Opinion
C. A. 9:22-cv-01641-BHH-MHC
10-11-2023
Christopher Allen Dontell, Plaintiff, v. Susan Safford, Adrian Small, Joni Curcio, Cpl. Gray, Cpl. Atwood, Cpl. Gause, Cpl. Shover, Officer Lewis, Officer Hollywood, Officer Ray, Officer Davis, Officer Dahl, Officer Wortham, Officer Cyr, Officer Browning, Officer Weaver, Officer Squires, Officer Sanders, Officer Laska, Officer Dillon, F. Smalls, Nurse D. Winns, Cpl. Vermeer, Officer Steblinski, Officer Phillips, Officer Sweet, Jamie Wilson, K. Jones, Cpl. Collier, Officer Powers, and Beth Lawson, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff Christopher Allen Dontell (“Plaintiff”), proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. ECF No. 1. Six of the employees of the Horry County Sheriff's Office (“HCSO”) have filed a Motion to Dismiss (“Motion”). ECF No. 55. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to the Motion, Plaintiff filed a Response in Opposition. ECF No 80. Defendants filed a Reply. ECF No. 86. The matter is, therefore, ripe for review.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) and (e) (D.S.C.). Because the Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends granting the Motion.
I. BACKGROUND
Plaintiff, a pre-trial detainee housed at the J. Reuben Long Detention Center in Horry County, South Carolina, brings this lawsuit pursuant to 42 U.S.C. § 1983 for alleged violations of his constitutional rights. ECF No. 51. Specifically, he alleges deliberate indifference to his serious medical needs and failure to protect him from an inmate attack.
Defendants Cpl. Atwood, Officer Weaver, Officer Squires, Officer Laska, Officer Phillips, and Officer Powers (collectively, “HCSO Defendants”) have moved to dismiss. Relevant to HCSO Defendants' Motion are Plaintiff's claims regarding his serious medical needs.
Plaintiff also alleges that on December 10, 2021, he was assaulted by another inmate. ECF No. 51 at 52-54, 79-80. However, this allegation does not pertain to HCSO Defendants in the Motion before the Court.
As to his serious medical needs, Plaintiff states he was diagnosed as a child with an intolerance to certain proteins. Specifically, Plaintiff alleges he is unable to digest most types of meat, poultry, and seafood, and states that he experiences stomach pains when he eats these foods. Plaintiff claims he has been served a diet containing meat for numerous months even though he has requested a meatless diet on many occasions and has made complaints to personnel at the detention center about his diet and the effect on his health. He contends he has suffered health consequences because of his diet while he has been a pretrial detainee. ECF No. 51 at 38-69, 74-95. Plaintiff also alleges that in March and April 2022, there was interference with his use of a heart monitor prescribed by an outside cardiologist to gather diagnostic information. ECF No. 51 at 59-60, 95-98.
A. Procedural Background
Plaintiff originally filed his sixty-three-page Complaint on May 24, 2022, asserting claims under 42 U.S.C. § 1983 against forty-nine defendants. ECF No. 1. After this Court dismissed some of the defendants and claims via screening (ECF No. 11), Plaintiff subsequently filed a sixty-six page Amended Complaint. ECF No. 15. HCSO Defendants moved to dismiss Plaintiff's Amended Complaint on January 11, 2023 (ECF No. 24), and the undersigned subsequently issued a Report and Recommendation (“R&R”) on March 3, 2023, recommending that HCSO Defendants' Motion to Dismiss be granted. ECF No. 40.
Relevant here, the undersigned found that the Amended Complaint failed to state any claims against five of the six HCSO Defendants who have now submitted the current Motion before the Court. ECF No. 40 at 6-18 (finding Plaintiff failed to state a claim as to Defendants Atwood, Weaver, Squires, Laska, and Phillips).
