Opinion
Civil Action 9:20-3817-SAL-MHC
10-19-2021
Christopher Edward Lewallen, Plaintiff, v. Sgt. Nathan Mitchell, Lt. Ham, Kevin Matheson, Nurse Kathryn, Nurse Amber Brown, Chad McBride and Doctor Walker, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff brings this action pro se, pursuant to 42 U.S.C. § 1983, asserting violation of his constitutional rights. At the time he filed this action, Plaintiff was a pre-trial detainee at the Anderson County Detention Center (the “Detention Center”). Plaintiff claims that during his time at the Detention Center, his Eighth and Fourteenth Amendment rights were violated because his grievances were not handled properly, he was denied access to the courts, he was wrongly disciplined and denied appropriate medical treatment. ECF No. 42. Plaintiff also claims a violation of the Americans with Disabilities Act (“ADA”). Id. at 1. He seeks punitive damages and injunctive relief. Id. at 9.
Plaintiff is no longer housed at the Detention Center. See ECF No. 82 (Notice of Change of Address to Kirkland Correctional Institution).
Plaintiff's Third Amended Complaint does not seek any other type of damages, nor does it contain a general request for relief from the Court. See ECF No. 42.
Before the Court are several motions. First, Defendants Sgt. Nathan Mitchell, Lt. Ham, Kevin Matheson and Chad McBride (“Detention Center Defendants”) filed a Motion for Summary Judgment. ECF No. 90. Plaintiff filed a Response in Opposition to the Motion, in which he also seeks summary judgment, ECF No. 99, and the Detention Center Defendants filed a Reply, ECF No. 101. Second, Defendants Nurse Amber Brown and Doctor Walker (“Medical Defendants”) also filed Motions for Summary Judgment, ECF Nos. 94 and 95, to which Plaintiff filed Responses in Opposition, ECF Nos. 102 and 104, and the Medical Defendants filed a joint Reply, ECF No. 112. Finally, Plaintiff filed a Motion for Injunctive Relief, ECF No. 119, and Defendants filed Responses in Opposition, ECF Nos. 120 and 123. All of the Motions are ripe for review.
In his Response, Plaintiff also asks that Defendants be compelled to provide discovery “they withheld.” ECF No. 99 at 4. Plaintiff provides no further information regarding discovery; however, this Court already issued an Order denying Plaintiff's Motion to Compel documents he contends were being withheld. ECF No. 108.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that Defendants' Motions for Summary Judgment be granted, that Plaintiff's request for summary judgment be denied and that Plaintiff's Motion for Injunctive Relief be denied. Plaintiff'S ALLEGATIONS Plaintiff makes a No. of allegations pertaining to grievances he filed or attempted to file. These allegations are directed specifically to Defendant Nathan Mitchell, a Sergeant at the Detention Center, ECF No. 90-3 at 1 ¶ 1. Generally, Plaintiff alleges that all of his grievances have been “not answered” or “intercepted, unresolved and closed with no resolution or option to appeal by Defendant Nathan Mitchell.” ECF No. 42 at 1, 2. He contends that he has been threatened and visited in his cell by Defendant Mitchell, during which the conversation was recorded without his permission. Plaintiff alleges he also tried, unsuccessfully, to file a grievance against Defendant Mitchell. Id. at 1. Plaintiff alleges that he attempted to grieve a No. of other issues and complaints at the Detention Center, including against Mark Kirby for refusing to notarize witness statements, and was thwarted in those attempts. See Id. at 1, 2.
As to discipline, Plaintiff alleges that he was moved to a different cell in retaliation for this litigation; he also contends he was wrongly disciplined for threatening a staff member and made to wear a red jumpsuit. Id. at 3. These allegations are directed specifically to Defendant Mitchell and Defendant Bobby Ham, who is a Lieutenant at the Detention Center, ECF No. 90-5 at 1 ¶ 1. Plaintiff alleges he successfully appealed the discipline to Defendant Kevin Matheson and had it overturned but was still required to wear the red jumpsuit. Id. at 3-4. Defendant Matheson is the Director of the Detention Center. ECF No. 90-2 at 1 ¶ 1.
With regard to his claim of denial of access to the courts, Plaintiff makes several allegations that he was denied legal research multiple times while at the Detention Center by Defendants Mitchell and Ham. Id. at 4. Plaintiff alleges that Defendant Matheson is “aware but has continued to allow the civil rights violations to occur, as well as go on.” Id.
