Richard Kartman v. Shannon Markle ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6300
RICHARD E. KARTMAN,
Plaintiff – Appellant,
v.
SHANNON MARKLE; OFFICER STANCOTI; OFFICER SKIDMORE,
Defendants – Appellees,
and
OFFICER LONG; JOHN DOE MEDICAL EMPLOYEE,
Defendants.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:10-cv-00106-FPS-JES)
Submitted: August 14, 2014 Decided: August 22, 2014
Before DUNCAN and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Richard E. Kartman, Appellant Pro Se. Thomas E. Buck, BAILEY &
WYANT, PLLC, Wheeling, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Richard E. Kartman appeals from the district court’s
orders granting summary judgment to Defendants and denying
Kartman’s motion for reconsideration in Kartman’s 42 U.S.C.
§ 1983 (2012) proceeding. On appeal, Kartman pursues his claims
against Officer Skidmore, Officer Stancoti, and Shannon Markle,
contending that these Defendants were deliberately indifferent
to a threat to his physical safety by other inmates. As a
result, Kartman avers that he was assaulted twice (on October 2
& November 5, 2008). He further claims that Officer Stancoti
failed to appropriately intervene on both occasions.
The district court granted summary judgment to
Skidmore and Stancoti, finding that they were entitled to
qualified immunity as Kartman failed to allege that they were
aware of a substantial risk of harm and disregarded it. The
court also ruled that Stancoti responded appropriately to both
assaults. Subsequently, the district court granted summary
judgment to Markle, ruling that, even assuming that Kartman sent
Markle grievances and letters as he alleged, there was no
evidence that Markle ever received them. As such, he was not
aware of a substantial risk of harm to Kartman and was,
accordingly, entitled to qualified immunity
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I.
“This [c]ourt reviews a district court’s grant of
summary judgment de novo, applying the same legal standards as
the district court” and viewing the evidence in the light most
favorable to the nonmoving party. Martin v. Lloyd, 700 F.3d
132, 135 (4th Cir. 2012). The district court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law. “Conclusory or speculative
allegations do not suffice, nor does a mere scintilla of
evidence in support of [the nonmoving party’s] case.”
Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (internal quotation marks omitted). “Where the record
taken as a whole could not lead a rational trier of fact to find
for the non-moving party, there is no genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (internal quotation marks omitted).
The Eighth Amendment imposes a duty on prison
officials to “protect prisoners from violence at the hands of
other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994)
(internal quotation marks omitted). To obtain relief under
§ 1983 on a claim for failure to protect from violence, an
inmate must show: (1) “serious or significant physical or
emotional injury” resulting from that failure, De’Lonta v.
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Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (internal quotation
marks omitted); and (2) that the prison officials had a
“sufficiently culpable state of mind,” which in this context is
deliberate indifference. Farmer, 511 U.S. at 834 (internal
quotation marks omitted). A prison official “is deliberately
indifferent to a substantial risk of harm to a [prisoner] when
that [official] ‘knows of and disregards’ the risk.” Parrish ex
rel. Lee v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004)
(quoting Farmer, 511 U.S. at 837).
It is not enough to prove that the official should
have known of the risk; instead, “the official must both be
aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.” Farmer, 511 U.S. at 837. A showing of
negligence on the part of prison officials does not rise to the
level of deliberate indifference. Davidson v. Cannon, 474 U.S.
344, 347-48 (1986); Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.
1999). As the Supreme Court explained, “an official’s failure
to alleviate a significant risk that he should have perceived
but did not, while no cause for commendation, cannot under our
cases be condemned as the infliction of punishment.” Farmer,
511 U.S. at 838.
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II.
Aside from general allegations that all the prison
officials should have been aware of the threat against him based
on his numerous statements to other prison officials, Kartman
did not aver that he informed Stancoti of a substantial risk of
harm prior to the first altercation. Thus, the only allegations
against Stancoti with regard to the first assault are that he
watched from the tower while Kartman and another inmate engaged
in a verbal altercation, observed the other inmate pacing
outside Kartman’s cell for twenty minutes, and then, when a
physical attack ensued, failed to respond more quickly than he
did. However, the fact that Stancoti watched a verbal
altercation followed by prolonged pacing is far from sufficient
to show that he knew that Kartman was in danger of substantial
harm. Moreover, Stancoti’s report states that he took
appropriate action, and Kartman’s contrary allegations are based
on pure speculation. As there was no material issue of disputed
fact, the district court correctly granted summary judgment to
Stancoti with regard to the October incident.
