Opinion
C/A 8:21-cv-01934-HMH-JDA
08-17-2021
Timothy W. Arthur, Plaintiff, v. Robert Williams, M.D., Michael Rasar, Geri Gilliespie, Shonda Priester, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge.
Timothy W. Arthur (“Plaintiff”), proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Plaintiff is a detainee at the Barnwell County Detention Center (the “Detention Center”). He files this action in forma pauperis under 28 U.S.C. § 1915 and § 1915A. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review the Complaint for relief and submit findings and recommendations to the District Court. Having reviewed the Complaint in accordance with applicable law, the undersigned finds that this action is subject to summary dismissal for the reasons below.
BACKGROUND
Plaintiff commenced this action by filing a Complaint on the standard court form, which was entered on June 28, 2021. [Doc. 1.] By Order dated July 14, 2021, the Court notified Plaintiff that this action was subject to summary dismissal for the reasons identified by the Court in its Order. [Doc. 11.] The Court noted, however, that Plaintiff may be able to cure the pleading deficiencies of his Complaint and granted Plaintiff twenty-one days to amend his Complaint. [Id. at 9.] Further, Plaintiff was specifically warned as follows:
If Plaintiff fails to file an amended complaint that corrects those deficiencies [identified in the Court's Order], this action will be recommended for summary dismissal.[Id. at 10.] Nevertheless, Plaintiff has not filed an amended complaint, and he has failed to cure the deficiencies identified by the Court in its Order.
Because Plaintiff did not respond to the Court's Order, and the time for response has lapsed, he has failed to prosecute this case and has failed to comply with an Order of this Court. Because Plaintiff has already ignored this Court's Order and deadlines, sanctions less drastic than dismissal would not be effective. Accordingly, as an additional basis for dismissal, the case should be dismissed pursuant to Rule 41 of the Federal Rules of Civil Procedure. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962).
Plaintiff makes the following allegations in his Complaint. [Doc. 1.] Plaintiff claims his rights have been violated as follows: (1) a privacy act violation, (2) a violation of his well being, (3) negligence, and (4) deliberate indifference. [Id. at 3.] Specifically, Plaintiff alleges that his rights have been violated because Detention Center personnel other than medical staff gave him medication, and he was given other inmates' medications. [Id. at 4.] Plaintiff alleges he was not given his pain medication as prescribed by his doctor's instructions, causing him to be in constant pain. [Id.] Plaintiff alleges he has developed a skin disorder at the Detention Center. [Id.] Plaintiff alleges he was given the wrong medications and was denied his own pain medications for two months. [Id.] For his injuries, Plaintiff alleges he has suffered pain and suffering, mental anguish, and body scars and pain. [Id. at 5.] For his relief, Plaintiff seeks money damages in the amount of $475,000. [Id.]
STANDARD OF REVIEW
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, Plaintiff is a prisoner under the definition in 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, this Court is charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Amended Complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Because Plaintiff is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, even under this less stringent standard, Plaintiff's Complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the Complaint, the Complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact). “A claim has ‘facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). “And, although the pleading requirements of Rule 8(a) are very liberal, more detail often is required than the bald statement by plaintiff that he has a valid claim of some type against defendant.” Migdal v. Rowe Price-Fleming Int'l, Inc., 248 F.3d 321, 326 (4th Cir. 2001) (citation and internal quotations omitted). This is particularly true in a § 1983 action where “liability is personal, based upon each defendant's own constitutional violations.” Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001). “In order for an individual to be liable under § 1983, it must be affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights.... Consequently, [defendants] must have had personal knowledge of and involvement in the alleged deprivation of [plaintiff]'s rights in order to be liable.” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (internal quotation marks omitted).
DISCUSSION
Plaintiff filed this action pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Liberally construed, the Complaint appears to assert claims related to Plaintiff's medical care at the Detention Center. However, Plaintiff has failed to allege facts to assert a plausible claim for relief as to any cause of action. Accordingly, the Complaint is subject to summary dismissal for the reasons explained below.
