Opinion
C/A No. 8:18-cv-2684-TMC-JDA
10-22-2018
Kalvin Dontay Hunt, #10241269, Plaintiff, v. Dr. Andrew Hedgepath, Bristol-Meyer Squibb and Otsuka Pharmaceuticals, Abilify, G. Werber Bryan Psychiatric Hospital, The Office of Patient Safety, Defendants.
REPORT AND RECOMMENDATION
Kalvin Dontay Hunt ("Plaintiff"), proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1983 alleging his constitutional rights have been violated. Plaintiff is currently an involuntary detainee at the Columbia Regional Care Center, and he files this action in forma pauperis under 28 U.S.C. § 1915. The Complaint is subject to summary dismissal.
Plaintiff is apparently involuntarily confined in the South Carolina Department of Mental Health after being found not guilty of certain criminal charges by reason of insanity. See Order, Hunt v. State of South Carolina, No. 3:15-cv-4778-TMC (Apr. 22, 2016), ECF No. 18 at n.1.
BACKGROUND
This action arises from Plaintiff's claim that Defendants failed to properly warn him about certain adverse side effects of a medication prescribed by Plaintiff's physician, Dr. Hedgepath. [Doc. 1 at 4.] According to the Complaint, Dr. Hedgepath prescribed the medication Abilify, but he did not warn Plaintiff of its adverse side effects. [Id. at 5.] Similarly, Defendants Bristol-Meyer Squibb and Otsuka Pharmaceuticals ("Bristol-Meyer") and Abilify have failed to properly warn consumers of adverse side effects caused by their medication. [Id.] As a result of taking the prescribed medication, Plaintiff has suffered from hypersexuality, compulsive spending, compulsive binge eating, urges to steal or shoplift, involuntary movements, and suicidal thoughts and attempts. [Id.] These compulsive behaviors have impacted Plaintiff's physical and mental health and are threatening his life. [Id. at 5-6.] Plaintiff contends that, as a result of taking the medication, he attempted suicide, which resulted in a facial laceration, a slight concussion, and extreme headaches. [Id. at 6.] Further, due to the hypersexuality caused by the medication, Plaintiff had unprotected sex with another man, potentially exposing himself to a virus. [Id.] Also, the medication has caused compulsive binge eating, resulting in excessive weight gain; compulsive spending, leading to indebtedness; urges to steal and shoplift, leading to legal issues; and involuntary movements, causing extreme discomfort. [Id.] For his relief, Plaintiff seeks money damages in the amount of $25 million for his physical injuries, $2 million for mental anguish, $2 million in punitive damages, and $1,000 in compensatory damages for his compulsive spending and eating. [Id.] Plaintiff also wishes to raise awareness of the side effects of the drug. [Id.]
STANDARD OF REVIEW
Pursuant to the provisions of 28 U.S.C. §636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review the Complaint for relief and submit findings and recommendations to the District Court. Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute, which 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).
As a pro se litigant, 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, 94 (2007) (per curiam). However, even under this less stringent standard, the pro se pleading remains subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). 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).
DISCUSSION
The 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). The under-color-of-state-law element, which is equivalent to the "state action" requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, "the deed of an ostensibly private organization or individual" may at times be treated "as if a State has caused it to be performed." Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Specifically, "state action may be found if, though only if, there is such a 'close nexus between the State and the challenged action' that seemingly private behavior 'may be fairly treated as that of the State itself.'" Id. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). State action requires both an alleged constitutional deprivation "caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible" and that "the party charged with the deprivation [is] a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party's allegedly unconstitutional conduct is fairly attributable to the State requires the court to "begin[ ] by identifying 'the specific conduct of which the plaintiff complains.'" Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).
Here, Plaintiff's core complaint is that Defendants failed to warn him of serious side effects of certain medication. Liberally construed, Plaintiff's Complaint appears to assert a claim for deliberate indifference to a serious medical need. Nevertheless, the instant action should be dismissed for the reasons that follow.