Turning to the November altercation, Kartman alleges
that Stancoti stood, smiled, and watched as Kartman was
assaulted by two inmates, “knocked to the ground extremely
hard,” pummeled, kicked and punched. Stancoti stood watching
“for what seemed like a long time.” Subsequently, when Stancoti
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was taking Kartman to medical, Stancoti stated that he wanted
“to see how [Kartman] could fight.” There is no affidavit,
report, or testimony from Stancoti regarding the November
incident.
The district court did not specifically address this
claim. Instead, the district court noted that Stancoti did not
know the other inmates were going to attack Kartman prior to
either assault and Stancoti appropriately responded to the
October fight. The court makes no mention of Stancoti’s
response to the second incident once it began. Because
Kartman’s verified complaint provides undisputed evidence that
Stancoti watched Kartman being assaulted and unreasonably
delayed breaking up the fight, summary judgment was improperly
granted on this claim. See Smith v. Mensinger, 293 F.3d 641,
650 (3d Cir. 2002) (finding that “a corrections officer’s
failure to intervene in a beating can be the basis of liability
. . . if the corrections officer had a reasonable opportunity to
intervene and simply refused to do so”); Robinson v. Prunty, 249
F.3d 862, 867 (9th Cir. 2001) (holding no qualified immunity
where guards failed to intervene while one inmate attacked
another). Accordingly, we vacate this portion of the district
court’s orders and remand for further proceedings.
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III.
Kartman testified in his deposition that he repeatedly
informed Markle, the Administrator of the Central Regional Jail,
in grievances and letters delivered by varying methods, that he
faced a substantial risk of harm from other inmates. Markle
testified that he never received any of these grievances and,
therefore, had no knowledge of Kartman’s situation. The
district court assumed that Kartman filed the grievances and
letters as he claimed. However, the court concluded that there
was no evidence that Markle actually received them or had any
knowledge of Kartman’s issues, based on Markle’s testimony and
the fact that Markle was not responsible for making prisoner’s
housing decisions and would not have been the person to respond
to these grievances.
We conclude that material issues of fact exist
preventing summary judgment on this claim. Markle testified
that requests to be moved would be placed in his mailbox so long
as they were addressed to him and would not be diverted to a
supervisor or guard. While Markle stated that he would likely
refer the request to a supervisor or the booking department,
such a referral would require Markle to initially read and
screen the request or grievance. Moreover, the record showed
that grievances must be filed with the Administrator of the
Jail; filing grievances with officers or supervisors would be
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insufficient to exhaust. Finally, Kartman submitted a grievance
response from the Director of Inmate Services, which could be
interpreted as stating that Markle had received Kartman’s
grievances filed following the October assault.
Based on the foregoing, and contrary to the district
court’s ruling, we find that Kartman provided sufficient
evidence to raise a material issue of fact as to whether he
filed the disputed grievances and letters and, if so, whether
Markle either received them or was willfully blind to their
existence. See Bowen V. Manchester, 966 F.2d 13, 17 (1st Cir.
1992) (finding deliberate indifference could be shown by actual
knowledge or willful blindness of serious risk). The district
court ruled that a reasonable person in Markle’s position in
possession of the incident reports of the October fight,
Kartman’s November grievances, and Kartman’s letter would have
known of an excessive risk of harm to Kartman and would have
taken action. Because it is unclear whether Markle was in
possession of or was aware of these documents, we vacate the
district court’s order granting summary judgment and remand for
further proceedings.
IV.
We have reviewed the record and the parties’ arguments
on appeal regarding the claims against Skidmore, and we find
that the district court correctly determined that Skidmore was
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entitled to qualified immunity. Accordingly, we affirm the
portion of the district court’s order granting summary judgment
in favor of Skidmore for the reasons stated by the district
court. Kartman v. Markle, No. 5:10-cv-00106-FPS-JES (N.D. W.
Va. Mar. 3, 2012). The remainder of the district court’s orders
are vacated and remanded for further proceedings consistent with
this opinion. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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