C/A 9:22-cv-01641-BHH-MHC (D.S.C. Jun. 26, 2024)

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Dontell v. Safford

United States District Court, D. South Carolina

Jun 26, 2024

C/A 9:22-cv-01641-BHH-MHC (D.S.C. Jun. 26, 2024)

Opinion

C/A 9:22-cv-01641-BHH-MHC

06-26-2024

Christopher Allen Dontell, Plaintiff, v. Susan Safford, Cpl. Gray, Cpl. Gause, Cpl Shover, Officer Lewis, Officer Hollywood, Officer Ray, Officer Davis, Officer Dahl Officer Wortham, Officer Cyr, Officer Browning, Officer Sanders, Officer Dillon, F. Smalls, Cpl. Vermeer, Officer Steblinksi Officer Sweet, Cpl. Collier and Officer Powers Defendants.

Molly H. Cherry, United States Magistrate Judge

REPORT AND RECOMMENDATION

Molly H. Cherry, United States Magistrate Judge

Plaintiff Christopher Allen Dontell (“Plaintiff”), proceeding pro se, filed this civil action asserting claims for violations of his constitutional rights pursuant to 42 U.S.C. § 1983. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(d) and (e) (D.S.C.).

Before the Court is a Motion for Summary Judgment (“Motion”), ECF No. 141, filed by Defendants Susan Safford (“Maj. Safford”), Cpl. Joni Curcio, Cpl. Gray, Cpl. Gause, Sgt. Shover, Officer Lewis, Officer Hollywood, Officer Ray, Officer Perry (misidentified as “Officer Davis”), Officer Dahl, Officer Wortham, Officer Cyr, Officer Browning, Officer Sanders, Officer Dillon, F. Smalls, Cpl. Vermeer, Officer Steblinski, Officer Sweet, and Cpl. Collier (together, “HCSO Defendants”). Plaintiff filed a Response in Opposition to the Motion, ECF No. 164, and HCSO Defendants filed a Reply, ECF No. 174.

Also before the Court is Plaintiff's Motion for Summary Judgment. ECF No. 148. HCSO Defendants filed a Response in Opposition, ECF No. 159, and Plaintiff filed a Reply, ECF No. 173.

Plaintiff incorporated the entirety of his Motion for Summary Judgment into his Response in Opposition to HCSO Defendants' Motion for Summary Judgment. ECF No. 164 at 2.

The Motions are ripe for review. For the reasons set forth below, the undersigned recommends that HCSO Defendants' Motion be granted and that Plaintiff's Motion be denied.

BACKGROUND AND FACTS

At the summary judgment stage, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Plaintiff, a pre-trial detainee housed at the J. Reuben Long Detention Center (“Detention Center”) in Horry County, South Carolina, filed this civil rights action on May 24, 2022. ECF No. 1. Plaintiff filed his first Amended Complaint on November 3, 2022, ECF No. 15, and a Second Amended Complaint on April 11, 2023, ECF No. 51.

Plaintiff is currently detained on charges for which he was arrested on November 11, 2020, and booked into the Detention Center. See Horry County Public Index, Case Nos. 2020A2610700958 (criminal conspiracy charge) and 2020A2610202359 (murder charge), available at https://publicindex.sccourts.org/Horry/PublicIndex/PISearch.aspx and by searching the above case numbers (last visited May 21, 2024). On November 20, 2020, Plaintiff posted bond and was released from the Detention Center. Id. On September 9, 2021, Plaintiff's bond was revoked, and he was booked again at the Detention Center, where he currently remains. See https://www.horrycountysc.gov/departments/sheriffsoffice/detention-center/booking-releases/ by searching Plaintiff's last name (last visited May 21, 2024)).

Plaintiff's claims against HCSO Defendants are related to three issues: (1) his dietary needs at the Detention Center, ECF No. 51 at 38-69, 74-95; (2) a heart issue in 2022, alleging interference with Plaintiff's use of a heart monitor prescribed by an outside cardiologist, ECF No. 51 at 59-60, 95-98; and (3) an alleged inmate assault in December 2021, ECF No. 51 at 52-54, 79-80. Additionally, Plaintiff alleges HCSO Defendants Officer. Hollywood and Cpl. Shover have threatened him with retaliation. ECF No. 51 at 60-61.

Many of the relevant background facts and evidence of record regarding Plaintiff's dietary needs and heart monitor are detailed in the January 31, 2024 Report and Recommendation, ECF No. 175, and the March 14, 2024 Order adopting the Report and Recommendation, ECF No. 184, on the Motion for Summary Judgment filed by the Medical Defendants in this case. The undersigned will not repeat all of the evidence as to those two issues but provides the following summary, along with additional evidence pertaining specifically to the claims against HCSO Defendants.

Karen Jones (identified by Plaintiff as “K. Jones”), Elizabeth Lawson (identified by Plaintiff as “Beth Lawson”), Adrian Small, Danielle Winns (identified by Plaintiff as “Nurse D. Winns”), and Jamie Wilson (identified by Plaintiff as “Jamie Watson”) were collectively referred to as the “Medical Defendants” and have been dismissed from the case. ECF No. 184.

A. Dietary Issues

According to Plaintiff, he has had a “bodily intolerance to animal proteins since infancy, and [has] never digested meat of any kind.” ECF No. 115-2 at ¶ 3. Plaintiff avers that the condition was diagnosed by Dr. Alfred Rosenstein, when Plaintiff was a child, as an “intolerance of animal proteins.” Id. Plaintiff states that, if he eats meat, his symptoms include nausea, vomiting, excessive perspiration, fatigue and pain. Id.

The Detention Center generally offers two diets to inmates: the normal diet and the “Alternate Meal.” ECF Nos. 141-2, Affidavit of Joey Johnson at ¶ 5; 141-3, Affidavit of Carmen Monachelli at ¶ 3. Both diets have been reviewed by a certified dietician to meet nutritional and caloric standards. Id. For lunch and dinner, the normal diet contains a protein source that is usually (but not always) an animal-based protein, such as beef, chicken, or turkey, but all other portions of the meal are not animal-based protein. ECF No. 141-3, Monachelli Aff. at ¶ 4. At breakfast, the normal diet can contain an animal-based protein source, but does not always. Id. The Alternate Meal does not contain any beef, chicken, or pork or their byproducts and is also referred to as the “no meat” diet because it contains either tuna fish or tofu as a protein substitute. ECF Nos. 141-2, Johnson Aff. at ¶ 5; 141-3, Monachelli Aff. at ¶ 5.

The normal meal costs $4.02 per day per inmate, while the Alternate Meal costs $6.90 per day per inmate. ECF No. 141-3 at ¶ 3. Absent a diagnosed medical condition or documented sincerely held religious belief, providing individualized meals for inmates can be perceived as preferential treatment or favoritism that can negatively impact the safety and security of the Detention Center, its staff, and inmates. ECF No. 141-2 at ¶ 4. For this reason, the Detention Center cannot meet an inmate's dietary requests when the requests are based on preferences, as opposed to a diagnosed medical condition or documented sincerely held religious belief. Id.

The Detention Center's Food Services staff prepares special diet trays for inmates who have been approved to receive a special diet based upon a report generated using the Detention Center's inmate management software (Offendertrak), which identifies all inmates with a dietary alert and aggregates that information into a list which is printed by food services staff at the Detention Center. ECF No. 141-3, Monachelli Aff. at ¶ 9. A single kitchen staff member will prepare the special diet trays in accordance with the type of diet specified in the alert to ensure that special diet trays are prepared in accordance with the report. Id. at ¶ 10. If an inmate does not have an active dietary alert in Offendertrak, the inmate will receive the normal meal service. Id. at ¶ 12. Special diet trays are identified by red meal trays (as opposed to normal brown trays) or, when inmates receive a bag meal, by a Styrofoam tray. Id. at ¶ 7. Regardless of the container, all special diet trays contain a sticker with the inmate's name, housing unit, and diet. Id. at ¶ 10.

Dietary alerts are confirmed either by medical staff (if the alert is because of a diagnosed medical condition) or by the chaplain's office (if the alert is because of a documented sincerely held religious belief) and then entered by those staff members into Offendertrak. ECF No. 141-4, Affidavit of Lisa Piccone at ¶ 4. Detention center officers posted in housing units do not have the authority to create or modify a dietary alert, nor do food services staff. Id. at ¶ 5; ECF No. 141-3, Monachelli Aff. at ¶ 11. If an inmate believes they require a special diet, they must discuss it either with the medical staff or the chaplain's office, and housing officers will instruct the inmate to make such a request using the inmate kiosks. ECF No. 141-4, Piccone Aff. at ¶ 5.

1. November 2020

Plaintiff was detained at the Detention Center between November 11, 2020, and November 20, 2020. During this time, Plaintiff was housed in the Detention Center's booking area between November 11 - 14, 2020. ECF No. 141-4, Piccone Aff. at ¶ 8; ECF No. 141-1 at 15. Because of the temporary nature of booking, inmates housed in the booking area receive a bag meal for all meals, commonly called a “booking bag.” ECF No. 141-3, Monachelli Aff. at ¶ 14. Booking bags contain two peanut butter and jelly sandwiches (or cheese sandwiches to address diabetic or peanut allergies), an orange, a graham cracker pack, and a saltine cracker pack. Id. The contents of the bag have been reviewed and approved by a certified dietician. Id. A limited number of booking bags are prepared by the Detention Center's kitchen based upon the number of inmates housed in the booking area, with a small amount of extras to account for new inmates arriving to booking. Id.

On or around November 14, 2024, Plaintiff was transferred to the Detention Center's A-Pod, which at the time was a COVID quarantine pod for new admissions. ECF No. 141-4, Piccone Aff. at ¶ 8; ECF No. 141-1 at 15. While in A-Pod, there is no record of any dietary alert in Offendertrak for Plaintiff at that time. ECF No. 141-4, Piccone Aff. at ¶ 9. Without any notation in Offendertrak, Plaintiff should have received a regular diet tray. ECF No. 141-3, Monachelli Aff. at ¶ 12. Plaintiff did not file any requests or grievances regarding his diet while in A-Pod. ECF No. 141-4, Piccone Aff. at ¶ 9.

Plaintiff highlights that from his intake on November 11, 2020, medical staff indicated in their records a meat allergy. ECF Nos. 164 at 6; 96-8 at 61. However, there is no evidence before the Court that that information was put into the Detention Center's inmate management software, Offendertrak, at that time.

Pursuant to his bond conditions, Plaintiff was released to home detention on November 20, 2020. ECF No. 141-1, at 6-7, 15.

2. September 2021 - early January 2022

Plaintiff was re-booked at the Detention Center approximately 10 months later on September 9, 2021, at which time he measured 5'11” tall and weighed 195 pounds. ECF Nos. 967 at ¶ 5c; 96-8 at 57. At that time, Plaintiff reported to medical staff a special dietary need of “can not eat po[u]ltr[y]/meat.” ECF 96-8 at 58. Plaintiff was placed on suicide watch on September 9, 2021. ECF 96-8 at 60. While on suicide watch, a medical dietary alert “Suicide Tray” was entered for Plaintiff in Offendertrak. ECF No. 141-5, Affidavit of Susan Safford at ¶ 31(a). This diet is known as the “soft foods” diet and is generally similar to “booking bags.” ECF No. 141-3, Monachelli Aff. at ¶ 15.

On September 13, 2021, Plaintiff was removed from suicide watch. At that time, his “Suicide Tray” alert was removed and a new dietary alert was entered into Offendertrak by a medical staff member that stated “Can Not Eat Meat.” ECF No. 141-5, Safford Aff. at ¶¶ 31(a), 31(b). Because Plaintiff's medical dietary alert entered September 13, 2021, was “Can Not Eat Meat,” he should have received the “Alternate Meal” which contains no meat. ECF No. 141-3, Monachelli Aff. at ¶ 16. Based upon Plaintiff's alert history, Plaintiff should have received the Alternate Meal from September 13, 2021, when the medical dietary alert was entered, until 9:21 am on October 7, 2021, when a medical staff member removed the “Can Not Eat Meat” alert. ECF No. 141-5, Safford Aff. at ¶ 31(b).