On March 27, 2023, Plaintiff objected to the R&R, and asked the Court to defer ruling on the Motion to Dismiss until after he filed a motion to amend his complaint. ECF No. 46. Ultimately, Plaintiff filed a Second Amended Complaint on April 11, 2023. ECF No. 51. Because of Plaintiff's Second Amended Complaint, the undersigned entered an Order mooting HCSO Defendants' earlier Motion to Dismiss and vacating the R&R addressing that motion. See ECF Nos. 24, 40, 53.
Plaintiff's operative Second Amended Complaint contains largely the same sixty-six pages as his first Amended Complaint (See ECF No. 51 at 1-37, 70-98); a supplemental twenty-four page “declaration of facts” from Plaintiff (ECF No. 51 at 38-61); declarations from two other detention center inmates, William Alston (ECF No. 51 at 62-64) and Emanuel Johnson (ECF No. 51 at 65-67); and a typed, unsigned, unsworn statement purportedly from a former detention center inmate, Steven Morgan (ECF No. 51 at 68-69).
B. Relevant Facts
As noted above, and for purposes of HCSO Defendants' Motion, Plaintiff's claims related to his diet and heart monitor are at issue in this Motion. Plaintiff's specific allegations as to each HCSO Defendant is as follows.
As to Defendant Squires, Plaintiff alleges that in the winter of 2022, Plaintiff was served meat in his meal and Plaintiff asked Defendant Squires to get him a meal he could eat. ECF No. 51 at 94. Plaintiff alleges that Defendant Squires refused to do so. He further alleges that he asked Defendant Squires to call medical, which Defendant Squires did. Plaintiff alleges that when Defendant Squires called medical, she was informed that a nurse “keeps removing Plaintiff's ‘medical alerts' because [the nurse] knows Plaintiff WON'T eat meat, but doesn't believe that Plaintiff CAN'T eat meat.” ECF No. 51 at 95. In his supplemental declaration, Plaintiff restates these same allegations, while adding that Defendant Squires allegedly stated she believed Plaintiff was lying. ECF No. 51 at 52.
As to Defendant Weaver, Plaintiff alleges that in February 2022, Plaintiff was served meat again and he asked Defendant Weaver to get him something to eat. Plaintiff alleges that Defendant Weaver subsequently got Plaintiff a substitute meal (a “sandwich bag”) and delivered it by throwing it at Plaintiff and saying, “Are you fucking happy now?” ECF No. 51 at 91-92. Plaintiff's supplemental declaration repeats these allegations and does not contain any new allegations about Defendant Weaver. See ECF No. 51 at 51-52, 68.
Plaintiff alleges that Defendant Phillips served Plaintiff meat at mealtime in October 2021. ECF No. 51 at 76. Plaintiff maintains that he informed Defendant Phillips of his dietary needs and that he had not been served a meal he could eat for several days. ECF No. 51 at 76. Defendant Phillips allegedly informed Plaintiff that his supervisor was going to correct the issue by the following day. ECF No. 51 at 76. However, Plaintiff alleges that the issue was not resolved. Plaintiff's supplemental declaration generally repeats the same allegations, but adds that Defendant Phillips refused to provide Plaintiff a meal before he informed Plaintiff that the meals would be corrected the next day. ECF No. 51 at 58.
Regarding Defendant Laska, Plaintiff's only allegations are that Defendant Laska witnessed a conversation between Defendant Laska's supervisor and Plaintiff, and that Defendant Laska documented the conversation at Plaintiff's request. ECF No. 51 at 84. The following day, Plaintiff complained to Defendant Laska that he received meat in his meal, and Defendant Laska again documented the incident for Plaintiff and advised Plaintiff to submit another grievance on the matter. ECF No. 51 at 85. Plaintiff's supplemental declaration generally repeats these allegations, but adds that “[a]t no time did [Defendant] Laska provide [Plaintiff] with a meal [he] could safely eat.” ECF No. 51 at 55.
