Opinion
Civil Action 2:22-01391-RMG-MGB
10-10-2023
Robbie Collins, Plaintiff, v. Samantha Bernedette,[1]et. al., Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983, alleging Defendants were deliberately indifferent to Plaintiff's serious medical needs by “refus[ing] to fully vaccinate” Plaintiff when he was already suffering from “postCOVID complications” and he “caught COVID again” as a result. (Dkt. Nos. 1 at 6; 1-1 at 2.) Currently before the Court is a Motion for Summary Judgment filed by Defendants Associate Warden Turner and Grant Morris (Dkt. No. 91), and Plaintiff's Motions for a Temporary Restraining Order (Dkt. Nos. 110; 111). Pursuant to 28 U.S.C. §636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge. For the reasons set forth herein, the undersigned recommends granting Defendants' Motion for Summary Judgment and denying Plaintiff's Motions for a Temporary Restraining Order.
BACKGROUND
In this civil action, Plaintiff alleges deliberate indifference to his serious medical needs. (Dkt. No. 1; Dkt. No. 17.) Plaintiff alleges that he was transferred to McCormick Correctional Institution (“McCormick”) in May 2021 for treatment of “post-Covid complications which cause me to have severe respiratory attacks.” (Dkt. No. 1-1 at 1.) Plaintiff alleges that “McCormick offered the yard the Johnson & Johnson vaccination on or about July 2021.” (Id.) Plaintiff alleges that when he explained to a “Covid nurse” that he had a family history of blood clots, the nurse arranged for him to receive the Moderna vaccine for the prevention of COVID-19, “which was a two-shot treatment.” (Id.) “Later that day,” Defendant Nurse Grant Morris “came to the dorm and told [Plaintiff] he was giving [Plaintiff his] first dose of the Moderna vaccination and he would come give [Plaintiff his] second dose in a few days.” (Id.) According to Plaintiff, after months passed without the second dose, he complained to Defendant Head Nurse Samantha Burdette. (Id.) Plaintiff alleges he told Nurse Burdette that he “had post-Covid symptoms and wanted to be fully vaccinated because [he] had asthma,” and that he had received his first dose of the vaccine over a month ago. (Id.) After Nurse Burdette responded that “she would look into it,” Plaintiff complained to Defendant Associate Warden Turner that he “was being denied full vaccination.” (Id.) Plaintiff alleges Turner “said she would contact medical.” (Id.)
Plaintiff alleges he then learned that McCormick officials claimed “there was no record of Plaintiff receiving a COVID-19 vaccination[,] that Plaintiff arrived after the COVID-19 shot was administered,” and that Plaintiff “would be vaccinated by September 21, 2021.” (Id. at 2.) Here, Plaintiff is referring to a brief filed in his prior lawsuit, Collins v. Belzer, Case No. 2:20-cv-03752-RMG-MGB. Specifically, in a brief filed on August 27, 2021, the defendants stated in response to Plaintiff's Motion for a Temporary Restraining Order,
The defendants in Case No. 2:20-cv-03752-RMG-MGB are different from those defendants named in the instant lawsuit.
[A]fter a review of Plaintiff's medical records and discussions with medical employees at McCormick, there is no record of Plaintiff receiving any type of COVID-19 vaccine while at McCormick as he arrived after COVID-19 has been administered to the inmate population at McCormick. If Plaintiff wishes to receive
a COVID-19 vaccine, he needs to send a Request to Staff to medical requesting the vaccine. In any event, the Health Care Authority at McCormick has been made aware that Plaintiff is unvaccinated and he will be placed on the list to receive a vaccine in early September 2021.(Case No. 2:20-cv-03752- RMG-MGB, Dkt. No. 75 at 4.)
Plaintiff alleges he “showed that [August 27, 2021] opposition to Nurse Samantha [Burdette] and Nurse Grant [Morris] asking them why they lied and what was in the shot [Morris] put into my body.” (Dkt. No. 1-1 at 2.) Plaintiff alleges he “continued to file grievances trying to make medical staff vaccinate me to help deal with the post-Covid complications and further protect me from other infections.” (Id.) According to Plaintiff, in February 2022, he “caught the Corona Virus again and went through weeks of body aches, labored breathing, and chest pains.” (Id.) Based on the foregoing, Plaintiff alleges Defendants were deliberately indifferent to his serious medical needs. He asks for compensatory and punitive damages. (Dkt. Nos. 1 at 6; 17 at 3.)