The alert was reactivated in Offendertrak on October 8, 2021, at 6:51 am by a different medical staff member. Id. On October 11, 2021, at 4:31 pm, the alert was again removed by the same medical staff member who had removed the alert on October 7, but on October 13, 2021, at 5:09 pm, the alert was again reactivated. Id. When the alert was not active, Plaintiff should have received the normal meal. ECF No. 141-3, Monachelli Aff. at ¶ 12. Plaintiff's “Can Not Eat Meat” alert remained active from October 13, 2021, until January 14, 2022, and during this time he should have received the Alternate Meal.

Plaintiff's statements generally track the inconsistent type of meals he received during this time. Indeed, he contends that, particularly in September and October of 2021, he was not able to eat much because his dietary needs were not being met. ECF Nos. 115-2 at ¶ 5; 51 at 41. For example, Plaintiff states that on October 14, 2021, he was served meat-based meals and the kitchen staff (Fred Smalls and Carmen Monachelli) refused to provide him an adequate replacement. ECF No. 164 at 8. He alleges in his Second Amended Complaint that on October 14, 2021, his meals were corrected, and he received meatless meals for several days after another “medical alert” was placed in his file. ECF No. 51 at 77-78, ¶ 11. He further alleges, however, that the correction only lasted a short time before the medical alert was deleted from his file. Id. According to Plaintiff, a medical staff member notified him that another medical staff member had deleted the medical alerts concerning Plaintiff's dietary needs because she did not believe Plaintiff cannot eat meat. ECF Nos. 115-2 at ¶ 165; see also 115-3 at ¶ 20.

There is no evidence before the Court that any HCSO Defendant deleted any medical alerts from Plaintiff's file in Offendertrak, during this or any other time period.

Plaintiff states that throughout September 2021 and January 2022, he repeatedly told medical staff members and Detention Center officers and filed medical grievances and entries on the inmate kiosk complaining that he could not eat animal proteins, with little to no success in getting a meatless meal. ECF No. 51 at 74-82.

3. January 2022

On January 11, 2022, Maj. Safford received an email from Plaintiff's wife regarding Plaintiff's dietary needs. ECF No. 141-5, Safford Aff. at ¶¶ 5-6 and Exhibit A thereto. Prior to receiving that email, Maj. Safford had no direct involvement with Plaintiff or his dietary complaints. Id. at ¶ 5. Maj. Safford asked Cpl. Atwood, who assisted the Chaplain as the Programs & Services corporal, to look into the matter, because he was familiar with special diet requests (all religious diet requests are approved by the chaplain's office). Id. at ¶ 7; ECF No. 141-8, Affidavit of Steven Atwood, at ¶ 6. Cpl. Atwood did so and determined that Plaintiff did not have any documented religious diet alert, but did have a medical diet alert. ECF No. 141-8, Atwood Aff. at ¶ 7.

On January 13, 2022, Cpl. Atwood met with Plaintiff to get information about the medical condition he indicated he has. Id. at ¶ 8; ECF No. 51 at 82-83, ¶ 27. After hearing from Cpl. Atwood regarding Plaintiff, Maj. Safford - a command staff officer with access to modify Offendertrak alerts - modified Plaintiff's dietary alert in Offendertrak to state “Medically - He Can't Eat Meat.” ECF No. 141-5, Safford Aff. at ¶¶ 10-11. Cpl. Atwood then spoke with Elizabeth Lawson, RN, who was the Medical Team Administrator for the Detention Center, and explained the situation and asked if she would meet with Plaintiff to discuss his complaints. ECF No. 141-8, Atwood Aff. at ¶ 10. Later, on January 13, 2022, Cpl. Atwood, Nurse Lawson, and Plaintiff met in Plaintiff's housing unit. Id. at ¶ 11; ECF No. 51 at 82-83, ¶ 27.

Plaintiff highlights that Katrina Krystanewicz originally entered an alert on September 13, 2021, that Plaintiff cannot eat meat. ECF Nos. 164 at 7 (citing Medico 92).

During this meeting, Plaintiff explained to Nurse Lawson his dietary issues, including that he could not eat fish. Id. Nurse Lawson explained that the Detention Center did not offer a completely vegetarian diet but that the closest diet would be the Alternate Diet. ECF No. 141-8 at ¶ 11. Nurse Lawson proposed that, if the Alternate Diet was not satisfactory to Plaintiff, he could be provided with the normal diet supplemented with “snack bags” in the morning and evening, and he could just not eat the protein source on the normal diet tray. Id. “Snack bags” are used to supplement the normal diet for inmates with specific medical needs. ECF No. 141-3, Monachelli Aff. at ¶ 17.

Plaintiff contends that his dietary needs were met for one day before a medical staff member removed the medical alert form his file. ECF Nos. 164 at 7; 51 at 83, ¶ 28. He states that Cpl. Gause told him that she saw a note “in the system” that Plaintiff should be receiving a snack bag but admitted she did not have a snack bag for him. ECF Nos. 164 at 7 (citing ECF No. 51, Dec. Facts, ¶ 44; ECF No. 51, Morgan Aff. at 68); 51 at 83, ¶ 27.

In fact, on January 14, 2022, Plaintiff's “Can Not Eat Meat” dietary alert was replaced by a medical staff member with a new dietary alert that stated “Snack Bag Every AM and PM per NP.” ECF No. 141-5, Safford Aff. at ¶¶ 31(b), 31(c). Under this dietary alert, Plaintiff should have received the normal diet and two snack bags daily. Upon hearing Cpl. Atwood's report, Maj. Safford believed Plaintiff's complaints had been resolved. Id. at ¶¶ 12-13.

Maj. Joey Johnson, at the time the Detention Center's Deputy Director, became aware of Plaintiff's dietary issues on January 19, 2022, but also understood that Plaintiff had agreed to the “snack bag” plan and that Plaintiff's dietary complaints were resolved. ECF No. 141-2, Johnson Aff. at ¶ 7.

While logbook entries show that Plaintiff was receiving snack bags at the end of January (ECF No. 141-6 at HCSO 000183, 000184, 000185), Plaintiff states that he did not start receiving snack bags until “much later” and never received them twice daily consistently. ECF No. 115-2 at ¶ 27. Plaintiff also contends that he continued to receive meat throughout January and notified various HCSO Defendants. ECF No. 51 at 45-46, 48-50, 54-56, 57, 84-91.

Plaintiff also states that “Officers documented in several logbook entries indications of times when Plaintiff was denied adequate meals.” ECF No. 164 at 8. He cites to page numbers HSCO 167, 168, 169, 174, 176, 177, 178, 179, 180, 181 and 192. However, only HSCO 167 is in evidence, having been submitted under seal, and there is no indication in that document that Plaintiff was denied an adequate meal. Nevertheless, as noted above, Plaintiff has personally averred that he continued to be served meat as part of his meals on many occasions throughout this time period.

4. February 2022

On February 7, 2022, Maj. Johnson received a letter from the South Carolina Law Enforcement Division (“SLED”) that Plaintiff's mother had mailed them making complaints about Plaintiff's detainment at the Detention Center, including his diet. ECF No. 141-2 at ¶ 8. Maj. Johnson was surprised to get the letter, as he believed Plaintiff's diet issues had been resolved. Id. After receiving this letter, Maj. Johnson discussed the issue with Nurse Lawson, who informed him Plaintiff claimed to be unable to eat any meat or fish, but Plaintiff did not have any diagnosed medical condition. Id. at ¶ 9. Nurse Lawson also stated that despite the lack of a confirmed diagnosis, Plaintiff's claimed condition was possible, but actually confirming whether Plaintiff did or did not have such a condition would likely cost thousands of dollars in medical tests. Id.

The next day, February 8, 2022, Maj. Safford received another email from Plaintiff's wife making further complaints about Plaintiff's diet. ECF No. 141-5, Safford Aff. at ¶ 23 and Exhibit C thereto. Maj. Safford was surprised to receive the email, as she also believed Plaintiff's diet issue had been resolved, but immediately forwarded the email to Maj. Johnson, who informed Maj. Safford he was already aware of the issue and consulting with the medical staff to address it. ECF Nos. 141-5, Safford Aff. at ¶¶ 24-25; 141-2, Johnson Aff at ¶ 11. Given Plaintiff's continued complaints, the likelihood that Plaintiff's detainment at the Detention Center would be lengthy, and that it was not financially feasible to conclusively determine whether Plaintiff had his claimed condition, Maj. Johnson contacted Mr. Carmen Monachelli (“Mr. Monachelli”), the Detention Center's Food Services Director, to determine whether there was a more viable long-term solution for Plaintiff. ECF No. 141-2, Johnson Aff. at ¶ 12.

Mr. Monachelli was able to create a diet where Plaintiff received tofu as a substitute for any meat (including fish) portion served. Id., ¶ 13; ECF No. 141-3, Monachelli Aff. at ¶¶ 18-19. Medical staff was consulted about the new diet and agreed it should address the dietary needs identified by Plaintiff. ECF No. 141-2, Johnson Aff. at ¶ 13.

5. February 10, 2022 to present

On February 10, 2022, the “Snack Bag Every AM and PM per NP” alert was removed and replaced with a new alert which states “Please Substitute Tofu in Place of Meat for Each Meal Discontinue AM and PM Snack Bag.” Id., ¶ 14; ECF No. 141-5, Safford Aff., ¶¶ 31(c), 31(e). This alert has remained active since February 10, 2022. ECF No. 141-5, Safford Aff., ¶ 31(e); ECF No. 141-4, Piccone Aff., ¶ 12. The cost of Plaintiff's unique diet is $5.11 per meal. ECF No. 141-3, Monachelli Aff., ¶ 19.

Additionally, during the entirety of Plaintiff's dietary complaints, Plaintiff's medical records show he had access to medical care, as he was seen numerous times by medical staff. See ECF No. 96-8, passim. With the creation of Plaintiff's meal and corresponding dietary alert, Detention Center staff considered Plaintiff's dietary complaints to be finally resolved. Various logbook entries show that Plaintiff was receiving a special tray throughout 2022: February 12, 16, June 22, July 2, 3, 6, 7, 11, 17, 20, 21, August 26, October 2, November 1, December 7, 2022, (ECF No. 141-6 at 15, 16, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 (respectively); see also ECF No. 141-9, Hollywood Aff. at ¶ 20.

Plaintiff, however, avers that he did not and does not regularly receive tofu at his meals and continues to be served meat at many meals. See ECF Nos. 164 at 8-9; 190-2, Affidavit of Christopher Dontell; 51 at 66, Affidavit of Emanuel B. Johnson.

B. Heart Monitor Issues

Plaintiff alleges that on March 10, 2022, he was “unexpectedly” taken to Conway Medical Center (“CMC”) for a cardiology appointment and the cardiologist determined Plaintiff should use a heart monitor for four weeks. ECF No. 51 at 95-97, ¶ 51. It appears from his medical records Plaintiff was referred to a cardiologist by Detention Center medical staff based upon an abnormal EKG after Plaintiff complained of exhaustion and increased heart rate. ECF 96-8 at 47-49. Plaintiff generally alleges Detention Center officers and medical staff did not let Plaintiff use the heart monitor as he needed to. ECF No. 51 at 95-97, ¶ 51.

On March 10, 2022, at 2:38 pm, a medical alert was entered into Offendertrak that stated “Heart Monitor 1 Month. Monitor to be kept at desk.” ECF No. 141-10, Heart Monitor Alert. The same day at 3:08 pm, after speaking with medical staff regarding Plaintiff's heart monitor, Cpl. Collier instructed the officer on duty to make a notation about Plaintiff's heart monitor in the logbook. ECF No. 141-11, Affidavit of Marvin Collier at ¶¶ 11-12. The logbook states: “I/M Dontell returned from medical with a heart monitor that looks like a phone. Heart monitor should stay on officer's desk.” ECF No. 141-6 at 17.

Plaintiff avers that the heart monitor was confiscated from him by Cpl. Collier when it needed to remain within a certain distance from him or it would be ineffective. ECF No. 51 at 59. He states that Cpl. Collier failed to charge the device, allowing it to die, and failed to explain to other officers the importance of the device. Id. According to Plaintiff, the electronic part of the monitor does not work properly if he is more than 25 to 30 feet away from it, and the Detention Center kept the device 40 to 50 feet away from him at the desk. ECF No. 115-2 at ¶ 36. Plaintiff contends he was denied proper access to and use of the monitor. ECF No. 164 at 16.