As to Defendant Atwood, Plaintiff alleges that he met with Defendant Atwood privately to discuss his dietary restrictions. ECF No. 51 at 82-83. Defendant Atwood allegedly told Plaintiff that they could not feed him differently unless he had a written diagnosis from a doctor. ECF No. 51 at 83. Plaintiff alleges that he informed Defendant Atwood that he had been trying to see a doctor for several months, but that medical staff had failed to arrange an appointment. ECF No. 51 at 83. Defendant Atwood then left and returned with someone from medical (Beth Lawson), and Plaintiff discussed his dietary needs with her. ECF No. 51 at 83. Plaintiff's new allegations directed at Defendant Atwood are that “weeks later” Plaintiff briefly saw Defendant Atwood in his housing unit, at which time he tried to talk to Defendant Atwood about his meals. ECF No. 51 at 43-44. However, Defendant Atwood “rushed out of the housing unit without engaging in conversation.” ECF No. 51 at 44.
Finally, as to Defendant Powers, Plaintiff's Second Amended Complaint contains allegations about two interactions. First, regarding his diet complaints, Plaintiff alleges that on October 13, 2021, he asked Defendant Powers for help regarding his dietary needs, and that Defendant Powers called medical staff regarding Plaintiff's concerns. ECF No. 51 at 76-77. Defendant Powers allegedly requested for a “medical alert” to be placed on Plaintiff's file, which would supposedly resolve the problem. ECF No. 51 at 77. Defendant Powers also allegedly told Plaintiff that it appeared someone “manually deleted the ‘medical alert' regarding his dietary needs shortly after he was processed into the facility.” ECF No. 51 at 77. Plaintiff alleges that the issue was not resolved after his conversation with Defendant Powers. ECF No. 51 at 77. Plaintiff's new allegations directed at Defendant Powers largely restate the above, but add that Defendant Powers failed to follow up to ensure Plaintiff's meal plan would be correct going forward. ECF No. 51 at 60.
Plaintiff also levels allegations against Defendant Powers regarding Plaintiff's heart monitor. On this issue, Plaintiff maintains that on April 1, 2022, Plaintiff was informed by his cardiologist that the prescribed heart rate monitor did not effectively record any data because “it was kept more than thirty feet from Plaintiff and because each patch was allowed to die.” ECF No. 51 at 98. Defendant Powers allegedly “witnessed this conversation” between Plaintiff and his cardiologist. ECF No. 51 at 98. This conversation took place after the events at the detention center that Plaintiff asserts support his claims about his heart monitor. See ECF No. 51 at 95-98.
Plaintiff seeks injunctive and monetary relief.
II. LEGAL STANDARD
HCSO Defendants move for dismissal of the Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 55. “The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of [affirmative] defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This plausibility standard is not analogous to a “probability requirement,” rather “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
III. DISCUSSION
HCSO Defendants argue dismissal is appropriate because, inter alia, Plaintiff has failed to state a deliberate indifference claim as to these six HCSO Defendants and Plaintiff has not alleged personal involvement. The Court agrees.
Because he is a pretrial detainee, Plaintiff's claim that prison officials failed to provide him adequate medical care is an allegation that his Fourteenth Amendment rights were violated. As a pretrial detainee, the standard for determining whether detention center officials violated Plaintiff's constitutional rights with regard to his medical care is “deliberate indifference.” See Belcher v. Oliver, 898 F.2d 32, 34 (4th Cir. 1990) (“The Fourteenth Amendment right of pretrial detainees, like the Eighth Amendment right of convicted prisoners, requires that government officials not be deliberately indifferent to any serious medical needs of the detainee.”).
Although these claims are analyzed under the Fourteenth Amendment, case law interpreting the standard of “deliberate indifference” under the Eighth Amendment is instructive. See, e.g., Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001) (stating that whether the plaintiff is a pretrial detainee or a convicted prisoner, the “standard in either case is the same-that is, whether a government official has been ‘deliberately indifferent to any [of his] serious medical needs'” (quoting Belcher, 898 F.2d at 34)).