Defendants are entitled to dismissal
As an initial matter, the undersigned notes that all of the Defendants are entitled to dismissal from this action because Plaintiff makes no allegations about their direct, personal involvement in the events underlying Plaintiff's claims. Instead, Plaintiff merely names the Defendants in the caption and makes only general, vague allegations about his medical care at the Detention Center. “However, such general allegations, absent any specific facts of personal involvement in the events giving rise to this case, are insufficient to state a cognizable § 1983 claim.” Tracey v. Nelson, No. 1:12-cv-1614-JMC-SVH, 2012 WL 4583107, at *2 (D.S.C. Aug. 31, 2012), Report and Recommendation adopted by 2012 WL 4588205 (D.S.C. Oct. 1, 2012). Because Plaintiff makes no factual allegations in the Complaint of personal involvement against Defendants, they are entitled to summary dismissal. See Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (“Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed.”); Newkirk v. Circuit Court of City of Hampton, No. 3:14-cv-372-HEH, 2014 WL 4072212, at *2 (E.D. Va. Aug. 14, 2014) (finding the complaint was subject to summary dismissal where plaintiff made no factual allegations against the named defendants within the body of the pleading). In the absence of specific allegations against the named Defendants to support a claim for relief, the Complaint is subject to dismissal on this basis alone. See Weller, 901 F.2d at 391 (finding dismissal was proper where complaint contained no allegations against defendants).
Plaintiff's allegations fail to state a claim for relief
Further, this action is subject to dismissal as Plaintiff's allegations fail to state a claim for relief that is plausible.
Negligence
First, the undersigned notes that Plaintiff purportedly asserts a claim for negligence. [Doc. 1 at 3.] However, negligence, in general, is not actionable under 42 U.S.C. § 1983. See Ruefly v. Landon, 825 F.2d 792, 793-94 (4th Cir. 1987); Pink v. Lester, 52 F.3d 73, 75-78 (4th Cir. 1995). Thus, to the extent that Plaintiff alleges negligence, his claims are not actionable under 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”).
Deliberate Indifference
The undersigned concludes, however, that Plaintiff's assertions may also be construed as a claim for deliberate indifference in violation of his Eighth and Fourteenth Amendment rights. To establish a claim for deliberate indifference to his serious medical needs under 42 U.S.C. § 1983, Plaintiff must allege facts showing that (1) he was deprived of an objectively serious medical need by a state actor and (2) the state actor knew of and disregarded an excessive risk to his health or safety. Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014); Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). Deliberate indifference “is a higher standard for culpability than mere negligence or even civil recklessness, and as a consequence, many acts or omissions that would constitute medical malpractice will not rise to the level of deliberate indifference.” Jackson, 775 F.3d at 178. Absent exceptional circumstances, a plaintiff cannot establish a cognizable deliberate indifference claim when there exists a mere disagreement between the plaintiff and the state official over the proper medical care. Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985).
Although a pretrial detainee's deliberate indifference claim arises under the due process clause of the Fourteenth Amendment, the Eighth Amendment's prohibition of cruel and unusual punishments provides the framework for analyzing such a claim. See Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988).
Here, Plaintiff has not alleged that any Defendant knew of and disregarded a risk to his safety, and he has not provided factual support for his claims. Instead, Plaintiff simply alleges that Detention Center personnel other than medical staff have distributed medication and that he has been given the wrong medication. However, these allegations do not support a claim for relief.
As to Plaintiff's claim that nonmedical staff were giving out medication, he has failed to support his cursory allegation with facts showing that any Detention Center staff acted with deliberate indifference. Sawyer v. Stolle, No. 2:11-cv-446, 2011 WL 6396592, at *13 (E.D. Va. Dec. 20, 2011) (noting “nonmedical prison officials may be held liable under the applicable ‘deliberate indifference' standard if they knew or should have known that prison medical staff were mistreating or failing to treat an inmate”). Thus, because Plaintiff's bare allegations about which staff members are handing out his medication fail to state facts showing that anyone acted with deliberate indifference to his serious medical needs, his claim is subject to dismissal. See McAfee v. Rockingham Jail, No. 7:08-cv-00480, 2008 WL 4057352, at *2 (W.D. Va. Aug. 29, 2008).