On March 16, 2022, the heart monitor study ended because of an inability to collect data. ECF No. 96-8 at 44. The heart monitor did not record any data, such that the doctor was not able to compare Plaintiff's symptoms with any corresponding data. Id. at ¶ 39; ECF No. 96-8 at 44.

Plaintiff's medical records show that on April 1, 2022, Plaintiff underwent a cardiac stress test at CMC that was “clinically electrically negative” with “no symptoms reported by the [Plaintiff].” ECF No. 96-8 at 9.

On April 3, 2022, Officer Wortham noted in the logbook that “I/M Dontell rec'd heart monitor device” and “I/M Dontell returns device.” ECF No. 141-6 at 18. On April 7, 2022, the logbook notes Plaintiff asked to update his monitor, the officer contacted medical and his supervisor, and was informed “I/M Dontell could not hold the phone [i.e., the monitor] but he could stand close enough for it to update. I/M Dontell became angry and stated he was gonna sue the jail...” Id. at 19-20. By this time, however, it appears the heart monitor study had ended. Medical staff removed Plaintiff's heart monitor on April 15, 2022. Id. at 21.

On June 6, 2022, Plaintiff saw an outside cardiologist for a follow-up visit, during which the cardiologist again noted that Plaintiff's stress test was “clinically negative” and there was no evidence of stress-induced arrhythmia or stress-induced ischemia. ECF No. 98-6 at 6. The doctor also noted that the heart rate monitor previously given to Plaintiff in March did not perform because “there was no signal at the jail” and ordered a follow up appointment, noting they would instead look at a Holter monitor for 48 hours. ECF No. 96-8 at 6.

On or about July 6, 2022, Plaintiff was scheduled for a follow-up outside cardiology appointment to get a Holter monitor placed, but Plaintiff asked the appointment to be rescheduled. ECF 98-6 at 40-41. The appointment was rescheduled for August 23, 2022, at which time the cardiologist performed a stress test, noting it was normal. Id. at 3. The cardiologist “reassured [Plaintiff] that his symptoms are unlikely coming from his heart . . . [and] no major abnormality noted on the cardiac testing.” Id. The cardiologist did not prescribe any other follow-up care or treatment. Id.

C. Inmate Assault

On the morning of December 10, 2021, Plaintiff asked to speak with HCSO Officer Sanders at the end of morning recreation, at approximately 11:30 am. ECF No. 141-12, Affidavit of Jesse Travis Sanders at ¶¶ 5, 10; ECF No. 141-13, 12/10/21 Incident Documents at 2. Plaintiff reported that earlier that morning, another inmate named Davis (“I/M Davis”) had swiped him across the head while attempting to get the phone (“the incident”). ECF No. 141-12, Sanders Aff. at ¶ 7; ECF No. 141-13, at 2; ECF No. 51 at 52-53. Plaintiff states that he told Officer Sanders that I/M Davis physically assaulted him and threatened his life. ECF No. 164 at 17.

Officer Sanders listened to Plaintiff, then ensured all inmates entered their cells as recreation had ended. ECF No. 141-12, Sanders Aff. at ¶ 8. Officer. Sanders then went and spoke to I/M Davis, who denied swiping at Plaintiff's head. ECF No. 141-12, Sanders Aff. at ¶ 9; ECF No. 141-13 at 2. I/M Davis said he and Plaintiff were both reaching for the phone at the same time and I/M Davis brushed Plaintiff. Id. I/M Davis' two cellmates corroborated I/M Davis' version of events. Id. Officer Sanders determined the incident was an accident rather than an intentional incident. ECF No. 141-12, Sanders Aff. at ¶ 10. Plaintiff contends that Officer Sanders did not follow JRLDC protocol, which required him to call a code. ECF No. 164 at 17.

Officer Sanders had only been working in Plaintiff's housing unit for a couple of weeks. Id. at ¶ 4. Prior to this incident, Officer Sanders was not aware of any threat to Plaintiff by I/M Davis. Id., ¶ 23. Officer Sanders was also not aware of any problems with I/M Davis prior to the incident. Id.

Later that day, Officer Sanders was letting inmates out of their cells for afternoon recreation. Id. at ¶ 11; ECF No. 51 at 53. As Officer Sanders was talking with an inmate, he heard a “thud” and looked up to the second tier, where he saw Inmate Ryan Simmons (“I/M Simmons”) on the floor with I/M Davis over top of him striking him. ECF No. 141-12 at ¶ 13. Officer Sanders called a “Code Red” (the radio code for an inmate assault), told all inmates to “lock down” (i.e., return to their cells) and ran upstairs, where he separated I/M Simmons and I/M Davis, locking both in their respective cells until backup could arrive. ECF No. 141-12, Sanders Aff at ¶¶ 14-16; ECF No. 141-13 at 3.

Once backup arrived, the unit was locked down, medical responded, I/M Davis was escorted out of the unit to pre-disciplinary hearing detention, and I/M Simmons was moved to another housing unit. ECF No. 141-12, Sanders Aff., ¶ 18; ECF No. 141-13 at 3-6. Because the incident involved a Code Red and subsequent disciplinary charges against I/M Davis, video of the incident was retained by the Detention Center. See ECF No. 141-12, Sanders Aff. at ¶ 17; ECF No. 141-14.

To the extent that the video clearly depicts the events at issue, it will prevail over contrary versions of the events submitted by either side. “[W]hen a video ‘quite clearly contradicts the version of the story told by [the plaintiff] . . . so that no reasonable jury could believe it, a court should not adopt [the plaintiff's] version of the facts for purposes of ruling on a motion for summary judgment.'” Witt v. West Virginia State Police, Troop 2, 633 F.3d 272, 276 (4th Cir. 2011) (alterations in original) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)). However, this principle does not permit a court to “reject a plaintiff's account on summary judgment” if the “documentary evidence, such as a video,” merely “offers some support for a governmental officer's version of events.” Id. (emphasis in original).

Generally, the video confirms that Plaintiff was not involved in the actual fight between I/Ms Simmons and Davis. The video shows I/M Davis exiting his cell, which is D3-202 (in the top tier, right side), as the first I/M out of the cell. ECF No. 141-14, Video, 00:00:01-00:00:02. As I/M Davis walks past cell D3-204 (Plaintiff and I/M Simmons' cell), Plaintiff (a bald, white male) opens the cell door and looks at I/M Davis, who has his head turned away; I/M Davis does not see the door, and he runs into it. Id., Video, 00:00:02-00:00:03. I/M Davis continues past the door, turns to go down the stairs, but about halfway down the stairs, he stops and looks up at an I/M who had come out of Plaintiff's cell, I/M Simmons. Id., Video, 00:00:03-00:00:07. I/M Simmons and I/M Davis converse with each other, as Plaintiff begins to descend the stairs behind I/M Davis, pausing for a few seconds while I/M Davis and I/M Simmons continue to converse with each other. Id., Video, 00:00:07-00:00:37.

Plaintiff contends that I/M Davis began shouting obscenities and threats at Plaintiff, at which time I/M Simmons intervened and told I/M Davis to stop bullying Plaintiff. ECF No. 164 at 18.

Plaintiff reaches the bottom of the stairs and walks over towards the phones in the dayroom while I/M Simmons and I/M Davis continue to converse with each other. Id., Video, 00:00:3700:00:42. I/M Davis then begins to walk back up the stairs, approaches I/M Simmons, who appears to say something to I/M Davis, and I/M Davis then begins to fight I/M Simmons. Id., Video, 00:00:42-00:01:08.

Officer Sanders responds and, as he is going up the stairs, I/M Davis separates from I/M Simmons. Id., Video, 00:01:08-00:01:17. During the entire time of the altercation between I/Ms Davis and Simmons, Plaintiff remained downstairs near the phones. Id., Video, 00:00:42-00:01:17.

Officer Sanders investigated the incident to determine what happened. ECF No. 141-12, Sanders Aff. at ¶ 19. As part of this investigation, written statements from inmates nearby were obtained. ECF No. 141-13 at 7-9. Joseph Olszowka and Richard Smith stated I/M Simmons called I/M Davis the “n-word” and also stated that Plaintiff, who they referred to as a bald, white male, may have played a role in the beginning of the incident. ECF No. 141-13 at 8-9. Plaintiff denies any involvement and indicates that he attempted to ignore I/M Simmons. ECF No. 51 at 53. An officer went to Cell 201 (Plaintiff's cell) and asked if any of the occupants wanted to complete a statement, but none did. ECF No. 141-13 at 7.

Officer Sanders also went to Plaintiff's cell and asked if he wanted to make statement, but Plaintiff declined. ECF No. 141-12, Sanders Aff. at ¶ 19. Plaintiff did not make any further issue of this incident until nine days later, December 19, 2021, when he passed a letter to Officer Cioppa. ECF No. 141-13, at 10-11. According to the Incident Reports documenting Plaintiff's letter, it claimed Plaintiff was being harassed by other inmates and not being allowed to use the phone, and he had been assaulted and reported that to Officer Sanders. Id. Officer Cioppa passed the letter to his supervisor, Cpl. Vermeer, who reclassified and moved Plaintiff to a different housing unit because of his claims of harassment and bullying. Id. at 12.

D. Retaliation

Finally, Plaintiff alleges Officer Hollywood and Cpl. Shover threatened him with retaliation. ECF No. 164 at 19. Specifically, Plaintiff alleges he “continues to live in fear of retaliation because of threats made to me by [Officer] Hollywood and Cpl. Shover.” ECF No. 51 at 60-61. As to Officer Hollywood, Plaintiff alleges in November 2022, Officer Hollywood told him if he sued people at the Detention Center “my [Plaintiff's] life was going to become uncomfortable because they control every aspect of my life.” ECF No. 51 at 47-48. As to Cpl. Shover, Plaintiff alleges in November 2022, Cpl. Shover told him if Plaintiff sued Detention Center employees, “I [Plaintiff] will be moved where there will be shit smeared on my walls and bed.” ECF No. 51 at 46.

Plaintiff's Detention Center records show Plaintiff has not undergone any type of action that could be considered retaliatory. ECF No. 141-4, Piccone Aff. at ¶¶ 24-28. Since December 19, 2021, Plaintiff has been housed continuously in the Detention Center's minimum security unit, which is generally the least restrictive unit and allows inmates the most freedom. Id. at ¶ 25; ECF No. 141-9, Hollywood Aff. at ¶ 24. Additionally, Plaintiff has not received any disciplinary violation from any officer. Id. at ¶¶ 26-27.

LEGAL STANDARD

Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.

Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.

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.”).

DISCUSSION

Plaintiff claims that the HCSO Defendants have violated “one or more of his constitutional rights, including but not limited to: conditions of confinement; equal protection; and repeated violations of his Fifth, Eighth, and Fourteenth Amendment rights.” ECF No. 148 at 6. Plaintiff's claims against HCSO Defendants are related to three specific issues: (1) his dietary needs at the Detention Center, ECF No. 51 at 38-69, 74-95; (2) a heart issue in 2022, alleging interference with Plaintiff's use of a heart monitor prescribed by an outside cardiologist, ECF No. 51 at 59-60, 95-98; and (3) an inmate assault in December of 2021, ECF No. 51 at 52-54, 79-80. Additionally, Plaintiff alleges that HCSO Defendants Officer Hollywood and Cpl. Shover have threatened him with retaliation. ECF No. 51 at 60-61.

Plaintiff's claims are only cognizable under the Fourteenth Amendment. The Fifth Amendment applies only to the federal government. See generally Dusenbery v. United States, 534 U.S. 161, 167 (2002). The Eighth Amendment is inapplicable to pre-trial detainees, as those claims are governed by the Fourteenth Amendment. See Smith v. McGowan, 2019 WL 7882145, at *2 (D.S.C. Oct. 25, 2019), report and recommendation adopted, 2019 WL 7046724 (D.S.C. Dec. 20, 2019).

HCSO Defendants have moved for summary judgment on Plaintiff's claims, ECF No. 141, and Plaintiff has moved for summary judgment on his claims. ECF No. 148. The parties' arguments are addressed below.

