Collins v. Taylor, Civil Action 2:23-01169-RMG-MGB (2024)

Civil Action 2:23-01169-RMG-MGB

04-22-2024

Robbie Collins, Plaintiff, v. Lt. Taylor, et. al., Defendants.

MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

ORDER

MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this action under 42 U.S.C. § 1983 on March 24, 2023, alleging violations of his constitutional rights. Currently before the Court is Defendants' Motion for Summary Judgment. (Dkt. No. 73.) Under Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. For the reasons set forth below, the undersigned recommends Defendants' motion be granted based on Plaintiff's failure to exhaust his administrative remedies. In the alternative, the undersigned recommends Defendants' motion on the merits of Plaintiff's claims be granted in part and denied in part.

BACKGROUND

This civil action arises from an alleged encounter between Plaintiff and Defendant Lt. Taylor on February 17, 2023, at McCormick Correctional Institution. (Dkt. Nos. 1 at 7; 1-2 at 3.) In his verified Complaint,Plaintiff alleges that on February 17, 2023, “I refused to go in my room because I needed access to the courts.” (Dkt. No. 1-2 at 3.)

Goodman v. Diggs, 986 F.3d 493, 495 n.2 (4th Cir. 2021) (“A complaint is ‘verified' if it is ‘signed, sworn, and submitted under penalty of perjury.'” (quoting James v. Hale, 959 F.3d 307, 314 (7th Cir. 2020)).

According to Plaintiff, he then got into an argument with Lt. Taylor, where she called him “all kinds” of names “trying to make” him go into his room. (Id.) When Plaintiff “continued to refuse,” Lt. Taylor “announce[d] that [he is] a snitch,” saying all he does “is write sh*t up.” (Id. at 4.) Here, Plaintiff indicates that Lt. Taylor was referring to Plaintiff's complaints about alleged retaliatory conduct by prison officials. Specifically, Plaintiff alleges that on January 23, 2023, he “was moved from dorm F-3 to F-4 Structured Living Unit solely for retaliatory purpose because of [his] pending civil lawsuit against A/W Turner.”(Id. at 3.) Plaintiff alleges that after he moved, Defendant Warden Palmer “confiscated” Plaintiff's tablet “for no reason” and Plaintiff “was told that [he] could not go to the law library.” (Id.) Plaintiff then wrote a kiosk request complaining about “being blocked from access to the courts” and he “filed a preliminary injunction” in his pending civil lawsuits complaining of this alleged retaliation. (Id.)

“A/W Turner” is not a named defendant and Plaintiff does not name this individual elsewhere in the Complaint.

Plaintiff alleges that following his argument with Lt. Taylor, “the back up she radioed for previously enter[ed] the dorm and talk[ed] to me and put me in my room.” (Id. at 4.) According to Plaintiff,

Being that I was in a Structured Living Unit (SLU) which houses the most violent and problematic inmates and Lt. Taylor had just called me a snitch on the Rock, I knew I was in immediate danger. I immediately wrote General Counsel and informed them that my life was in danger and to [please] move me to another dorm or transfer me. Then later on, after I took my mental health medicine to stop my paranoia and suicidal ideation while lying on my bed in a pill induced semi-sleep, Lt. Taylor popped my door, and I was attacked. Afterwards, Feb. 18, I tried to go to medical, but I was told that I would not be seen.

Plaintiff alleges that he spoke with Defendant Associate Warden Robertson on February 19, 2023, when Robertson “called me to his office to give me copies of a policy pertaining to my pending civil suits.” (Id.) According to Plaintiff, “I told [Robertson] then that Lt. Taylor had called me a snitch on the Rock and he seen [sic] I had a black eye. I told him I wanted to go to lock-up or move me out [of] the dorm. He told me he was aware of the situation and he was not moving me.” (Id.)

Plaintiff further alleges,

I wrote a grievance, then on Feb. 22, 2023, I [received] a letter from general counsel stating Warden Palmer would handle it. Then I was deadlocked from Feb. 20 to Feb. 29 so I couldn't refuse to go in my room to get medical attention. [sic] Then on 3/7/23, I wrote a kiosk request to legal . . . explaining I needed to get moved out [of] this dorm or transferred to another institution for my safety because I was still being chastised and threatened and was in a hostile environment. I was told Warden Palmer had been notified and was handling the situation.

Plaintiff alleges that Warden Palmer and Associate Warden Robertson later “came onto the wing,” and Plaintiff asked Warden Palmer to move him out of the dorm or put him in lock-up “because Lt. Taylor called me a snitch and I had been attacked and I feared for my life.” (Id. at 5.) According to Plaintiff, Palmer said he knew about the situation and he would not move Plaintiff out of the dorm. (Id.)

Under “Legal Claims,” the Complaint alleges “Defendants” violated Plaintiff's Eighth Amendment rights “by calling me a snitch in general population and not taking precautionary measures to protect me from violence.” (Id.) The Complaint alleges here, “[e]ven after Warden Palmer and A/W Robertson [were] made aware of the incident, they refused to move me out [of] the dorm or put me on protective custody to ensure my safety.” (Id.) Plaintiff seeks $45,000.00 “for pain and suffering and emotional anguish and for violating my constitutional right[s].”(Id.)

In a separate part of the Complaint, Plaintiff states he seeks $15,000.00 “for all damages.” (Dkt. No. 1 at 8.)

On January 25, 2024, Defendants filed a Motion for Summary Judgment. (Dkt. No. 73.) On January 26, 2024, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 74.) Plaintiff filed a response in opposition on February 22, 2024, and Defendants filed a reply on February 27, 2024. (Dkt. Nos. 91; 92.) Plaintiff filed two sur-replies on March 7, 2024, and March 15, 2024. (Dkt. Nos. 96; 98.) The Motion for Summary Judgment has been fully briefed and is ripe for review.

STANDARDS

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

“As the moving party, Defendants are required to identify those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which they believe demonstrate the absence of genuine issues of material fact.” Perez v. Arnold Transportation, No. 3:15-cv-3162-TLW, 2018 WL 2301850, at *3 (D.S.C. Feb. 12, 2018) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “As the nonmoving party, Plaintiff[ ] must then produce specific facts showing that there is a genuine issue for trial.” Id. (citing Celotex Corp., 477 U.S. at 317). “Plaintiffs may not rest on mere allegations or denials; they must produce ‘significant probative evidence tending to support the complaint.'” Id. (quoting Anderson, 477 U.S. at 248). In other words, “the nonmoving party must go beyond the facts alleged in the pleadings and instead rely upon affidavits, depositions, or other evidence to show a genuine issue for trial.” Crawford v. Newport News Indus. Corp., No. 4:14-cv-130, 2018 WL 4561671, at *2. (E.D. Va. Mar. 2, 2018) (citing Celotex Corp., 477 U.S. at 317), adopted in part, 2018 WL 2943445 (E.D. Va. June 11, 2018), appeal dismissed sub nom. Kershaw v. Newport News Indus. Corp., 2018 WL 8058614 (4th Cir. Oct. 25, 2018). However, “[i]n this Circuit, verified complaints by pro se litigants are to be considered as affidavits and may, standing alone, defeat a motion for summary judgment when the allegations contained therein are based on personal knowledge.” Sweat v. Cook, No. 9:09-cv-1255-HFF-BM, 2010 WL 1428328, at *1 (D.S.C. Mar. 12, 2010), (citing Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991)), adopted by, 2010 WL 1444190 (D.S.C. Apr. 9, 2010), aff'd, 402 Fed.Appx. 807 (4th Cir. 2010).

“To survive a motion for summary judgment asserting he failed to exhaust [his administrative remedies], an inmate is required to produce competent evidence to refute the contention that he failed to exhaust.” Noe v. S.C. Dep't of Corr., No. 818-cv-256-DCC-JDA, 2019 WL 2090564, at *3 (D.S.C. Mar. 6, 2019), adopted by, 2019 WL 2089275 (D.S.C. May 13, 2019) (citing Hill v. Haynes, 380 Fed.Appx. 268, 270 (4th Cir. 2010) (holding that “to withstand a motion for summary judgment, the non-moving party must produce competent evidence sufficient to reveal the existence of a genuine issue of material fact for trial”)). In ruling on such a motion for summary judgment, “the nonmoving party's evidence ‘is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Although the Court must “draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Sandlands C & D LLC v. Cty. of Horry, 737 F.3d 45, 54 (4th Cir. 2013) (citing Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013)). “Only 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.” Anderson, 477 U.S. at 248.

Because Plaintiff is representing himself, these standards must be applied while liberally construing his filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

DISCUSSION

In their Motion for Summary Judgment, Defendants argue: (1) Plaintiff has failed to exhaust his administrative remedies and his claims should be dismissed on this basis; (2) Plaintiff's § 1983 claims fail as a matter of law; and (3) Defendants are entitled to qualified immunity. (Dkt. No. 73-1.)

More specifically, Defendants argue they are entitled to qualified immunity as to all claims “with the exception of the claim Plaintiff was attacked with Defendant Taylor's cooperation.” (Dkt. No. 73-1 at 16.)

