Opinion
C/A No. 8:18-cv-1692-RBH-JDA
12-19-2018
Terron Gerhard Dizzley, Plaintiff, v. Lt. Tutt; Lt. Moss; Officer Williams; Lt. Lambert; Lt. Thomas; Lt. Yeldel; Lt. Anderson; Officer Henderson; Capt. Terry; Lt. Welchman; Nurse Brewer; Lt. Heflen; Officer Bibbs; Asst. Warden Glidewell; Officer Davis; Officer Harris; Sgt. Kelly; Asst. Warden Robertson; Nurse Trull; Officer Scales; Eddie Calaham; Lt. Wright; Officer Yabourough; Officer McCurry; Officer Hall; Officer Jennings; Nurse James; Major Marshall; Lt. Cook, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on a motion by Plaintiff requesting under Federal Rule of Civil Procedure 35 to be examined by a doctor outside the prison system (the "examination motion") [Doc. 13] and a motion by Plaintiff under Federal Rule of Civil Procedure 65 for a preliminary injunction [Doc. 14]. 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., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
Plaintiff, a prisoner proceeding pro se, filed this action on June 18, 2018, naming a single Defendant and alleging that Plaintiff was mistreated in many different ways during his time as a prisoner at McCormick Correctional Institution ("McCormick"). [Docs. 1; 1-1.] Plaintiff's examination motion and his preliminary injunction motion were docketed on July 6, 2018, and July 9, 2018, respectively. [Docs. 13; 14]. By Order dated August 24, 2018, the Court granted motions by Plaintiff to amend his Complaint, adding twenty-five additional Defendants to the docket. [Doc. 36.] However, Plaintiff failed to provide certain necessary information within the timetable the Court had set, prompting the undersigned to issue a Report and Recommendation recommending involuntary dismissal of several Defendants. [Doc. 42.] The Honorable R. Bryan Harwell declined to adopt the Report and Recommendation and allowed Plaintiff additional time to provide the necessary information. [Doc. 55.]
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). In this case, construing the filing date in the light most favorable to Plaintiff, this action was filed on June 18, 2018. [Doc. 1-5 at 1 (envelope stamped by correctional institution on June 18, 2018).]
On December 5, 2018, after several Defendants had been served, Defendants Officer Bibbs, Nurse Brewer, Eddie Callaham, Lt. Cook, Officer Davis, Asst. Warden Glidewell, Officer Harris, Lt. Heflen, Officer Henderson, Sgt. Kelly, Lt. Lambert, Major Marshall, Officer McCurry, Lt. Moss, Asst. Warden Robertson, Officer Scales, Capt. Terry, Lt. Thomas, Lt. Wright, and Lt. Yeldel (collectively, the "Responding Defendants") filed responses to both of Plaintiff's pending motions. [Docs. 58; 59.] Both of Plaintiff's pending motions are now ripe for review.
Callaham represents that this is the correct spelling of his name. [Doc. 54 at 1.]
BACKGROUND
Complaint
Plaintiff alleges in his Complaint that he suffered various forms of mistreatment while housed at McCormick and that his complaints regarding several matters prompted Defendants to take numerous retaliatory actions, including turning other inmates against him and moving him to more dangerous parts of the prison, among many other punishments. [Doc. 1-1.] The alleged mistreatment culminated on October 16, 2017, when Plaintiff was attacked and stabbed repeatedly by his cellmate, James Rose. [Id. at 3.] Plaintiff alleges that several Defendants were deliberately indifferent to the clear likelihood that an attack by Rose was imminent, and that they failed to prevent the attack before it occurred or to promptly intervene once it had started [id. at 1-3]; that several Defendants were deliberately indifferent to his medical needs following the attack; and that his complaints prompted Defendants to retaliate against him [id. at 3-14.] Plaintiff alleges that late in Plaintiff's time at McCormick, Rose eventually "was placed back on the same yard as" Plaintiff and Plaintiff was told in the presence of the Associate Warden that Plaintiff "would be physically harmed and dragged to lockup if [he] didn't sign a form and write a statement saying [he] did not fear for [his] life at McCormick and [he] did not want protective custody." [Id. at 11-12.] Plaintiff alleges he signed the statement, but several Defendants still assaulted him and took him to lockup. [Id. at 13-14.] Plaintiff alleges that three weeks later, on April 20, 2018, he was transferred to Broad River Correctional Institution ("BRCI"). [Id. at 14.]
Plaintiff alleges that Defendants' actions violated his rights under the First, Fifth, Eighth, and Fourteenth Amendments to the Constitution. [Doc. 1 at 4.] He requests $2,000,000.00 in compensatory damages; $250,000.00 in punitive damages; a jury trial; costs; that his "record . . . be expunged of all charges which were violations of his Due Process rights and retaliations for exercising [his] rights to file grievances" that his custody level be restored; that the retaliations cease; that he be "housed in a safe, drug free, smoke free environment"; and any other relief the Court deems just, proper, and equitable. [Id. at 6; Doc. 1-1 at 31-32.]