To sustain his constitutional claim under 42 U.S.C. § 1983, Plaintiff must make (1) a subjective showing that HCSO Defendants were deliberately indifferent to his medical needs and (2) an objective showing that those needs were serious. Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (noting a “plaintiff must demonstrate that the officers acted with ‘deliberate indifference' (subjective) to the inmate's ‘serious medical needs' (objective)”); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (noting, to state an Eighth Amendment claim, “a prisoner must allege acts or omissions sufficiently harmful to evidence [1] deliberate indifference to [2] serious medical needs” (emphasis added)).
The subjective prong of deliberate indifference is a “very high standard” and merely negligent behaviors do not meet the subjective mens rea requirement. Young v. City of Mount Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001). The Fourth Circuit has recognized two different aspects of an official's state of mind that must be shown to satisfy the subjective prong in this context: “First, actual knowledge of the risk of harm to the inmate is required” and, second, “the officer must also have recognized that his actions were insufficient to mitigate the risk of harm to the inmate arising from his medical needs.” Iko, 535 F.3d at 241 (emphasis in original) (internal quotation marks and citations omitted); see also Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[A] prison official cannot be found liable . . . for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”).
As to the objective prong, a “serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Heyer v. United States Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (internal quotation marks omitted) (quoting Iko, 535 F.3d at 241).
A. Defendants Squires, Weaver, Phillips, and Laska
HCSO Defendants maintain that the allegations in Plaintiff's Second Amended Complaint contain no new allegations as to Defendants Squires, Weaver, Phillips, and Laska. ECF No. 55 at 8-11. They argue that Plaintiff's Second Amended Complaint includes the same sixty-six pages of his First Amended Complaint, and maintain that Plaintiff's allegations in the additional thirty-two pages of the Second Amended Complaint contain no new allegations against these four HCSO Defendants. Thus, they argue that the undersigned's reasoning in the prior R&R is still valid as to these HCSO Defendants.
The undersigned has reviewed the Second Amended Complaint and agrees that the allegations against these four HCSO Defendants have not substantively changed from the First Amended Complaint. See ECF No. 40 at 13-16, 18. Specifically, as to Defendant Squires:
Plaintiff alleges that Officer Squires is a correctional officer who was aware of his dietary needs. ECF No. 15 at 29. The Complaint alleges Plaintiff had one interaction with Officer Squires, which resulted in Officer Squires contacting medical staff about his complaints. Specifically, Plaintiff alleges that after asking Officer Squires for a meatless meal, Officer Squires did not provide one but contacted medical staff and was informed a nurse had removed the medical alert that Plaintiff should not receive meat in his meals. ECF 15 at 62-63, ¶ 50.
Taking these allegations as true and drawing all reasonable inferences from them, they are insufficient to show or infer Officer Squires subjectively recognized a risk of substantial harm and subjectively recognized that his actions were inappropriate in light of that risk. See [Campbell v. Florian, 972 F.3d 385, 395 (4th Cir. 2020), as amended (Aug. 28, 2020).]ECF No. 40 at 13-14. In Plaintiff's Response, he includes Defendant Squires in a list of thirteen other Defendants and then generally alleges that those thirteen Defendants had knowledge that Plaintiff could not eat meat and did not attempt to “secure adequate meals” for Plaintiff. ECF No. 80 at 11-12. This argument was also addressed in the previous R&R, as set forth specifically below:
In his Response, Plaintiff generally argues that he “clearly and repeatedly informed the [HCSO] Defendants of his medical inability to eat animal proteins contained in the various meats being served to him” at the Detention Center. ECF No. 35 at 12. He contends that each of these HCSO Defendants knew that Plaintiff was “repeatedly being put in a position to choose between not eating at all, or eating what he was being served and, by doing so, risking very serious health consequences” when they could have provided him with a meal he could safely eat. Id.