On April 10, 2023, Defendants Associate Warden Turner and Grant Morris filed a Motion for Summary Judgment. (Dkt. No. 91.) On April 11, 2023, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 93.) Plaintiff filed a response in opposition on April 25, 2023 (Dkt. No. 101), to which Defendants replied on May 2, 2023 (Dkt. No. 103). Plaintiff filed a sur-reply on June 2, 2023. (Dkt. No. 108.) The Motion has been fully briefed and is ripe for review. Notably, Defendants have not sought dismissal of Plaintiff's claims against Defendant Samantha Burdette. Accordingly, Plaintiff's claims against her will proceed to trial.
Also, after Defendants' Motion for Summary Judgment was fully briefed, Plaintiff filed two documents titled “TRO,” which the undersigned has liberally construed as motions seeking a temporary restraining order. (Dkt. Nos. 110; 111). Defendants filed responses in opposition (Dkt. Nos. 113; 115), and Plaintiff filed a reply brief (Dkt. No. 126).
LEGAL STANDARD
DISCUSSION
I. Defendants' Motion for Summary Judgment (Dkt. No. 91)
In their Motion, Defendants only seek dismissal of the claims against “Associate Warden Turner, who had no involvement with Plaintiff's medical treatment, and Defendant Grant Morris, LPN, who administered one of Plaintiff's COVID vaccinations and then left the employment of SCDC on August 13, 2021 before Plaintiff was to be placed on the vaccination list in September 2021.” (Dkt. No. 91-1 at 2.) Referencing the statements made in Plaintiff's prior lawsuit, Defendants acknowledge that “there is no evidence that Plaintiff received his vaccination in September 2021” and assert that this case centers “on Plaintiff's failure to receive a COVID-19 booster vaccine.” (Dkt. No. 91-1 at 2.) Defendants further state, “it was only after additional investigation that Defendants located the COVID-19 vaccine consent form indicating that Plaintiff received his initial Moderna vaccine on May 14, 2023.” (Dkt. No. 103 at 2.)
Based on the foregoing, the issue before the Court is whether there is a genuine dispute of material fact indicating Defendant Morris, a medical professional, and Defendant Turner, a nonmedical prison official, were deliberately indifferent to Plaintiff's serious medical needs under § 1983. Before analyzing the merits of these claims, the undersigned first sets forth the relevant legal standards.
A. Standards
1. Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” News & Observer Pub'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When a court considers the motion, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
Because Plaintiff is representing himself, these standards must be applied while liberally construing his filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
2. Deliberate Indifference to Serious Medical Needs
To establish a cognizable Eighth Amendment claim for denial of medical care, a plaintiff must put forth facts sufficient to demonstrate that an official was deliberately indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 105 (1976); Pfaller v. Amonette, 55 F.4th 436, 445 (4th Cir. 2022). A deliberate indifference claim has both an objective and subjective component. Gordon v. Schilling, 937 F.3d 348, 356 (4th Cir. 2019). “That is, the plaintiff must demonstrate that the defendant prison official acted with ‘deliberate indifference' (the subjective component) to the plaintiff's ‘serious medical needs' (the objective component).” Id. (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
A medical condition is serious enough to satisfy the objective component if it has “been diagnosed by a physician as mandating treatment or is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Id. (citing Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)). The subjective component has two subparts: “a plaintiff must show the prison official (1) had actual knowledge of the risk of harm to the inmate and (2) recognized that his actions were insufficient to mitigate the risk of harm to the inmate arising from his medical needs.” Pfaller, 55 F.4th at 445 (citing Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)) (internal quotation marks omitted).
While mere negligence is not enough, id. (citing De'lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003)), evidence of an official's “actual purposive intent” is not required, id. (citing De'lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013)). “Instead, deliberate indifference is most akin to criminal-law recklessness.” Id. “[S]o long as the official who knew of a substantial risk to inmate health or safety ‘responded reasonably to the risk,' they cannot be found liable under the Eighth Amendment, ‘even if the harm ultimately was not averted.'” Id. (citing Farmer v. Brennan, 511 U.S. 825, 844 (1994)). Indeed, an inmate's mere disagreement with medical providers about the proper course of treatment does not support an Eighth Amendment cause of action. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985).
Intentional delay of, or interference with, medical treatment can also amount to deliberate indifference. See Formica v. Aylor, 739 Fed.Appx. 745, 755 (4th Cir. 2018). But the Fourth Circuit has held that there is “no Eighth Amendment violation unless the delay results in some substantial harm to the patient, such as a marked exacerbation of the prisoner's medical condition or frequent complaints of severe pain.” Formica, 739 Fed.Appx. at 755 (internal quotation marks omitted); see also Sharpe v. S.C. Dep't of Corr., 621 Fed.Appx. 732, 734 (4th Cir. 2015) (“A delay in treatment may constitute deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate's pain.”). An inmate that can show that he “suffer[s] a lifelong handicap or permanent loss” may establish a deliberate indifference claim. Coppage v. Mann, 906 F.Supp. 1025, 1037 (E.D. Va. 1995). “[T]he length of delay that is tolerable depends on the seriousness of the condition and the ease of providing treatment.” Formica, 739 Fed.Appx. at 758 (quoting McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010)).
