Burks v. Pate , 119 F. App'x 447 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6784
TROY LUKE BURKS,
Plaintiff - Appellant,
versus
JOHN PATE, Acting Warden; BETTY E. ALBRITTON,
Disciplinary Hearing Officer; P. FELDER, Unit
Sergeant,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Henry M. Herlong, Jr., District
Judge. (CA-02-4014-3-20)
Submitted: October 1, 2004 Decided: January 5, 2005
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Troy Luke Burks, Appellant Pro Se. Isaac McDuffie Stone, III, LAW
OFFICE OF MCDUFFIE STONE, L.L.C., Bluffton, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Troy Luke Burks, a South Carolina inmate, appeals from
the district court’s order granting summary judgment in favor of
the Defendants on his 42 U.S.C. § 1983 (2000) complaint. We affirm
in part, vacate in part, and remand for further proceedings.
On April 5, 2002, while an inmate at Allendale
Correctional Institution, Burks was attacked by five inmates who
entered his cell. According to Burks, when the inmates approached
his open cell door:
I . . . used the empty locker sitting by the door
to try to block them out and bang it against the
door to alert Sgt. Felder who was sitting down
stairs less than 10 feet away . . . . When I
started banging the metal locker against the door
everyone stood facing my door including Sgt. Felder
who disappeared under the walkway because he was
afraid to intervene out of fear of being injured
due to the fact he was alone . . . . Everyone in
the dorm including Sgt. Felder was attracked [sic]
to take a look up at the loud noise and fury of
movement when nothing else was going on.
Burks also submitted an affidavit from Ricky Johnson, an
inmate who witnessed the attack, stating that:
On April 5, 2002, . . . while sitting on the T.V.
benches with other inmates, I noticed and heard (5)
five muslim inmates running up in inmate Troy Burks
room upstairs . . . . As they ran in, it appeared
they were being pushed back by some metal locker
which was making a loud banging noise . . . . After
approximately 5 minutes of pushing and loud cursing
and threatening remarks from the 5 muslim inmates,
they were able to over power inmate Burks and enter
his room . . . . I notice Sgt. Felder was standing
and looking up at the assault but instead returned
back to his desk and sit back down, out of sight.
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After the attack, Burks located Sgt. Felder and requested
medical attention; Burks was treated at a local emergency room and
released. Burks’ medical records reveal that he was stabbed in the
face and upper left chest area with a twelve-inch shank, requiring
multiple stitches in both areas.
Following a disciplinary hearing, Burks and another
inmate were both convicted of fighting and Burks was placed in
administrative segregation. Prison officials debited Burks’ prison
trust account to pay for his hospital bill.
Burks filed the underlying § 1983 complaint alleging
that: (1) prison officials knew of a pervasive risk of harm to
inmates and failed to institute measures to prevent the attack;
(2) Sgt. Felder deliberately failed to do anything to stop the
attack once it began; (3) Burks was denied due process at his
disciplinary hearing; (4) Burks was unconstitutionally kept in
solitary confinement after the attack; and (5) prison officials
illegally took money out of Burks’ trust account to pay his medical
bills.
The district court granted summary judgment in favor of
all the Defendants as to all of Burks’ claims. For the reasons
that follow, we vacate the award of summary judgment with respect
to claims (2) and (5) and remand for further proceedings. With
respect to the remaining claims, our review of the record discloses
no reversible error. Accordingly, we affirm as to those claims for
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the reasons stated by the district court. See Burks v. Pate, No.
CA-02-4014-3-20 (D.S.C. Mar. 25, 2004).
This court reviews de novo a district court’s order
granting summary judgment. Providence Square Assocs., L.L.C. v.
G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). Summary judgment
is appropriate when there is no genuine issue of material fact
given the parties’ burdens of proof at trial. See Fed. R. Civ. P.
56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). In determining whether the moving party has shown that
there is no genuine issue of material fact, a court must assess the
factual evidence and all inferences to be drawn therefrom in the
light most favorable to the non-moving party. See Smith v.
