Michael Palmer v. West Virginia Division of Corrections and Rehabilitation; C.o. Richard Blake

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-7120
MICHAEL PALMER,
Plaintiff – Appellant,
v.
WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION; C.O.
RICHARD BLAKE,
Defendants – Appellees,
and
C.O. MARSHALL CLERE,
Defendant.
Appeal from the United States District Court for the Southern District of West Virginia, at
Charleston. Thomas E. Johnston, District Judge. (2:22-cv-00347)
Submitted: May 30, 2024 Decided: October 9, 2024
Before AGEE, RICHARDSON and HEYTENS, Circuit Judges.
Affirmed by unpublished per curiam opinion.

-- 1 of 4 --

2
ON BRIEF: Paul M. Stroebel, STROEBEL & STROEBEL, PLLC, Charleston, West
Virginia, for Appellant. William E. Murray, John P. Fuller, Adam K. Strider, Jaden P. Rhea,
BAILEY & WYANT, PLLC, Charleston, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

-- 2 of 4 --

3
PER CURIAM:
Michael Palmer, a West Virginia state prisoner, appeals from the district court’s
grant of summary judgment to Defendants West Virginia Division of Corrections and
Rehabilitation and correctional officer Richard Blake on his claims that Defendants did not
do enough to prevent the beating. He argues that the district court erred in (1) granting
summary judgment to Blake on his Eighth Amendment failure-to-protect claim on the basis
of qualified immunity; and (2) granting summary judgment to Defendants on his West
Virginia law outrage claim.
We have reviewed the record and find no reversible error.
Nonetheless, we note that the district court incorrectly granted summary judgment
on Palmer’s failure-to-protect claim based only on Palmer’s purported concession that
Blake was entitled to qualified immunity. A non-moving party’s failure to respond to a
summary judgment motion—or a specific argument therein—does not relieve a district
court of its duty to consider if the moving party is entitled to judgment as a matter of law.
See Custer v. Pan Am. Life Ins., 12 F.3d 410, 416 (4th Cir. 1993). Whether an officer is
entitled to qualified immunity on an uncontested record is a legal question. Willingham v.
Crooke, 412 F.3d 553, 559 (4th Cir. 2005). When granting summary judgment based on
qualified immunity, therefore, a district court must consider the propriety of that argument
even if that argument is unopposed.
Regardless, we are entitled to affirm the district court on any basis that appears in
the record. See Hodgin v. UTC Fire & Sec. Ams. Corp., 885 F.3d 243, 251 n.3 (4th Cir.

-- 3 of 4 --

4
2018). Finding ample bases in the record to do so, we agree with the district court’s end
result.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid in the
decisional process.
AFFIRMED

-- 4 of 4 --