A non-medical prison official generally cannot be held liable for a failure to provide an inmate medical treatment where that inmate is under the care of medical personnel. Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990) (holding that non-medical personnel are entitled to rely on the professional judgment of medical practitioners to determine appropriate treatment for a patient); see also Iko, 535 F.3d at 242 (holding “ ‘[i]f a prisoner is under the care of medical experts . . ., a nonmedical prison official will generally be justified in believing that the prisoner is in capable hands'” (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). To establish a claim of deliberate indifference against non-medical prison staff, a plaintiff must show that the nonmedical personnel (1) were personally involved in the treatment or denial of treatment, (2) deliberately interfered with treatment, or (3) tacitly authorized or were indifferent to the medical provider's conduct. Howell v. Walrath, No. 1:20-cv-1193, 2021 WL 5881803, at *5 (E.D. Va. Dec. 10, 2021); see Coleman v. Stevenson, No. 0:09-cv-872-HMH, 2010 WL 2990737, at *4 (D.S.C. June 22, 2010) (“Mere knowledge is not sufficient to establish personal participation.”) adopted by, 2010 WL 2990740 (D.S.C. July 26, 2010), aff'd, 407 Fed.Appx. 709 (4th Cir. 2011); Mallett v. Johnson, No. 8:08-cv-863-PMD, 2008 WL 5351618, at *7 (D.S.C. Dec. 22, 2008) (“A medical indifference claim is not appropriate against a superintendent/supervisor absent an allegation that he was personally connected to the treatment received.”) (citing Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)).
Having addressed the applicable legal standards, the undersigned next considers the evidence most relevant to the merits of Plaintiff's § 1983 Eighth Amendment claims.
B. Evidence
The record shows that Plaintiff received his first dose of the Moderna vaccine from Defendant Grant Morris, a licensed practice nurse, on May 14, 2021, with the “date booster required” listed as June 11, 2021. (Dkt. No. 91-2.) The consent form signed by Plaintiff and Morris shows that Plaintiff indicated he was not sick that day and he had never received “passive antibody therapy as treatment for COVID-19.” (Id.) According to allegations in the verified complaint,Plaintiff's only other interaction with Morris was in reference to the statements made in the aforementioned August 27, 2021 court filing (in separate litigation), when he “showed that opposition” to Morris and asked “what was the shot he put into my body.” (Dkt. No. 1-1 at 2; 1012.) It is undisputed that Morris left the employment of SCDC on August 13, 2021. (Dkts. No. 911 at 6.) In his pleadings, Plaintiff does not acknowledge that due to the date the “opposition” brief at issue was filed, August 27, 2021, the alleged conversation with Defendant Morris would have to have somehow taken place after Morris had left the employment of SCDC. Regardless, as discussed further below, this inconsistency is not material to the merits of Plaintiff's § 1983 claim against Morris.
Goodman v. Diggs, 986 F.3d 493, 495 n.2 (4th Cir. 2021) (“A complaint is ‘verified' if it is ‘signed, sworn, and submitted under penalty of perjury.'” (quoting James v. Hale, 959 F.3d 307, 314 (7th Cir. 2020)).
Supra, pages 2-3.
As noted above, there are several inmate requests and grievances in the record, where Plaintiff complained about the delay in receiving his second dose of the Moderna vaccination. In the Complaint, Plaintiff alleges that these complaints were directed to Defendant Associate Warden Turner. (Dkt. Nos. 1-1; 17.) Relevant here, Turner has submitted an affidavit in which she avers, “I did not receive any written communications or requests from inmate Collins regarding any COVID issues or medical treatment.” (Dkt. No. 91-5 at 1.) Turner maintains that the written inmate requests submitted by Plaintiff “were handled by another SCDC employee,” Michel'le Waldo, whose “employee number is C064879,” and those “inmate requests were forwarded to the medical department.” (Id.) Turner further avers,
I became aware of inmate Collins' medical treatment concerns when he approached me in the yard and expressed those concerns to me. I immediately traveled to the medical department and relayed this information to medical personnel. I was informed by medical personnel that inmate Collins' concerns were being appropriately addressed. The next time I became aware of any issue with inmate Collins was when I was served with this Complaint. I had no involvement in any medical treatment or medical decisions regarding inmate Collins. On the one occasion when I became aware of inmate Collins' medical concerns, I brought those to the attention of the medical staff and relied upon them to make appropriate medical decisions.(Id.) Relatedly, Plaintiff has submitted Turner's responses to Plaintiff's interrogatories in which Turner indicates she spoke with Defendant Burdette “about vaccinating Plaintiff” and was “advised . . . that the matter had already been addressed with the Plaintiff.” (Dkt. No. 101-9.)
