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Makdessi v. Fields

United States District Court, W.D. Virginia, Roanoke Division

January 24, 2017

LT. FIELDS, ETAL., Defendants.

          MEMORANDUM OPINION (Adopting Report and Recommendation)

          Glen E. Conrad Chief United States District Judge

         This prisoner civil rights action filed pursuant to 42 U.S.C. § 1983 claims that three supervisory prison officials failed to protect the plaintiff from sexual and physical assaults by his cell mate, in violation of his Eighth Amendment rights. The parties presented their evidence in a bench trial, and the case is presently before the court on the report and recommendation ("the report") of Magistrate Judge Pamela Meade Sargent, pursuant to 28 U.S.C. § 636(b)(1)(B), recommending judgment for the defendants. After de novo review of the evidence, for the reasons that follow, the court will overrule the plaintiffs objections, adopt the report, and enter judgment for the defendants, Lt. Fields, Sgt. King, and Capt. Gallihar.


          The plaintiff, Adib Eddie Ramez Makdessi was incarcerated at Wallens Ridge State Prison ("Wallens Ridge") at the time his § 1983 claims arose.[1] Makdessi has presented copies of numerous administrative complaints he filed, beginning in 2007, claiming vulnerability to physical attacks from other inmates and alleging that he had been the victim of prior sexual assaults from cell mates. He has also testified that he made written and verbal complaints about fearing injury from Michael Smith, who became his cell mate in early August 2006. Makdessi has testified that on December 21, 2010, Smith physically and sexually assaulted him over a three-hour period inside their cell. Video footage and other evidence indicates that when officers unlocked the cell door for routine removal of lunch trays and trash, a bloodied Makdessi ran out of the cell with Smith in pursuit to continue his assault, joined by other inmates in the pod. After a warning shot from the control booth, Smith and these other inmates immediately fell to the ground, and Makdessi ran into the vestibule. Officers took Makdessi to the medical unit, where he received stitches to close two cuts on his face and underwent x-rays. Officers also transported him to an outside hospital for a Physical Evidence Recovery Kit ("PERK") test. Six weeks later, Makdessi was transferred to a protective custody unit at another prison facility.

         Makdessi's pro se § 1983 complaint alleged that several Wallens Ridge officers orchestrated and/or failed to protect him from Smith's attack or failed to intervene promptly once that attack began. The court denied summary judgment as to Makdessi's claims against Defendants Gallihar, Fields, King, Sumpter, Boyd, Bellamy, and Hall, and referred the matter to Judge Sargent for appropriate proceedings under § 636(b)(1)(B). Shortly thereafter, counsel entered an appearance to represent Makdessi.

         Judge Sargent conducted an evidentiary hearing on March 12-14, 2013, and issued her first report and recommendation in the case on May 3, 2013, recommending judgment for the defendants. Makdessi filed objections. After conducting a de novo review of pertinent parts of the report and the evidence, the court overruled the objections, adopted the report, and granted judgment to defendants. Makdessi appealed. The United States Court of Appeals for the Fourth Circuit affirmed the judgment in part, but reversed and remanded the case as to Makdessi's claims against Fields, King, and Gallihar. See Makdessi v. Fields, No. 7:11CV00262, 2013 WL 5353330 (W.D. Va. Sept. 24, 2013), rev'd in part by 789 F.3d 126, 136 (4th Cir. 2015).

         The parties presented additional evidence and argument before Judge Sargent in November 2015, but otherwise agreed to rely on the evidence presented during the March 2013 proceedings. Judge Sargent has now entered her second report recommending judgment for the defendants. Makdessi has filed written objections to portions of the report that the court must now resolve..

         Standards of Review

          In a civil case, the plaintiff carries the burden of proving each of the elements of his claim by a prepondance of the evidence. In re Winship, 297 U.S. 358, 371 (1970). "The burden of showing something by a preponderance of the evidence . . . requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence." Concrete Pipe & Prods, of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993) (quotation marks omitted); see also McNeal v. United States, 689 F.2d 1202 (4th Cir. 1982) (affirming a finding for the defendant where the evidence was in equipoise).

         The magistrate judge's report under § 636(b)(1)(B) makes only a recommendation to this court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). "[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 & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation marks omitted); Fed.R.Civ.P. 72. In contrast, the court is charged with making a de novo determination of any portions of the magistrate judge's recommendation to which a specific objection is made. 28 U.S.C. § 636(b)(1)(C). Although the district court may give a magistrate judge's proposed findings and recommendations "such weight as [their] merit commands and the sound discretion of the judge warrants, " the authority and the responsibility to make an informed final determination remains with the district judge. United States v. Raddatz, 447 U.S. 667, 682-83 (1980) (internal quotation marks and citation omitted). Therefore, in performing a de novo review, the district judge must exercise "his non-delegable authority by considering the actual testimony, and not merely by reviewing the magistrate's report and recommendations." Wimmer v. Cook, 774 F.2d 68, 76 (4th Cir. 1985) (citation omitted).


          Among duties the Eighth Amendment's prohibition against cruel and unusual punishment imposes on prison officials is an "obligation] to take reasonable measures to guarantee inmate safety, " specifically, '"to protect prisoners from violence at the hands of other prisoners.'" Makdessi, 789 F.3d at 132 (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). A prisoner alleging that prison officials have failed to keep him reasonably safe from other inmates must show that (i) objectively, the prisoner was incarcerated under conditions posing a substantial risk of serious harm, and (ii) subjectively, the official must have had a '"sufficiently culpable state of mind' to be held liable, " namely, the state of'"deliberate indifference'" to the substantial risk of serious harm. Id. at 133 (quoting Farmer, 511 U.S. at 834).

         The report recommends a finding of fact and conclusion of law that Makdessi has satisfied the first, objective element of this standard by demonstrating that he was assaulted on December 21, 2010, and suffered serious physical injuries. (Report 10, 21, ECF 201.) In the absence of any objection from the parties, and finding no clear error, the court adopts this portion of the report.

         Proving deliberate indifference requires showing '"more than ordinary lack of due care for the prisoner's interests or safety, ' and 'more than mere negligence, ' but 'less than acts or omissions [done] for the very purpose of causing harm or with knowledge that harm will result.'" Id. (quoting Farmer, 511 U.S. at 135). "[A]n official's failure to alleviate a significant risk that he should have perceived but did not, . . . cannot [constitute] infliction of punishment." Farmer, 511 U.S. at 838. Specifically, "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." Id. at 837. Therefore, "a prison official may be held liable under the Eighth Amendment for denying humane ...

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