The undersigned considers these arguments, below.

A. Exhaustion

Defendants argue that Plaintiff has failed to exhaust his administrative remedies with respect to his claims in this action. (Dkt. No. 73-1 at 2-7.) Section 1997e(a) of the Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Through the enactment of this statute, “Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741 (2001); see also Porter v. Nussle, 534 U.S. 516 (2002).

The purpose of the exhaustion requirement is twofold. First, it gives an administrative agency “an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court.” Woodford v. Ngo, 548 U.S. 81, 89 (2006) (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). Second, “[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court.” Id.

Exhaustion is defined by each prison's grievance procedure, not the PLRA; a prisoner must comply with his prison's grievance procedure to exhaust his administrative remedies. Jones v. Bock, 549 U.S. 199, 218 (2007). An inmate's failure to “properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983.” Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002); see also Johnson v. Ozmint, 567 F.Supp.2d 806, 815-16 (D.S.C. 2008) (granting summary judgment on the plaintiff's § 1983 claims for failure to exhaust his administrative remedies with respect to those claims).

“Failure to exhaust is an affirmative defense, and defendants have the burden of raising and proving the absence of exhaustion.” Baxley v. Jividen, 508 F.Supp.3d 28, 46 (S.D. W.Va. 2020) (citation and internal quotation marks omitted). “However, if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff.” Id. (citation and internal quotation marks omitted).

1. Evidence and Arguments

In support of their Motion for Summary Judgment, Defendants have submitted an affidavit from Felicia McKie, Agency Inmate Grievance Coordinator/Branch Chief within the SCDC Office of General Council. (Dkt. No. 73-4.) In her affidavit, McKie describes the grievance system as a “three-step process.” (Id. at 2.)

First, an inmate must attempt to resolve the issue informally by submitting a Request to Staff Member Form (“RTSM”) or Automated Request to Staff Member

(“ARTSM”) using the kiosk system. The Request must be submitted to the appropriate supervisor or staff person within eight (8) working days of the incident.

. . . Staff members are allowed forty-five (45) days to respond to RTSMs or ARTSMs....

If no response to the Request is provided within the allotted time frame, or if the inmate is unsatisfied with the response, the inmate can proceed to the second step by filing a Step 1 grievance, which involves completing Inmate Grievance Form 10-5. The Step 1 form requires the inmate to include “supporting documentation and attach [the] answered RTSM or Kiosk reference number.” . . . The Step l grievance must be completed and placed in the Grievance Box at the institution within eight (8) working days of the RTSM response....

After it is turned in by the inmate and retrieved by staff, the Step 1 grievance form will be routed to the institution's IGC. If the IGC determines the grievance cannot be processed due to missing information, documentation, or other issues, the IGC will note this on the Step 1 grievance form and return it to the inmate along with the reasons it cannot be processed. Further instructions may be provided in those situations.

If an inmate's Step 1 grievance is returned as “Processed and Returned,” the inmate can either re-file a new grievance after correcting any deficiencies noted, or the inmate can appeal the processed and returned grievance to me or designated staff personnel within ten (10) working days of the grievance being returned to the inmate.

When the Step 1 grievance is processed and returned to the inmate with a Warden's Decision, if the inmate is unsatisfied he must appeal that response by submitting a Step 2 grievance form to the IGC within five (5) working days of receipt of the response to the Step 1 grievance. Submission of a Step 2 grievance is the third and last step in the SCDC grievance process. The response to the Step 2 grievance is considered to be SCDC's final decision on the issue, and it is only at this point that an inmate's administrative remedies have been exhausted....

In addition to McKie's affidavit testimony, the undersigned takes judicial notice of SCDC Policy GA-01.12, which outlines the grievance process and is consistent with McKie's above summary. See SCDC Policy GA-01.12. (available at https://www.doc.sc.gov/policy/GA-01-12.htm.pdf). See Malik v. Ward, No. 9:08-cv-01886, 2010 WL 936777, at *2 n.4 (D.S.C. Mar. 16, 2010) (holding that “[t]he Court may take judicial notice of the SCDC grievance process, specifically, SCDC Policy GA-01.12”). Relevant here, SCDC Policy GA-01.12 provides the following guidance about “Emergency Procedures.” According to the Policy, an emergency “encompass[es], but is not limited to, situations, actions or conditions in which a person's health, safety, or welfare is threatened or in serious danger.” Id. ¶ 14.1. The inmate filing an emergency grievance bears the responsibility “to demonstrate the factors creating the substantial risk of personal injury or other serious and irreparable harm.” Id. Once the Grievance Coordinator receives a grievance alleging an emergency, he will forward it to the Chief of the Inmate Grievance Branch “to determine if a substantial risk or serious harm is present and warrants the grievance being processed as an ‘emergency.'” Id. If the grievance is treated as an emergency, “it will be forwarded immediately to the Warden if resolution of the issue(s) is within the Warden's capability to provide.” Id. ¶ 14.2. The responsible officials must respond to the inmate within seven working days of receiving the complaint rather than the normal forty-five days. Id. If the grievance is not seen an as emergency, the Grievance Coordinator must note that in his response and treat the grievance “routinely . . . as if it were a normal grievance.” Id. ¶ 14.4.

In her affidavit, McKie attests that she has reviewed “the official grievance records maintained by SCDC for” Plaintiff. (Dkt. No. 73-4 at 1.) She describes four Step 1 grievances filed by Plaintiff between February 17, 2023, the date the underlying incident occurred, and March 24, 2023, the date Plaintiff filed this lawsuit. McKie avers that Plaintiff did not properly exhaust any of his grievances prior to filing this lawsuit. (Id. at 4.) The referenced grievances are in the record as well as several Automated Request to Staff Member (“RTSM”) forms.

Below, the undersigned summarizes only the grievances and RTSM forms relevant to the events alleged in this case.

On February 17, 2023, Plaintiff filed a Step 1 grievance, in which he describes the incident with Lt. Taylor that occurred that same day and further states,

Later on I was laying on bed and Taylor popped my door and I was jumped on by masked individuals, she then said that's enough and closed my door and locked it. This is criminal activity and I don't have to write a RTSM per policy this is to go to police services. . . I am willing to pay for a lie detector test for Taylor to take announcing on the Rock I am a snitch putting my life and her life in danger because I am going to serve justice on [Lt. Taylor] for lying on my name and I have been denied medical attention.

The grievance was received by the IGC on February 22, 2023. The response to this grievance appears to be from Defendant Warden Palmer, and it is dated March 14, 2023. (Id. at 2.) It describes Plaintiff's allegations and states,

An inquiry into these claims has been conducted. Your claims of an assault have not been substantiated. Additionally, there is no evidence to support staff misconduct. If corrective action were deemed appropriate against staff, you would not be privy to such action due to employment confidentiality. You are advised to comply with officer directives and/or operating procedures. Therefore, your grievance is denied.

Plaintiff filed a Step 2 grievance on March 15, 2023, stating,

I am [supposed] to be separated from her. No investigation was done. If so, then they should [have] come and seen my black eye that's healing ....I want to be moved to another dorm. I'm still under duress because of the accusation.... I have no reason to lie and have not been known to lie. I want a separation. My life is still in danger.

An investigation concluded that you have not provided any evidence to substantiate your claims. Furthermore, you have not shown that SCDC staff has conducted their job duties improper. If Employee Corrective Action was warranted, you would not be notified of the same due to employee confidentiality. You are advised to modify your behavior and follow SCDC rules, policies, and procedures. Therefore, your grievance is denied.

Specific to the RTSM forms in the record, Plaintiff submitted the following inmate request to “security” on February 22, 2023:

Lt. Taylor announced on the rock I was a snitch putting my life in danger I have never told nothing on nobody. She said that [because] I file lawsuits and write grievances. I was refusing to go in my room [because] I needed access to the law library [because] I have a pending case and needed to review some policies.

Taylor says your accusations are false. Your law library concerns have been addressed. You have been provided the policy you requested.” (Id.; Dkt. No. 91-2.)

Plaintiff submitted another inmate request to “security” on March 12, 2023, stating,

She did call me a snitch and I told [you] I wanted to go to another dorm or send me to lock up from around her and any danger she has put me in by saying that on the rock and [you] are denying me to be free from violence. I'm under mental and emotional distress.

Plaintiff also submitted an inmate request to “legal” on March 1, 2023, complaining of Lt. Taylor not allowing him to use the law library on February 17, 2023. (Dkt. No. 73-7 at 5.) Plaintiff complains of the ensuing confrontation with Lt. Taylor, the subsequent attack, and the alleged lack of medical care thereafter. (Id.) Plaintiff asks to be “moved to another dorm or Lee County a 24 hour.” (Id.) The response to this request is dated March 7, 2023, and states,

Mr. Collins, The Office of General Counsel does not handle inmate housing assignments. That is handled by the Division of Classification. I reached out to Warden Palmer to make him aware of your safety concerns and to ensure that inmates in your unit are receiving adequate access to legal research resources.