The parties have provided the following written inmate requests and grievances submitted by Plaintiff: In a Step 1 grievance dated August 9, 2021, Plaintiff complains,
On July 27, 2021, I had a respiratory attack due to my post COVID-19 infection. Ofc. Jones called medical so I could receive the breathing treatment. Nurse Morris told the Ofc. that he didn't have time for me and refused me medical treatment. This is deliberate indifference in violation of my 8th Amendment Right. I have spoken with head nurse Bernadette about my situation and my health problems due to my infection of COVID-19 and my concerns is being ignored. I was partially vaccinated with the Moderna vaccine which is a two-shot treatment and I only received one shot months ago.(Dkt. No. 101-4 at 1.) He indicates he attempted informal resolution of his grievance when he “spoke to the Head Nurse, Associate Warden Turner.” (Id.) The response to this grievance is not in the record.
On August 27, 2021, Plaintiff submitted an inmate request stating, “Medical gave me the moderna vaccination due to my history of bloodclots instead of the johnson & johnson but they only gave me one shot of a two shot treatment and that was in [M]ay. [T]his is deliberate indifference and puts my health in serious jeopardy.” (Dkt. No. 101-3.) The response to this request lists Waldo's employee number as the “Author” and states “Send paper staff request to medical.” (Id.) On October 18, 2021, Plaintiff submitted another inmate request stating, “AW Turner I was [supposed to] get the moderna covid shot [and have] not received it yet. [I] was given one dose [of] moderna by nurse milker [sic] but never rec[eived] the other.” (Dkt. No. 91-5 at 3.) The response to this request again lists Waldo's employee number as the “Author” and states “Request forwarded to medical.” (Id.)
On November 15, 2021, Plaintiff submitted another inmate request stating, “I was given one shot of the moderna vaccine and never receive[d] the second shot. [M]s Turner I have wr[itten] you numerous times about this.” (Id. at 4.) The response to this request again lists Waldo's employee number as the “Author” and states “Your last request was forwarded to medical. Please send a paper request to medical.” (Id.) On February 10, 2022, Plaintiff submitted another inmate request stating, “[W]arden Turner I have w[ritten] you many times explaining I was being denied the vaccine. [I] wrote medical like you said several times. [N]ow I have the covid again. [You] have denied me your help to make medical vaccinate me.” (Id. at 5.) The response to this request again lists Waldo's employee number as the “Author” and states “I will get with AW Turner. Your request was forwarded to medical.” (Id.)
On February 19, 2022, Plaintiff submitted another Step 1 grievance stating,
I wrote to AW Turner . . . explaining . . . that I have contracted Corona Virus again. I have been writing AW Turner and medical for a Corona Vaccination and they refused to administer it to me.... I have wr[itten] AW Turner each time asking that Medical Vaccinate me and I have been denied.(Dkt. No. 101-8 at 1.) He indicates he attempted informal resolution of his grievance when he “wrote medical numerous staff request[s].” (Id.) The response to this grievance is dated March 2, 2022. It states that the “grievance is resolved” because, inter alia, Plaintiff “will be able to receive a COVID vaccine” when the “COVID team [is] at McCormick on 3/22/2022.” (Id. at 2.) The response contains the “Warden Signature,” which does not appear to belong to Turner. (Id.)
According to an Incident Report completed by Defendant Burdette, Plaintiff was “notified . . . on multiple occasions” about the March 22, 2022 vaccination clinic. (Dkt. No. 127-1 at 73.) The report further states, “During the vaccination clinic, I/M Collins decided to become agitated, aggressive, & demanding regarding his failure to receive, in his opinion, prompt dental care.” (Id.) Plaintiff was notified “that after ALL of the requests he had submitted [regarding the vaccine], he need to prioritize receiving his vaccination.” (Id.) Plaintiff did not receive the vaccination that day. (Id.) This incident report further states that on July 6, 2022, Plaintiff refused an offer to receive the Johnson & Johnson vaccine due to a history of blood clots in his family. (Id.) Plaintiff received two doses of the Moderna vaccine on July 22, 2022 and August 18, 2022. (Dkt. No. 119-1 at 23.) The record indicates that the same nurse did not administer both doses.