A. Food Intolerance

Plaintiff alleges that he has not been provided with meals that accommodate his intolerance to animal proteins. Courts in this district evaluating diet-related claims generally address them as a deliberate indifference to an inmate's conditions of confinement. See, e.g., Goss v. Davis, C. A. No. 2:21-00558-HMH-MGB, 2022 WL 3046897, at *3 (D.S.C. June 3, 2022) (evaluating claims regarding allegedly inadequate diet as a conditions of confinement claim), report and recommendation adopted, 2022 WL 2980793 (D.S.C. July 27, 2022).

To the extent Plaintiff purports to bring a claim against the HCSO Defendants for deliberate indifference to a serious medical condition, this Court previously found that there was not sufficient evidence in the record to establish that Plaintiff has a serious medical condition. See ECF Nos. 175 at 16-21;184 at 3-6, 10. There is no new evidence before the Court from any medical provider or otherwise in opposition to the HCSO Defendants' Motion to establish that Plaintiff has a serious medical condition. Moreover, to show that nonmedical jail officials such as HCSO Defendants are liable for deliberate indifference to an inmate's serious medical need, an inmate must show that the officers “intentionally denied or delayed access to medical care or intentionally interfered with the treatment once prescribed.” Freeman v. Warden, Case No. 8:21-cv-03872-JMC-JDA, 2022 WL 17418249, at *8 (D.S.C. May 31, 2022) (citing Smith v. Smith, 589 F.3d 736, 738-39 (4th Cir. 2009)), report and recommendation adopted, 2022 WL 17261401 (D.S.C. Nov. 29, 2022). There is no evidence before the Court that any HCSO Defendant denied or delayed Plaintiff's access to medical care or intentionally interfered with his treatment regarding his food intolerance. To the extent Plaintiff intends to bring a claim against the HCSO Defendants for deliberate indifference to a serious medical need based upon his animal protein intolerance, the HCSO Defendants are entitled to summary judgment.

The plaintiff in Goss was a convicted prisoner, such that his claims were analyzed under the Eighth Amendment. As set forth below, conditions of confinement of pre-trial detainees are evaluated under the Due Process Clause of the Fourteenth Amendment, which requires that a pretrial detainee not be punished, rather than under the Eighth Amendment's proscription against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535, 537 n.16 (1979); see Hill v. Nicodemus, 979 F.2d 987, 990 (4th Cir. 1992). Regardless, “the due process rights of a pretrial detainee are at least as great as the [E]ighth [A]mendment protections available to the convicted prisoner.” Contreras v. Kinkaid, 1:21cv368 (ATJ/WEF), 2023 WL 3165116, at *9 (E.D. Va. Apr. 28, 2023) (quoting Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988)), appeal dismissed, No. 23-6551, 2023 WL 8614100 (4th Cir. Aug. 15, 2023).

A pretrial detainee's claims of unconstitutional conditions of confinement arise under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Baisi v. Western Regional Jail, et al, No. 3:24-CV-00163, 2024 WL 2099329, at *2 (S.D. W.Va. Apr. 18, 2024), report and recommendation adopted, No. CV 3:24-0163, 2024 WL 2097597 (S.D. W.Va. May 9, 2024) (citing Hammock v. Watts, No. CV TDC-22-0482, 2023 WL 2457242, at *6 (D. Md. Mar. 10, 2023) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)). The Fourteenth Amendment prohibits conditions of confinement that amount to punishment of a pretrial detainee, because “a detainee may not be punished prior to an adjudication of guilt.” Id.

A condition or restriction of confinement is impermissible under the Fourteenth Amendment when it is “(1) imposed with an expressed intent to punish or (2) not reasonably related to a legitimate nonpunitive governmental objective, in which case an intent to punish may be inferred.” Id. (quoting Short v. Hartman, 87 F.4th 593, 606 (4th Cir. 2023)).

1. Serious Deprivation of Basic Human Need

“The protections afforded convicted prisoners under the Eighth Amendment extend to pretrial detainees.” Id. (quoting Prigg v. Baltimore Cnty. Dep't of Corr., No. CV DLB-23-48, 2024 WL 1012885, at *6 (D. Md. Mar. 8, 2024) (citing Bell, 441 U.S. at 545). However, “not every inconvenience encountered during pretrial detention amounts to ‘punishment' in the constitutional sense.” Prigg, 2024 WL 1012885, at *6 (quotingMartin, 849 F.2d at 870). “Prison conditions may be restrictive and even harsh.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citation and internal quotations omitted). Ultimately, the Constitution “does not mandate comfortable prisons, and only those deprivations denying the ‘minimal civilized measure of life's necessities' are sufficiently grave to form the basis” of a constitutional violation. Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

“[F]or prison conditions to rise to the level of unconstitutional punishment, there must be evidence of a serious medical and emotional deterioration attributable to the challenged condition.” Rhodes, 452 U.S. at 347. “Compelling a showing of significant physical or emotional harm, or a grave risk of such harm, infuses an element of objectivity into the analysis, lest resolution of the seriousness of the deprivation devolve into an application of the subjective views of the judges deciding the question.” Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (citing Strickler v. Waters, 989 F.2d 1375, 1379-80 (4th Cir. 1993)).

Here, Plaintiff does not contend that he cannot eat any of the food provided to him by the Detention Center but, instead, argues that he cannot eat meat that is repeatedly part of the meals that are served to him, given his intolerance to animal proteins. “The Fourth Circuit has held that a correctional facility is not obligated to provide a special meal to any inmate if an inmate can voluntarily refrain from eating certain offensive portions of meals and remain healthy.” Blackburn v. South Carolina, No. C A 006-2011-PMD-BM, 2009 WL 632542, at *15 (D.S.C. Mar. 10, 2009) (citing Abernathy v. Cunningham, 393 F.2d 775, 778 (4th Cir. 1968)), aff'd, 404 Fed.Appx. 810 (4^th Cir. 2010). In this case, the evidence before the Court shows that Detention Center staff have attempted to accommodate Plaintiff's dietary needs since his arrival, albeit unsuccessfully on numerous occasions, but that even those meals that contain an animal protein contain several other foods Plaintiff can eat. There is no evidence before the Court otherwise.

Plaintiff admits that he “was served some food he could eat on most days” but contends that the food which he was able to eat “was not sustaining him sufficiently over time.” ECF No. 164 at 25.

Moreover, notwithstanding that Plaintiff has not produced any medical evidence to establish his animal protein intolerance, the Fourth Circuit has recognized the “[constitutional] requirement that prisoners receive special diets when medically appropriate is not without limit. Courts have consistently held that prison officials comply with this mandate when they provide some food that the complaining prisoner is able to eat without compromising his health.” Scinto v. Stansberry, 841 F.3d 219, 233-34 (4th Cir. 2016).

Plaintiff's affidavit testimony that he was told as a child by his pediatrician that he had been diagnosed with a food intolerance is inadmissible hearsay. See Edwards v. Graham Cnty. Jail, No. 1:16-CV-315-FDW, 2017 WL 5894496, at *6 (W.D. N.C. Nov. 29, 2017) (finding that plaintiff's “testimony about allegedly being told he had been diagnosed with having had a heart attack is inadmissible hearsay”). Moreover, other than Plaintiff's assertion in his affidavit, he has presented no evidence that he has been diagnosed by a physician with an intolerance to animal proteins that mandates treatment or otherwise has been treated by a physician for the intolerance. See Brockington v. Pressly, No. CV 9:15-1008-DCN-BM, 2015 WL 9450797, at *4 (D.S.C. Sept. 15, 2015) (recommending summary judgment where plaintiff presented no evidence of his alleged tomato-based food allergy other than his own assertions), report and recommendation adopted, No. CV 9:15-01008-JMC, 2015 WL 9459925 (D.S.C. Dec. 23, 2015).

Plaintiff argues, however, that the failure to provide him with a meatless meal is compromising his health. ECF No. 164 at 14-15, 25. He avers that he has not been able to eat much because his dietary needs are not being met. He states that he has lost weight, experienced stomach and chest pains and suffered extreme emotional distress, including panic attacks and anxiety, as a result of not getting meatless meals. ECF No. 115-1 at 2, ¶ 6, 3, ¶ 13. However, the objective evidence before the Court suggests otherwise.

As to his physical injury, Plaintiff states in one of his affidavits that in early 2022, he weighed himself at the detention housing unit and the scale showed 172 pounds. ECF Nos. 115-2 at ¶ 6; 115-3 at ¶ 13, Aff. of Steven Morgan. The medical records show that, at intake on September 9, 2021, Plaintiff measured 5'11” tall and weighed 195 pounds, with a BMI of 27.2. ECF Nos. 967 at ¶ 5c; 96-8 at 57. Plaintiff avers that by early 2022, he had lost 23 pounds, ECF No. 115-2 at ¶ 6, which is an average weight loss of less than five pounds per month during his first five months of confinement. Plaintiff has not presented any evidence that his initial weight loss during his first five months of incarceration was medically significant. See Kemp v. Drago, No. CA 1:12- 1481-JFA-SVH, 2013 WL 4874972, at *5 (D.S.C. Sept. 11, 2013) (noting that the evidence showed fluctuation in plaintiff's weight and his seventeen-pound weight loss was not medically significant); see also Taskonas v. Cicchi, 308 Fed.Appx. 628, 631-32 (3d Cir. 2009) (finding that twenty-four pound weight loss in two months, along with a list of other medical conditions, did not constitute “serious medical needs”).

Moreover, the medical records for Plaintiff show that on June 6, 2022, Plaintiff weighed 188 pounds (or 85.28 kg) with a BMI of 26. ECF No. 96-8 at 5. Using the weight provided by Plaintiff in early 2022 (172 pounds), it appears that he gained 16 pounds between January and June 2022, for an average weight gain of approximately 3 pounds per month during the second five months of confinement. Plaintiff's weight since early 2022 has remained relatively constant: on August 23, 2022, Plaintiff weighed 188 pounds (or 85.2 kg) with a BMI of 26, and on June 29, 2023, Plaintiff weighed 186 pounds. ECF Nos. 96-7 at ¶ 5c; 96-8 at 93. Dr. Garman, the medical director of the Detention Center, opined to a reasonable degree of medical certainty that Plaintiff's BMI qualifies him as overweight and that, aside from self-reports of fatigue and depression,Plaintiff has never presented with symptoms of malnutrition. ECF No. 96-7 at ¶ 6e-f (noting that signs of malnutrition include a BMI of less than 18.5, as well as reduced appetite, frequent illnesses, slow-healing wounds and feeling weak, tired and cold all the time).

Plaintiff contends that he presented with “feeling weak, tired and sadness” on multiple occasions, suggesting this is evidence of malnourishment. ECF No. 173 at 3. However, there are no such findings in any of the medical records, and there are no such findings or medical evidence before the Court that Plaintiff was malnourished. As addressed in detail below, shortly after Plaintiff's admission to the Detention Center, he submitted a medical request for depression and anxiety. ECF No. 96-8 at 52, 68. He underwent a psychiatric evaluation and was seen regularly for follow up by a mental health care professional, who prescribed medication for Plaintiff's depression. ECF No. 96-8 at 13-37.

Plaintiff objects to Dr. Garman's affidavit and testimony in this case, arguing that it was submitted in bad faith and consists almost entirely of falsified statements. ECF Nos. 164 at 13; 173 at 2-3. However, relevant to the analysis here, Plaintiff has not refuted the objective medical evidence regarding his weight or BMI. He has not submitted any medical evidence to establish he is malnourished. He has not presented any medical evidence that he is underweight for his age and height, and the objective medical evidence in the record establishes that he is overweight. See Wilson v. Dragvoich, No. 96-2635, 1997 WL 799431, at *4 (E.D. Pa. Dec. 31, 1997) (holding that weight loss does not amount to a constitutional violation when prisoner is within normal weight range for his age and height); see also Tyler v. Coe, C. A. No. 9:16-2711-MGL-BM, 2017 WL 1102817, at *2, 6 (D.S.C. Mar. 9, 2017) (recommending dismissal, at *6, of § 1983 dietary complaint where plaintiff provided “no evidence to support his conclusory claim in his Complaint that he was provided with a constitutionally inadequate or improper diet” and noting, at *2, a medical professional provided evidence that “Plaintiff was never malnourished in any way, that no medically significant weight gains/losses were ever present, nor did Plaintiff ever suffer from any serious medical conditions related to his diet”), report and recommendation adopted, 2017 WL 1094257 (D.S.C. Mar. 23, 2017).