Virginia Commonwealth Univ., 84 F.3d 672, 675 (4th Cir. 1996) (en
banc).
With this standard in mind, we find that the district
court erred in granting summary judgment in favor of Sgt. Felder on
Burks’ claim that he failed to take any action to stop the attack.
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). To establish a claim
under § 1983 for failure to protect from violence, an inmate must
show: (1) “serious or significant physical or emotional injury,”
De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003); and
(2) that the prison officials had a “sufficiently culpable state of
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mind.” Farmer, 511 U.S. at 834 (internal quotation marks omitted).
This court has observed that:
[C]orrectional officers who are present when a
violent altercation involving an armed inmate
erupts and fail to intervene immediately do not
violate the Eighth Amendment if officers are
unarmed, unaware of a risk of harm prior to the
altercation, and take reasonable steps to intervene
safely . . . . By the same token, . . . a
correctional officer who stands by as a passive
observer and takes no action whatsoever to
intervene during an assault violates the rights of
the victim inmate. See Gordon v. Leeke, 574 F.2d
1147, 1152 (4th Cir. 1978). Gordon does not
suggest whether the officers knew about the
potential violence before the attack or whether
they were merely present when the fight broke out;
nevertheless, the plaintiff stated a viable claim
as a result of the officers’ failure to take any
action whatsoever.
Odom v. South Carolina Dep’t of Corrections, 349 F.3d 765, 773 (4th
Cir. 2003).
Although the district court determined that Burks had
presented evidence of significant physical injury and evidence that
Felder could see and hear but did nothing to prevent or stop the
attack, the court nevertheless did not believe that the evidence
presented by Burks was sufficient to defeat summary judgment.
Notwithstanding Burks’ affidavit and the affidavit submitted by the
inmate witness, the court relied on a photograph submitted by the
Defendants with their motion for summary judgment to conclude that
“it would have been physically impossible for Felder to see,
evaluate or be subjectively aware of the altercation and the risk
of harm to Burks.”
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However, the photographs submitted by the Defendants
actually corroborated Burks’ (and the witness’) version of the
events: i.e., that Felder saw the attack but intentionally
retreated to a desk where he would be out of sight. Second,
Felder’s affidavits and the photograph created a genuine issue of
material fact--whether or not Felder actually saw the attack and
took no action--precluding summary judgment on this claim.
We therefore vacate the award of summary judgment in
favor of Sgt. Felder as to this claim and remand to the district
court for further proceedings. See Odom, 349 F.3d at 774 (“[W]hen
we are presented with two reasonable inferences, we are constrained
on summary judgment to accept the one most favorable to the non-
moving party”).
We also find that the Defendants were not entitled to
summary judgment on Burks’ claim that they erroneously charged his
prison trust account $249 to cover the hospital emergency room
treatment he received after the attack.
A prisoner has a protected property interest in his
prison trust account. Gillihan v. Shillinger, 872 F.2d 935 (10th
Cir. 1989) (holding that prisoner stated a claim under § 1983 based
on prison’s assessment of transportation costs against his trust
account); cf. Washlefske v. Winston, 234 F.2d 179 (4th Cir. 2000)
(finding that limited property interest in prison trust account did
not extend to any interest earned on that account). Therefore, a
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prisoner may not be deprived of those funds without minimum due
process. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 313 (1950) (holding that before one may be deprived of
property by adjudication, procedural due process requires prior
notice and hearing). We find no evidence in the record to show
that Burks was given notice and an opportunity for a hearing prior
to the debiting of his prison trust account.
The district court also concluded that debiting the
account was specifically authorized by South Carolina statute. The
South Carolina Code provides that prison authorities may deduct
from a prisoner’s inmate trust account the costs of “medical
treatment for injuries inflicted by the inmate upon himself or
others.” S.C. Code Ann. § 24-13-80 (2000). This statute does not
authorize deduction for costs associated with treating injuries to
the inmate by other inmates. We therefore vacate the award of
summary judgment to the Defendants on this claim as well and remand
for further proceedings. 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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