Finally, Plaintiff makes new allegations in his response brief that were not included in his verified pleadings. More specifically, Plaintiff alleges that after a month passed without the second dose, “I went to medical and personally spoke to defendant Grant Morris and Samantha [Burdette] explaining that I only received one dose of a two shot treatment and it had been over a month ago. They explained that I would receive the second dose soon.” (Dkt. No. 101 at 2.) Then, in reference to the August 27, 2021 filing from his prior lawsuit, Plaintiff alleges that he
went to AW Turner asking her to please find out what they injected me [with] because this [was] what the court just told me, showing her that the court [is] saying
I wasn't at the institution when they gave the vaccination in which I was and I wasn't given any type of Covid vaccination.(Id. at 3; Dkt. No. 101-2.) Because Plaintiff has not verified these allegations in his response brief, the undersigned does not consider them as affidavit testimony with evidentiary value for summary judgment purposes. See, e.g., Aten v. Richland Cnty., No. 5:16-cv-03614-PMD-KDW, 2018 WL 4560572, at *8 (D.S.C. July 3, 2018) (“While Plaintiff makes numerous unverified allegations, those types of assertions are not sufficient to establish that genuine issues of material fact exist” to support a § 1983 claim for deliberate indifference to a serious medical need), adopted by, 2018 WL 4109608 (D.S.C. Aug. 29, 2018), aff'd sub nom. Aten v. Wiggins, 839 Fed.Appx. 798 (4th Cir. 2021); cf. Sweat v. Cook, No. 9:09-cv-1255-HFF-BM, 2010 WL 1428328, at *1 (D.S.C. Mar. 12, 2010) (“In this Circuit, verified complaints by pro se litigants are to be considered as affidavits and may, standing alone, defeat a motion for summary judgment when the allegations contained therein are based on personal knowledge.”), adopted by, 2010 WL 1444190 (D.S.C. Apr. 9, 2010), aff'd, 402 Fed.Appx. 807 (4th Cir. 2010).
C. § 1983 Claim against Warden Turner
Plaintiff alleges that Defendant Associate Warden Turner was deliberately indifferent to his serious medical needs by “refus[ing] to fully vaccinate” Plaintiff when he was already suffering from “post-COVID complications,” and Plaintiff “caught COVID again” as a result. (Dkt. Nos. 1 at 6; 1-1 at 2.)
Relevant here, a court in this circuit recently found that “[t]he fact that [the plaintiff inmate] did not receive the [COVID-19] vaccine when requested, does not, without more, suggest that [prison staff] consciously disregarded the risk posed by COVID-19.” Lunsford v. N.C. Dep't of Corr., No. 5:22-CT-3384-D, 2023 WL 4144837, at *2 (E.D. N.C. May 24, 2023) (quoting Burrell v. Annucci, 2022 WL 4618737, at *8 (N.D.N.Y. Sept. 30, 2022) (citing Brown v. Clark, 2022 WL 3355805, at *4 (W.D. Ky. Aug. 12, 2022) (“Brown's complaint that the prison hadn't yet administered a requested [COVID-19] vaccine dose, standing alone, does not plausibly suggest that the defendants consciously disregarded the risks posed by Covid.”)). Rather, to prevail on his § 1983 claim based on the delay in receiving a complete COVID-19 vaccination, Plaintiff must show that Defendant Turner “knew of an excessive risk to [Plaintiff's] health if he was not given [the second dose of the Moderna] vaccine, and that [she] disregarded that risk.” Pers. v. Whited, No. 7:20-cv-00146, 2022 WL 885097, at *5 (W.D. Va. Mar. 25, 2022) (considering § 1983 deliberate indifference claim based on the denial of a timely flu shot and plaintiff's subsequent illness; “In order to prevail, he must show that prison officials . . . knew of an ‘excessive risk' to his health if he was not given a flu vaccine, and that they ‘disregarded' that risk.”); see also Pfaller, 55 F.4th at 445 (To establish that a prison official acted with deliberate indifference, “a plaintiff must show the prison official (1) had actual knowledge of the risk of harm to the inmate and (2) recognized that his actions were insufficient to mitigate the risk of harm to the inmate arising from his medical needs.”).
Here, Plaintiff appears to rely on his “post-COVID complications” from his initial COVID-19 infection and his alleged severe symptoms when he again contracted COVID-19 to establish that the delay in receiving a full vaccination posed an excessive risk to his health. (Dkt. Nos. 1-1 at 2; 17 at 2.) In their Motion, Defendants offer no argument on this issue. Likewise, Defendants offer no argument on whether the delay in a full vaccine actually caused Plaintiff substantial harm. See 42 U.S.C. § 1983 (affording recovery only to a “party injured”); see also Malley v. Briggs, 475 U.S. 335, 345 n.7 (1986) (recognizing a causation element in § 1983 claims). Instead, Defendants focus on Turner's response to Plaintiff's verbal complaint and argue that she appropriately relied upon medical personnel in regard to Plaintiff's medical treatment. (Dkt. No. 91-1 at 3-5.)