In addition to these records, both parties submitted a letter Plaintiff sent to General Counsel on February 17, 2023, which Plaintiff references in his verified Complaint. In this letter, Plaintiff describes his confrontation with Lt. Taylor that day, and states, inter alia, that because Lt. Taylor “announce[d] o[n] the Rock that I am a snitch she has put my life in danger.” (Dkt. No. 1-2 at 2.) He continues,

I'm housed in SLU a Special Living Unit with dangerous prisoners who have behavioral problems. My life is in danger and I have already been threatened. If I'm attacked and have to kill or be killed it's because she has put my life in jeopardy. Please get me transferred before I am attacked....

Based on Plaintiff's own assertions, he wrote this letter to General Counsel immediately after his confrontation with Lt. Taylor, but before the alleged attack occurred later that same day. (Id. at 4.) Plaintiff claims he gave the letter to his “next door neighbor to put in the mailbox in case when they next time my door opened, I got killed or had to kill.” (Dkt. No. 91 at 4.) The record includes a “Response to Inmate Correspondence” from the “Office of General Counsel” dated February 23, 2023, which states that the Office has received and reviewed Plaintiff's letter, and it “has been forwarded to Warden Palmer for handling.” (Dkt. No. 1-2 at 1.)

In opposition to Defendants' motion, Plaintiff argues that his February 17, 2023 letter and Step 1 grievance constituted emergency grievances and, therefore, were subject to a different administrative process under the SCDC Policy. (Dkt. No. 91 at 1-5.) Plaintiff claims, “[a]fter I realized that my grievance wasn't filed as a[n] emergency grievance, . . . I immediately filed a 1983 [action] to save my life.” (Id. at 5.) Plaintiff argues that SCDC's failure to process his February 17, 2023 letter and Step 1 grievance as emergency grievances denied him access to the grievance process and made the process unavailable to him. (Id. at 3-5; Dkt. No. 96 at 1-2.)

Defendants respond that Plaintiff's conclusory argument that his Step 1 grievance should have been treated as an emergency is without merit, and they note that he did not raise this concern when appealing the denial of this grievance. (Dkt. No. 92 at 3.) Defendants further argue that because Plaintiff filed this lawsuit before the response to his Step 2 grievance was issued and received by him, he has failed to exhaust his administrative remedies. (Dkt. No. 73-1 at 6-7; Dkt. No. 92 at 3-4.)

Specific to Plaintiff's February 17, 2023 letter to General Counsel, Defendants argue that this was “not a grievance encompassed by SCDC's grievance policy.” (Dkt. No. 92 at 2.) According to Defendants, “[w]hile the grievance policy allows for emergency grievances to be handled outside the standard practice with no penalty to the inmate, everything in such cases begins with a grievance forwarded to the prison's inmate grievance coordinator, not a letter to the General Counsel's Office.” (Id.) Defendants assert that the letter “was not a grievance as contemplated by the policy, and given the obvious delay imposed by mailing such a document, could not reasonably be considered a viable method to address any emergency.” (Id.) Here, they cite McKie's affidavit testimony that “[i]nmates who take steps outside the grievance process, whether in making complaints verbally or in writing, . . . or by attempting to circumvent the grievance system and required steps in the process, are not adhering to SCDC's grievance process.” (Id.)

2. Analysis

Upon review, the RTSM and grievances in the record do not show that any prison officials improperly interfered in the grievance process or that the grievance process was otherwise unavailable to Plaintiff. See Graham v. Gentry, 413 Fed.Appx. 660, 663 (4th Cir. 2011) (“[I]n order to show that a grievance procedure was not ‘available,' a prisoner must adduce facts showing that he was prevented, through no fault of his own, from availing himself of that procedure.”). The record indicates that by the time Warden Palmer received from General Counsel Plaintiff's February 17, 2023 letter, he had already reviewed Plaintiff's February 17, 2023 Step 1 grievance. The grievance was not specifically labeled as an emergency, and it focused on an alleged assault that had already occurred. After an investigation, Palmer determined that Plaintiff's claims were unsubstantiated, and he communicated that finding to Plaintiff when denying his grievance. Plaintiff then filed a Step 2 grievance appealing his decision, and shortly thereafter, filed this lawsuit in federal court on March 24, 2023. His Step 2 grievance was denied on April 17, 2023, and Plaintiff received notice of this decision on May 2, 2023.

Because Plaintiff filed this lawsuit before his Step 2 grievance was denied, he did not exhaust his administrative remedies prior to initiating this action. See, e.g., Inman v. Dewitt, No. 5:19-cv-1880-JMC-KDW, 2020 WL 6276660, at *3 (D.S.C. June 25, 2020) (finding plaintiff failed to exhaust his administrative remedies because he “filed this lawsuit before receiving a response from his Step 2 grievance”), adopted by, 2020 WL 5015434 (D.S.C. Aug. 24, 2020), aff'd, 2022 WL 101937 (4th Cir. Jan. 11, 2022); Wilson v. Givens, No. 9:21-cv-00523-RMG-MHC, 2022 WL 2500356, at *3 (D.S.C. May 9, 2022) (finding “Defendants have clearly shown that Plaintiff failed to exhaust his administrative remedies prior to initiating this action” because Plaintiff filed his lawsuit before his Step 2 grievance was denied), adopted by, 2022 WL 2128548 (D.S.C. June 14, 2022); Shelley v. Stirling, No. 4:18-cv-2637-JFA, 2020 WL 1899496, at *3 (D.S.C. Apr. 16, 2020) (rejecting plaintiff's argument that he exhausted his administrative remedies simply “by filing the two grievances which he classifies as emergency grievances”; noting that because “SCDC policy states that if the grievance is not determined to be an emergency, the grievance will then be routinely processed through the system as if it were a normal grievance, . . . Plaintiff would still be subject to the initial requirements discussed above if no emergency actions were taken”) (internal quotation marks omitted); Jones v. Riley, No. 1:12-cv-01033-JMC, 2013 WL 3270449, at *2 (D.S.C. June 26, 2013) (finding plaintiff failed to exhaust his administrative remedies where he filed a lawsuit after submitting a Step 2 grievance form but before “wait[ing] the allotted amount of time for the IGC to respond and complete the entire process”), aff'd sub nom. Jones v. Lane, 546 Fed.Appx. 299 (4th Cir. 2013).

And while Plaintiff argues that his letter to General Counsel constituted an emergency grievance, there is nothing in the SCDC Policy allowing for such an exception. Indeed, there is no basis to find that the letter should have been processed as an emergency grievance or otherwise exempted Plaintiff from complying with the grievance process. Further, simply filing an emergency grievance, without more, does not exhaust an inmate's administrative remedies. See Singleton v. Stirling, No. 9:21-cv-03820-RMG-MHC, 2023 WL 4163262, at *4 n.4 (D.S.C. Mar. 31, 2023) (“[F]iling an emergency grievance appears to only fast-track the consideration of those grievances.... While this expedites the process by removing some steps (like the attempt at informal resolution), there is nothing in SCDC's Inmate Grievance System to suggest that all an inmate needs to do to fully exhaust his administrative remedies is file an emergency grievance.”), adopted by, 2023 WL 4161176 (D.S.C. June 23, 2023).

For the foregoing reasons, the undersigned recommends Defendants are entitled to summary judgment based on Plaintiff's failure to exhaust his administrative remedies.

B. § 1983 Claims

In the event the Court disagrees with the undersigned's conclusion regarding Plaintiff's failure to exhaust his administrative remedies, the undersigned has also considered the merits of Plaintiff's claims. Based on a liberal interpretation of the pleadings and Plaintiff's characterization of his claims, the Court finds that Plaintiff brings § 1983 claims against all three Defendants for failure to protect and for deliberate indifference to serious medical needs.(See Dkt. Nos. 1; 98 at 1.) Should the Court decline to dismiss Plaintiff's civil action for non-exhaustion, the undersigned recommends that summary judgment should be (1) denied as to Plaintiff's failure to protect claims against Defendants Taylor, Robertson, and Palmer; (2) denied as to Plaintiff's claim for deliberate indifference to serious medical needs against Defendant Taylor; and (3) granted as to Plaintiff's claim for deliberate indifference to serious medical needs against Defendants Robertson, and Palmer.

Here, the undersigned recognizes that Plaintiff has indicated in a prior motion for temporary restraining order that he does not bring a deliberate indifference claim. (Dkt. No. 97 at 3.) However, in his briefings on Defendants' Motion for Summary Judgment, Plaintiff argues that Defendants failed to provide him necessary medical attention. (Dkt. No. 98 at 1.) Accordingly, given Plaintiff's pro se status and the liberal construction afforded his pleadings, the undersigned considers the merits of his claim for deliberate indifference to serious medical needs.

Below, the undersigned first considers the evidence relevant to these claims.

1. Evidence

a. Plaintiff's Verified Complaint

“In this Circuit, verified complaints by pro se litigants are considered as affidavits with respect to any factual allegations contained therein that are based on personal knowledge.” Brooks v. Davenport, No. 9:15-cv-3107-PMD-BM, 2016 WL 11431331, at *1 (D.S.C. Aug. 22, 2016) (citing Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991), adopted by, 2016 WL 6275331 (D.S.C. Oct. 27, 2016).

