United States District Court, W.D. Virginia, Roanoke Division
MEMORANDUM OPINION (Adopting Report and
E. Conrad Chief United States District Judge
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.
plaintiff, Adib Eddie Ramez Makdessi was incarcerated at
Wallens Ridge State Prison ("Wallens Ridge") at the
time his § 1983 claims arose. 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
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.
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).
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
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).
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).
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.
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.
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