Finally, with regard to his claims relating to medical treatment, Plaintiff alleges that in October of 2020 his medical test results were read aloud against his wishes in front of 2 training officers, in violation of the “HIPPA Privacy Act.” Id. at 5. He also contends that he has the Hepatitis C virus, which he would not have known but for requesting the medical test, and has been denied treatment for it. Id. Specifically, Plaintiff contends that the Medical Defendants have refused to refer him to an outside doctor and stated that Plaintiff “was not sick enough for treatment” for his Hepatitis C. Id. at 6. Defendant Amber Brown is a registered nurse and Health Services Administrator at the Detention Center. ECF No. 94-2 at 1 ¶¶ 2, 3. Defendant James Walker is a medical doctor who serves as the facility doctor at the Detention Center. ECF No. 95-2 at 1 ¶¶ 2, 3.
The Third Amended Complaint contains no allegations regarding personal actions by Defendant McBride, who is the Sheriff of Anderson County, ECF No. 90-7 at 1 ¶ 1, but, instead, alleges that he is responsible for the constitutional deprivations by virtue of his authority as sheriff. ECF No. 42 at 2, 7.
STANDARD OF REVIEW
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). 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
A legal action under 42 U.S.C. § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). To state a claim under § 1983, a plaintiff must allege: (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). Plaintiff asserts that his Eighth and Fourteenth Amendment rights were violated by Defendants. However, constitutional claims by pre-trial detainees, such as those raised by Plaintiff here, are evaluated under the Due Process Clause of the Fourteenth Amendment rather than under the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535, 537 n.16 (1979); Hill v. Nicodemus, 979 F.2d 987, 990 (4th Cir. 1992). Nonetheless, 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.” Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988).
I. Detention Center Defendants' Motion for Summary Judgment (ECF No. 90)
The Detention Center Defendants have moved for summary judgment and dismissal of all claims alleged against them. In support of their Motion for Summary Judgment, they provided affidavits of Defendants Mathison (ECF No. 90-2), Mitchell (ECF No. 90-3), Ham (ECF No. 90-5), and McBride (ECF No. 90-7), as well as legal research documents (ECF No. 90-6).
In his Response in Opposition to the Motion for Summary Judgment, Plaintiff mounted a No. of arguments, generally disagreeing with Defendants. ECF No. 99. He cites to a handful of cases and refers to various Bates numbers, which appear to be markers for documents produced in discovery in this case. Id. Plaintiff did not attach any documents or other evidence, however, to the Response. ECF No. 48-2 at 1-7. Neither Plaintiff's original Complaint, nor any of his Amended Complaints, are verified. See ECF Nos. 1, 5, 24, and 42.
Generally, Plaintiff's claims are addressed by reference to the allegations in his Third Amended Complaint and the arguments in his Responses. However, where additional background is necessary, the undersigned has included specific reference to the only evidence in the record, which is the sworn testimony provided in affidavits of the individual Defendants.
Construing the evidence before the Court in the light most favorable to Plaintiff, the undersigned finds that Plaintiff has failed to establish a genuine issue of material fact regarding any of his claims against the Detention Center Defendants, such that their Motion for Summary Judgment should be granted.
A. Section 1983 Claims Against Detention Center Defendants in their Official Capacities
As an initial matter, any claims against the Detention Center Defendants in their official capacities must be dismissed. Because the Detention Center Defendants are agents or employees of an arm of the State of South Carolina when acting in their official capacities, they are not subject to suit for damages pursuant to 42 U.S.C. § 1983 in their official capacities. See Will v. Michigan State Police, 491 U.S. 58, 71 (1989) (explaining that “a suit against a state official in his or her official capacity is . . . no different from a suit against the State itself”); see also Pennington v. Kershaw Cnty., S.C., C/A No. 3:12-1509-JFA-SVH, 2013 WL 2423120, at *4 n.2 (D.S.C. June 4, 2013) (citing S.C. Code Ann. § 4-1-10 and applying the Eleventh Amendment to a county as “a political subdivision of the State”); Chisolm v. Cannon, C/A No. 4:02-3473-RBH, 2006 WL 361375, at *5-6 (D.S.C. Feb. 15, 2006) (finding Charleston County Detention Center entitled to Eleventh Amendment immunity as an arm of the state); Cone v. Nettles, 417 S.E.2d 523, 525 (S.C. 1992) (holding that employees of a county Sheriff are state officials and thus not liable in their official capacities for monetary damages under 42 U.S.C. § 1983). “State officers sued for damages in their official capacity are not ‘persons' for purposes of the suit because they assume the identity of the government that employs them.” Hafer v. Melo, 502 U.S. 21, 27 (1991).