As discussed above, Plaintiff alleges in his verified Complaint that during an argument with Lt. Taylor on February 17, 2023, wherein Plaintiff was refusing to go into his room, Lt. Taylor “announce[d] that I am a snitch all I do is write sh*t up.” (Dkt. No. 1-2 at 3-4 (verbatim).) Here, Plaintiff indicates that Lt. Taylor was referring to Plaintiff's recent complaints about alleged retaliatory conduct by prison officials. (Id.) Plaintiff claims that he knew his “life was in danger” immediately after this argument because he “was in a Structured Living Unit . . . which houses the most violent and problematic inmates and Lt. Taylor had just called me a snitch on the Rock.” (Id. at 4.) According to Plaintiff,

I immediately wrote General Counsel and informed them that my life was in danger and to [please] move me to another dorm or transfer me. Then later on, after I took my mental health medicine to stop my paranoia and suicidal ideation while lying on my bed in a pill induced semi-sleep, Lt. Taylor popped my door, and I was attacked. Afterwards, Feb. 18, I tried to go to medical, but I was told that I would not be seen.

Plaintiff alleges that he spoke with Defendant Associate Warden Robertson on February 19, 2023, when Robertson “called me to his office to give me copies of a policy pertaining to my pending civil suits.” (Id.) According to Plaintiff, “I told [Robertson] then that Lt. Taylor had called me a snitch on the Rock and he seen [sic] I had a black eye. I told him I wanted to go to lock-up or move me out [of] the dorm. He told me he was aware of the situation and he was not moving me.” (Id.)

Plaintiff further alleges,

I wrote a grievance, then on Feb. 22, 2023, I [received] a letter from general counsel stating Warden Palmer would handle it. Then I was deadlocked from Feb. 20 to Feb. 29 so I couldn't refuse to go in my room to get medical attention. [sic] Then on 3/7/23, I wrote a kiosk request to legal . . . explaining I needed to get moved out [of] this dorm or transferred to another institution for my safety because I was still being chastised and threatened and was in a hostile environment. I was told Warden Palmer had been notified and was handling the situation.

Plaintiff alleges that Warden Palmer and Associate Warden Robertson later “came onto the wing,” and Plaintiff asked Warden Palmer to move him out of the dorm or put him in lock-up “because Lt. Taylor called me a snitch and I had been attacked and I feared for my life.” (Id. at 5.) According to Plaintiff, Palmer said he knew about the situation, and he would not move Plaintiff out of the dorm. (Id.)

b. Defendants' Discovery Responses

In support of his claims, Plaintiff has submitted certain responses from Defendant Warden Palmer to Plaintiff's interrogatories. According to Plaintiff, these records show that Defendant Palmer “contradicts himself.” (Dkt. Nos. 91-4; 91-5; 91-8.) Interrogatory number 8 in an unidentified set of interrogatories references a specific “kiosk message” in which “plaintiff is clearly asking for protective concerns,” and asks “who was the Author?” (Dkt. No. 91-4.) The response states, “John Palmer. Requesting PC via the tablet is not the appropriate procedure. If inmate Collins needed PC he should have requested it to a security staff member in person. He would then be given the opportunity to complete at 19-47.” (Id.) While the undersigned has not been able to locate this specific “kiosk message” in the record, it appears Defendants do not dispute its existence.

Plaintiff also highlights the following interrogatories from his Fourth Set of Interrogatories to Defendant Warden Palmer:

1. Can the tablet be used to notify SCDC Staff members of criminal activity, assaults, sexual assaults, or any other activity that threatens the safety of inmates, staff, and the security of the institution?

Response: Yes.

2. In the Second Set of Interrogatories, you stated requesting PC tablet is not the appropriate procedure that Plaintiff should have requested it to a security staff. On the tablet, when an inmate sends a kiosk request to the heading Security, does that request go to an inmate or a security staff member?

Response: It goes to the Warden and Associate Warden of Operations.

...

7. You stated in your 2nd Set of Interrogatories #5 had Plaintiff requested it to a security staff in person, he would then be given the opportunity to complete a 1947. But in your 1^st set of interrogatories you stated that Plaintiff told you in person that he feared for his life because Lt. Taylor called him a snitch and opened his door to be attacked. Why didn't you give the Plaintiff the opportunity to complete a 1947?

Response: “It was clear inmate Collins was not being truthful. It was and still is my opinion that inmate Collins was attempting to manipulate staff in an attempt to be removed from D4 and placed in another dorm on the yard. Inmate Collins did not request protective custody.”

b. Defendant Warden Palmer's Affidavit

Defendants have submitted a sworn affidavit from Defendant Warden Palmer, in which he discusses the inmate requests and grievances that Plaintiff filed, relevant to this case. In his affidavit, Palmer notes than in an inmate request Plaintiff filed on February 22, 2023, he claimed that Lt. Taylor announced that Plaintiff was a snitch while on the rock, “which is a common area within the prison.” (Dkt. Nos. 73-6 at 1; 73-7 at 1.) Here, Palmer avers, “[w]ithin the ARTSM, which would be inmate Collins's first complaint to anyone at McCormick, he made no mention of Lt. Taylor opening his cell door or of being attacked by anyone in his cell.” (Dkt. No. 73-6 at 1.) Palmer avers he “was made aware” of Plaintiff's letter to General Counsel dated February 17, 2023, and notes that it did not mention “Lt. Taylor opening the door to his cell . . . and [Plaintiff] being attacked in his cell.” (Id. at 1-2.)

Referencing Plaintiff's March 1, 2023 ARTSM, Palmer quotes Plaintiff's claim that on February 26, 2023, “I told [AW Robertson] I feared for my life and wanted a separation from Lt.

Taylor because she called me a snitch on the rock and putting me in imminent danger and I have already been attacked. He told me he was not moving me and he already knew about the situation.”

Again, there was no claim Lt. Taylor opened his cell door so he could be attacked within his cell. It is notable to me that inmate Collins claimed here that he was attacked, but without describing when or where this happened, or who the attackers were. Inmate Collins made no claim for protective custody, nor does he assert within the ARTSM that he was in need of medical attention.

I learned inmate Collins claimed he was attacked within his cell with the cooperation of Lt. Taylor after inmate Collins filed [the February 17, 2023 Step 1 grievance], which was received by the grievance department on February 22, 2023. Upon reviewing inmate Collins's claims within the grievance, I personally reviewed the video footage from the cell unit where inmate Collins was housed and determined there was absolutely no merit to his assertions.

The video system overrides itself every six weeks or so. I did not preserve a copy of the video because there was no evidence contained within the video of any criminal wrongdoing, such as Lt. Taylor going to the cell, opening the door, and individuals then entering inmate Collins's cell. The video made clear none of these purported incidents took place.

The record shows Defendants were served summonses for this lawsuit on May 24, 2023, approximately 14 weeks after the alleged underlying incident.

c. Evidence about Plaintiff's Cell Movement

Plaintiff alleges in various filings with this Court that “he was moved from cell 170 to 183” because “Defendants knew that Plaintiff's life was in danger and that inmates tried to kill Plaintiff that day. What they didn't expect was inmates to get help and they [were] forced to move me.” (Dkt. No. 96 at 3.) Plaintiff first raised this issue in a motion to compel, asking for further response from Defendant Palmer to an interrogatory asking, about this cell transfer. (Dkt. Nos. 61 at 1; 68 at 1.) Specifically, in an unidentified set of interrogatories, Plaintiff asks Defendant Palmer, “Why did you move plaintiff from cell 170 to 183? The day you and Major Terry came on the Rock and told plaintiff to pack up and told other inmates if something happened they would be held accountable.” (Dkt. No. 91-4.) The response to this interrogatory states, “I did not have inmate Collins moved. That was Major Terry's decision.” (Id.)

In their response brief in opposition to Plaintiff's motion to compel, Defendants claimed their interrogatory response was adequate and further stated, “Defendants would advise the Plaintiff that an issue arose with several security threat group inmates in unit F-4. Totally unrelated to the Plaintiff, he was moved along with a few other inmates to satisfy the security concern.” (Dkt. No. 68 at 1.) Following this briefing, the Court ordered Defendants to supplement their discovery response with sworn testimony explaining the circ*mstances of the move at issue. (Dkt. No. 85.) Defendants subsequently provided sworn affidavits from Defendant Palmer and Major Stanley Terry as well as a copy of the bed history for F4 Dorm A-wing. (Dkt. No. 93.) In his affidavit, Palmer avers,

On May 30, 2023 Plaintiff and another inmate on the same wing switched cells and the Plaintiff was moved to cell 183. He was housed in cell 183 on the A wing from May 30, 2023 until his transfer to Lee Correctional Institution on June 12, 2023.

