Opinion
C. A. 8:22-cv-01993-DCC-KFM
09-20-2022
Carsee Marquise Gartrell, Plaintiff, v. James Boggs, Jr., Defendant.[1]
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The plaintiff, a pretrial detainee proceeding pro se and in forma pauperis, brought this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on June 23, 2022 (doc. 1). By Order filed August 23, 2022, the undersigned informed the plaintiff that his excessive force claim against the defendant, James Boggs, Jr., as pleaded, was sufficient to survive screening, and indicated that service would be recommended as to Mr. Boggs on that claim (doc. 17 at 3, 6-7). The order also informed the plaintiff that the remainder of his claims were subject to dismissal as drafted and provided the plaintiff with fourteen days to file an amended complaint with respect to his claims (id. at 3-7). The plaintiff's amended complaint was entered on the docket on September 9, 2022 (doc. 19). Upon review, the undersigned is of the opinion that the plaintiff's amended complaint has not corrected the deficiencies noted in the court's August 23, 2022, order; thus, the plaintiff's claims are subject to summary dismissal as outlined below, except for the plaintiff's excessive force claim against Mr. Boggs.
ALLEGATIONS
This is a § 1983 action filed by a pretrial detainee regarding events that occurred during his arrest on November 23, 2021 (doc. 19). The plaintiff alleges excessive force, verbal abuse, and pain and suffering inflicted by the defendant (id. at 4). The plaintiff contends that the defendant was excessively and verbally rude and used unnecessary force to arrest him (id.). He contends that on November 23, 2021, the defendant choked him and pulled him out of the car he was in (id. at 5). The plaintiff contends that the defendant verbally abused him and Deanna Williams (id.). The defendant also called the plaintiff an expletive and asked the plaintiff if he remembered him (the defendant) (id.). For injuries, the plaintiff alleges that he has neck pain for which he was never treated and that he has trouble swallowing and breathing (id. at 6). For relief, the plaintiff seeks money damages and to have the defendant fired, demoted, or forced to resign (id.).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
This complaint is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
DISCUSSION
As noted above, the plaintiff's excessive force claim against Mr. Boggs is sufficient to survive screening, and service will be recommended as to Mr. Boggs on only this claim. As addressed below, the plaintiff has failed to correct the pleading deficiencies identified by the court with respect to the remainder of his claims; thus, the undersigned recommends that the remaining claims be dismissed.
As an initial matter, the plaintiff's request that the defendant be fired, demoted, or forced to resign is subject to summary dismissal because he requests relief this court cannot grant. See Maxton v. Johnson, 488 F.Supp. 1030, 1032 n.2 (D.S.C. 1980) (recognizing that “[f]ederal courts lack the authority to remove or reassign state employees” (internal citations omitted)). As such, only the plaintiff's excessive force claim will go forward with respect to his request for money damages.
Verbal Abuse and Public Humiliation Claims
The plaintiff's claims for verbal abuse or public humiliation due to the defendant's actions are subject to summary dismissal. As an initial matter, the plaintiff's allegation that Ofc. Boggs called him an expletive fails to state a claim for relief because “[m]ere threats or verbal abuse by [law enforcement] officials, without more, do not state a cognizable claim under § 1983”. Henslee v. Lewis, 153 Fed.Appx. 178, 180 (4th Cir. 2005) (citing Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979)); Morrison v. Martin, 755 F.Supp. 683, 687 (E.C. N.C. 1990), aff'd 917 F.2d 1302 (4th Cir. 1990) (noting that “[w]ords by themselves do not state a constitutional claim, without regard to their nature” (internal citation omitted)). Moreover, § 1983 does not provide a private right of action for defamation and allegations of public humiliation do not provide a basis for a constitutional violation. See Collins v. Tollison, C/A No. 8:19-cv-00691-TMC-JDA, 2019 WL 1472870, at *3 (D.S.C. Mar. 13, 2019), Report and Recommendation adopted by 2019 WL 1470135 (D.S.C. Apr. 3, 2019). As such, the plaintiff's claims regarding verbal abuse and public humiliation are subject to summary dismissal.