This argument appears to impute the alleged collective knowledge of other HCSO Defendants to Officer Squires. However, a hallmark of an in individual deliberate indifference claim under § 1983 is that Plaintiff must show the “official in question ‘possess[ed] enough details about a threat to enable [him] to conclude that it presents a strong likelihood of injury, not a mere possibility.'” Battle v. S.C. Dep't of Corr., No. 9:19-cv-1739-TMC, 2021 WL 4167509, at *10 (D.S.C. Sept. 14, 2021) (quoting Okla. Cty. Bd. of Cty. Comm'rs, 804 F. App's 921, 926 (10th Cir. 2020) (emphasis and alterations in original)). The knowledge of one defendant cannot be imputed to another for purposes of a deliberate indifference claim. See Sweeper v. Dozier, No. 1:20-cv-2545-SAL-SVH, 2022 WL 195878, at *3 n.1 (D.S.C. Jan. 21, 2022) (finding that plaintiff's attempt to impute the knowledge of one defendant to other defendants “is inapplicable in a claim for deliberate indifference”) (quoting Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014)), reconsideration denied, 2022 WL 1796407 (D.S.C. June 2, 2022); North v. Carroll, No. 2:18-cv-1037-JMC-MGB, 2018 WL 6539188, at *4 (D.S.C. June 27, 2018) (“When various officials have taken different actions with respect to a plaintiff, the plaintiff's facile, passive-voice showing that his rights were violated will not suffice. Rather, it is incumbent upon a plaintiff to identify specific actions taken by particular defendants' in order to make out a viable § 1983 claim.” (citation and internal quotation marks omitted)).
Plaintiff's Complaint fails to state facts sufficient to state a deliberate indifference claim against Officer Squires. Accordingly, the undersigned recommends granting HCSO Defendants' Motion as to Officer Squires.ECF No. 40 at 14-15. For the same reasons stated previously, Plaintiff's argument is unavailing.
As to Defendant Weaver:
Plaintiff alleges that Officer Weaver is a correctional officer at the Detention Center who was aware of Plaintiff's dietary needs. ECF No. 15 at 23. Specifically, Plaintiff alleges that Officer Weaver got Plaintiff a substitute meal (a “sandwich bag”), though he alleges Officer Weaver threw the sandwich bag at him and was sarcastic
with him in front of other inmates, causing him embarrassment. Id. at 23, 59-60. Plaintiff also asked for information about contacting directors, and Ofc. Weaver instructed him to continue submitting grievances. Id. at 60.
Taking these allegations as true and drawing all reasonable inferences from them, they are insufficient to show or infer Officer Weaver subjectively recognized a risk of substantial harm and subjectively recognized that his actions were inappropriate in light of that risk. See Campbell, 972 F.3d at 395.ECF No. 40 at 15. For the same reasons stated previously, Plaintiff's argument is unavailing.
Furthermore, to the extent Plaintiff is attempting to hold Defendant Weaver liable under § 1983 because of alleged bullying or verbal abuse, it is well-settled that allegations of verbal harassment cannot state a cognizable § 1983 claim. See, e.g., Salmeri v. Jones III, No. 1:21-1507-BHH-SVH, 2021 WL 3195908, at *2 (D.S.C. June 7, 2021) (“Bullying and verbal abuse, without more, is insufficient to state a constitutional deprivation”), report and recommendation adopted sub nom. Salmeri v. Jones, 2021 WL 3190399 (D.S.C. July 28, 2021); Ajaj v. United States, 479 F.Supp.2d 501, 538 n.16 (D.S.C. 2007) (collecting cases finding allegations of verbal harassment, threats, insults, or taunting do not establish a constitutional violation).
