Opinion
C/A No. 6:19-385-SAL-KFM
04-08-2020
Elijah Gaylon Jones, Plaintiff, v. T. Ervin, Mental Health Counselor; Marie Livingston, Mental Health Manager; R. Hollister, Deputy Director; and J. Vandermosten, Director, Defendants.
REPORT OF MAGISTRATE JUDGE
This matter is before the court on the defendants' motion for summary judgment (doc. 40). The plaintiff, a former pretrial detainee who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(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 Section 1983 and submit findings and recommendations to the district court.
It appears from this court's records that the plaintiff was arrested and booked into the GCDC on state drug trafficking charges on October 2, 2018, while on federal supervised release. See Case No. 6:07-cr-704, doc. 147. A petition to issue a warrant for violating his supervised release was granted, based on the alleged violations of his drug arrest, failing to attend NA/AA meetings, failing to seek employment, and failing to report to his supervising officer on multiple occasions. Id. His supervised release term was thereafter revoked on March 22, 2019, by the Honorable Bruce Howe Hendricks, United States District Judge. Id., doc. 164. The plaintiff was later transferred from the GCDC to the South Carolina Department of Corrections ("SCDC") on August 12, 2019 (doc. 40-10, Vandermosten aff. ¶ 4). The plaintiff is now incarcerated in the SCDC at the Goodman Correctional Institution (doc. 55).
BACKGROUND
This case was filed by the plaintiff in February 2019 against various Greenville County Detention Center ("GCDC") employees. On May 24, 2019, the Honorable Richard M. Gergel, United States District Judge, dismissed the plaintiff's claims against some of the named defendants (doc. 21). The remaining defendants are GCDC's Mental Health Counselor Tory Ervin, Mental Health Manager Marie Livingston, Deputy Director of Public Safety Ronald Hollister, and Assistant County Administrator and Director of Public Safety John Vandermosten. The remaining claims are for retaliation against Ervin and Livingston and for ignoring the plaintiff's claims of retaliation (bystander and/or supervisory liability) against Vandermosten and Hollister (see doc. 21 at 3-4).
Judicial screening and pretrial handling were initially assigned to the Honorable Mary Gordon Baker, United States Magistrate Judge. On July 26, 2019, the case was reassigned from Judge Baker to the undersigned (doc. 33). On September 23, 2019, the defendants filed their motion for summary judgment (doc. 40). The next day, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the summary judgment procedure and the possible consequences if he failed to respond adequately (doc. 41). After an extension, the plaintiff timely filed his response in opposition on November 18, 2019 (doc. 46). The defendants filed a reply on December 9, 2019 (doc. 52), to which the plaintiff filed a sur-reply on March 9, 2020 (doc. 62). On January 7, 2020, this case was renumbered as captioned above and reassigned to the Honorable Sherri A. Lydon, United States District Judge (docs. 56, 57).
The record before the court includes the parties' pleadings and GCDC records, including 17 inquiries and eight grievances filed by the plaintiff during his first three months in the GCDC, along with affidavits from Ervin, Livingston, Vandermosten, and Laura Miller, a GCDC mental health counselor who is not named as a defendant. In his complaint, the plaintiff alleges that the GCDC "mental health service was inadequate and very unprofessional" and that he pursued his complaints via the GCDC grievance process (doc. 1, p. 8). He alleges that Ervin and Livingston retaliated against him for filing a grievance and that Hollister and Vandermosten ignored his retaliation claim in grievance appeals. He alleges that he "followed all appeals up to the Administrator over the [GCDC]. My medicine was finally changed but the retaliation claim was never addressed" (id.). Accordingly, the retaliation claim and the related issues of supervisory liability and bystander liability are properly before the court.
In his complaint and attached eight separate grievances (docs. 1, 1-1), the plaintiff alleges that, after arriving at GCDC, he requested to be seen by the mental health staff and to obtain the medication Wellbutrin, which he claimed to have taken previously. However, per the defendants, Director Vandermosten had instituted a GCDC policy earlier that year (after consultation with Livingston and GCDC's physician, Dr. Martin) to limit Wellbutrin prescriptions within the GCDC after discovering that inmates were hoarding these particular pills and buying and selling them as commodities. This policy provided that Dr. Martin would only prescribe Wellbutrin if a detainee had been taking it within the three months prior to entering the GCDC, as verified by outside medical records (doc. 40-10, Vandermosten aff. ¶ 6, 7). After the plaintiff's request, GCDC staff attempted to obtain his medical records from the United States Bureau of Prisons ("BOP") to verify his Wellbutrin history, but learned it would take six to eight months to receive the records (doc. 40-5, Livingston aff. ¶ 11).