Plaintiff emphasizes that he also has suffered emotional injury, specifically that he has depression and emotional distress from his dietary needs not being met. The evidence before the Court shows that, during the early period of his incarceration, Plaintiff asked to be seen by Dr. Leonard on November 21, 2021, and that he was placed on the mental health list. ECF No. 96-8 at 67. On November 23, 2021, Plaintiff submitted a medical request stating, “I am dealing with depression and anxiety, I am not usually one to take medicine, but if I could get a low dose of something to help me I would appreciate it. Thank you.” Id. at 68.

Plaintiff's medical records show he has received ample access to mental healthcare services as a detainee. ECF No. 96-8 at 12-24, 38-40, 42-44, 46, 49-52, 54-56, 94-97. On or about November 30, 2021, Plaintiff was seen for his complaints of depression and anxiety. Id. at 52. According to the intake notes, Plaintiff said he was anxious and depressed because of his incarceration following his bond revocation. Id. He said he preferred not to take medication but was open to a low dose antidepressant. Id. It was recommended that he begin with counseling as his symptoms were within normal limits given his recent incarceration, which Plaintiff agreed to try. Id. Plaintiff was placed on the list to see the mental health counselor and was informed the wait list was roughly two weeks. Id. He was scheduled to see the psychiatrist in December or January. Id. at 51-52.

Plaintiff was seen on January 14, 2022, by psychiatrist Dr. Pamela Crawford (“Dr. Crawford”), who ordered fasting bloodwork and a baseline EKG. Id. at 13-14. Dr. Crawford prescribed Zoloft and Vistaril for Plaintiff's complaints of depression and anxiety, and she diagnosed him with unspecified anxiety disorder and unspecified depressed disorder. Id.

Plaintiff saw Dr. Crawford again on February 23, 2022, and discussed how the Zoloft made him feel. Id. at 15. He also indicated that he continued to have anxiety and bad dreams, particularly after he was punched by another inmate. Id. at 15, 69. Dr. Crawford discussed with him a trial of Trazodone to help with the nightmares, in addition to the Zoloft. Id. at 15. The Vistaril was discontinued at that time, as Plaintiff said it was not helpful. Id. A follow up was scheduled for 4 to 6 weeks. Id.

Plaintiff saw Dr. Crawford again on April 6, 2022. Id. at 17. Plaintiff reported that he still had nightmares on occasion but that he was less anxious than he had been. Id. A follow up was scheduled for 12 weeks. Id. at 18.

Plaintiff saw Dr. Crawford again on May 18, 2022, indicating he began feeling more depressed about 3 weeks prior. Id. at 19. Plaintiff indicated the medication had seemed to be working well but that it had become less effective. Id. He attributed part of it to his diet, stating that he is not receiving the food he is used to. Id. He asked for Dr. Crawford's assistance in getting his diet changed. Id. He also indicated that he thought he would make bond that week and that he planned to follow up with mental health treatment. Id. Dr. Crawford increased his Zoloft and scheduled a follow up for 6 to 8 weeks, or sooner, if needed. Id.

Plaintiff saw Dr. Leonard on July 14, 2022, wherein he continued to report depression and anxiety symptoms and restless sleep. Id. at 22. Dr. Leonard recorded the visit details, indicating that Plaintiff reported “being punched in the head” by another inmate; was upset that he was denied bond in May of 2022; complained of daily sadness, excessive worry and anxiety; and complained about the food and jail conditions, among other things. Id. at 21. Dr. Leonard increased his Zoloft and Trazodone and scheduled a follow up visit for 4 to 6 weeks. Id. at 22.

Plaintiff saw Dr. Leonard on August 25, 2022, indicating that it takes all he has to call his wife and children at night to hear their voices, stating that the children think he is on a business trip. Id. at 23. He complained of fatigue, low energy and no motivation, but he denied any crying spells, excessive anxiety or sleep/appetite problems. Dr. Leonard added Prazosin to Plaintiff's medications, continued the Trazodone and increased the Zoloft. Id. She scheduled Plaintiff for a follow-up appointment in 3 months. Id.

Although Plaintiff's medical records confirm that he suffers from anxiety and depression, the undersigned finds these ailments insufficient to support his claim that Defendants violated his Fourteenth Amendment rights. While one of the many complaints Plaintiff made to Drs. Leonard and Crawford includes food, not every visit concerned complaints about food, nor was any visit solely about food. The mental health records show that Plaintiff's mental health concerns were largely because of his pending criminal charges for murder and criminal conspiracy, as well as the impact his detainment has on his relationship with his family. See ECF No. 96-8 at 13, 38.

Plaintiff disagrees, noting that he is not guilty of the charges he faces, that his incarceration has not negatively impacted his relationship with his family, and that he has presented with symptoms of malnutrition. ECF No. 173 at 5. However, there is no evidence connecting his confirmed medical conditions of generalized anxiety and depression to an inadequate diet or malnourishment. Moreover, even if Plaintiff could provide such evidence, the record reflects that Plaintiff's confirmed medical conditions are being adequately managed with medication and regular exams.

Ultimately, Plaintiff has not offered evidence that there was no combination of foods in each meal that would have provided him with adequate sustenance without causing adverse medical consequences, instead asserting only that a lot of his meals included meat he cannot eat. Based on the foregoing, Plaintiff cannot establish he has suffered an “extreme deprivation” for purposes of his § 1983 diet claims. See Glenn v. Ruffin, C/A No. 6:22-cv-01320-DCC-KFM, 2022 WL 17723810, at *5 (D.S.C. Sept. 8, 2022) (recommending summary dismissal of § 1983 conditions of confinement diet claim where “plaintiff has not plausibly alleged that there was no combination of foods in each meal that would have provided him with adequate sustenance without adverse medical consequences”), report and recommendation adopted, 2022 WL 17718814 (D.S.C. Dec. 15, 2022), aff'd, No. 23-6034, 2023 WL 3144555 (4th Cir. Apr. 28, 2023); Goss, 2022 WL 3046897, at *5 (dismissing diet-related § 1983 claim because “Plaintiff cannot raise a genuine issue of fact as to whether he suffered from a sufficiently serious deprivation of a basic human need” where “Plaintiff provides no evidence connecting his confirmed medical conditions to an inadequate diet”); Williams v. Stirling, No. 2:18-CV-1690-CMC-MGB, 2019 WL 6094512, at *12 (D.S.C. May 21, 2019) (dismissing a deliberate-indifference conditions of confinement claim where plaintiff “failed to produce evidence of or even allege any serious or significant physical or emotional injury resulting from the [alleged] conditions”), report and recommendation adopted, No. 2:18-CV-1690-CMC, 2019 WL 3729396 (D.S.C. Aug. 8, 2019), aff'd, 806 Fed.Appx. 248 (4th Cir. 2020).

2. Deliberate indifference to prison conditions on the part of prison officials

To establish a conditions of confinement claim, a pretrial detainee must show that “the condition or restriction was imposed with an express intent to punish or was not reasonably related to a legitimate nonpunitive government objective.” Prigg, 2024 WL 1012885, at *6 (quoting Timms v. U.S. Att'y Gen., 93 F.4th 187, 191 at n.4 (4th Cir. Feb. 14, 2024) (citing Matherly v. Andrews, 859 F.3d 264, 275 (4th Cir. 2017)); see also Short, 87 F.4th at 611 (noting plaintiff can state a claim based on a “governmental action” that “is not rationally related to a legitimate nonpunitive governmental purpose or is excessive in relation to that purpose”) (citation an internal quotation marks omitted).

To succeed on his Fourteenth Amendment claim, Plaintiff must show, under a purely objective standard, that the defendants knew or should have known that a substantial risk of harm to Plaintiff existed; the defendants were intentionally, knowingly, or recklessly indifferent to the substantial risk of harm; and Plaintiff was harmed as a result. Short, 87 F.4th at 604-05, 611 (holding that “pretrial detainees can state a claim under the Fourteenth Amendment, based on a purely objective standard, for prison officials' deliberate indifference to excessive risks of harm.”).

At the time the HCSO Defendants filed their summary judgment brief, they did not have the benefit of the Fourth Circuit's holding in Short v. Hartman, 87 F.4th 593 (4th Cir. 2023). Instead, they relied on the Fourth Circuit's previous approach to pretrial detainees' Fourteenth Amendment claims, applying the same two-prong test used for prisoners alleging cruel and unusual punishment under the Eighth Amendment. Under the previous approach, a prisoner was required to prove two elements: (1) that objectively the deprivation of a basic human need was sufficiently serious, and (2) that subjectively the prison officials acted with a “sufficiently culpable state of mind.” See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (referencing Wilson v. Seiter, 501 U.S. 294, 29798 (1991)). With respect to the second prong, the subjective “state of mind” is one of “deliberate indifference,” meaning the official knew of and disregarded “an excessive risk to inmate health or safety.” Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). While a “showing of subjective intent can still help a pretrial detainee state a claim for action that amounts to punishment,” this showing is no longer required under Short. See Short, 87 F.4th at 609 (referencing Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015)).

Here, there is no evidence before the Court to show that the meals served to Plaintiff were with an express intent to punish him, were not reasonably related to a legitimate nonpunitive government objective or were excessive in relation to the Detention Center's purpose.

Indeed, the evidence before the Court shows that the Detention Center has a purposeful process for handling dietary needs for detainees. Specifically, the Detention Center generally offers two diets to inmates: the normal diet and the “Alternate Meal.” ECF Nos. 141-2, Affidavit of Joey Johnson at ¶ 5; 141-3, Affidavit of Carmen Monachelli at ¶ 3. Both diets have been reviewed by a certified dietician to meet nutritional and caloric standards. Id. For lunch and dinner, the normal diet contains a protein source that is usually (but not always) an animal based protein, such as beef, chicken, or turkey, but all other portions of the meal are not animal protein based. ECF No. 141-3, Monachelli Aff. at ¶ 4. At breakfast, the normal diet can contain an animal based protein source, but does not always. Id. The Alternate Meal does not contain any beef, chicken, or pork or their byproducts and is also referred to as the “no meat” diet because it contains either tuna fish or tofu as a protein substitute. ECF Nos. 141-2, Johnson Aff. at ¶ 5; 141-3, Monachelli Aff. at ¶ 5.

Absent a diagnosed medical condition or documented sincerely held religious belief, providing individualized meals for inmates can be perceived as preferential treatment or favoritism that can negatively impact the safety and security of the Detention Center, its staff, and inmates. ECF No. 141-2 at ¶ 4. These are legitimate, nonpunitive reasons for addressing or handling the food served to Plaintiff.

The Detention Center's Food Services staff prepares food for the inmates, including Plaintiff. They prepare special diet trays for inmates who have been approved to receive a special diet based upon a report generated using the Detention Center's inmate management software (Offendertrak), which identifies all inmates with a dietary alert and aggregates that information into a list which is printed by Food Services staff. ECF No. 141-3, Monachelli Aff. at ¶ 9. A single kitchen staff member will prepare the special diet trays in accordance with the type of diet specified in the alert to ensure that special diet trays are prepared in accordance with the report. Id. at ¶ 10. If an inmate does not have an active dietary alert in Offendertrak, they will receive the normal meal service. Id. at ¶ 12. Special diet trays are identified by red meal trays (as opposed to normal brown trays) or, when inmates receive a bag meal, by a Styrofoam tray. Id. at ¶ 7. Regardless of the container, all special diet trays contain a sticker with the inmate's name, housing unit, and diet. Id. at ¶ 10.

There was no medical evidence before any of the HCSO Defendants diagnosing Plaintiff with an intolerance to animal proteins, nor any indication of a sincerely head religious belief that would not allow consumption of animal proteins. Plaintiff takes issue with having to establish a diagnosed medical condition, arguing that his medical needs take precedence when there is tension between those needs and a prison's alleged need to adhere to policy. ECF No. 164 at 9. The case cited by Plaintiff, Miltier v. Beorn, 896 F.2d 848, 853 (4th Cir. 1990), is inapplicable, in that in involved a medical personnel's failure to diagnose a cardiac issue after an inmate presented with symptoms of the same. Additionally, the case was overruled. See Stevens v. Holler, 68 F.4th 921 (4th Cir. 2023) (recognizing overruling of Miltier). Regardless, there is no evidence before the Court that Plaintiff presented with a medical condition that was “so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008).