First, Defendants Bristol-Meyer and Abilify are not proper Defendants in this § 1983 action and are therefore entitled to dismissal. Plaintiff has not made any allegations that Defendants Bristol-Meyer and Abilify acted in any way attributable to a state. With few exceptions, purely private conduct, no matter how wrongful, is not actionable under § 1983 and the United States Constitution. See Lugar, 457 U.S. at 936; Mentavlos, 249 F.3d at 310. Therefore, Plaintiff fails to allege a plausible § 1983 claim against Defendants Bristol-Meyer and Abilify, and any alleged violation of Plaintiff's constitutional rights should be dismissed against these Defendants because they are not alleged to be state actors. See DeBauche v. Trani, 191 F.3d 499, 509 (4th Cir. 1999).
Defendants G. Werber Bryan Psychiatric Hospital and the Office of Patient Safety are also entitled to dismissal. Plaintiff has made no specific allegations in the body of his Complaint against these two Defendant, which is required to state a claim under § 1983. See Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) ("Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed."); Newkirk v. Circuit Court of City of Hampton, No. 3:14-cv-372-HEH, 2014 WL 4072212, at *2 (E.D. Va. Aug. 14, 2014) (finding the complaint was subject to summary dismissal where plaintiff made no factual allegations against the named defendants within the body of the pleading). In the absence of substantive allegations of wrongdoing against these named Defendants, the Court is unable to liberally construe any type of plausible cause of action arising from the Complaint against them. See Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 1996) (explaining statute allowing dismissal of in forma pauperis claims encompasses complaints that are either legally or factually baseless); Weller, 901 F.2d at 389 n.2 (finding dismissal proper where there were no allegations to support claim); Odom v. Trident Hosp. Dir., No. 5:17-cv-02540-RMG-KDW, 2017 WL 6016407, at *4 (D.S.C. Nov. 1, 2017), Report and Recommendation adopted by 2017 WL 5992088 (D.S.C. Dec. 4, 2017). Accordingly, these Defendants are entitled to summary dismissal. See Potter, 497 F.2d at 1207; Newkirk, 2014 WL 4072212, at *2.
Additionally, Plaintiff's claims should be dismissed as they are duplicative of claims asserted in another action pending before this Court. The Court takes judicial notice that Plaintiff filed a prior civil action raising similar factual contentions and issues against Defendant Hedgepath as those raised in the present action. See Hunt v. State of South Carolina, No. 8:18-cv-2241-TMC-JDA; see also Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts "may properly take judicial notice of matters of public record."); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (explaining "the most frequent use of judicial notice is in noticing the content of court records"). The prior action, which remains pending, asserts a claim for deliberate indifference against Dr. Hedgepath concerning unsafe prescription of drugs, which allegedly resulted in the same injuries as those asserted in the present action. Because this action is repetitive and duplicative of the prior action that is currently pending before this Court, this action should be dismissed as frivolous and malicious. See Pierson v. Shelton, No. 1:07-cv-708-MHT, 2007 WL 2710407, at *1 (Sept. 13, 2007) (explaining that malicious suits under § 1915 are abusive of the judicial process); Long v. Ozmint, 558 F. Supp. 2d 624, 629 (D.S.C. 2008) ("'The District Court clearly had the right to take notice of its own files and records and it had no duty to grind the same corn a second time. Once was sufficient.'"). The Fourth Circuit Court of Appeals has repeatedly held that "district courts are not required to entertain duplicative or redundant lawsuits." Cottle v. Bell, No. 00-6367, 2000 WL 1144623, at *1 (4th Cir. Aug. 14, 2000); see also Paul v. de Holczer, No. 3:15-cv-2178-CMC-PJG, 2015 WL 4545974, at *6 (D.S.C. July 28, 2015) (holding that "'repetitious litigation of virtually identical causes of action'" may be dismissed as frivolous), aff'd, 631 F. App'x 197 (4th Cir. Feb. 4, 2016). Accordingly, this action should be dismissed as frivolous and malicious in light of Plaintiff's other pending action before this Court.
RECOMMENDATION
It is recommended that the District Court dismiss this action without issuance and service of process. See Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972). Plaintiff's attention is directed to the important notice on the next page.
In light of the findings above, the undersigned finds that amendment of the Complaint would be futile to cure the deficiencies noted herein.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge October 22, 2018
Greenville, South Carolina
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
300 East Washington Street, Room 239
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).