Wellbutrin is an antidepressant used to ease methamphetamine addiction. See https://www.webmd.com/mental-health/addiction/news/20051123/antidepressant-may-ease-meth-addiction#1
In the meantime, the plaintiff filed ten mental health and medical inquiries through the kiosk system between October 25th through November 6th, saying his mind was racing, that he needed his medication, and that he had previously been on Wellbutrin, but had "relapsed and meth took the place of all meds" (doc. 40-12, pp. 2-11). Responses to the first five inquiries appear to have been made by other staff members, directing the plaintiff to redirect or refile his requests to an appropriate recipient (id., pp. 2-6). Ervin responded to inquiries six through nine, seeking information from the plaintiff regarding his prior treatment records (id., pp. 7-10). On the eighth inquiry, the plaintiff states: "Mr. Ervin, please check my medical file and my file in the feds. I need my meds. I'm not going to harm myself or anyone but I'm having swings of depression and my mind races so much about worry and stressful thinking that its very hard to get rest. I just want my same meds I was on started back up please. I been here going on 2 weeks already and I have only gotten nowhere" (id., p. 9). Livingston responded to the ninth inquiry on November 8th, stating that she had spoken with Dr. Martin and "since we cannot get the federal records in a timely manner, he will see you" (id., p. 10). On the same date, the plaintiff filed his first of eight grievances, complaining that he had not been seen by mental health, and particularly Ervin, despite having made requests via the kiosk (doc. 1-1, p. 19). Ervin responded to this grievance that he would schedule an appointment with Dr. Martin since the plaintiff's past treatment records were unavailable (id.). That same day, the plaintiff saw Dr. Martin, who prescribed the plaintiff Cymbalta and Seroquel, rather than Wellbutrin (doc. 40-9, p. 9). The plaintiff alleges this medication caused his blood pressure to go up, and it made him panicky and anxious (doc. 1-1, p. 7). He began refusing to take the medication (doc. 40-9, pp. 13-15), and he again requested Wellbutrin and mental health visits, as reflected in the next seven inquiries and six grievances he filed between November 9 and December 9, 2019 (docs. 1-1, pp. 20-26; doc. 40-12, pp. 12-18). The responses to these inquiries and grievances are from Ervin, Livingston, and others confirming that Dr. Martin had selected and prescribed the appropriate medication for the plaintiff (id.). In the seventh grievance dated December 9th, the plaintiff repeats his complaints and also adds that his wife was sexually assaulted but no one from mental health came to see him. He further states "I'm going next to my federal judge how I'm being treated and the situation with my meds. Why can't I be back on Wellbutrin for depression when that's what I take and it works better for me?" (doc. 1-1, p. 24). Livingston responded again that Dr. Martin was solely responsible for prescribing medication and that she would tell Ervin the plaintiff wanted to see him. The plaintiff appealed Livingston's response, saying he did not want to see Ervin, and he again asked for Wellbutrin (id.).
The medical record does not use these commercial brand names, but instead uses the generic drug names duloxetine and quetiapine.
Having reviewed the docket entries and corresponding documents in the plaintiff's federal criminal case here, Case No. 6:07-cr-704, it does not appear that the plaintiff raised these matters with Judge Hendricks.
On December 11th, the plaintiff was placed in GCDC's Special Housing Unit ("SHU"). The plaintiff alleges this was done by Ervin and Livingston in retaliation for the grievance he filed against Ervin and the mental health staff. However, Livingston testifies that the plaintiff was housed in the SHU for observation:
8. The SHU is used by the Mental Health Department so that Mental Health staff can meet with detainees individually and observe their behavior. Mental Health staff place detainees in the SHU on a case-by-case basis. When a detainee is placed in the SHU for mental health observation, a counselor visits him, and the officers in the SHU check on him every thirty minutes.(Doc. 40-5, Livingston aff. ¶¶ 8-9, 12-13; see also doc. 40-2, Ervin aff. ¶¶ 5-6; doc. 40-13, Miller aff. ¶ 3).
9. The SHU Mental Health staff generally place detainees in the SHU for the following reasons: to ensure that they are not ingesting illicit substances; to observe effectiveness of medication; and to observe their behavior generally. For example, we can more easily determine that a detainee is talking to himself if he is alone in the SHU instead of surrounded by other detainees in his housing unit. . . .
