Eighth Amendment claim based

on Mohl’s response to the missing grates; for Defendant Mohl on Plaintiff’s

punitive damages claim; and for Defendant Mohl based on qualified

immunity. The Court grants summary judgment for Defendants on all other

claims. Finally, the Court denies Plaintiff’s motion for summary judgment.

ORDER

IT IS, THEREFORE, ORDERED that Defendants’ Motion for Summary

Judgment [Doc. 56] is DENIED IN PART as to Plaintiff's Eighth Amendment

and punitive damages claims against Defendant Mohl in accordance with the

terms of this Order and GRANTED IN PART as to all remaining claims by

Plaintiff.

IT IS FURTHER ORDERED that Plaintiffs Motion for Summary

Judgment [Doc. 62] is DENIED.

IT IS FURTHER ORDERED that Defendants Beaver and McCoy are

DISMISSED as Defendants in this matter.

IT IS SO ORDERED.

Signed: July 20, 2021

Martifi Reidinger ee

Chief United States District Judge AS

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