Moreover, there were initially no dietary alerts entered for Plaintiff in Offendertrak, such that he was served the normal meal. Dietary alerts are confirmed either by medical staff (if the alert is due to a diagnosed medical condition) or by the chaplain's office (if the alert is due to a documented sincerely held religious belief) and then entered by those staff members into Offendertrak. ECF No. 141-4, Affidavit of Lisa Piccone at ¶ 4. Detention center officers posted in housing units do not have the authority to create or modify a dietary alert, nor do Food Services Staff. Id. at ¶ 5; ECF No. 141-3, Monachelli Aff. at ¶ 11.

During the first few months of Plaintiff's incarceration, there were some medical alerts placed in Offendertrak for Plaintiff, to either receive snack bags or a meal with tofu (as opposed to the Alternate Meal with tuna fish) and that there were instances where those alerts were removed and then replaced by medical staff. Between September of 2021 and early February of 2022, it appears there were challenges with consistently serving Plaintiff either a snack bag or meal with tofu often, but not always, because of the medical alert being removed from Offendertrak. There is no evidence that any HCSO Defendant ever removed any medical alert from Offendertrak. And, there is no evidence before the Court that these challenges with Plaintiff's meals were based upon an intent to punish Plaintiff or deliberate indifference to his conditions of confinement. See Short, 87 F.4th at 604-05, 611

Indeed, the evidence shows that, after multiple alerts had been placed, removed and replaced on Offendertrak by medical personnel, on January 11, 2022, Maj. Safford received an email from Plaintiff's wife regarding Plaintiff's dietary needs. ECF No. 141-5, Safford Aff. at ¶¶ 5-6 and Exhibit A thereto. Prior to receiving that email, Maj. Safford had no direct involvement with Plaintiff or his dietary complaints. Id. at ¶ 5. Maj. Safford immediately asked Cpl. Atwood, who assisted the Chaplain as the Programs & Services corporal, to look into the matter, because he was familiar with special diet requests (all religious diet requests are approved by the chaplain's office). Id. at ¶ 7; ECF No. 141-8, Affidavit of Steven Atwood, at ¶ 6. Cpl. Atwood did so and determined that Plaintiff did not have any documented religious diet alert, but did have a medical diet alert. ECF No. 141-8, Atwood Aff. at ¶ 7.

During this meeting, Plaintiff explained to Nurse Lawson his dietary issues, including that he could not eat fish. Id. Nurse Lawson proposed that, if the Alternate Diet was not satisfactory to Plaintiff, he could be provided with the normal diet supplemented with “snack bags” in the morning and evening, and he could just not eat the protein source on the normal diet tray. ECF No. 141-8 at ¶ 11. Upon getting a report from Cpl. Atwood on the issue, Maj. Safford believed Plaintiff's complaints had been resolved. ECF No. 141-5 at ¶¶ 12-13.

On January 14, 2022, Plaintiff's “Can Not Eat Meat” dietary alert was replaced by a medical staff member with a new dietary alert that stated “Snack Bag Every AM and PM per NP.” ECF No. 141-5, Safford Aff. at ¶¶ 31(b), 31(c). Plaintiff contends that his dietary needs were met for one day before a medical staff member removed the medical alert from his file. ECF Nos. 164 at 7; 51 at 83, ¶ 28. He states that Cpl. Gause told him that she saw a note “in the system” that Plaintiff should be receiving a snack bag but admitted she did not have a snack bag for him. ECF Nos. 164 at 7 (citing Dec. Facts, p. 44; Morgan Aff. at p. 9); 51 at 83, ¶ 27.

Maj. Joey Johnson, at the time the Detention Center's Deputy Director, became aware of Plaintiff's dietary issues on January 19, 2022, but also understood that Plaintiff had agreed to the “snack bag” plan proposed by Nurse Lawson and that Plaintiff's dietary complaints were resolved. ECF No. 141-2, Johnson Aff. at ¶ 7.

While logbook entries show that Plaintiff was receiving snack bags at the end of January (ECF No. 141-6 at HCSO 000183, 000184, 000185), Plaintiff states that he did not start receiving snack bags until “much later” and never received them twice daily consistently. ECF No. 115-2 at ¶ 27. Plaintiff contends that he continued to receive meat throughout January and notified various HCSO Defendants. ECF No. 51 at 45-46, 48-50, 54-56, 57, 84-91.

Plaintiff also states that “[o]fficers documented in several logbook entries indications of times when Plaintiff was denied adequate meals.” ECF No. 164 at 8. He cites to page numbers HSCO 167, 168, 169, 174, 176, 177, 178, 179, 180, 181 and 192. However, only HSCO 167 is in evidence, having been submitted under seal, and there is no indication in that document that Plaintiff was denied an adequate meal. Regardless, the undersigned has considered Plaintiff's testimony that there were times we he still received meat with his meals.

The next day, February 8, 2022, Maj. Safford received another email from Plaintiff's wife making further complaints about Plaintiff's diet. ECF No. 141-5, Safford Aff. at ¶ 23 and Exhibit C thereto. Maj. Safford was surprised to receive the email, as she believed Plaintiff's diet issue had been resolved, but he immediately forwarded the email to Maj. Johnson, who informed Maj. Safford he was already aware of the issue and consulting with the medical staff to address it. ECF Nos. 141-5, Safford Aff. at ¶¶ 24-25; 141-2, Johnson Aff at ¶ 11. Given Plaintiff's continued complaints, the likelihood that Plaintiff's detainment at the Detention Center would be lengthy, and that it was not financially feasible to conclusively determine whether Plaintiff had his claimed condition, Maj. Johnson contacted Mr. Carmen Monachelli (“Mr. Monachelli”), the Detention Center's Food Services Director, to determine whether there was a more viable long-term solution than the current “snack bag” supplement to the normal diet. ECF No. 141-2, Johnson Aff. at ¶ 12.

Mr. Monachelli was able to create a diet where Plaintiff received tofu as a substitute for any meat (including fish) portion served. Id., ¶ 13; ECF No. 141-3, Monachelli Aff. at ¶¶ 18-19. Medical staff was consulted about the new diet and agreed it should address Plaintiff's claimed dietary needs. ECF No. 141-2, Johnson Aff. at ¶ 13.

Plaintiff argues that the HCSO Defendants should have come up with the tofu solution much earlier, suggesting that the HCSO Defendants were not taking his dietary needs seriously. ECF No. 164 at 10. He argues that “Defendants allowed Plaintiff to go several months without adequate meals, failed to take his medical needs seriously, and simply substituted tofu for meat beginning on February 10, 2022 (Med. Rec. 91), and only after S.L.E.D. intervened (Medicko 122123).” ECF No. 164 at 29.

Plaintiff also contends that the Detention Center should incur the cost of having his animal protein intolerance diagnosed by a physician for purposes of addressing his dietary needs. ECF No. 164 at 9-11. Plaintiff has not provided any relevant authority in support of this argument, nor is the Court aware of any. Regardless, however, the issue is moot in light of the tofu solution created.

However, these arguments ignore the absence of a medical diagnosis dictating a tofu substitute and the Detention Center's stated purposes for not providing requested meals to individual inmates. To be clear, it appears to have taken some time to address Plaintiff's dietary needs. However, there is no evidence that providing meat in Plaintiff's meal was an express intent to punish him or objectively unreasonable. While it took several months to find a solution to the unique challenge presented, the evidence shows, at best, a delay in finding a solution. See Short, 87 F.4th at 611-12 (“[I]t is still not enough for the plaintiff to allege that the defendant negligently or accidentally failed to do right by the detainee.”) (citing Kingsley v. Hendrickson, 576 U.S. 389, 396 (2015)). It does not, however, show that any HCSO Defendant was intentionally, knowingly, or recklessly indifferent to the substantial risk of harm to Plaintiff or that any HCSO Defendant's actions or inactions were “objectively unreasonable.'” See Short, 87 F.4th at 611 (quoting Kingsley, 576 U.S. at 397).

Notwithstanding the solution in place, Plaintiff states that, even now, not all his meals contain tofu and that he still receives meat sometimes. ECF No. 148 at 24-25. There is competing testimony of the parties as to how often Plaintiff currently receives a meal where there is no animal protein on his meal tray. Plaintiff contends that he is otherwise able to keep his weight up because he purchases food at the commissary. ECF No. 148 at 23. However, the evidence from HCSO Defendants also shows that Plaintiff skipped breakfast on 54 of the 55 days between December 20, 2022, and February 13, 2023, which is undisputed by Plaintiff. ECF 141-4, ¶ 16 and Exhibit A thereto, passim. While Plaintiff may choose not to eat food offered to him by the Detention Center and eat commissary food instead, that does not establish liability as to the HCSO Defendants.

As set forth in Section A.1. above, Plaintiff has not established a serious deprivation of a basic need. Absent any such showing, the undersigned finds that Plaintiff has not established a material question of fact for purposes of any Fourteenth Amendment claim based upon his conditions of confinement against any HCSO Defendant.

B. Equal Protection Claim

Plaintiff also argues that the HCSO Defendants violated his equal protection rights under the Fourteenth Amendment. ECF No. 173 at 6. Specifically, Plaintiff claims that other inmates who preferred particular diets but did not have a medical diagnosis were provided food to accommodate their requests while Plaintiff was not, identifying two other inmates housed in the Detention Center. ECF No. 115 at 54-55; see also ECF No. 99.

HCSO Defendants argue that Plaintiff did not allege an equal protection claim in his Second Amended Complaint. ECF No. 159 at 5. Plaintiff argues that he did. ECF No. 173 at 6-7. Review of Plaintiff's Second Amended Complaint does not show that he asserted an equal protection claim. Because “[a] plaintiff cannot use a response to a motion for summary judgment to amend or correct a complaint challenged by the motion for summary judgment,” Kershner v. Wright, No. 7:16-CV00063, 2016 WL 7131584, at *1 n.1 (W.D. Va. Dec. 5, 2016) (citing Cloaninger v. McDevitt, 555 F.3d 324, 336 (4th Cir. 2009)), this newly asserted equal protection claim is not properly before the Court. See also Wright v. Newsome, No. 2:18-cv-01587-JMC-MGB, 2019 WL 6091065, at *4 (D.S.C. June 25, 2019) (collecting cases and noting that “[a] plaintiff may not argue a new claim in response to a motion for summary judgment” and “parties cannot amend their complaints through briefing or oral advocacy”), report and recommendation adopted, 2019 WL 3852506 (D.S.C. Aug. 16, 2019).

Even if Plaintiff had asserted an equal protection claim in the operative Second Amended Complaint, the undersigned finds that Plaintiff has failed to establish such a claim. The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “To succeed on an equal protection claim, a prisoner must first show that he was treated differently from others who were similarly situated and that the unequal treatment resulted from intentional or purposeful discrimination.” Daye v. Rubenstein, 417 Fed.Appx. 317, 318 (4th Cir. 2011). Further, “[t]he plaintiff must show that he/she was victimized because of some suspect classification, which is an essential element of an equal protection claim.” Goins v. Turner, 4:15-cv-1515-RMG-TER, 2016 WL 11410287, at *3 (D.S.C. May 26, 2016) (internal quotations and citation omitted), report and recommendation adopted, 2016 WL 3457162 (D.S.C. June 23, 2016).

Plaintiff does not claim that the HCSO Defendants treated him differently because of any suspect or protected classification, such as race or gender. Moreover, Plaintiff has not sufficiently established that the two inmates to whom he refers were similarly situated in that neither of these inmates requested a different type of food but, instead, either requested unseasoned (bland) food or soft food. See McKubbin v. Pettiford, C. A. No. 8:08-3248-HMH-BHH, 2009 WL 3245486, at *6 (D.S.C. Oct. 1, 2009) (finding that “the plaintiff's claim fails because he cannot make any initial showing that he is similarly situated to the inmates with whom he attempts to compare himself').

Further, and, perhaps, more importantly, the evidence shows that, as of February 2022, the HCSO Defendants ultimately created a unique diet for Plaintiff. Beyond his failure to show unequal treatment, there is no evidence that any HCSO Defendant discriminated against Plaintiff. Accordingly, Plaintiff cannot establish any equal protection claim against any of the HCSO Defendants.