Regarding Defendant Phillips:
Plaintiff alleges that he informed Officer Phillips of his dietary needs, that Officer Phillips reported Plaintiff's complaint to his supervisor, Sgt. Curcio, who was going to correct the situation. ECF No. 15 at 44, ¶ 7. Taking these allegations as true and drawing all reasonable inferences from them, they are insufficient to show or infer Officer Phillips subjectively recognized a risk of substantial harm and subjectively recognized that his actions were inappropriate in light of that risk. See Campbell, 972 F.3d at 395. Plaintiff's Complaint fails to allege facts sufficient to state a deliberate indifference claim against Officer Phillips. Accordingly, the undersigned recommends granting HCSO Defendants' Motion as to Officer Phillips.ECF No. 40 at 16. The same analysis applies now and is incorporated herein.
Finally, as to Defendant Laska:
Plaintiff's only allegations regarding Officer Laska are that Officer Laska witnessed a conversation between his supervisor and Plaintiff and documented the conversation at Plaintiff's request (ECF No. 15 at 52, ¶ 29) and that the next day,
when Plaintiff complained to Officer Laska that he received meat in his meal, Officer Laska again documented the incident for Plaintiff (ECF No. 15 at 53, ¶ 31). Taking these allegations as true and drawing all reasonable inferences from them, they are insufficient to show or infer Officer Laska subjectively recognized a risk of substantial harm and subjectively recognized that his actions were inappropriate in light of that risk. See Campbell, 972 F.3d at 395. Plaintiff's Complaint fails to allege facts sufficient to state a deliberate indifference claim against Officer Laska. Accordingly, the undersigned recommends granting HCSO Defendants' Motion as to Officer Laska.ECF No. 40 at 17-18. The same analysis applies now and is incorporated herein.
To summarize, Defendants Squires, Weaver, Phillips, and Laska all allegedly took some sort of affirmative action in response to Plaintiff's complaints, whether it was contacting medical staff about Plaintiff's dietary needs, providing Plaintiff a substitute meal, contacting a supervisor about Plaintiff's meals, or documenting an incident/conversation. Taking Plaintiff's allegations against these HCSO Defendants as true and drawing all reasonable inferences from them, they are insufficient to show or infer these HCSO Defendants subjectively recognized a risk of substantial harm and/or subjectively recognized that their actions were inappropriate in light of that risk. See Pfaller v. Amonette, 55 F.4th 436, 445 (4th Cir. 2022) (“[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.'” (quoting Farmer, 511 U.S. at 844)); Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 307 (4th Cir. 2004) (“If a negligent response were sufficient to show deliberate indifference, the Supreme Court's explicit decision in Farmer to incorporate the subjective recklessness standard of culpability from the criminal law would be effectively negated.”); Morris v. Dewitt, No. 5:12-CV-3177-RMG, 2014 WL 12637910, at *6 (D.S.C. Aug. 29, 2014) (dismissing deliberate indifference claims against officer who reported issue to his supervisor because the officer “took action on the information that he had”). Accordingly, Defendants Squires, Weaver, Phillips, and Laska should be dismissed.
Moreover, there is no allegation that HCSO Defendants are medical professionals. “Non-medical prison employees can be found to have acted with deliberate indifference by ‘intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.'” Krug v. Loranth, No. 1:13-CV-01409-DCN, 2014 WL 4955365, at *7 (D.S.C. Sept. 29, 2014) (quoting Estelle, 429 U.S. at 104-05), aff'd, 599 Fed.Appx. 512 (4th Cir. 2015). “To bring a constitutional claim against non-medical prison personnel, an inmate must show that such officials were personally involved with a denial of treatment, deliberately interfered with a prison doctor's treatment, or tacitly authorized or were indifferent to the prison physician's misconduct.” Id. Furthermore, non-medical professionals are generally entitled to rely on the medical expertise of medical providers. See Iko, 535 F.3d at 241 (“If 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)). Plaintiff has not alleged HCSO Defendants denied or delayed access to medical care, and, in any event, HCSO Defendants were entitled to rely on the medical staff's assessments regarding Plaintiff's dietary needs.
