Opinion
C. A. 6:23-cv-01804-JFA-KFM
10-11-2023
Marquis Grampus, Plaintiff, v. Deputy Warden Harouff, Sgt. Zappola, E. Osbourne, Defendants.[1]
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
The plaintiff, a state prisoner 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 May 1, 2023 (doc. 1). By order filed June 12, 2023, the plaintiff was informed that his complaint was subject to summary dismissal because it failed to state a claim upon which relief may be granted, and that he could attempt to cure the defects identified in his complaint by filing an amended complaint within 14 days (doc. 13). The plaintiff was informed that if he failed to file an amended complaint or otherwise cure the deficiencies outlined in the order, the undersigned would recommend that his case be dismissed (id. at 7-8). On June 22, 2023, the plaintiff's amended complaint was entered on the docket (doc. 16). On June 23, 2023, the plaintiff filed a motion seeking additional time to submit an amended complaint (doc. 21). It appears that the plaintiff filed the motion in case his amended complaint was untimely; however, the amended complaint was not untimely and has been considered. As such, because the undersigned has considered the plaintiff's amended complaint; the order filed herewith denies the plaintiff's motion as moot. However, upon review of the plaintiff's amended complaint, the undersigned recommends that this matter be summarily dismissed.
ALLEGATIONS
This is a § 1983 action filed by the plaintiff, a state prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and currently housed at Perry Correctional Institution (“Perry”) (doc. 16). The plaintiff alleges that the defendants subjected him to cruel and unusual punishment, deliberate indifference, and violated his due process rights (id. at 4). The plaintiff alleges that on January 23, 2023, he was in the shower when Deputy Warden Harouff began yelling at him for being too loud when talking to other inmates and for being “ghetto” (id. at 5). The plaintiff alleges Deputy Warden Harouff also yelled other disrespectful things at him (id.). He contends that when Sgt. Zappola and Sgt. Osbourne approached him to handcuff him and remove him from the shower, Deputy Warden Harouff indicated that the plaintiff would remain in the stall instead (id. at 5, 7). Around 1:00, the plaintiff alleges Deputy Warden Harouff and Sgt. Zappola came to remove him from the shower, and his feet and legs were hurting from standing in the shower since 8:30 (id.). When the plaintiff returned to his cell, he requested a lunch tray (since lunch was served while he was in the shower), but his request was denied (id. at 6). The plaintiff alleges he then began to feel sick with a headache and later tested positive for COVID-19 (id.). He also contends that he then pleaded guilty to a disciplinary charge in relation to the incident instead of waiting to have a disciplinary hearing (id.).
The plaintiff's alleged injuries include pain in his feet and legs as well as emotional pain, and that he caught COVID-19 (id. at 8). For relief, the plaintiff seeks money damages (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 filed the instant action pursuant to § 1983, seeking damages from the defendants. However, the plaintiff's amended complaint is subject to summary dismissal.
Due Process Claim
The plaintiff alleges that his due process rights were violated, although his amended complaint contains no allegations describing how his due process rights were violated (see doc. 16). To state a procedural due process violation, a plaintiff must (1) identify a protected liberty or property interest and (2) demonstrate deprivation of that interest without due process. See Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). However, to the extent the plaintiff seeks damages relating to the disciplinary charge to which he pleaded guilty after the incident complained-of herein, his claim is subject to dismissal because he has not alleged a protected liberty interest - as his disciplinary charge only resulted in consequences of time in disciplinary detention and a verbal warning (doc. 1-1 at 15). Hewitt v. Helms, 459 U.S. 460, 468 (1983) (finding no constitutional right under the due process clause to a particular security classification or prison placement), overruled in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Indeed, as noted by the Supreme Court, a change in a prisoner's conditions of confinement only gives rise to a federally-protected liberty interest if it “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483, 485 (finding no liberty interest when inmate placed in segregated confinement). Here, the plaintiff's complaint does not allege a plausible atypical or significant hardship in being placed in disciplinary detention. See Thompson v. Brown, C/A No. 3:11-cv-318-TMC-JRM, 2011 WL 6012592, at *1-2 (D.S.C. Nov. 8, 2011) (rejecting conditions of confinement claim where the plaintiff claimed “his mattress and blanket were confiscated for six days, he was not allowed to have any toilet tissue for six days, his clothes were taken away from him for six days, his cell was cold, he had no running water in his cell, and he was forced to sleep on a steel cot for six days”), Report and Recommendation adopted by 2011 WL 6012550 (D.S.C. Dec. 2, 2011). As such, the plaintiff's due process claim is subject to summary dismissal.