However, “a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State.” Will, 491 U.S. at 71 n.10 (internal quotation marks omitted). Nevertheless, in this instance, Plaintiff cannot seek injunctive relief from the Detention Center Defendants because he is no longer housed at the Detention Center and has not presented any evidence showing a reasonable expectation that he will be detained at the Detention Center in the future, such that any claim for injunctive relief is moot. See ECF No. 82 (Pl.'s change-of-address notice); Slade v. Hampton Roads Reg'l Jail, 407 F.3d 243, 248-49 (4th Cir. 2005) (presuming that former detainee plaintiff will abide by the criminal laws in the future, finding no reasonable probability that he will return to the jail as a pretrial detainee, and holding that former detainee's request for injunctive relief was moot). Accordingly, to the extent that Plaintiff seeks relief against the Detention Center Defendants in their official capacities or seeks injunctive relief, his claims should be dismissed.
B. Claims Against the Detention Center Defendants in their Individual Capacities
Although they cannot be sued in their official capacities, the Detention Center Defendants are subject to suit for money damages in their individual capacities in a § 1983 lawsuit. See Hafer, 502 U.S. at 27; Goodmon v. Rockefeller, 947 F.2d 1186, 1187 (4th Cir. 1991). However, for the reasons set forth below, the evidence is not sufficient to create a genuine issue of fact as to whether any of the Detention Center Defendants violated Plaintiff's constitutional rights, such that Plaintiff's claims against the Detention Center Defendants in their individual capacities should be dismissed.
Notably, Plaintiff only seeks injunctive relief and punitive damages in his Third Amended Complaint. Punitive damages are not available when, as here, compensatory damages are not sought. See Davis v. S.C. Dep't of Corr., Civil Action No. 5:17-cv-02824-JMC, 2017 WL 6621115, at *1 (D.S.C. Dec. 28, 2017) (finding Court unable to provide punitive damages where Plaintiff did not plead compensatory, nominal or general damages). In light of Plaintiff's narrow claim for relief that does not seek compensatory damages, Plaintiff's entire lawsuit should be dismissed as moot. But see Williamson v. Stirling, 912 F.3d 154, 170 (4th Cir. 2018) (finding appeal was not moot in case where pro se plaintiff sought injunctive relief and punitive damages in his complaint but also sought “additional relief this court deems just, proper, equitable, ” which encompassed compensatory damages.) Nevertheless, the undersigned has addressed the merits of each claim.
Plaintiff argues that his claims should not be dismissed under the Prison Litigation Reform Act (“PLRA”) based upon his failure to exhaust administrative remedies, ECF No. 99 at 1. However, Defendants did not move for summary judgment based upon a theory of failure to exhaust administrative remedies, see ECF No. 90, nor does the undersigned recommend dismissal on that basis.
Defendants argue that they handled Plaintiff's grievances properly and, in any event, the complaints alleged by Plaintiff do not fall within the scope of 42 U.S.C. § 1983. ECF No. 90-1 at 3-6. The Court agrees that the evidence in the record, specifically the affidavits of Defendants Matheson and Mitchell, indicates the Detention Center Defendants handled Plaintiff's grievances properly. See ECF Nos. 90-2, 90-3.