I inquired as to the reason for the Plaintiff's move from cell 170 to 183, both of which are on the A wing. I was advised by Major Terry that the inmate that was moved from cell 183 B was known to be a member of a security threat group who was housed between two cells containing inmates known to be members of another security threat group. For security reasons, that inmate switched cells with the Plaintiff.

Shortly before May 30, 2023 I became aware that an inmate known to be a member of a security threat group was housed between cells housing inmates who were known to be members of another security threat group. For security reasons, I moved an inmate from F-4 183-B to F-3 170-B where the Plaintiff was housed. Those inmates changed cells on May 30, 2023 at approximately 10:36 AM and Plaintiff was moved to F-4 183-B. There was no other reason for those inmates changing cells.

The bed history submitted by Defendants indicates that Plaintiff indeed resided in Cell 170 from February 1, 2023 through May 30, 2023 and then resided in Cell 183 from May 30, 2023 through June 12, 2023. (Dkt. No. 93-4 at 1-2.) Curiously, while Palmer maintains Plaintiff transferred to Lee on June 12, 2023, and the bed history shows he left cell 183 on that date, the SCDC inmate search database shows that Plaintiff did not transfer from McCormick to Lee until September 28, 2023.Rather, the database shows that on June 12, 2023, Plaintiff left McCormick and went to “Greenwood Co.” for a “medical” reason, and he returned to McCormick that same day. Id.; (see also Dkt. No. 73-2 at 6.) Regardless, Plaintiff's focus here is on his May 30, 2023 move to cell 183 and not his location after that point.

See https://public.doc.state.sc.us/scdc-public/inmateDetails.do?id=%2000290946 (last visited March 19, 2024); see also Charley v. Moore, No. 6:14-cv-4591-BHH-KFM, 2015 WL 13734221, at *2 (D.S.C. Jan. 28, 2015) (“This court may take judicial notice of the SCDC public inmate database.”).

c. Defendants' Remaining Evidence

In support of their Motion for Summary Judgment, Defendants have also submitted an entry from Plaintiff's medical records; specifically, a visit at the Psychiatric Clinic on April 25, 2023. (Dkt. No. 73-3.) Notes from the “prescriber's evaluation” of this visit state, inter alia,

Doing better from a mental standpoint since last seen. Still morning [sic] the loss of the young man he reported was his son that died in January 2023.... Does not feel he can be successful on this yard because he reports he has won “lawsuits” against the current administration and has another suit pending....Does not like being on F4 dorm. Says he likes having a roommate but was told that MH made the recommendation for him to have a single cell. I reported that there is no

recommendation for single cell status from me and he thanked me. Reports his anxiety is better overall ....

d. Plaintiff's Unsupported Statements

In his briefs opposing the Motion for Summary Judgment and in prior filings, Plaintiff has made allegations relevant to his claims in this action. (See Dkt. Nos. 72; 91; 96; 98; 99.) Critically, those allegations have not been set forth in affidavit form or otherwise sworn to under penalty of perjury. Accordingly, these allegations fail to constitute permissible evidence and cannot be relied on to establish a genuine issue of material fact. See Vaden v. Enochs, No. 7:21-cv-00155, 2022 WL 520804, at *4 (W.D. Va. Feb. 22, 2022) (“On summary judgment, Vaden cannot rest on unsupported statements in his brief to create a genuine dispute of fact.”).

For example, in his response brief dated February 18, 2024, Plaintiff makes additional allegations about his alleged assault and his treatment thereafter. He states that after his argument with Defendant Lt. Taylor,

I took my anxiety medicine laid down and dozed off. I awoke to the sound of the key unlocking my door and only had time to do is ball up and protect as much of my body as possible. I was beaten badly! After they left, I laid there in blood crying for hours. I yelled for help but nothing came. Lt. Taylor was the only officer who worked on the wing so there was no other officer who could be notified. I did tell Lt. Taylor I needed medical the next day and I was told I wasn't getting any medical. I was deadlocked in my room for 7 days....

On Feb. 28 I was escorted to A/W Robertson office whereas he made copies of the Medical policy to give me. He seen I had two black eyes, busted lips, my arm face and nose was swollen. I told him I feared for my life because Lt. Taylor opened my

door for me to get beat like this and I wanted to be separated. He told me he knew about it and was not moving me.

Also, in a sur-reply brief, Plaintiff states that “Defendant Palmer even lies about the video Plaintiff was in a cell that was completely off camera and could not be seen at all.” (Dkt. No. 96 at 3.) Here, Plaintiff appears to be referencing Defendant Palmer's affidavit testimony that he “personally reviewed video footage from the cell unit where inmate Collins was housed and determined there was absolutely no merit to his assertions.” (Dkt. No. 73-6 at 2.)

Plaintiff later claims in this same sur-reply brief that

SCDC does not save recordings of normal activity in prison. The camera is recorded only if staff is alerted that a situation/incident is occurring or has occurred and then the recording of that day is saved for 30 days which is the retention period. The camera otherwise doesn't save day to day recordings no longer than 24 hours.

Finally, in his briefing, Plaintiff disputes the version of his May 30, 2023 cell move as described by Palmer and Terry. Specifically, Plaintiff states,

Inmates [were] trying to stab Plaintiff because of being labeled a snitch. Plaintiff had barricaded himself in his room while multiple inmates [were] trying to get past the barricade to kill Plaintiff. Inmates ran and got Warden Palmer and Major Terry who had just entered the dorm to get them to move Plaintiff out the dorm because

of the allegation by Lt. Taylor had inmates trying to kill Plaintiff. Defendants' counsel lied to the courts stating multiple inmates [were] moved, Plaintiff was the only inmate moved and instead of putting Plaintiff on protective concerns they moved Plaintiff out of cell 170 because it was a room that couldn't be seen on camera into room 183. Defendants did not want to divulge this information to the courts because they were trying to cover up they [were] letting anything happen to me as a consequence for filing lawsuits.

1. Failure to Protect

a. Standard

The Eighth Amendment requires prison officials to “protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). Officials must take “reasonable measures to guarantee the safety of the inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). In other words, “[t]he government and its officials are not free to let the state of nature take its course.” Farmer, 511 U.S. at 833. Nonetheless, “[t]he burden is on the prisoner to demonstrate that prison officials violated the Eighth Amendment, and that burden is a heavy one.” Pyles v. Fahim, 771 F.3d 403, 408-09 (7th Cir. 2014) (citing Whitley v. Albers, 475 U.S. 312, 325 (1986)). Not every “injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials responsible for the victim's safety.” Farmer, 511 U.S. at 834. Instead, the Supreme Court has outlined two requirements for an Eighth Amendment failure to protect claim. First, “a prison official's act or omission must result in the denial of ‘the minimal civilized measure of life's necessities.'” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). In other words, the denial of the prisoner's constitutional rights must be “sufficiently serious.” Id.; see also Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014) (“a prisoner must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury”) (internal quotation marks omitted). Second, the prison official must have a “sufficiently culpable state of mind,” id., which means the official either purposefully caused the harm or acted with “deliberate indifference,” Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). A prison official demonstrates deliberate indifference if he “knows of and disregards an excessive risk to inmate health or safety.” Id.

A prison official is deliberately indifferent if he has actual knowledge of a substantial risk of harm to a prisoner and disregards that substantial risk. Farmer, 511 U.S. at 847; Parrish v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (observing that “deliberate indifference” requires actual knowledge and disregard of a substantial risk of serious injury). A prison official is not liable if he or she “knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.” Farmer, 511 U.S. at 844; see also Rich v. Bruce, 129 F.3d 336, 338 (4th Cir. 1997) (finding that a prison official was not liable, because he did not actually draw the inference that the inmate was exposed to a substantial risk of serious harm). A showing of mere negligence does not qualify as deliberate indifference. Davidson v. Cannon, 474 U.S. 344, 347 (1986); see Whitley, 475 U.S. at 319 ((“[C]onduct that does not purport to be punishment at all must involve more than ordinary lack for due care .... [O]bduracy and wantonness, not inadvertence . . . characterize the conduct prohibited by [the Eighth Amendment].”); see also Moore v. Winebrenner, 927 F.2d 1312, 1316 (4th Cir. 1991) (citing Fourth Circuit cases adopting the Supreme Court's reasoning in Whitley).

The Fourth Circuit Court of Appeals recently reiterated that the subjective knowledge component is nuanced. See Makdessi v. Fields, 789 F.3d 126, 137-38 (4th Cir. 2015) (finding that the district court failed to appreciate nuances with respect to this component). The Fourth Circuit acknowledged that the “‘actual knowledge' standard required to find prison officials deliberately indifferent to a substantial risk of serious injury may be proven by circ*mstantial evidence.” Id. at 129. “Prison officials may not simply bury their heads in the sand and thereby skirt liability.” Id. “Rather, they may be held accountable when a risk is so obvious that it had to have been known.” Id. Therefore, “even under this subjective standard, a prison official cannot hide behind an excuse that he was unaware of a risk, no matter how obvious.” Id. at 133; see also Porter v. Clarke, 923 F.3d 348, 361 (4th Cir. 2019), as amended (May 6, 2019) (“[A]n obvious risk of harm justifies an inference that a prison official subjectively disregarded a substantial risk of serious harm to the inmate.” (quoting Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir. 2011)).