C. Heart Monitor

Plaintiff also asserts a claim for deliberate indifference to a serious medical need arising from his allegations regarding his heart monitor. To establish a claim for deliberate indifference to a serious medical need, the specific type of deliberate indifference claim at issue in this case, Plaintiff, as a pretrial detainee, must show that (1) he had a medical condition or injury that posed a substantial risk of serious harm; (2) the defendant intentionally, knowingly, or recklessly acted or failed to act to appropriately address the risk that the condition posed; (3) the defendant knew or should have known (a) that the detainee had that condition and (b) that the defendant's action or inaction posed an unjustifiably high risk of harm; and (4) as a result, the detainee was harmed. Short, 87 F.4th at 611 (citing Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017); Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018); Miranda v. County of Lake, 900 F.3d 335, 352-53 (7th Cir. 2018); Brawner v. Scott County, 14 F.4th 585, 596-97 (6th Cir. 2021)).

First, Plaintiff has not established he has a serious medical condition pertaining to his heart. Plaintiff states that he suffered from fatigue, anxiety, panic, an increased heart rate, stomach and chest pain, and pressure in his chest. ECF Nos. 115-2 at ¶¶ 13, 26, 29; 148 at 4. He contends that he was diagnosed with atrial fibrillation in February of 2022, which constitutes a serious medical condition. ECF No. 148 at 4 (citing ECF No. 96-8 at 47, medical record dated 2-16-22). However, Plaintiff's medical records show that his outside cardiologist diagnosed him as not having any cardiac condition. His cardiologist stated: “I reassured him that his symptoms are unlikely coming from his heart. So far no major abnormality noted on the cardiac testing. Rare PVCs and occasional PAC's on Holter [monitor] - not symptomatic. Will not introduce any medication at this time.” ECF No. 96-8 at 3.

Nor would an alleged heart condition that is undiagnosable by a cardiologist be so obvious that even a lay person would easily recognize the necessity for a doctor's attention. See Short, 87 F.4th at 612 (“A condition is objectively serious if it is 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.”) (citation and internal quotation marks omitted). Because Plaintiff has not established that he had a serious medical condition related to his heart, he cannot make out a claim for deliberate indifference to a serious medical need.

Second, Plaintiff has failed to show that any HCSO Defendant (1) intentionally, knowingly, or recklessly acted or failed to act to appropriately address the risk that the condition posed; (2) knew or should have known (a) that Plaintiff had that condition and (b) that the defendant's action or inaction posed an unjustifiably high risk of harm; and (3) as a result, he was harmed. See Short, 87 F.4th at 611.

As an initial matter, the only HCSO Defendant against whom this claim appears to be lodged is Cpl. Collier. ECF No. 51 at 59-60, 95-98; see also ECF No. 164 at 15-17. Specifically, Plaintiff contends that when he returned from the cardiologist with the heart monitor, Cpl. Collier took the heart monitor from Plaintiff and placed it at the officer's desk against the wishes of Plaintiff. The crux of Plaintiff's complaint is that his heart monitor was never connected long enough, at any point during the four week period it was prescribed, to record any data because it was kept at the officer's desk and he was denied access to it. ECF No. 164 at 16.

Plaintiff emphasizes that the heart monitor was prescribed for him on March 10, 2022, though the prescription date does not impact the analysis of this claim. ECF No. 164 at 16.

However, there is no evidence before the Court to suggest deliberate indifference by Cpl. Collier or any other HCSO Defendant. The evidence establishes that Cpl. Collier placed the heart monitor at the officer's desk consistent with Detention Center practices related to objects that could potentially be used for contraband, which is a concern in the penological environment. ECF No. 141-11, Collier Aff. at ¶¶ 8-9. Additionally, Cpl. Collier first contacted the medical office regarding the monitor and was informed that it was appropriate for the device to stay at the officer's desk. Id. at ¶¶ 10-11. This is consistent with the guidance that medical staff provided to HCSO Defendants. ECF No. 141-16, Heart Monitor Emails. Because Cpl. Collier is not a medical professional, he was entitled to rely upon medical professionals in such areas requiring medical expertise. See Shakka, 71 F.3d at 167 (non-medical prison personnel entitled to rely upon medical personnel's judgment); Miltier, 896 F.2d at 854 (non-medical prison officials entitled to rely upon medical personnel's expertise), overruled in part on other grounds by Farmer, 511 U.S. at 837.

It is undisputed that, on March 16, 2022, the heart monitor study ended because of an inability to record or collect data. ECF No. 96-8 at 44. The cardiologist noted that the heart rate monitor previously given to Plaintiff in March did not perform and ordered a follow-up appointment for Plaintiff, noting they would instead look at a Holter monitor for 48 hours. ECF No. 96-8 at 6. There is no evidence before the Court that Cpl. Collier or any other HCSO Defendant prevented or otherwise interfered with any follow-up treatment of Plaintiff.

On April 4, 2022, Plaintiff saw an outside cardiologist for a follow-up appointment, at which time the stress test performed on him was “clinically electrically negative” and there was no ECG evidence of stress-induced arrhythmia or stress-induced ischemia. ECF No. 96-8 at 9. On June 6, 2022, Plaintiff saw an outside cardiologist for a follow up visit, during which the cardiologist again noted that Plaintiff's stress test was “clinically negative” and there was no evidence of stress-induced arrhythmia or stress-induced ischemia. ECF No. 98-6 at 6. On or about July 6, 2022, Plaintiff was scheduled for a follow-up outside cardiology appointment to get the Holter monitor placed, but Plaintiff asked the appointment to be rescheduled. ECF 98-6 at 40-41. The appointment was rescheduled, and Plaintiff was placed on a Holter monitor. Plaintiff saw the cardiologist on August 23, 2022, at which time the cardiologist “reviewed the results of the Holter monitor” with Plaintiff. ECF No. 98-6 at 2. The cardiologist also performed a stress test, noting it was normal. Id. at 3. The cardiologist “reassured [Plaintiff] that his symptoms are unlikely coming from his heart . . . [and] no major abnormality noted on the cardiac testing.” Id. The cardiologist did not prescribe any medication nor other follow-up care or treatment. Id.

The evidence shows that Plaintiff does not have a heart condition; Plaintiff was referred to an outside cardiologist for his complaints of shortness of breath and dizziness, whom Plaintiff saw on at least three occasions; and the cardiologist performed a full cardiac workup and released Plaintiff from care. There is no evidence that Cpl. Collier or any other HCSO Defendant acted or failed to act “in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known.” See Short, 87 F.4th at 611.

Under these circumstances, there is no question of material fact regarding Plaintiff's medical care. Plaintiff has failed to show any genuine issue of fact that any HCSO Defendant's action or inaction regarding Plaintiff's heart issues was objectively unreasonable or that he was harmed as a result of any such action or inaction. The HCSO Defendants are entitled to summary judgment on Plaintiff's claim for deliberate indifference to a serious medical need regarding his heart monitor.

D. Failure to Protect

A pretrial detainee's failure-to-protect claim constitutes a due process claim under the Fourteenth Amendment. Pacheco v. Whitley, No. 5:23-CV-118-GCM, 2024 WL 436907, at *5 (W.D. N.C. Feb. 5, 2024) (citing Farmer, 511 U.S. 825; Brown v. Harris, 240 F.3d 383, 388-90 (4th Cir. 2001) (applying Farmer to a pretrial detainee's failure to protect and medical claims)). To state a claim for failure to protect from attack by another detainee, a pretrial detainee first must show an objectively “serious deprivation of his rights in the form of a serious or significant physical or emotional injury” or substantial risk of either injury. Prigg, 2024 WL 1012885, at *5 (quoting Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014)). This inquiry requires this Court to “assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Id. (quoting Helling v. McKinney, 509 U.S. 25, 36 (1993)).

Then, as with his other Fourteenth Amendment claims, Plaintiff must show that the injury or risk of injury resulted from the defendant's action or inaction, and that the governmental action he challenges is not rationally related to a legitimate nonpunitive governmental purpose or is excessive in relation to that purpose. Id. (citing Short, 87 F.4th at 611). A pretrial detainee can establish a Fourteenth Amendment claim “on [a] purely objective basis” because “Kingsley's objective test extends to all pretrial detainee claims under the Fourteenth Amendment . . . for deliberate indifference to an excessive risk of harm.” Short, 87 F.4th at 610-11 (citing 576 U.S. at 398).

Plaintiff's claim is based upon an assault he states occurred in December 2021. Specifically, he states that I/M Davis physically assaulted him and threatened his life while he was talking on the telephone to his wife in December 2021. ECF No. 164 at 17. He contends that he reported this incident to Officer Sanders, but that Officer Sanders “did not follow protocol, which required him to call a code as soon as he learned of the incident.” Id. As an initial matter, there is no evidence before the Court that Officer Sanders was required to call a code when he learns after the fact that an inmate claims he was assaulted. Moreover, the evidence before the Court shows that Officer Sanders took action by investigating Plaintiff's complaint of an assault by I/M Davis, including speaking to eyewitnesses. ECF No. 141-12, Sanders Aff. at ¶¶ 9-10; ECF No. 141-13 at HCSO 082. After completing his investigation, Officer Sanders determined that the contact between Plaintiff and I/M Davis occurred while each was attempting to use the phone, was inadvertent, and required no further action. Id.

Plaintiff contends that by Officer Sanders' “own admission, he should have ‘radioed a Code Red.'” ECF No. 164 at 32 (citing Sanders Aff. at 14). The undersigned has not been able to ascertain any such admission regarding the incident at the telephones in December of 2021.

Plaintiff takes issue with the version of events Officer Sanders credited, arguing that the only eyewitnesses he interviewed were Plaintiff and I/M Davis. ECF No. 164 at 32. He emphasizes that Officer Sanders asked “the assaulting inmate's roommates in the assaulting inmate's presence for their version of events, which of course corroborated the assaulting inmate's story.” ECF No. 164 at 18. While Plaintiff disagrees with Officer Sanders conclusions regarding the assault, his preference for a different interview approach or personal belief that a code red should have been called does not establish deliberate indifference by Officer Sanders.

Plaintiff has not shown and cannot establish that Officer Sanders or any other HCSO Defendant was aware of any risk of harm to Plaintiff by I/M Davis prior to this incident at the telephone in December 2021. Nor has he shown that following the incident, I/M Davis was involved in any further incidents with Plaintiff. The only evidence before the Court establishes that, at no time prior to this December 2021 incident, was Officer Sanders aware of any threat or danger to Plaintiff from I/M Davis or any other person nor were there any “keep separate” orders entered for Plaintiff or I/M Davis. ECF No. 141-12, Sanders Aff. at ¶ 23.

Plaintiff argues that these statements are “deceiving” because Officer Sanders' lack of knowledge “has never been a point of contention.” ECF No. 164 at 33. However, the lack of prior knowledge of any risk of harm to Plaintiff is fatal to Plaintiff” s claim. The single incident between Plaintiff and I/M Davis, without any prior knowledge by Officer Sanders, is insufficient alone to establish a failure to protect claim as a matter of law. See Herring v. S.C. Dep't of Corr., C/A No. 1:20-2909-MBS-SVH, 2020 WL 4904823, at *2 (D.S.C. Aug. 20, 2020) (finding failure to protect claim should be dismissed where there was “no information that [defendant] was aware of any risk of harm to Plaintiff prior to his assault”); Lyles v. Sterling, C/A No. 9:17-149-CMC, 2018 WL 1737091, at *3 (D.S.C. Apr. 11, 2018) (dismissing failure to protect claim where plaintiff did not allege “he informed a prison official he was worried for his safety” or that “any officer was present during the attack and failed to take action”), aff'd, 735 Fed.Appx. 97 (4th Cir. 2018); Wright v. Harley, No. 9:11-2839-RBH-BM, 2012 WL 1865685, at *6 (D.S.C. Apr. 24, 2012) (recommending dismissal of failure to protect claim where evidence “fails to reveal any advance knowledge by [defendant] or anyone else at the jail that [the other inmate] harbored any type of animosity towards the [p]laintiff, or that there was any danger associated with placing [p]laintiff in the same cell with [the other inmate]”), report and recommendation adopted, 2012 WL 1866371 (D.S.C. May 22, 2012).