Nevertheless, even if the Detention Center Defendants failed to address, permit or process Plaintiff's grievances, Plaintiff still has not established a cause of action under § 1983. The “Constitution creates no entitlement to grievance procedures or access to any such procedure voluntarily established by the state.” Temple v. Coleman, No. 3:05-2477-MBC, 2006 WL 2096013, at *2 (D.S.C. July 27, 2006) (quoting Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994)); see also Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (existence of a prison grievance procedure does not confer any substantive right upon inmates); Brown v. Dodson, 863 F.Supp. 284 (W.D. Va. 1994) (inmates do not have a constitutionally protected right to a grievance procedure). It is well-settled that prison inmates, including pre-trial detainees, have no federal constitutional right to have any inmate grievance system in operation at the place where they are incarcerated. Martin v. O'Brien, C/A No. 6:13-335-TMC-JDA, 2013 WL 1282143, at *3 (D.S.C. Feb. 21, 2013); see also Sullivan v. Cartledge, No. 8:03-1091-12, 2004 WL 3312006, at *2 (D.S.C. Mar. 8, 2004) (citing Adams, 40 F.3d at 75). Furthermore, even though a state or local authority chooses to establish an inmate grievance system, that choice does not confer any substantive constitutional right on prison inmates or pre-trial detainees. See Martin, 2013 WL 1282143, at *3. Thus, the Detention Center's inmate grievance procedure does not give rise to liberty interests protected by the Due Process Clause, such that the Detention Center Defendants are entitled to summary judgment on this claim.
Even if there were some substantive right created, “‘[i]n reviewing prison administrative actions in Section 1983 actions, the Court must uphold the administrative decision unless it was arbitrary and capricious.'” Brooks v. Golden, Civil Action No. 6:06-1234-MBS-WMC, 2007 WL 2688607, at *9 (D.S.C. June 27, 2007), report and recommendation adopted, 2007 WL 2688603 (D.S.C. Sept. 11, 2007), aff'd, 268 Fed.Appx. 217 (4th Cir. 2008). “A decision is not arbitrary and capricious if it was made ‘by a specific exercise of professional judgment and on the basis of factors clearly bearing on the appropriateness [of the decision at issue].'” Id. The sworn testimony before the Court indicates that Defendants handled the grievances appropriately and did not act in an arbitrary or capricious manner. See ECF Nos. 90-2, 90-3. Plaintiff has failed to show any issues of material fact, such that the claim fails.
Plaintiff also argues that the Detention Center Defendants violated or have not followed Detention Center policies in handling his grievances. ECF No. 42 at 2. Even assuming for purposes of summary judgment that the Detention Center Defendants' actions violated policy, any violation of such policies does not constitute a violation of Plaintiff's constitutional rights and, therefore, is not assertable in a § 1983 action. See United States v. Caceres, 440 U.S. 741 (1978); see also Riccio v. Cnty. of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir. 1990) (if state law grants more procedural rights than the Constitution requires, a state's failure to abide by that law is not a federal due process issue); Plemmons v. Lovin, No. CV 9:15-2914-BHH-BM, 2015 WL 13735679, at *3 (D.S.C. Aug. 27, 2015), report and recommendation adopted, No. 9:15-CV-2914-BHH, 2016 WL 3639982 (D.S.C. July 7, 2016); Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C.1992) (violations of prison policies which fail to reach the level of a constitutional violation are not actionable under § 1983). As a voluntarily established grievance procedure does not give any substantive constitutional right to prison inmates or pre-trial detainees, a prison official's alleged failure to comply with the grievance procedure is not actionable under § 1983. See Brown, 863 F.Supp. at 285; Buckley, 997 F.2d at 494; Pugh v. Ingram, No. 5:12-CT-3027-FL, 2012 WL 8253623, at *1 (E.D. N.C. July 3, 2012). Accordingly, Plaintiff has failed to state a cause of action under § 1983 concerning his grievances.
Finally, Plaintiff alleges that Defendant Mitchell threatened to suspend his Kioskprivileges, attempted to intimidate him and recorded a conversation with him, without his permission. ECF No. 42 at 2-3. Defendant Mitchell does not characterize his comments to Plaintiff as a threat but, instead, states that he informed Plaintiff that suspending Plaintiff's privileges was a possibility because of Plaintiff's abuse of the system. ECF No. 90-3 at 3, ¶ 6.
The Kiosk system is, in essence, an information platform that allows inmates to communicate with every area of the Detention Center, access the Inmate Handbook, determine how much money they have to make phone calls or send emails for other items. ECF No. 90-2 at 1-2, ¶¶ 3-5. Inmates can submit grievances through the Kiosk system, as well. Id. at 2, ¶ 5.
Plaintiff was at the Detention Center for 528 days and, during that time period, submitted over 800 Kiosk requests. ECF No. 90-2 at 1-2, ¶ 3.