B. Defendant Atwood
HCSO Defendants argue that, although Plaintiff added new allegations about another encounter he had with Defendant Atwood, Plaintiff has nevertheless failed to state a deliberate indifference claim against Defendant Atwood. ECF No. 55 at 11-12. The Court agrees.
Plaintiff's original allegations against Defendant Atwood were that he met with Defendant Atwood privately to discuss his dietary restrictions, and that Defendant Atwood allegedly told Plaintiff that they could not feed him differently unless he had a written diagnosis from a doctor. ECF No. 51 at 82-83. Plaintiff allegedly informed Defendant Atwood that he had been trying to see a doctor for several months, but that medical staff had failed to arrange an appointment. ECF No. 51 at 83. Defendant Atwood then left and returned with someone from medical (Beth Lawson), and Plaintiff discussed his dietary needs with her. ECF No. 51 at 83.
Plaintiff's new allegations directed at Defendant Atwood are that “weeks later” Plaintiff briefly saw Defendant Atwood in his housing unit and that he tried to talk to him about his meals, but that Defendant Atwood “rushed out of the housing unit without engaging in conversation.” ECF No. 51 at 43-44.
To the extent Plaintiff is attempting to hold Defendant Atwood liable as a supervisor, the previous R&R has already addressed this point:
Generally, “supervisory positions alone do not subject a defendant to liability, and . . . the doctrines of vicarious liability and respondeat superior are generally not applicable in § 1983 actions.” Thomas v. Charleston Cnty., No. 2:17-cv-1958-MBS-MGB, 2017 WL 11562553, at *6 (D.S.C. Sept. 5, 2017), report and recommendation adopted, 2020 WL 5569766 (D.S.C. Sept. 15, 2020); Orange v. Fielding, 517 F.Supp.2d 776, 790 (D.S.C. 2007) (“[V]icarious liability and respondeat superior are not applicable in § 1983 actions.”). Rather, to hold a supervisor liable for a constitutional injury inflicted by a subordinate under § 1983, Plaintiff must show facts establishing the following elements: (1) the supervisor had actual or constructive knowledge that a subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to people like the plaintiff; (2) the supervisor's response was so inadequate as to constitute deliberate indifference or tacit authorization of the subordinate's conduct; and (3) there is an “affirmative causal link” between the supervisor's inaction and the plaintiff's constitutional injury. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
[. . .]
Under these circumstances, accepting the allegations in the pleading as true and drawing all reasonable factual inferences in favor of Plaintiff, Plaintiff has not set forth sufficient allegations in the Complaint to state a plausible claim for supervisory liability against Cpl. Atwood. See E.I. du Pont de Nemours, 637 F.3d at 440. Accordingly, the undersigned recommends granting the HCSO Defendants' Motion as to Cpl. Atwood.ECF No. 40 at 12-13. The same analysis applies here now and is incorporated herein.
Plaintiff's allegations indicate Defendant Atwood took affirmative action to call medical staff regarding Plaintiff's dietary needs and even arranged a meeting for that specific purpose when Plaintiff stated he had been unable to arrange an appointment. These allegations do not evince that Defendant Atwood was deliberately indifferent to Plaintiff's health needs. See Pfaller, 55 F.4th at 445 (“[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.'” (quoting Farmer, 511 U.S. at 844)).
Moreover, taking Plaintiff's new allegations against Defendant Atwood as true and drawing all reasonable inferences from them, they are insufficient to show or infer Defendant Atwood subjectively recognized a risk of substantial harm and subjectively recognized that his actions were inappropriate in light of that risk. Indeed, Plaintiff's new allegations are that “weeks later” Plaintiff saw Defendant Atwood in his housing unit, but he was unable to engage in a conversation about his dietary needs. These allegations-wherein Plaintiff states that he did not even engage in conversation with Defendant Atwood-do not support a deliberate indifference claim, as Plaintiff has failed to allege facts that show or allow for the inference that Defendant Atwood was subjectively aware that his actions were insufficient to mitigate an excessive risk to Plaintiff's medical needs. See Iko, 535 F.3d at 241. Accordingly, Defendant Atwood should be dismissed.