However, because prison officials who lacked knowledge of a risk cannot be said to have inflicted punishment, it remains open to the officials to prove that they were unaware of an obvious risk to inmate health or safety. For example, they may show “that they did not know of the underlying facts indicating a sufficiently substantial danger and that they were therefore unaware of a danger, or that they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.” Farmer, 511 U.S. at 844. In addition, prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, “even if the harm was not averted” because a prison official's duty is to ensure “reasonable safety.” Id. (quoting Helling v. McKinney, 509 U.S. 25, 33 (1993)). This standard “incorporates due regard for prison officials' ‘unenviable task of keeping dangerous men in safe custody under humane conditions.'” Id. (quoting Spain v. Procunier, 600 F.2d 189, 193 (9th Cir. 1979)) (Kennedy, J.). Absent successful rebuttal, prison officials may be held liable for obvious risks they must have known. Makdessi, 789 F.3d at 133 (citing Farmer, 511 U.S. at 842).

b. Analysis specific to Defendant Lt. Taylor

As discussed above, Plaintiff alleges in his verified Complaint that during an argument with Lt. Taylor on February 17, 2023, wherein Plaintiff was refusing to go into his room, Lt. Taylor “announce[d] that I am a snitch all I do is write sh*t up.” (Dkt. No. 1-2 at 3-4 (verbatim).) Plaintiff alleges that because he is housed in “a Structured Living Unit” with “the most violent and problematic inmates,” Plaintiff “knew [he] was in immediate danger” after Lt. Taylor called him “a snitch on the Rock.” (Id. at 4.) By Defendants' own account, the rock “is a common area within the prison.” (Dkt. Nos. 73-6 at 1; 73-7 at 1.) Plaintiff further claims that shortly after this incident on the same day, while Plaintiff was in a “pill induced semi-sleep,” Lt. Taylor “popped” Plaintiff's door, and Plaintiff was “attacked.” (Id. at 4.) Plaintiff did not receive medical attention thereafter, despite his requests. (Id.)

While Defendants maintain that this attack never occurred, their only direct evidence on this issue is an affidavit from Defendant Palmer stating that he “personally reviewed the video footage from the cell unit where inmate Collins was housed and . . . [t]here was no evidence contained within the video of any criminal wrongdoing, such as Lt. Taylor going to the cell, opening the door, and individuals then entering inmate Collins's cell.” (Dkt. No. 73-6 at 2.) This video evidence no longer exists, however. Palmer avers that the video system “overrides itself every six weeks or so” and he “did not preserve a copy of the video.” (Id.)

In addition to Defendant Palmer's testimony, Defendants point to Plaintiff's own written complaints about the initial incident with Lt. Taylor and the later alleged attack, arguing that this evidence undermines Plaintiff's claims. (Dkt. No. 73-1 at 14-16.) Citing Plaintiff's letter to General Counsel that he allegedly submitted prior to the attack, Defendants state “it is notable there is no subsequent letter to the General Counsel which complains of being attacked in the cell with Defendant Taylor's cooperation.” (Id. at 15.) Defendants further highlight that Plaintiff's inmate request to “Security” on February 22, 2023 only complained that Lt. Taylor called him a snitch and the other inmate request Plaintiff submitted to “Religion” on that same day merely requested a “no meat diet” and a “hygiene bag.” (Dkt. Nos. 73-1 at 14; 73-7 at 1-2.) Defendants imply that it is suspicious neither of these inmate requests mentioned the alleged attack. Here, Defendants also cite the record from Plaintiff's April 25, 2023 visit at the Psychiatric Clinic. (Dkt. No. 73-1 at 16; Dkt. No. 73-3 at 1.) According to Defendants, Plaintiff's report during this visit that his “anxiety is better overall” and his request for “a trial decrease” in anxiety medication are inconsistent with any concern of a repeat attack. (Dkt. No. 73-1 at 16; Dkt. No. 73-3 at 1.)

Upon careful review, the undersigned finds there is a question of fact as to whether the attack alleged by Plaintiff actually occurred. Plaintiff has recounted his version of events in a verified Complaint, which the undersigned views as an affidavit for evidentiary purposes. While Defendants have offered Palmer's affidavit testimony to dispute the veracity of Plaintiff's claim about the alleged attack, the undersigned cannot determine which version should be believed. Rather, the competing affidavits present a credibility determination, which is not appropriate for resolution at summary judgment. Defendants' reliance on other circ*mstantial evidence, such as certain inmate grievances, does not conclusively establish that the attack did not occur. Indeed, Plaintiff filed a Step 1 Grievance the same day of the alleged attack that is consistent with his version of events. And there is no direct evidence refuting Plaintiff's assertion that Defendant Lt. Taylor called him a snitch on the rock prior to the attack.

In short, construing the evidence in the record in the light most favorable to Plaintiff, there is a genuine issue of material fact as to whether, shortly after calling Plaintiff a snitch, Lt. Taylor opened Plaintiff's cell door and allowed Plaintiff to be attacked by other inmates. Plaintiff's version of events, if believed, indicates Lt. Taylor was deliberately indifferent to a substantial risk of harm to Plaintiff because she had at least an “inkling that the attack was going to occur.” James v. Cartledge, No. 9:15-cv-0625-TLW-BM, 2016 WL 1448557, at *7 (D.S.C. Mar. 2, 2016) (granting summary judgment on § 1983 deliberate indifference claim against prison correctional officer who abandoned his post at the time of an attack because “Plaintiff has presented no evidence that Goble was aware that he was in danger from attack on the date at issue, or had any inkling that the attack was going to occur”), adopted by, No. 9:15-cv-00625-TLW, 2016 WL 1427381 (D.S.C. Apr. 12, 2016), aff'd, 669 Fed.Appx. 674 (4th Cir. 2016). Indeed, if Plaintiff's testimony is believed, a jury could find that Lt. Taylor acted with obduracy and wantonness, rather than merely with the absence of ordinary lack of due care. See Whitley, 475 U.S. at 319 (“[C]onduct that does not purport to be punishment at all must involve more than ordinary lack for due care . . . . [O]bduracy and wantonness, not inadvertence . . . characterize the conduct prohibited by [the Eighth Amendment].”).

Further, courts in this circuit have found “an inmate states a cognizable claim under the Eighth Amendment when he alleges or shows that a prison official has identified him as a snitch to other prisoners.” Jordan v. Hooks, No. 6:13-cv-2247-BHH, 2015 WL 5785504, at *3 (D.S.C. Sept. 29, 2015). In Jordan, the court denied summary judgment where plaintiff alleged that he was told by other inmates that the prison guard defendant had identified the plaintiff as a snitch and that he “was subsequently attacked three times as a result of having been pegged as an informant by a prison guard.” 2015 WL 5785504, at *1. In making this finding, the court emphasized that the plaintiff was “able to provide direct testimony from other prisoners who heard [the defendant prison guard] say that the plaintiff was a snitch.” Id. at *3.

Similarly here, Plaintiff has offered his own direct testimony in the form of his verified Complaint alleging he himself heard Lt. Taylor label him a snitch in a common area of the prison, where she could be overheard.This evidence, coupled with the allegation in Plaintiff's verified Complaint that he was attacked by other inmates shortly thereafter, indicates that Lt. Taylor's remarks were overheard by other inmates and interpreted as Plaintiff being an informant. Based on the foregoing, there is a question of fact as to whether Lt. Taylor was deliberately indifferent to a substantial risk of harm when she labeled Plaintiff as a snitch in an area where she could be overheard by other inmates. Cf. Salmeri v. Jones, No. 1:21-cv-2504-BHH-SVH, 2022 WL 1037940, at *4 (D.S.C. Mar. 17, 2022) (recommending summary judgment be granted on deliberate indifference claim where although plaintiff presented evidence that he was exposed as a snitch, he failed “to provide evidence that anything happened thereafter as a result”), adopted by, No. 1:21-cv-2504-BHH, 2022 WL 1037078 (D.S.C. Apr. 6, 2022). Accordingly, the undersigned recommends summary judgment be denied as to Plaintiff's § 1983 deliberate indifference failure to protect claim against Defendant Lt. Taylor.

In Jordan, Plaintiff's belief that he had been labeled a snitch by the defendant prison guard hinged on what he had been told by other inmates. He did not appear to assert that he himself had heard the prison guard label him a snitch.

c. Analysis specific to Defendants Robertson and Palmer

As for Defendants Associate Warden Robertson and Warden Palmer, there is no evidence they knew about any risk of harm to Plaintiff prior to his alleged attack on February 17, 2023. Accordingly, the threshold issue is whether a substantial risk of serious harm still existed after the point the attack occurred. See Lacy v. DeLong, No. 2:13-cv-14813, 2016 WL 3566242, at *6 (S.D. W.Va. June 27, 2016) (noting that under the first prong of a failure to protect claim, “a prisoner must allege a serious or significant physical or emotional injury resulting from the challenged conditions, . . . or demonstrate a substantial risk of such serious harm resulting from the prisoner's exposure to the challenged conditions” (internal citations and quotation marks omitted)).