Motions
In his examination motion, Plaintiff contends that he continues to suffer depression, lack of sleep, and unbearable pain from the October 16, 2017, stabbing because Defendants have failed to allow him adequate medical treatment and refuse to allow him to see a doctor. [Doc. 13.] He requests "[a]n [e]xamination from an outside doctor pursuant to Rule 35, Fed. Rules of Civil Procedure." [Id. at 1.]
The Responding Defendants oppose Plaintiff's motion on the basis that they "are not involved in inmate medical care and further would have no involvement with Plaintiff's medical care at another institution." [Doc. 58 at 1.] They also maintain that "Plaintiff has been provided medical care and there is no need for an appointment with an outside provider." [Id.]
In his motion for preliminary injunction, Plaintiff alleges that on April 20, 2018, he was transferred to BRCI "after being assaulted by officers and [was] placed on lockup for 30 days with no charge in retaliation for grievances filed as to" the October 16, 2017, stabbing incident. [Doc. 14 at 1.] He alleges that he was subsequently transferred to Lieber Correctional Institution ("Lieber") on May 24, 2018. [Id.] He contends that the transfers were "retaliations for complaints." [Id. at 2.] Plaintiff maintains that the day after he was transferred to Lieber, "a correctional officer came to [his] cell and told [him] he knew that [he] was at McCormick and . . . about the stabbing incident . . . and that he would make sure I get de[a]lt with." [Id. at 1.] Plaintiff claims that relatives of the inmate who stabbed him are incarcerated at Lieber. [Id.] He also alleges he "received notes that something would happen to [him] when [they] come off of lockdown." [Id.] In contrast, Plaintiff alleges that he "did not receive any threats" during his time at BRCI. [Id. at 2.] Plaintiff requests in his motion that he be transferred back to BRCI and be "housed in a Character Dorm, and not amongst the violence, gangs, and dorms where drug smoke and tobacco smoke fills the air." [Id.]
Responding Defendants oppose that motion as well. They claim that they "work at McCormick[,] . . . where the matters about which Plaintiff complains occurred[,] and do not have the ability to have Plaintiff transferred as he requests." [Doc. 59 at 1.] They also maintain that Plaintiff "has failed to satisfy the elements necessary to be granted a preliminary injunction at this time." [Id.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for her. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under § 1983
This action is filed pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 "'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)). Accordingly, a civil action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
Section 1983 provides, in relevant part,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant "deprived [the plaintiff] of a right secured by the Constitution and laws of the United States" and (2) that the defendant "deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage." Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
The under-color-of-state-law element, which is equivalent to the "state action" requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.Id. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, "the deed of an ostensibly private organization or individual" may at times be treated "as if a State has caused it to be performed." Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Specifically, "state action may be found if, though only if, there is such a 'close nexus between the State and the challenged action' that seemingly private behavior 'may be fairly treated as that of the State itself.'" Id. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). State action requires both an alleged constitutional deprivation "caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible" and that "the party charged with the deprivation [is] a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party's allegedly unconstitutional conduct is fairly attributable to the State requires the court to "begin[ ] by identifying 'the specific conduct of which the plaintiff complains.'" Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).
Eighth Amendment Deliberate Indifference
The Eighth Amendment prohibits prison officials from acting with deliberate indifference to a prisoner's serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). To establish deliberate indifference, an inmate must allege both that he experienced a deprivation that was "objectively sufficiently serious" and "that subjectively the officials acted with a sufficiently culpable state of mind." De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003). Negligence or medical malpractice will not establish a sufficiently culpable state of mind. Id. at 634; Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999). Instead, a constitutional violation does not occur unless the medical provider's actions were "so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness." Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837 (1994). An inmate's mere disagreement with the course of treatment provided by medical officers will not support a valid Eighth Amendment claim. Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975). Further, in the context of prisoner medical care, the Constitution requires only that prisoners receive adequate medical care; a prisoner is not guaranteed his choice of treatment. Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988) (citing Layne v. Vinzant, 657 F.2d 468, 471 (1st Cir. 1981)).
