United States District Court, S.D. Georgia, Statesboro Division
DERRICK W. WALKER, Plaintiff,
ERIC SMOKES; CARL FOUST; and STANLEY WILLIAMS, Defendants.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE.
currently incarcerated at Telfair State Prison in Helena,
Georgia, filed this 42 U.S.C. § 1983 cause of action, as
amended, contesting events allegedly occurring during his
incarceration at Smith State Prison in Glennville, Georgia.
Doc. 13. Defendants have moved for summary judgment, arguing
that Plaintiff has failed to put forward a dispute of
material fact. Doc. 77. Plaintiff filed a Response,
Defendants filed a Reply, and Plaintiff filed a Surreply.
Docs. 80, 81, 82. For the following reasons, I
RECOMMEND the Court GRANT
Defendants' Motion for Summary Judgment and
DISMISS Plaintiff's Complaint, as
amended, for his failure to establish a genuine dispute of
material fact. I also RECOMMEND the Court
DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal and DENY Plaintiff
in forma pauperis status on appeal.
filed his initial Complaint in this case on May 26, 2015,
doc. 1, and amended as a matter of right on August 26, 2015,
doc. 13. In his pleadings, Plaintiff asserts that, upon his
arrival at Smith State Prison, he was placed in Tier II
confinement with members of the Goodfellas gang. Doc. 13 at
3-4. Plaintiff asserts that he previously severed all his
ties with that gang and, moreover, that certain gang members
put out a contract ordering gang members to kill Plaintiff.
Id. at 4-5. Plaintiff further claims he was denied
the opportunity to contest his Tier II placement because
prison records reflected that he was a member of the
Goodfellas. Id. at 6-7. Plaintiff requested
placement in protective custody due to the threats that
Goodfellas members pose to him but was denied placement in
protective custody based upon his status as a purported
member of the Goodfellas. However, Plaintiff was placed in a
single-man cell and was told that he would remain in that
cell and have a two-man escort at all times when he was
outside of his cell. Doc. 1-7 at 2.
15, 2015, the Court granted Plaintiff leave to proceed in
forma pauperis in this action and, on December 31, 2015
the Magistrate Judge issued a Report recommending that
Plaintiff's claims for monetary damages against
Defendants in their official capacities be dismissed, as well
as Plaintiff's claims for compensatory and punitive
damages in their entirety. Doc. 19. The Magistrate Judge also
recommended that Plaintiff's claims against Defendant
Bryson be dismissed in their entirety, as Plaintiff failed to
state a claim against that Defendant. Id. at
The Court ordered service on Defendants Williams, Smokes, and
Foust, finding that Plaintiff stated non-frivolous claims
against them for deliberate indifference to his safety and
that Plaintiff could pursue prospective relief and nominal
damages against them on that basis. Id. at 12.
Plaintiff clarified the correct name of one of the Defendants
and the Court directed service on that Defendant, Plaintiff
notified the Court that he had been transferred to Telfair
State Prison, where he remains incarcerated. Doc. 57.
Defendants then filed a Motion to Dismiss. Doc. 41. Plaintiff
opposed this motion, doc. 45, and on July 3, 2018, the
Magistrate Judge recommended that Plaintiff's claims
relating to his placement in Tier II without adequate process
be dismissed for failure to exhaust administrative remedies.
Doc. 60 at 10-14. However, the Magistrate Judge recommended
Plaintiff be allowed to proceed on his deliberate
indifference claim. Id. at 16-20. The Court adopted
that recommendation on August 3, 2018 without objection. Doc.
have now filed a Motion for Summary Judgment, which Plaintiff
opposes. Docs. 77, 80, 81, 82. In support of their Motion,
Defendants each submitted a sworn declaration, as well as
Plaintiff's deposition. These documents, taken together
and construed in the light most favorable to Plaintiff, the
non-moving party, demonstrate the following facts: Plaintiff
was never a member of the Goodfellas gang but did know some
gang members and associate with them. Doc. 77-3 at 6.
Plaintiff was validated as a member of the Goodfellas by the
Georgia Department of Corrections prior to his arrival at
Smith State Prison. Doc. 77-5 at 2. Plaintiff has not had any
contact with individuals that he knew to be gang members
since 2013. Doc. 77-3 at 7. Plaintiff heard, via
“gossip, ” that the Goodfellas had placed a hit
out on him following a disagreement he had with gang members
in October 2013 while attempting to buy a phone from gang
members at Georgia State Prison, where he was previously
incarcerated. Id. Plaintiff arrived at Smith State
Prison in August 2014, and Defendant Smokes, the unit manager
of the T-2 dorm, told him that he was going to be placed on
Tier II with other Goodfellas members. Id. at 8.
Defendant Smokes further stated that this policy was set by
the then Warden, Defendant Williams. Id. Because
Plaintiff had previously been validated as a Goodfellas
member, he retained this status upon his transfer to Smith
State Prison. Doc. 77-4 at 3. Plaintiff attempted to renounce
his affiliation on November 10, 2014, but Defendant Foust
determined that his renunciation was not genuine.
Id. at 4.
after his arrival, Plaintiff asked to be placed in protective
custody because of the threat posed to him by the Goodfellas
organization in general. Id. at 9. Defendants
investigated Plaintiff's request but “were unable
to substantiate any viable threat against him based on the
information he provided.” Doc. 77-5 at 3. Plaintiff was
not placed in protective custody but was placed in a
single-man cell and was always escorted outside his cell by
at least one officer. Doc. 77-3 at 10. Correctional officers
also patrolled Plaintiff's dormitory 24 hours a day and
conducted security checks roughly every 30 minutes. Doc. 77-4
at 4. Defendant Smokes states that the “security
protection received by inmate Walker and those in protective
custody would be virtually identical.” Id. at
asked during his deposition if he was ever “actually
physically attack[ed]” while at Smith State Prison,
Plaintiff refused to answer that question, invoking his Fifth
Amendment right to avoid self-incrimination. Doc. 77-3 at 10.
Plaintiff also invoked his Fifth Amendment right when asked
why he wrote a document stating he received a “blessing
from Jonathan McClendon, ” one of the “head
members” of the Goodfellas gang. Id. at
filed a Response and Surreply to Defendants' Motion.
Docs. 80, 82. In these filings, Plaintiff does not identify
any specific individual who told him he was under threat from
the Goodfellas or any Goodfellas members who threatened him.
Plaintiff argues that the difference between Tier II
confinement and protective custody is that in Tier II he
“could have been housed with a Goodfellas Member at any
given time[, ]” but in protective custody there was no
possibility he would be housed with a Goodfellas member. Doc.
82 at 3-4. He further argues that Tier II is an
“illegal program” and that the very existence of
protective custody means that there is a meaningful
difference between Tier II confinement and protective
custody. Id. at 4.
move for summary judgment. Plaintiff's sole remaining
claim is one for deliberate indifference against Defendants
Foust, Smokes, and Williams for nominal damages and
injunctive relief. Because Plaintiff has failed to identify a
genuine dispute of material fact, I
RECOMMEND the Court GRANT
Defendants' Motion for Summary Judgment and
DISMISS Plaintiff's Complaint. Because
other grounds mandate summary judgment for Defendants, I do
not address Defendants' arguments concerning qualified
immunity or the possible mootness of Plaintiff's claim to
Standard of Review
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). “A dispute about a
material fact is genuine and summary judgment is
inappropriate if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. However,
there must exist a conflict in substantial evidence to pose a
jury question.” Hall v. Sunjoy Indus. Grp.,
Inc., 764 F.Supp.2d 1297, 1301 (M.D. Fla. ...