When construed in the light most favorable to Plaintiff, the evidence indicates Plaintiff remained subject to a substantial risk of serious harm because he continued to fear for his life after being called a snitch on the rock by a prison official and then attacked by other inmates shortly thereafter. See, e.g., Jordan, 2015 WL 5785504, at *3 (“A review of analogous cases reveals that an inmate states a cognizable claim under the Eighth Amendment when he alleges or shows that a prison official has identified him as a snitch to other prisoners.... Numerous courts have allowed plaintiffs to survive summary judgment where the plaintiff alleges only an increased risk of attack or serious psychological or emotional injury from such risk.”); Thompson v. Commonwealth of Virginia, 878 F.3d 89, 107 (4th Cir. 2017) (“An inmate need not show that she in fact suffered serious harm to prevail on this prong because ‘the Eighth Amendment protects against future harm'” (quoting Helling v. McKinney, 509 U.S. 25, 33-34 (1993)); Woodhous v. Com. of Va., 487 F.2d 889, 890 (4th Cir. 1973) (“A prisoner has a right, secured by the eighth and fourteenth amendments, to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates, and he need not wait until he is actually assaulted to obtain relief.”).

Thus, the undersigned turns to the second issue-whether Defendants Robertson and Palmer were deliberately indifferent to the continued risk of serious harm. Specific to Defendant Robertson, the only direct evidence on this issue are Plaintiff's allegations in his verified Complaint. As discussed above, Plaintiff alleges that two days after the alleged attack, he told Robertson that Lt. Taylor “called [him] a snitch on the Rock” and Plaintiff asked to “go to lockup” or be moved out of the dorm. (Id. at 4.) According to Plaintiff, during this conversation, Robertson “[saw Plaintiff] had a black eye,” and he told Plaintiff “he was aware of the situation and he was not moving [Plaintiff]” (Id.) Defendants have not submitted any evidence disputing this interaction between Plaintiff and Robertson, and there is no evidence Robertson took any action based on the information shared by Plaintiff.

Construed in the light most favorable to Plaintiff, there is genuine issue of material fact as to whether Robertson knew Plaintiff had been called a snitch by Lt. Taylor, he was attacked by other inmates shortly thereafter, and he remained in fear for his life. While Plaintiff does not allege in the verified Complaint that he expressly told Robertson about the attack, his obvious black eye and Robertson's alleged statement that he was “aware of the situation” creates a reasonable inference that Robertson knew Plaintiff alleged he was attacked. Also, in a March 3, 2023 inmate request, Plaintiff claimed he told Robertson, inter alia, “I feared for my life and wanted a separation from Lt. Taylor because she called me a snitch on the rock putting me in imminent danger and I have already been attacked.” (Dkt. No. 73-7 at 5.)

Based on the foregoing, there is a genuine issue of material fact as to whether Robertson knew Plaintiff was at substantial risk of serious harm based on this interaction with Plaintiff. Given that there is no evidence Robertson took any action to address Plaintiff's safety in response to this information, there is also a genuine issue of material fact as to whether Robertson was deliberately indifferent to this substantial risk of serious harm.

Likewise, there is also a genuine issue of material fact as to whether Palmer knew Plaintiff was at substantial risk of serious harm after his alleged attack on February 17, 2023. It is undisputed Palmer received Plaintiff's various inmate requests and grievances about the incident, including one dated February 17, 2023 claiming “On Feb. 17, 2023, Lt. Taylor announced on the Rock I was a snitch because I was refusing to go into my room.... Later on, I was laying on bed and Taylor popped my door and I was jumped on by masked individuals, she then said that's enough and closed my door and locked it.” (Dkt. Nos. 73-6 at 2; 91-7.) Also, Plaintiff also states in his verified Complaint that he personally spoke with Palmer when Palmer “came onto the wing” sometime after Plaintiff filed his grievance about the underlying incident (Dkt. No. 1-2 at 5.) Plaintiff claims he “ask[ed] [Palmer] to move me out [of] the dorm or put me on lock-up because Lt. Taylor called me a snitch and I had been attacked and I feared for my life.” (Id.) According to Plaintiff, Palmer “told me he was not moving me out [of] the dorm and he knew about the situation.” (Id.)

Unlike Robertson, Defendant Palmer has submitted affidavit testimony. More specifically, Palmer avers that he “learned inmate Collins claimed he was attacked within his cell with the cooperation of Lt. Taylor after” Plaintiff filed his February 17, 2023 grievance. (Dkt. No. 73-6 at 2.) Palmer states that in response to Plaintiff's claims within the grievance, Palmer “personally reviewed the video footage from the cell unit where inmate Collins was housed and determined there was absolutely no merit to his assertions.” (Id.) Notably, Palmer does not directly refute or even acknowledge Plaintiff's allegations in the verified Complaint that he personally informed Palmer about the incident and asked to be moved.

As discussed above, the video evidence Palmer refers to in his affidavit has been overwritten and no longer exists. Other than allegedly reviewing this video evidence, Palmer does not specify what other steps he took to investigate Plaintiff's claims. There is no evidence Palmer conducted any interviews about Plaintiff's allegations. In response to a separate inmate request from Plaintiff dated February 22, 2023, wherein Plaintiff claimed “Lt. Taylor announced on the rock I was a snitch putting my life in danger ....”, Palmer responded that “Lt. Taylor says your accusations are false.” (Dkt. No. 91-2 at 1.) Palmer does not mention speaking with Lt. Taylor in his affidavit, however.

As discussed above, because the video evidence no longer exists, and because Plaintiff claims in his verified Complaint that the attack in fact occurred, the undersigned cannot determine the veracity of Palmer's claims concerning the video evidence without making a credibility determination. Other than reviewing this video evidence, it is unclear what other actions Palmer took in response to Plaintiff's claims about being labeled a snitch and being attacked shortly thereafter and the steps Palmer took to address Plaintiff's future safety. Accordingly, the undersigned cannot find that his response to the substantial risk of harm was reasonable as a matter of law. Rather, a genuine issue of material fact exists as to whether Palmer was deliberately indifferent to a substantial risk of harm created by Lt. Taylor labeling Plaintiff a snitch.

Here, the undersigned emphasizes that the substantial risk of harm existed because Plaintiff claimed he had been labeled a snitch and attacked shortly thereafter as a result, thereby indicating Plaintiff had already suffered a physical injury due to the label placed on him and was at a substantial risk of another attack in the future. See Farmer, 511 U.S. 825, 834 (1994) (“[F]or a claim . . . based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.”); cf. Henslee v. Lewis, 153 Fed. App'x. 178. 180 (4th Cir.2005) (Inmate did not state a cognizable claim under Section 1983 when he alleged that jail employee incited other inmates to attack him, but did not contend that any such attack occurred.)

d. Qualified Immunity

Finally, to the extent Defendants argue they are entitled to qualified immunity on Plaintiff's failure to protect claim, the undersigned find this argument lacks merit. It has long been established that prison officials have a duty to protect inmates from a substantial and known risk of harm, including harm inflicted by other prisoners. See Farmer, 511 U.S. at 833. Questions of fact exist with regards to whether Defendants Taylor, Robertson, and Palmer violated Plaintiff's clearly established rights as discussed above, and therefore, the undersigned cannot determine at this time whether their actions were objectively reasonable. See, e.g., Kane v. Beaufort Cty. Sheriffs Dep't, No. 9:14-cv-508-RMG, 2015 WL 404570, at *5 (D.S.C. Jan. 29, 2015) (“summary judgment on qualified immunity grounds is improper as long as there remains any material factual dispute regarding the actual conduct of the defendants”) (quoting Vathekan v. Prince George's Cnty., 154 F.3d 173, 180 (4th Cir. 1998)). Accordingly, the undersigned recommends that the Court deny Defendants summary judgment here on the grounds of qualified immunity. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (Defendant entitled to qualified immunity only insofar as the conduct alleged did not violate clearly established statutory or constitutional rights of which a reasonable person should have known); Newkirk v. Enzor, 674 Fed.Appx. 276 (4th Cir. 2017) (affirming denial of summary judgment on qualified immunity where facts remained in dispute).

1. Deliberate Indifference to Serious Medical Need

a. Standard

To establish a cognizable Eighth Amendment claim for denial of medical care, a plaintiff must put forth facts sufficient to demonstrate that an official was deliberately indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 105 (1976); Pfaller v. Amonette, 55 F.4th 436, 445 (4th Cir. 2022). A deliberate indifference claim has both an objective and subjective component. Gordon v. Schilling, 937 F.3d 348, 356 (4th Cir. 2019). “That is, the plaintiff must demonstrate that the defendant prison official acted with ‘deliberate indifference' (the subjective component) to the plaintiff's ‘serious medical needs' (the objective component).” Id. (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

A medical condition is serious enough to satisfy the objective component if it has “been diagnosed by a physician as mandating treatment or is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Id. (citing Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)). The subjective component of a deliberate indifference claim has two subparts: “a plaintiff must show the prison official (1) had actual knowledge of the risk of harm to the inmate and (2) recognized that his actions were insufficient to mitigate the risk of harm to the inmate arising from his medical needs.” Pfaller, 55 F.4th at 445 (citing Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)) (internal quotation marks omitted).