Likewise, because negligence and medical malpractice do not rise to the level of a constitutional violation, claims of incorrect medical treatment or the administration of incorrect medication, without more, are not actionable under § 1983. Campbell v. Powers, No. 4:07-cv-3972-HFF-TER, 2009 WL 2614936, at *6 (D.S.C. Aug. 25, 2009). Critically, Plaintiff does not allege that any Detention Center staff had knowledge that they were giving Plaintiff the wrong medication or that they disregarded any known risk to Plaintiff's health or safety to support a claim for deliberate indifference. See Chestnut v. S.C. Dep't of Corr., No. 3:10-cv-200-TLW-JRM, 2010 WL 1052213, at *3 (D.S.C. Feb. 12, 2010) (noting plaintiff's allegations failed to state a claim when the allegations were based on the defendant's erroneous and inadvertent actions, which did not rise to the level of deliberate indifference), Report and Recommendation adopted by 2010 WL 1052207 (D.S.C. Mar. 19, 2010). Indeed, “[d]ispensing the wrong medication does not constitute deliberate indifference and such claims are routinely dismissed.” Tillery v. Virginia Peninsula Reg'l Jail, No. 1:20-cv-751-RDA-TCB, 2020 WL 6742991, at *3 (E.D. Va. Nov. 17, 2020) (collecting cases). Accordingly, the undersigned concludes that Plaintiff's deliberate indifference claims are subject to dismissal.
HIPAA Violation
Next, Plaintiff appears to assert a claim for violations of his privacy. [Doc. 1 at 3.] Specifically, Plaintiff contends that his medical information has been shared with nonmedical staff and other inmates in violation of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). [Id. at 4-5.]
Nevertheless, HIPAA does not provide a private cause of action for an individual who asserts a violation of that law. HIPAA governs “confidentiality of medical records and regulates how ‘covered entities' can use or disclose ‘individually identifiable health (medical) information (in whatever form) concerning an individual.'” White v. Brand, No. 2:08-cv-255, 2009 WL 2105993, at *2 (E.D. Tenn. July 13, 2009) (citations omitted). HIPAA regulations “do not confer a private right of action on an individual.” Id.; see also Suggs v. North Strand OB/GYN, No. 07-cv-3911-TLW-TER, 2009 WL 113445, at *5 (D.S.C. Jan. 14, 2009); Williams v. Jones, No. 9:07-cv-3437-MBS-GCK, 2008 WL 948285, at *5 (D.S.C. April 4, 2008) (finding the plaintiff could not file a § 1983 claim based on a violation of HIPAA); Hopkins v. Bethea, No. 3:06-cv-3467-MBS-JRM, 2007 WL 1231652, at *5 (D.S.C. April 23, 2007) (finding the plaintiff's allegation of a HIPAA violation did not create federal question jurisdiction in this Court). The remedy for an alleged HIPAA violation “is to lodge a written complaint with the Secretary of Health and Human Services, through the Office of Civil Rights, who has the discretion to investigate the complaint and impose sanctions.” White, 2009 WL 2105993 at *2. Therefore, Plaintiff fails to state a cognizable claim against Defendants based upon an alleged violation of HIPAA.
CONCLUSION AND RECOMMENDATION
In light of the foregoing, it is recommended that the District Court DISMISS this action pursuant to 28 U.S.C. § 1915 and § 1915A without further leave to amend and without issuance and service of process.
As noted, Plaintiff was directed to file an amended complaint to cure the deficiencies noted by the Court in its Order dated July 14, 2021. [Doc. 11.] Plaintiff has not filed an amended complaint or attempted to cure the deficiencies in his original filings. Accordingly, the undersigned recommends dismissal without further leave to amend. See Workman v. Morrison Healthcare, No. 17-7621, 2018 WL 2472069, at *1 (4th Cir. June 4, 2018) (explaining that, where the district court has already afforded a plaintiff with the opportunity to amend, the district court, in its discretion, can either afford plaintiff an additional opportunity to file an amended complaint or dismiss the complaint with prejudice).
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[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 & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).