C. Defendant Powers
HCSO Defendants argue that Plaintiff has not stated a deliberate indifference claim against Defendant Powers because Defendant Powers acted on Plaintiff's requests regarding his dietary needs and because Plaintiff has not shown any personal involvement regarding the heart rate monitor. The Court agrees. ECF No. 55 at 12-13.
As noted above, Plaintiff's Second Amended Complaint contains allegations about two interactions with Defendant Powers. First, regarding his diet complaints, Plaintiff alleges that he asked Defendant Powers for help regarding his dietary needs, and that Defendant Powers called medical staff regarding Plaintiff's concerns. ECF No. 51 at 76-77. Plaintiff alleges Defendant Powers's request for a “medical alert” on Plaintiff's file did not resolve the problem, and alleges that Defendant Powers failed to follow up to ensure Plaintiff's meal plan was corrected. ECF No. 51 at 77, 60.
Taking Plaintiff's allegations against Defendant Powers as true and drawing all reasonable inferences from them, they are insufficient to show or infer Defendant Powers subjectively recognized a risk of substantial harm and/or subjectively recognized that her actions were inappropriate in light of that risk. As with Defendants Squires and Atwood, Plaintiff's allegations show Defendant Powers took affirmative action to call medical staff regarding Plaintiff's dietary needs, and thus Plaintiff has failed to show Defendant Powers was deliberately indifferent to that need. See Pfaller, 55 F.4th at 445 (“[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.'” (quoting Farmer, 511 U.S. at 844)). Plaintiff's additional allegation that Defendant Powers failed to follow up on whether the meal plan was corrected alleges, at most, negligence, which falls well short of the mens rea requirement for a deliberate indifference claim. See Iko, 535 F.3d at 241 (“Deliberate indifference is a very high standard-a showing of mere negligence will not meet it.” (citation omitted)); Parrish ex rel. Lee, 372 F.3d at 307 (“If a negligent response were sufficient to show deliberate indifference, the Supreme Court's explicit decision in Farmer to incorporate the subjective recklessness standard of culpability from the criminal law would be effectively negated.”).
As to Plaintiff's second interaction with Defendant Powers regarding the heart monitor, Plaintiff only alleges that Defendant Powers witnessed a conversation between Plaintiff and his cardiologist about how Plaintiff's heart monitor did not record data while at the detention center. ECF No. 51 at 98. Notably, this conversation occurred after the events at the detention center that Plaintiff asserts support his claims about his heart monitor. See ECF No. 51 at 95-98.
Plaintiff's claim fails, as these allegations do not show any personal involvement by Defendant Powers in the alleged constitutional deprivation regarding Plaintiff's heart monitor. See Williamson, 912 F.3d at 171 (noting a plaintiff must show that the official acted personally in violating the plaintiff's constitutional rights); Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017) (noting liability will only lie in § 1983 actions where it is “affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs' rights” (internal quotation marks and citation omitted)). Plaintiff does not allege that Defendant Powers played any other role regarding the heart monitor, or that Defendant Powers was otherwise involved with the heart monitor while at the detention center. Simply witnessing a conversation between Plaintiff and his medical provider which allegedly occurred after the alleged incident is insufficient to allege any constitutional claim, let alone a claim for deliberate indifference.
Because Plaintiff's allegations do not show or suggest that HCSO Defendants interfered with Plaintiff's medical care, denied him access to medical care, or were deliberately indifferent to that care, the undersigned recommends granting HCSO Defendants' Motion.
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that HCSO Defendants' Motion to Dismiss, ECF No. 55, be GRANTED.
The parties are directed to the attached Notice for their rights to file objections to this recommendation.
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).