Conditions of Confinement Claim
The plaintiff also alleges that being kept in the shower was cruel and unusual punishment (doc. 16 at 4, 5-7). The Eighth Amendment expressly prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. To succeed on an Eighth Amendment claim for cruel and unusual punishment regarding the conditions of his confinement, a prisoner must prove that he was deprived of a basic human need and that prison officials were deliberately indifferent to that deprivation. See Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993). The first prong of the Strickler analysis requires an objective showing that the deprivation was sufficiently serious, such that significant physical or emotional injury resulted from it, while the second prong is a subjective test requiring evidence that prison officials acted with a sufficiently culpable state of mind. Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Here, the plaintiff's allegations that he was kept in the shower from 8:30 to 1:00, do not allege deprivation of a basic human need. Brawner v. Cartledge, C/A No. 5:12-cv-01889-RMG, 2014 WL 958658, at *7 (D.S.C. Mar. 11,2014) (holding that prisoner held in shower for multiple hours did not rise to the level of a serious deprivation of a basic human need). Indeed, the plaintiff has also failed to allege that he suffered a significant injury from being in the shower - based on his alleged injuries of temporary pain in his legs and feet and “emotional pain” after being held in the shower. Further, the plaintiff has not alleged that the defendants acted with a culpable state of mind with respect to keeping him in the shower, meaning that he has not alleged the subjective element of a conditions of confinement claim. Moreover, undermining the plaintiff's claims that he was maliciously held in the shower, he conceded that he was not removed from the shower because he refused to comply with officer directives - as shown by his plea of guilty to a disciplinary charge for refusing or failing to obey officer directives in connection with the incident (doc. 1-1 at 15). As such, in light of the foregoing, the plaintiff's conditions of confinement claim is subject to summary dismissal.
The plaintiff attempts to circumvent this concession by asserting that he pleaded guilty to avoid waiting on a disciplinary hearing (doc. 16 at 6); however, he has not challenged the disciplinary conviction.
Verbal Abuse Claim
In his amended complaint, liberally construed, the plaintiff alleges that Deputy Warden Harouff violated his rights by threatening him, calling him “ghetto,” and yelling disrespectful things at him (doc. 16 at 5-6). However, “[m]ere threats or verbal abuse by prison 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'd917 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)). As such, the plaintiff's claims regarding verbal abuse or threats by Deputy Warden Harouff are subject to summary dismissal.
Food Claim
The plaintiff's amended complaint, liberally construed, also appears to assert that his rights were violated because he was not provided lunch after being removed from the shower (doc. 16 at 6). However, the plaintiff's allegations that he missed a meal because he was kept in the shower fail to rise to the level of a constitutional violation. See Atkins v. Glaser, C/A No. 1:18-cv-00354 (LMB/TCB), 2022 WL 1085000, at *6 (E.D. Va. Apr. 11,2022) (noting that isolated instances of inmates missing a meal or two do not rise to the level of an Eighth Amendment violation (internal citations omitted)). Indeed, as recognized by the Fourth Circuit, only “an ‘extreme deprivation' is actionable under the Eighth Amendment.” Scinto v. Stansberry, 841 F.3d 219, 234 (4th Cir. 2016) (internal citations omitted). In light of the foregoing, the plaintiff's claim that he missed lunch because he was forced to stay in the shower is subject to summary dismissal.
Deliberate Indifference to Medical Needs Claim
Liberally construed, the plaintiff alleges that he was denied adequate medical care because he caught COVID-19 (doc. 16 at 6). 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.” Miltier v. 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 has failed to state a claim for deliberate indifference to medical needs. The plaintiff has not alleged that he experienced severe symptoms that required medical treatment when he suffered from COVID-19 (see doc. 16). Further, the plaintiff concedes that he was provided medical treatment and medication; as such, it appears that the plaintiff preferred different treatment than he received - but the plaintiff is not constitutionally entitled to the treatment of his choice. See Sharpe v. S.C. Dep't of Corrs., 621 Fed.Appx. 732, 733 (4th Cir. 2015) (unpublished per curiam opinion) (noting that “mere disagreement between an inmate and medical staff regarding the proper course of treatment provides no basis for relief” under § 1983 (citing Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975))). As such, the plaintiff's medical indifference claim also fails to state a claim for relief and should be dismissed.
Abandoned Claims
The plaintiff's amended complaint appears to abandon claims against defendants Capt. Blakely, M. Cox, and V. Griffin (see doc. 16). Indeed, although the plaintiff makes a passing reference to Capt. Blakely in his amended complaint, he has not named Capt. Blakely as a defendant or made any personal allegations against Capt. Blakely (id.). The plaintiff was warned that an amended complaint replaces the complaint and “should be complete in itself (doc. 13 at 7-8 (citing Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001)). As such, the undersigned recommends dismissal of the plaintiff's abandoned claims against these defendants. To the extent the plaintiff did not intend to abandon this claim, for the reasons set forth in the court's prior order, the claims would still be subject to summary dismissal (see doc. 13 at 6-7).
RECOMMENDATION
By order issued June 12, 2023, the undersigned gave the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment. Despite filing an amended complaint, the plaintiff has not cured the deficiencies identified in the order dated June 12, 2023 (doc. 13). Therefore, the undersigned recommends that the district court dismiss this action with prejudice, without further leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 791 (4th Cir. 2022) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). The attention of the parties is directed to the important notice on the following page.
The plaintiff is warned that if the United States District Judge assigned to this matter adopts this report and recommendation, the dismissal of this action for failure to state a claim could later be deemed a strike under the three-strikes rule. See Pitts v. South Carolina, 65 F.4th 141 (4th Cir. 2023).
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).