Additionally, “to bring a claim alleging the denial of medical treatment against nonmedical prison personnel, an inmate must show that such officials were personally involved with a denial of treatment, deliberately interfered with a prison physician's treatment, or tacitly authorized or was indifferent to the prison physician's misconduct. Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990); see Coleman v. Stevenson, No. 0:09-cv-872-HMH, 2010 WL 2990737, at *4 (D.S.C. June 22, 2010) (“Mere knowledge is not sufficient to establish personal participation.”) adopted by, 2010 WL 2990740 (D.S.C. July 26, 2010), aff'd, 407 Fed.Appx. 709 (4th Cir. 2011); Mallett v. Johnson, No. 8:08-cv-863-PMD, 2008 WL 5351618, at *7 (D.S.C. Dec. 22, 2008) (“A medical indifference claim is not appropriate against a superintendent/supervisor absent an allegation that he was personally connected to the treatment received.”) (citing Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)).

b. Analysis

As discussed above, Plaintiff alleges in his verified Complaint that while Plaintiff was in a “pill induced semi-sleep” on February 17, 2023, Lt. Taylor “popped” Plaintiff's door, and Plaintiff was “attacked.” (Dkt. No. 1-2 at 4.) Plaintiff alleges that he “tried to go to medical” the next day, “but [he] was told [he] would not be seen.” (Id.) Plaintiff alleges that he spoke with Defendant Robertson on February 19, 2023, told him Lt. Taylor had called Plaintiff a snitch on the Rock, and Robertson saw Plaintiff “had a black eye.” (Id.) Plaintiff alleges he was then “deadlocked” in his cell for eight days and was unable to “get medical attention.” (Id.) At some point after March 7, 2023, Plaintiff claims he “spoke to Warden Palmer asking him to move me out [of] the dorm or put me on lock-up because Lt. Taylor called me a snitch and I had been attacked and feared for my life.” (Id. at 5.)

Plaintiff's response brief, while unverified, contains allegations that provide context to those in Plaintiff's verified Complaint. Specifically, Plaintiff claims that he was “beaten badly” and “laid there in blood crying for hours” after the assault. (Dkt. No. 91 at 4.) Plaintiff claims he “yelled for help, but nothing came. Lt. Taylor was the only officer who worked on the wing so there was no other officer who could be notified.” (Id.) Plaintiff further claims he told “Lt. Taylor I needed medical the next day and I was told I wasn't getting any medical.” (Id.)

Plaintiff's foregoing allegations indicate a complete denial of medical treatment for the alleged injuries from his attack, rather than a mere delay in treatment. Although there are no medical records to substantiate Plaintiff's claims about his need for medical attention, there is also nothing in the record that directly contradicts Plaintiff's claims. Other than the evidence Defendants submit to argue that the underlying attack did not occur, they offer no evidence to dispute Plaintiff's allegations in his verified Complaint.

Given Plaintiff's testimony in his verified Complaint, along with the context provided in his response brief, the undersigned finds Plaintiff has established a genuine issue of material fact that his injuries from the attack were sufficiently serious, at least in the immediate aftermath of the attack. See Hixson v. Hutcheson, No. 5:17-cv-032, 2019 WL 302516, at *4 (W.D. Va. Jan. 23, 2019), (“Courts have found that permanent physical impairment is unnecessary to show an injury sufficient to constitute serious harm under the Eighth Amendment.”), aff'd sub nom. Hixson v. Moran, 1 F.4th 297 (4th Cir. 2021). Additionally, if Plaintiff's testimony is believed, a jury could find that Defendant Lt. Taylor knew Plaintiff had been attacked by several inmates, and then deliberately refused to obtain him medical attention thereafter. Accordingly, the undersigned recommends summary judgment be denied as to Plaintiff's claim that Lt. Taylor was deliberately indifferent to Plaintiff's serious medical needs following the attack. See Gordon, 937 F.3d at 356 (“[A] medical condition is serious when it . . . is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.”) (internal quotations omitted); Murrill v. Merritt, No. 17-cv-2255, 2020 WL 6544832, at *5 (D. Md. Nov. 6, 2020) (plaintiff sufficiently alleged deliberate indifference claim against correctional officer defendant where plaintiff “alleges that [defendant] failed to monitor his safety when locked in a cell with a cellmate known to be dangerous and failed to respond in any capacity to his repeated cries for help during the attack. These failures resulted in a nearly eight-hour delay in learning of Mr. Murrill's serious injuries and getting him medical attention.”).

The undersigned further recommends Defendant Taylor is not entitled to qualified immunity as to this claim. “A prisoner's right to adequate medical care and freedom from deliberate indifference to medical needs has been clearly established by the Supreme Court and [the Fourth Circuit] since at least 1976.” Scinto, 841 F.3d at 236. Given the questions of fact that exist with respect to whether Taylor violated this clearly established right specific to Plaintiff, the undersigned cannot determine at this time whether her actions were objectively reasonable. The undersigned therefore recommends the Court deny Taylor summary judgment here on the grounds of qualified immunity. See Short v. Hartman, 87 F.4th 593, 615 (4th Cir. 2023) (“[U]nder this Court's precedent, qualified immunity is generally not available at all for deliberate indifference claims.”).

As for Defendants Palmer and Robertson, even if Plaintiff's injuries could be construed as sufficiently serious beyond the day the attack occurred, there is no evidence indicating Plaintiff personally indicated to Robertson or Palmer that he had not yet received medical attention or that his need for immediate medical attention was otherwise obvious to them. Nor is there any evidence indicating these Defendants purposely denied Plaintiff necessary medical treatment based on their alleged interactions. As for Plaintiff's statements in his February 17, 2023 grievance, of which Palmer became aware, Plaintiff did not directly claim he had suffered any injuries from the alleged assault constituting a serious medical need or otherwise indicate he still needed medical attention at that point. In other words, there is no evidence Defendants Robertson and Palmer were personally involved with a denial of medical treatment.

Without more, the undersigned cannot find that Defendants Robertson and Palmer were deliberately indifferent to a serious medical need. See Miltier, 896 F.2d at 854 (To bring a denial of medical treatment claim against non-medical prison personnel, an inmate must show, inter alia, that such officials were personally involved with a denial of treatment.); Butler v. Warden, No. ELH-21-cv-736, 2022 WL 3716521, at *15 (D. Md. Aug. 26, 2022) (“Butler alleges that Warden Wilson ignored his grievances regarding inadequate medical care.... Viewed in the light most favorable to Butler, the Amended Complaint does not establish a claim against Warden Wilson on this basis or for the denial of adequate medical care.”); Morphy v. Davis, No. 1:20-cv-2788-JMC-SVH, 2022 WL 2068816, at *8 (D.S.C. Jan. 11, 2022) (granting summary judgment on claim against defendant warden for deliberate indifference to his serious medical needs following an attack because, inter alia, “Plaintiff has provided no evidence that he communicated to Lane that he had a serious medical need-only that he complained about the lack of medical attention he received. Lane cannot be deliberately indifferent to a medical need of which he is unaware.”), adopted by, 2022 WL 1315228 (D.S.C. May 3, 2022). Accordingly, these Defendants should be granted summary judgment on this claim.

CONCLUSION

Based on the foregoing, it is RECOMMENDED that the Court GRANT Defendants' Motion for Summary Judgment (Dkt. No. 73) based on Plaintiff's failure to exhaust administrative remedies and dismiss this action without prejudice.

See Purdum v. Johns, No. 5:10-CT-3183-D, 2011 WL 5117574, at *2 (E.D. N.C. Oct. 25, 2011) (“A dismissal without prejudice allows the prisoner an opportunity to exhaust the administrative process and then file a new suit, if the prisoner so chooses.”); see also Johnson v. Cannon, No. 4:08-cv-776-PMD, 2010 WL 936706, at *8 (D.S.C. Mar. 15, 2010), aff'd, 390 Fed.Appx. 256 (4th Cir. 2010) (dismissing “without prejudice the remainder of Plaintiff's claims for failure to exhaust his administrative remedies”).

IN THE ALTERNATIVE, it is RECOMMENDED that the Court GRANT IN PART AND DENY IN PART Defendants' Motion for Summary Judgment (Dkt. No. 73) on the merits. More specifically, summary judgment should be denied as to Plaintiff's failure to protect claims against Defendants Taylor, Robertson, and Palmer; and Plaintiff's claim for deliberate indifference to serious medical needs against Defendant Taylor. Plaintiff's claim against Defendants Robertson and Palmer for deliberate indifference to serious medical needs should be dismissed with prejudice.

IT IS SO RECOMMENDED.

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 (4^th 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

Post Office Box 835

Charleston, South Carolina 29402

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).