Deliberate Indifference to Medical Needs
Liberally construed, the plaintiff, in passing, alleges a medical indifference claim based upon his neck pain never being treated (doc. 19 at 6). The standard for reviewing medical claims of pretrial detainees under the Fourteenth Amendment is essentially the same as that for a convicted prisoner under the Eighth Amendment-deliberate indifference to serious medical needs. Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992). Not “every claim by a prisoner [alleging] that he has not received adequate medical treatment states a violation of the [Constitution].” Estelle v. Gamble, 429 U.S. 97, 105 (1976). The government is required to provide medical care for incarcerated individuals. Id. at 103. However, to establish deliberate indifference, the treatment “must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltierv. Beorn, 896 F.2d 848, 851-52 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837 (1994).
In order to state a claim, a plaintiff must show a serious medical need as well as that the defendant “knowingly disregarded that need and the substantial risk it posed.” DePaola v. Clarke, 884 F.3d 481,486 (4th Cir. 2018) (citing King v. Rubenstein, 825 F.3d 206, 218-20 (4th Cir. 2016); Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209-11 (4th Cir. 2017)). A “serious medical need” is a condition “diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Heyer, 849 F.3d at 210 (citation omitted). “Deliberate indifference may be demonstrated by either actual intent or reckless disregard. A defendant acts recklessly by disregarding a substantial risk of danger that is either known to the defendant or which would be apparent to a reasonable person in the defendant's position.” Miltier, 896 F.2d at 851-52 (citation omitted). “It is only such indifference that can offend ‘evolving standards of decency' in violation of the Eighth Amendment.” Estelle, 429 U.S. at 106. Mere negligence or malpractice does not violate the Eighth Amendment. Id. Moreover, disagreements between an inmate and a physician over the inmate's proper medical care do not state a Section 1983 claim unless exceptional circumstances are alleged. Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985).
Here, the plaintiff's amended complaint makes no allegations regarding what serious medical need he had, alleging only in passing that he requested medical treatment for neck pain (see doc. 19 at 6). Additionally, the plaintiff's amended complaint contains no personal allegations against the defendant with respect to this claim; indeed, the amended complaint does not indicate from whom the plaintiff requested medical treatment. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“[A] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the constitution.”); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1997) (holding that an official must be personally involved in the alleged deprivation before liability may be imposed). As such, the plaintiff's medical indifference claim is subject to summary dismissal.
Abandoned Claims
It appears that the plaintiff has abandoned his claim against the Greenwood County Police Department (see doc. 19) as his amended complaint omits mention of the Greenwood County Police Department as a party. The plaintiff was warned that an amended complaint replaces the complaint and “should be complete in itself” (doc. 17 at 6 (citing Young, 238 F.3d at 572)). As such, the undersigned recommends dismissal of the plaintiff's abandoned claims. To the extent the plaintiff did not intend to abandon these claims, for the reasons set forth in the court's prior order, the claims would still be subject to summary dismissal (see doc. 17 at 5-6).
RECOMMENDATION
As noted above, the plaintiff's case will go forward with respect to his excessive force claim against Mr. Boggs. However, with respect to the plaintiff's remaining claims, despite filing an amended complaint, the plaintiff has not cured the deficiencies identified in the order dated August 23, 2022 (doc. 17). As such, the undersigned recommends that the district court dismiss the plaintiff's claims (other than the excessive force claim against Mr. Boggs) with prejudice, without further leave to amend, and without issuance and service of process because the plaintiff failed to file an amended complaint to cure the deficiencies identified in the order issued August 23, 2022. See Britt v. DeJoy, ___ F.4th -, 2022 WL 3590436, at *5 (4th Cir. Aug. 17, 2022) (published) The attention of the parties is directed to the important notice on the following page.
That order warned the plaintiff that if he failed to file an amended complaint or failed to cure the deficiencies identified therein, the undersigned would recommend to the district court that those claims (other than his excessive force claim against Mr. Boggs) be dismissed with prejudice and without leave for further amendment (doc. 17 at 6-7).
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committees note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Room 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).