Construed in the light most favorable to Plaintiff, the evidence indicates that when Turner became aware Plaintiff had not received the second dose of the Moderna vaccine, she promptly consulted with the medical department on this issue and reasonably relied on medical personnel to address Plaintiff's concerns. More specifically, after Plaintiff spoke with Turner about his “health problems” and his failure to receive the second shot of the Modern vaccine, Turner spoke with the medical department and “was informed by medical personnel that [Plaintiff's] concerns were being appropriately addressed.” (Dkt. Nos. 101-4 at 1; 95-1 at 1.) Because Turner “had no involvement in any medical treatment or medical decisions regarding” Plaintiff, she “relied upon [the medical staff] to make appropriate medical decisions.” (Dkt. No. 95-1 at 1.) There is no evidence that Plaintiff's written inmate requests or grievances were received by Turner, such that she had further notice Plaintiff had still not received the full vaccine. While Plaintiff claims Turner is “lying” on this issue, there is no evidence to support this conclusory allegation.(Dkt. No. 108 at 2.) To the extent there is a dispute as to whether Ms. Waldo did indeed “get with AW Turner” in response to Plaintiff's February 10, 2022 complaint that he was denied the full vaccine and had contracted COVID-19 again, arrangements were made for Plaintiff to receive a vaccination the next month, when the “COVID team [would] be at McCormick.” (Dkt. Nos. 91-5 at 5; 101-8 at 2.) The record indicates that Plaintiff's subsequent failure to receive the vaccination in March was due to his “aggressive” behavior. (Dkt. No. 127-1 at 73.)
Plaintiff has submitted a purported portion of the SCDC policy concerning “emergency procedures” for inmate grievances. (Dkt. No. 101-4 at 2.) The excerpt indicates that if it “is determined that the grievance is an emergency, it will be forwarded immediately to the Warden if resolution of the issue(s) is within the Warden's capability to provide.” (Id.) Here, there is no evidence Plaintiff's grievances about a delayed vaccine were processed as an emergency and that they would have been sent directly to Associate Warden Turner for handling.
Based on the foregoing, there is no genuine issue of material fact to indicate that Turner “recognized that [her] actions were insufficient to mitigate the risk of harm to [Plaintiff] arising from his medical needs.” Pfaller, 55 F.4th at 445. Rather, upon notice from Plaintiff, Turner confirmed that the medical department was aware that Plaintiff had only received a partial vaccination, she received assurance that the issue was being addressed, and she relied on the medical staff to make appropriate medical decisions regarding Plaintiff's vaccination protocol. See, e.g., Atkins v. Sharma, No. 1:22-cv-630 (LMB/JFA), 2023 WL 5751473, at *4 (E.D. Va. Sept. 6, 2023) (dismissing § 1983 deliberate indifference claim against assistant warden because, inter alia, the complaint “makes clear that Oates investigated plaintiff's claim and learned that there were ongoing efforts within the VDOC to ensure that plaintiff's medical needs were being met. . . . Oates was entitled to rely on the expertise of the medical professionals and dietitians under whose supervision he understood plaintiff to be.”); Johnson v. Clarke, No. 7:20-cv-00717, 2021 WL 1536585, at *2 (W.D. Va. Apr. 19, 2021) (dismissing § 1983 deliberate indifference claim against non-medical prison officials; “To the extent they even knew of any problems or complaints about [plaintiff's] treatment, they were allowed to rely on the medical professionals as to what treatment was required.”); Edwards v. Clinical Sols., No. 9:19-cv-02872-HMH-MHC, 2020 WL 7249906, at *8 (D.S.C. Oct. 16, 2020) (granting summary judgment on § 1983 deliberate indifference claim; “Here, rather than failing to respond to Plaintiff's medical needs, Officer Madden sought to help Plaintiff by contacting medical staff who could give Plaintiff medical care. There is no evidence that he ignored or disregarded Plaintiff's needs, interfered with his care or was aware of an excessive risk to Plaintiff's health or safety. Officer Madden was relying, and generally entitled to rely, on the medical expertise of Nurse Pittman to give Plaintiff his medication.”), adopted by, 2020 WL 6817090 (D.S.C. Nov. 20, 2020).
Accordingly, the undersigned recommends Turner is entitled to summary judgment on Plaintiff's § 1983 claim of deliberate indifference to a serious medical need.
D. § 1983 Claim against Nurse Morris
Plaintiff similarly alleges that Defendant Nurse Morris was deliberately indifferent to his serious medical needs by “refus[ing] to fully vaccinate” Plaintiff when he was already suffering from “post-COVID complications,” and Plaintiff “caught COVID again” as a result. (Dkt. Nos. 1 at 6; 1-1 at 2.) Here, Defendants again argue there is no evidence that Morris acted with deliberate indifference towards Plaintiff's medical needs. (Dkt. No. 91-1 at 6.)