12. After [the plaintiff] submitted the first appeal of his sixth grievance, I spoke with Laura Miller and Tory Ervin about Mr. Jones' unstable behavior. We decided that he needed a higher level of treatment. We were concerned that he had submitted numerous kiosk entries, both inquiries and grievances, about mental health issues purportedly caused by Cymbalta, although Cymbalta should not cause him to be unstable and he had taken very little. We were also concerned that the kiosk entries reflected an increasingly agitated state because he seemed to be writing more emotionally. In addition, we considered that [the plaintiff] had recently received news about a sexual assault of his wife, news that was likely very upsetting.
13. Because we were concerned about his personal safety and the safety of the other detainees in his housing unit, and because we wanted to monitor his medication intake and any effect of the medication, Laura Miller, Tory Ervin, and I jointly decided to place [the plaintiff] in the SHU for mental health observation.
The plaintiff remained in the SHU for eight days. GCDC medical records during this period show that the plaintiff was seen by medical staff for medication visits twice a day (doc. 40-9, p. 15), and Ervin saw him three times over the week (doc. 40-4, p. 2). On December 13th, Miller also visited the plaintiff in the SHU:
He told me that he felt fine, that he was not depressed, and that he wanted to return to the general population. The depression and negative side effects that [the plaintiff] had described in the kiosk submissions seemed to be resolved. In my professional opinion, [the plaintiff] was not in a depressive state at that time because he was active and talking rather than lethargic and anti-social.(Doc. 40-13, Miller aff. ¶ 4). The next day, the plaintiff filed another mental health inquiry stating:
Please Mr. Ervin, please allow me to go back to blue pod, I'm very sorry for grieving you. I was upset at that time. I do realize now after being down here in SHU you have your hands full. I should have been more patient. I been down here since Tues. morning. Feels like a lifetime. Please clear me please. I will never write another grievance again!!(Doc. 40-12, p. 19). He also filed another message by way of second appeal to his first grievance:
Ms. Livingston . . . please talk with Mr. Ervin. Please clear me from observation. I was wrong for thinking I was priority after seeing the guys yall have to deal with down here in the SHU. I'm really sorry. I take back any grievances I wrote. I'm truly sorry. I been down here on observation since tues. morning. Please clear me so I can hopefully go back to blue pod. I'm in a bible study there and prayer circles. Please. I am very sorry I grieved my situation. I also apologized to Mr. Ervin too. Please. Thank you.(Doc. 1-1, p. 25). In consideration of these messages and her interaction with the plaintiff the previous day, Ms. Miller consulted with Ms. Livingston, and they agreed that the plaintiff could be released from observation and returned to general population (doc. 40-13, Miller aff. ¶ 5; doc. 40-5, Livingston aff. ¶ 15.).
After his release from the SHU, the plaintiff appealed his sixth grievance to the Administrator level (third appeal) on his claim of retaliation, and he filed a seventh and an eighth grievance regarding his dissatisfaction with the handling of prior grievances (doc. 1-1, pp. 24-31). Vandermosten responded to the sixth grievance, stating he would have Livingston speak to Ervin about the plaintiff's complaints, and he concurred with Livingston's position on the plaintiff's medication (id., p. 26). Hollister responded to the eighth grievance, stating that Vandermosten had already responded and that the matter was closed (id., p. 29).
APPLICABLE LAW AND ANALYSIS
Summary Judgment Standard
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, 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 allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. "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." Id.
Retaliation
To maintain a viable retaliation claim under Section 1983, the plaintiff must show that "'(1) he engaged in protected First Amendment activity, (2) the defendant[s] 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." Scott v. Ray, C/A No. 4:17-3100-RBH-TER, 2019 WL 575960, at *4 (D.S.C. Jan. 24, 2019) (quoting Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017)), R&R adopted by 2019 WL 569565 (D.S.C. Feb. 12, 2019). The Fourth Circuit has explicitly stated that "prison officials violate the First Amendment by retaliating against inmates for filing grievances." Booker v. S.C. Dep't of Corr., 855 F.3d 533, 545 (4th Cir. 2017). "A plaintiff must show that the protected activity was the 'but for' cause of the adverse action alleged." Scott, 2019 WL 575960, at *4 (internal quotation marks and citation omitted). Although a causal connection may be inferred "when the adverse action occurs shortly after a plaintiff engaged in a protected activity," defendants can nevertheless refute this inference by showing that they had a legitimate and permissible reason for their actions. Id. (citations omitted). "[E]ven after defendants have offered a legitimate reason, a plaintiff can still prevail on his claim if the evidence as a whole demonstrates that the proffered permissible reason is not the actual reason but merely a pretext." Id. (citation omitted).