Plaintiff emphasizes that later that day, I/M Davis assaulted another inmate - but not Plaintiff - and was disciplined for this second assault. ECF Nos. 51 at 79-80, ¶ 17; 164 at 33. However, the evidence before the Court establishes that Officer Sanders responded promptly and appropriately to this incident. Moreover, this incident did not involve an assault on Plaintiff but, instead, Plaintiff's cellmate. ECF No. 141-13 at HCSO 98-99. To the extent Plaintiff is attempting to assert claims on behalf of his cellmate, he lacks standing to pursue such claims. “Although a pro se party like Plaintiff may bring suit for his own injuries, he does not have standing to sue on behalf of another detainee.” Rogers v. Greenville Cnty. Det. Ctr., No. 2:22-cv-00078-DCN-MGB, 2022 WL 17095468, at *4 (D.S.C. Oct. 20, 2022) (citing Hummer v. Dalton, 657 F.2d 621, 625 (4th Cir. 1981)), report and recommendation adopted, 2022 WL 17094627 (D.S.C. Nov. 21, 2022).

Accordingly, the HCSO Defendants are entitled to summary judgment on Plaintiff's § 1983 claim of failure to protect.

E. Retaliation

Plaintiff asserts generally that Officer Hollywood and Cpl. Shover threatened to retaliate against him because he filed the instant suit. He has clarified that he is not asserting a retaliation claim but, instead, “threats of retaliation.” ECF No. 164 at 19. As a practical matter, it appears Plaintiff may have abandoned any retaliation claim, as he did not mount any legal argument against the claim in his Response in Opposition. See ECF No. 164.

Moreover, Plaintiff cannot demonstrate the elements necessary for this claim. To state a colorable First Amendment retaliation claim, a plaintiff “must allege that (1) he engaged in protected First Amendment activity, (2) the defendant took some action that adversely affected his First Amendment rights, and (3) there was a causal relationship between his protected activity and the defendant's conduct.” Martin v. Duffy, 977 F.3d 294, 299 (4th Cir. 2020) (cleaned up). A claim for retaliation under the First Amendment carries a “rigorous” causation requirement. Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015) (“Of note, our causal requirement is ‘rigorous.'”). “It is not enough that the protected expression played a role or was a motivating factor in the retaliation; claimant must show that ‘but for' the protected expression the state actor would not have taken the alleged retaliatory action.” Id. (cleaned up).

Here, Plaintiff has not identified any action, adverse or otherwise, which he attributes to a retaliatory animus. At most, he alleges that he “feared” retaliation based on alleged threats. While Officer Hollywood and Cpl. Shover deny ever threatening Plaintiff or taking any type of action against him that could be remotely considered retaliatory, there is no evidence before the Court that either of them retaliated against Plaintiff. ECF No. 141-9, Hollywood Aff. at ¶ 23; ECF No. 141-15, Shover Aff. at ¶¶ 21-22. Accordingly, Plaintiff's allegations are insufficient to even state a claim for retaliation against Officer Hollywood, Cpl. Shover, or any other HCSO Defendant.

The evidence before the Court shows that Plaintiff is currently housed in the most favorable housing unit available, a minimum-security unit more akin to a dormitory where cells have no doors and inmates share large communal bathrooms instead of having bathroom facilities in their cell. ECF No. 141-4, Piccone Aff. at ¶ 25; ECF No. 141-9, Hollywood Aff. at ¶ 24. Further, Plaintiff enjoys more privileges than inmates in general population and has not had his privileges curtailed. ECF No. 141-4, Piccone Aff. at ¶¶ 25-26. Additionally, Plaintiff has not incurred any disciplinary charges, nor is there any other evidence that any officer engaged in behavior that could remotely be considered retaliatory. Id. at ¶ 27. Finally, Plaintiff continues to receive a unique, one-off diet - a favorable deviation from general standards at the Detention Center. ECF No. 141-5, Safford Aff. at ¶ 28.

In sum, Plaintiff has not shown that any HCSO Defendant's action adversely affected his First Amendment rights, nor can he show that there was any causal relationship between his filing of his complaint and any action at issue. See Raub, 785 F.3d at 885 (affirming dismissal of First Amendment retaliation claim and finding that plaintiff” s evidence “falls far short” of the “rigorous” causal requirement); Adkins v. McClanahan, No. 1:12CV00034, 2013 WL 942323, at *6 (W.D. Va. Mar. 11, 2013) (dismissing First Amendment retaliation claim when it could not meet the “rigorous but-for causation required to state a claim for First Amendment retaliation”).

F. Supervisory Liability

Plaintiff argues that certain HCSO Defendants should be liable for supervisory liability. Specifically, he asserts this claim against Maj. Safford (ECF No. 51 at 24); Cpl. Shover (ECF No. 51 at 25); Cpl. Collier (ECF No. 51 at 26); and Cpl. Gray, Cpl. Gause, Cpl. Vermeer, and Cpl. Curcio (ECF No. 51 at 28).

“The principle is firmly entrenched that supervisory officials may be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (citations omitted). “While supervisory liability is a well-established concept in . . . § 1983 jurisprudence, . . . the term is a misnomer. . . . As the Supreme Court has explained, ‘ [i]n a § 1983 suit . . . each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.'” Younger v. Crowder, 79 F.4th 373, 382 (4th Cir. 2023) (quoting Iqbal, 556 U.S. at 677). Thus, to establish a claim for “supervisory liability” under § 1983, a plaintiff must show the following elements: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices, and (3) that there was an affirmative causal link between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. Randall v. Prince GeorgeS Cty., Md., 302 F.3d 188, 206 (4th Cir. 2002).

Establishing the first prong “requires evidence that the conduct is widespread or at least has been used on several different occasions and that the conduct engaged in by the subordinate poses an unreasonable risk of harm of constitutional injury.” Shaw, 13 F.3d at 799. The burden to establish the second prong is also high: “a plaintiff ordinarily cannot satisfy his burden of proof by pointing to a single incident or isolated incidents.” Randall, 302 F.3d at 206 (citation and internal quotation marks omitted).

Here, there is no evidence before the Court to establish the first element of a claim of supervisory liability that Maj. Safford, Cpl. Shover, Cpl. Collier, Cpl. Gray, Cpl. Gause, Cpl. Vermeer, Cpl. Curcio or any other HCSO Defendant had actual or constructive knowledge that a subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like Plaintiff. Indeed, there could not be, in light of the determination that no HCSO Defendant committed a constitutional violation. Nor is there any evidence that any supervisor's response was inadequate. In sum, Plaintiff has not established any facts that would meet the high burden to establish supervisory liability as to these or any other HCSO Defendant. See Oglesby v. Brown, No. 8:19-cv-00016-SAL-JDA, 2020 WL 2950551, at *4, n.5 (D.S.C. Jan. 17, 2020) (noting that “[a] plaintiff's burden to establish a claim based on supervisory liability is a heavy one”), report and recommendation adopted, 2020 WL 2936678 (D.S.C. June 3, 2020).

G. Qualified Immunity

HCSO Defendants also argue that they are entitled to qualified immunity on Plaintiff's claims. “Qualified immunity shields federal and state officials from money damages unless a plaintiff [shows] (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal citation and quotations omitted). “Qualified immunity ‘protects all but the plainly incompetent or those who knowingly violate the law.'” Younger, 79 F.4th at 385 (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)). The Supreme Court has “repeatedly stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). When considering the defense of qualified immunity, a court should consider “only the facts that were knowable to the defendant officers.” White v. Pauly, 580 U.S. 73, 77 (2017) (per curiam). Courts have the discretion to decide which prong of the qualified immunity analysis to address first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that which prong to address first is within the sound discretion of courts in light of each case's circumstances).

Here, Plaintiff cannot establish either prong of qualified immunity. For the reasons set forth above, Plaintiff cannot establish the violation of any constitutional right, which by itself entitles the HCSO Defendants to qualified immunity. Furthermore, there is no clearly established law that would have put HCSO Defendants on notice that any of the legitimate penological actions they took in this case would violate any constitutional right. Under these circumstances, HCSO Defendants are entitled to qualified immunity from Plaintiff's claims for monetary damages.

H. Injunctive Relief

Plaintiff also seeks injunctive relief. ECF No. 51 at 32. However, a request for injunctive relief cannot be pursued where the underlying claim fails on the merits. See, e.g., Spivey v. Norris, 731 Fed.Appx. 171, 175 n.3 (4th Cir. 2018) (holding § 1983 injunctive relief claim fails where plaintiff has not shown a constitutional injury). As discussed above, Plaintiff cannot establish any deprivation of his constitutional rights, and for this reason, Plaintiff's claims for injunctive relief should be dismissed.

Moreover, Plaintiff's § 1983 claims - including his injunctive relief claims - are asserted only against the individual Defendants in their individual capacities, as Plaintiff has already dropped his official capacity claims. See ECF No. 51 at 4-14 (Plaintiff striking through “official capacity” as to all HCSO Defendants)). However, the individual HCSO Defendants cannot be “liable for the prospective injunctive relief sought in their individual capacities because ‘a plaintiff should not be able to sue a defendant in his individual capacity for an injunction in situations in which the injunction relates only to the officials' job, i.e., his official capacity.'” Ellerbe v. S.C. Dep't of Corr., C. A. No. 6:19-0096-RMG, 2020 WL 3446202, at *2 (D.S.C. June 24, 2020) (quoting Community Mental Health Servs. of Belmont v. Mental Health & Recovery Bd., 150 Fed.Appx. 389, 401 (6th Cir. 2005)); see also Daniels v. City of N. Charleston, C. A. No. 2:12-0319-DCN-BM, 2012 WL 3877710, at *3 (D.S.C. Aug. 9, 2012) (citing Greenwalt v. Indiana Dep't of Corrections, 397 F.3d 587, 589 (7th Cir. 2005) and recommending dismissal of individual capacity § 1983 injunctive or declaratory relief claims), report and recommendation adopted, 2012 WL 3880078 (D.S.C. Sept. 6, 2012).

Accordingly, HCSO Defendants are entitled to summary judgment on Plaintiff's claims for injunctive relief.

Defendants also argue that Plaintiff's claims are barred by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997, because Plaintiff cannot show any physical injury. ECF No. 141 at 21-24. However, § 1997e(e) is a “limitation on recovery.” See 42 U.S.C. § 1997e(e). Although the Fourth Circuit has not directly addressed the issue, other circuits have determined that “[t]he physical injury requirement is not a bar to filing suit, only a limitation on recovery[, a]nd § 1997e(e) limits a prisoner only from recovering damages that redress, or compensate him for, a mental or emotional injury, when no physical injury is shown.” Hoever v. Marks, 993 F.3d 1353, 1360 (11th Cir. 2021); see also Calhoun v. DeTella, 319 F.3d 936, 940 (7th Cir. 2003) (noting “physical injury is merely a predicate for an award of damages for mental or emotional injury, not a filing prerequisite for the federal civil action itself'); Jones v. Price, 696 F.Supp.2d 618, 62425 (N.D. W.Va. 2010) (collecting cases and holding that “§ 1997e(e) of the PLRA does not bar recovery of nominal or punitive damages in the absence of a physical injury where an inmate can show an injury of constitutional dimensions'). Accordingly, these arguments under the PLRA do not serve as a basis for dismissal of Plaintiff's claims.

I. Plaintiff's Motion for Summary Judgment

Plaintiff's Motion for Summary Judgment asserts reasons why Plaintiff contends that he is entitled to judgment as a matter of law on his claims. ECF No. 148. The undersigned has considered all the arguments set forth in Plaintiff's Motion for Summary Judgment in analyzing, reviewing, and setting forth reasons why HCSO Defendants are entitled to summary judgment. Accordingly, for all the reasons set forth above, Plaintiff is not entitled to judgment as a matter of law, and the undersigned recommends denying Plaintiff's Motion for Summary Judgment.

RECOMMENDATION

For the reasons set forth above, it is RECOMMENDED that HCSO Defendants' Motion for Summary Judgment, ECF No. 141, be GRANTED and Plaintiff's Motion for Summary Judgment, ECF No. 148, be DENIED.

The parties are directed to the next page for their rights to file objections to this recom m endation.

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).

Dontell v. Safford

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Dontell v. Safford

Dontell v. Safford

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Dontell v. Safford

Opinion

Dontell v. Safford

Dontell v. Safford

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