Upon careful review, there is no evidence that Morris knew of Plaintiff's alleged “postCOVID complications” when he gave Plaintiff the first dose of the Moderna vaccine on May 14, 2021, nor at any time before Plaintiff's second dose of the Moderna vaccine was due on June 11, 2021. Further, to the extent that Morris's alleged refusal to administer a breathing treatment to Plaintiff on July 27, 2021 could somehow be construed as notice to Morris of an excessive risk to Plaintiff's health if he was not given a complete COVID-19 vaccine, there is no evidence Plaintiff complained to Morris of his failure to receive the full vaccination after that date. Finally, there is no evidence that Morris was responsible for ensuring Plaintiff received the second dose of the Moderna vaccine. Plaintiff's alleged conversation wherein he asked Morris “what was the shot he put into my body” has no material relevance to the foregoing issues. (Dkt. No. 1-1 at 2.)
In short, there is no evidence that Morris “knew of an excessive risk to [Plaintiff's] health if he was not given [the second dose of the Moderna] vaccine, and that he disregarded that risk.” Pers., 2022 WL 885097, at *5 (dismissing § 1983 claim against nurse practitioner because plaintiff failed to show that the nurse “knew of an excessive risk to his health if he was not given a flu vaccine, and that [she] disregarded that risk”); Messinger v. Moore, No. 2:21-cv-19, 2021 WL 3514747, at *15 (E.D. Va. Aug. 10, 2021) (finding Plaintiff failed to show medical personnel acted “with sufficiently culpable state of mind” under § 1983; “since the Medical Personnel did not know about a serious medical need regarding the Decedent's suicide ideation or attempt, or risk of selfharm, they acted proportional to medical need that they did know about: the Decedent's drug withdrawal symptoms”). To the extent Morris was assigned to administer the second dose of the Moderna vaccine on June 11, 2021 and he failed to do so, such conduct amounts to negligence, which is not cognizable under § 1983. See Scinto, 841 F.3d at 225 (“Deliberate indifference is 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.” (internal quotations omitted)); Lunsford, 2023 WL 4144837, at *2 (“The fact that [the plaintiff inmate] did not receive the [COVID-19] vaccine when requested, does not, without more, suggest that [prison staff] consciously disregarded the risk posed by COVID-19.”).
Accordingly, the undersigned recommends Morris is also entitled to summary judgment on Plaintiff's § 1983 claim of deliberate indifference to a serious medical need.
II. Plaintiff's Motions for a Temporary Restraining Order
As noted above, after Defendants' Motion for Summary Judgment was fully briefed, Plaintiff filed two documents titled “TRO,” which the undersigned has liberally construed as motions seeking a temporary restraining order. (Dkt. Nos. 110; 111). This is in addition to Plaintiff's previously filed motions for a preliminary injunction, which have been denied by the Court. (Dkt. Nos. 65; 70; 106.) In the first TRO Motion, Plaintiff complains of “being denied medical sneakers.” (Dkt. No. 110.) He claims that “because of my lawsuit, they are making me walk around with nothing . . . to make me suffer in pain.” (Id.) Here, Plaintiff references having “a medical shoe pass from the orthopedic [sic] ¶ 2008 and in 2015,” and claims he “had surgery on my foot in 2019 and [has] another foot surgery pending.” (Id.)
In the second TRO Motion, Plaintiff alleges he is being denied medical attention for his thrush and for the knots and pain at “the injection site” where he was vaccinated. (Dkt. No. 111.) Defendants oppose the requests for a TRO, asserting Plaintiff's allegations are largely unrelated to the issues in this action and that Plaintiff's medical records belie any claim of inadequate medical treatment. (Dkt. Nos. 113; 115.) Defendants have submitted medical records in support of their response. (Dkt. Nos. 115-1; 115-2.)
A. Legal Standard
“The substantive standard for granting either a temporary restraining order or a preliminary injunction is the same.” Dyke v. Staphen, No. CV 6:18-402-TMC-KFM, 2018 WL 2144551, at *1 (D.S.C. Apr. 19, 2018), adopted by, 2018 WL 2136062 (D.S.C. May 9, 2018); see also Virginia v. Kelly, 29 F.3d 145, 147 (4th Cir. 1994) (showing that the standard for a temporary restraining order is the same as that applied to motions for preliminary injunction). To obtain a preliminary injunction or a temporary restraining order, a party must make a “clear showing” that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 21 (2008); see also, Smith v Ozmint, 444 F.Supp.2d 502, 504 (D.S.C. 2006). All four requirements must be satisfied in order for relief to be granted. Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010).