DISCUSSION
Examination Motion
The Court recommends that Plaintiff's examination motion be denied as outside the relief Rule 35 authorizes. "Rule 35 empowers a court to 'order a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.'" Melton v. Simmons, No. 1:08-cv-458-3-MU, 2009 WL 454619, at *1 (W.D.N.C. Feb. 23, 2009) (quoting Fed. R. Civ. P. 35(a)(1)). "However, Rule 35 does not vest the court with authority to appoint an expert to examine a party wishing an examination of himself." Id. (citations and internal quotation marks omitted). "Further, [t]he language in Rule 35 authorizing courts to order a party to 'produce for examination a person who is in its custody or under its legal control' allows courts to compel a parent, guardian or other person suing to recover injuries to a minor or other person under his or her control to produce such minor or other person on the motion of an opposing party; it is not intended for a situation where a prisoner-plaintiff wishes an examination of himself." Lindsay v. Lewis, No. 1:11-cv-67, 2012 WL 1155744, at *1 (M.D.N.C. Apr. 6, 2012) (internal quotation marks omitted).
Motion for preliminary injunction requiring transfer
The Court also recommends denying Plaintiff's motion for a preliminary injunction requiring that he be transferred to BRCI and placed in a "character dorm." [Doc. 14.]
A "party moving for a preliminary injunction must necessarily establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint." Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994). "The purpose of interim equitable relief is to protect the movant, during the pendency of the action, from being harmed in the manner in which the movant contends it was or will be harmed through the illegality alleged in the complaint." Martin v. Stokes, No. 8:17-3391-MGL-JDA, 2017 WL 6888826, at *2 (D.S.C. Dec. 20, 2017), Report and Recommendation adopted by 2018 WL 368962 (Jan. 11, 2018). "Thus, a preliminary injunction may never issue to prevent an injury or harm which not even the moving party contends was caused by the wrong claimed in the underlying action." Id.
Here, the wrong or wrongs that a transfer to BRCI would protect against fall outside the scope of the Complaint, which concerns mistreatment Plaintiff allegedly received from officials at McCormick. Any need by Plaintiff to be protected from such mistreatment ended when he was transferred from McCormick to BRCI. Indeed, it is a transfer back to BRCI from Lieber that Plaintiff now requests. To the extent that Plaintiff now contends that he is in danger at Lieber—as he alleges he was at McCormick—he has not explained how that danger is the result of the conduct that is the subject of his Complaint.
Plaintiff attempts to connect Defendants to what he perceives to be his current dangerous situation at Lieber by vaguely claiming that both his transfer to BRCI and his transfer from BRCI to Lieber were retaliatory. [Doc. 14 at 2.] But Plaintiff has not explained how any Defendant is responsible for his transfer from BRCI to Lieber. --------
Additionally, Plaintiff has not shown that he can satisfy the test articulated in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008), governing the issuance of preliminary injunctions. See Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342 (4th Cir. 2009), cert. granted and judgment vacated, 559 U.S. 1089 (2010). Under the Winter standard, Plaintiff must demonstrate "'[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.'" Id. at 346 (quoting Winter, 555 U.S. at 20). All four requirements must be satisfied. Id. Most clearly, Plaintiff cannot show he could likely succeed on a claim that he is entitled to be placed transferred out of Lieber. After all, there is no constitutional right for a state prisoner or federal prisoner to be housed in a particular institution, at a particular custody level, or in a particular portion or unit of a correctional institution. See McKune v. Lile, 536 U.S. 24, 26 (2002) (noting that the "decision where to house inmates is at the core of prison administrators' expertise"); Meachum v. Fano, 427 U.S. 215, 225 (1976) (holding that the Constitution's Due Process Clause does not "protect a duly convicted prisoner against transfer from one institution to another within the state prison system"). The placement and assignment of inmates into particular institutions or units by state or federal corrections departments are discretionary functions, and those decisions are not subject to review unless state or federal law places limitations on official discretion. Cf. Hayes v. Thompson, 726 F.2d 1015, 1017 (4th Cir. 1984) (remanding the case for a determination of whether Virginia prison regulations limit prison officials' discretion to transfer inmates). South Carolina law confers no protected liberty interest upon South Carolina Department of Corrections ("SCDC") inmates from being placed in a particular prison, in a particular section of the prison, or being placed in administrative segregation. See Phillips v. South Carolina Dep't of Corr., No. 8:10-1331-HFF-BHH, 2010 WL 2756910, at *2 (D.S.C. June 17, 2010), Report and Recommendation adopted by 2010 WL 2754223 (D.S.C. July 12, 2010). Because it appears that Plaintiff has been committed to the custody of SCDC, the choices of where Plaintiff is to be confined are to be determined by SCDC prison officials without interference by the federal courts. See Cooper v. Riddle, 540 F.2d 731, 732 (4th Cir. 1976) (noting that the district court properly found that a prison committee's decisions regarding institutional placement, security classifications, and job assignments were not subject to constitutional scrutiny).
For all of those reasons, the undersigned recommends that Plaintiff's motion be denied.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendants' motions for examination by an outside physician and for and preliminary injunction [Docs. 13; 14] be DENIED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge December 19, 2018
Greenville, South Carolina