While the plaintiff has shown that he engaged in protected First Amendment activity by voicing his complaints through his grievances and that the defendants placed him in the SHU after the first grievance was filed, the defendants have likewise refuted the inference of a causal connection that this was done in retaliation. Ervin, Livingston, and Miller each testify that all agreed the plaintiff was in need of mental health observation in the SHU. As cited above, the plaintiff was an admitted methamphetamine user, having relapsed prior to his arrest, and he was insistent on receiving Wellbutrin from the mental health staff, despite the GCDC policy prohibiting it for him and Dr. Martin's prescription of other medication. The plaintiff's behavior caused reasonable concern for the mental health staff, as the plaintiff: (1) initially filed ten mental health kiosk inquiries in 13 days (doc. 40-12, pp. 2-11), many containing the same demands for Wellbutrin; (2) continued to seek Wellbutrin despite Dr. Martin's denial; (3) began refusing to take the prescribed Cymbalta and Seroquel; and (4) announced on December 5th that he found out his wife had been sexually assaulted, escalating the concern for his wellbeing.
Further, as argued by the defendants, the plaintiff has not shown that the stated purpose for placing the plaintiff in the SHU for observation was pretextual. The plaintiff was indeed observed every 30 minutes while in the SHU, and he was visited by Mental Health Counselors Ervin and Miller during this time. Moreover, the plaintiff was released from the SHU after a week-long observation when it was determined by Miller and Mental Health Manager Livingston that the plaintiff was no longer in a depressive state (doc. 40-13, Miller aff. ¶¶ 4-6). Accordingly, as the defendants have refuted the plaintiff's retaliation accusations by offering a legitimate and permissible reason for their actions, and the plaintiff has failed to satisfy the but-for causation requirement. As the plaintiff has failed to adduce evidence sufficient to satisfy the causation requirement of a First Amendment retaliation claim, the defendants are entitled to summary judgment.
Supervisor / Bystander Liability
The plaintiff also asserts his retaliation claims against Deputy Director Hollister and Director Vandermosten in their supervisory capacities; however, because the doctrines of vicarious liability and respondeat superior are generally not applicable to Section 1983 suits, such claims should be dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981) (noting that "Section 1983 will not support a claim based on a respondeat superior theory of liability" (emphasis in original)). Indeed, in order to proceed on a supervisory liability against these defendants, the plaintiff must show: (1) the supervisor had actual or constructive knowledge that his/her subordinates engaged in conduct posing a pervasive or unreasonable risk of constitutional injury; (2) the supervisor's response to the knowledge was "so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices;" and (3) an affirmative causal link between the inaction by the supervisor and the particular constitutional injury suffered by the plaintiff. Green v. Beck, 539 F. App'x 78, 80 (4th Cir. 2013). Here, as noted above, the plaintiff has failed to demonstrate actionable retaliation by Ervin and Livingston at the time of his SHU placement, and the record before the court reveals that the plaintiff raised his retaliation claim to their supervisors Hollister and Vandermosten by way of grievance appeals only after he had been released from the SHU. As such, he has failed to show that these defendants were concurrently aware of the purported retaliatory conduct of Ervin and Livingston that posed a pervasive or unreasonable risk of constitutional injury. Moreover, the plaintiff has failed to show that these defendants' actions personally violated his rights. The record shows that neither Vandermosten nor Hollister ignored the plaintiff's grievances, as both responded after looking into the matter. As such, to the extent the plaintiff asserts claims against the defendants in their supervisory capacities, the defendants are entitled to summary judgment.
The same holds true for the plaintiff's claim against Hollister and Vandermosten for bystander liability. To establish a claim under Section 1983 for bystander liability, a plaintiff must show that defendants "(1) [knew] that a fellow officer [was] violating an individual's constitutional rights; (2) [had] a reasonable opportunity to prevent the harm; and (3) [chose] not to act." Randall v. Prince George's Cty., Md., 302 F.3d 188, 204 (4th Cir. 2002). The plaintiff has failed to show that his constitutional rights were violated, so this claim is also subject to dismissal.
CONCLUSION AND RECOMMENDATION
Now, therefore, based upon the foregoing,
IT IS RECOMMENDED that the defendants' motion for summary judgment (doc. 40) be granted.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge April 8, 2020
Greenville, South Carolina
The plaintiff's attention is directed to the important notice of the following page.
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); Un i ted States v. Schronce, 727 F.2d 91 (4th Cir. 1984).