Importantly, “[a] district court should not issue an injunction when the injunction in question is not of the same character, and deals with a matter lying wholly outside the issues in the suit.” Kaimowitz v. Orlando, Fla., 122 F.3d 41, 43 (11th Cir.), opinion amended on reh'g, 131 F.3d 950 (11th Cir. 1997). It follows that district courts should not grant temporary restraining orders when the temporary restraining order “deals with a matter lying wholly outside of the issues in the suit.” Id. The reasoning for this rule is straightforward: “Ex parte temporary restraining orders. . . should be restricted to serving their underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Loc. No. 70 of Alameda Cnty., 415 U.S. 423, 439 (1974). Thus, when a party moves for a temporary restraining order on issues outside of the suit, the underlying purpose of the temporary restraining order is absent.
Because Plaintiff is representing himself, this standard must be applied while liberally construing his filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
B. Analysis
As an initial matter, it is unclear exactly what action Plaintiff seeks from the Court with these motions. He appears to want “medical sneakers” and immediate medical attention for his thrush and for complications at the injection site where he was vaccinated. Here, Plaintiff's allegations about the lack of medical treatment for his thrush and the alleged retaliatory denial of medical sneakers are unrelated to his Eighth Amendment claim in this action-that Plaintiff was denied a full vaccination when he was already suffering from post-COVID complications and he caught COVID again as a result. See Collins v. Taylor et. al., Case No. 2:23-cv-01169-RMG, Dkt. No. 29 at 3 (denying motion for temporary restraining order “as unrelated to the issues in this suit”). Further, Plaintiff has failed to establish that a temporary restraining order is otherwise warranted based on his alleged inadequate medical treatment for complications at the injection site of his vaccination.
While not specified by Plaintiff, the undersigned assumes Plaintiff is referring to a vaccination for COVID-19. However, it is not clear if Plaintiff is referring to the shot administered by Nurse Morris in May of 2021 or his more recent vaccinations in July and August of 2022.
Upon review, the Court finds that Plaintiff has failed to make the required showing under Winter. First, Plaintiff has failed to demonstrate a likelihood of success on the merits of his claims for injunctive relief. With respect to the alleged conduct by McCormick medical staff, the record indicates Plaintiff cannot establish any deliberate indifference stemming from inadequate medical treatment of Plaintiff's thrush and the complications at his injection site. Further, there is nothing in the record indicating any Defendants in this action are aware of Plaintiff's alleged need for medical shoes based on prior foot surgeries.To establish deliberate indifference to a serious medical need, Plaintiff must demonstrate that Defendants actually knew of and disregarded a substantial risk of harm to his person. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Deliberate indifference is a very high standard-a showing of mere negligence will not meet it.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 10506 (1976). Here, the medical record indicates that Plaintiff has been evaluated by a pulmonary specialist and has been seen by the medical department for treatment of his thrush and his alleged pain stemming from the COVID-19 vaccine. (Dkt. Nos. 115-1; 115-2.)
Relevant here, on September 1, 2023, Plaintiff filed a Motion to Compel, asking for his medical records from 2006 to 2019 to support his § 1983 deliberate indifference claim arising from issues regarding orthopedic shoes. (Dkt. No. 109.) The undersigned denied this Motion in a written Order. (Dkt. No. 121.) Thereafter, Plaintiff filed an untimely reply brief, arguing that he needs his medical records from 2019 “surrounding his medical pass for orthopedic shoes . . . so he can present evidence to show the courts he meets the requirements of a TRO.” (Dkt. No. 125.) As discussed above, Plaintiff did not arrive at McCormick until 2021 and there is no basis to find that his claims about needing medical sneakers would support granting a TRO in the instant action. Rather, Plaintiff's allegations of deliberate indifference stemming from the denial of medical sneakers would be more appropriately considered in a separate lawsuit.
Next, Plaintiff has failed to make a clear showing that he will suffer irreparable harm absent the injunctive relief. As discussed above, the record shows Plaintiff has been referred to medical specialists and has received medical treatment to address his concerns. Finally, Plaintiff has failed to establish that the balance of equities tips in his favor, and he has failed to show that an injunction is in the public interest.
As Plaintiff has not demonstrated a likelihood of success on the merits or more than a possibility of irreparable harm, and because the balance of the equities and the public interest involved do not warrant the extraordinary remedy of injunctive relief, Plaintiff's Motions should be denied.
CONCLUSION
For the foregoing reasons, the undersigned RECOMMENDS the Motion for Summary Judgment (Dkt. No. 91) filed by Defendants Associate Warden Turner and Grant Morris be GRANTED and these Defendants be dismissed from this action. Accordingly, only Plaintiff's § 1983 claims against Defendant Samantha Burdette should remain pending. The undersigned further RECOMMENDS Plaintiff's Motions for a Temporary Restraining Order (Dkt. Nos. 110; 111) be DENIED.
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
Post Office Box 835
Charleston, South Carolina 29402
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).