Regardless of whether Defendant Mitchell's words constituted a threat or attempted intimidation, words alone do not state a constitutional violation. See Calhoun v. Hargrove, 312 F.3d 730 (5th Cir. 2002); see also Henslee v. Lewis, 153 Fed.Appx. 178, 180 (4th Cir. 2005) (“Mere threats or verbal abuse by prison officials, without more, do not state a cognizable claim under §1983.”); see also Tate v. McClanahan, No. 2:08-CV-3221-PMD-RSC, 2009 WL 935699, at *2 (D.S.C. Apr. 7, 2009) (finding that “the law is clear that mere threatening language and gestures of a custodial officer do not, even if true, amount to constitutional violations”). Moreover, the only evidence before the Court shows that Plaintiff's privileges were never suspended. Under these circumstances, Plaintiff's claim based upon these allegations against the Detention Center Defendants should be dismissed.
The recording of the conversation provided to the Court does not sound intimidating or threatening Id. at 3, ¶ 7; ECF No. 93. Plaintiff has not cited to, nor is the undersigned aware of, any case law supporting his position that Defendant Mitchell's recording of a conversation with him was improper.
b. Claim of Denial of Access to Courts
Plaintiff has also asserted a claim for denial of access to the courts, alleging that there is no law library to do his own research, he was denied access to legal research and either refused copies or charged for copies. ECF No. 42 at 4. The Due Process Clause of the Fourteenth Amendment guarantees state inmates their First Amendment right to “adequate, effective, and meaningful” access to the courts. Bounds v. Smith, 430 U.S. 817, 822 (1977); Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996). Plaintiff has failed to establish a claim for denial of access to the courts.
The record evidence reveals that the Detention Center does not have a law library but contracts with an entity, Legal Research Associates, to provide inmates with legal materials. ECF No. 90-5 at 3, ¶ 7. Inmates are not required to pay anything for this service. Id. The evidence before the Court shows that Plaintiff submitted seven requests to Legal Research Associates, and they provided him with approximately 620 pages of legal materials. Id. Plaintiff argues that he submitted more requests that were denied, ECF No. 99, but he has not provided any evidence to show what legal research or copies he contends were denied. Moreover, Plaintiff does not allege or provide any evidence to show that any of the named Detention Center Defendants specifically caused this alleged denial. See Williamson v. Stirling, 912 F.3d 154, 171 (4th Cir. 2018) (“To establish personal liability under § 1983, . . . the plaintiff must affirmatively show that the official charged acted personally in the deprivation of the plaintiff's rights.”) (citing Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985)) (internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (an official's “own individual actions” must have “violated the Constitution”).
Regardless, however, Plaintiff has failed to show or even allege any injury which he suffered from the alleged denial of access to legal materials or copies. See Cochran, 73 F.3d at 1317 (noting that to raise a claim that he has been unconstitutionally denied access to the courts, a plaintiff cannot rely on conclusory allegations-rather, he must identify with specificity an actual injury resulting from the defendants' conduct); see also Strickler v. Waters, 989 F.2d 1375, 1384 (4th Cir. 1993) (“A demonstration of inability to present a legal claim is an essential ingredient of a suit such as this because the prisoner must be able to show that the rules interfered with his entitlement (access to the courts) rather than with a mere instrument for vindicating an entitlement (access to books).”) (citation omitted).
Plaintiff alleges that the denial of legal research prevented or impeded his ability to file a “planned section 1983 suit against the Jail.” See ECF No. 42 at 4. However, this allegation is insufficient to state a claim for denial of access to courts. See Jones v. Lexington Cnty. Detention Center, 586 F.Supp.2d 444, 448-49 (D.S.C. 2008) (conclusory statements that inmate would have fared better in litigation or that inmate was unable to file other claims fail to state a claim as a matter of law). Because Plaintiff has failed to present any evidence sufficient to create a genuine issue of fact as to a claim for denial of access to the courts, the Detention Center Defendants are entitled to summary judgment on this claim.
c. Retaliation Claim Based On Cell Movement
Plaintiff also claims that he was improperly moved from one cell to another, in retaliation for his grievances and this lawsuit or to deter him from litigating. ECF Nos. 42 at 2, 6; 99 at 2. The First Amendment, as incorporated through the Fourteenth Amendment, prohibits states from “abridging the freedom of speech.” U.S. Const. amend. I. An inmate has a First Amendment right to be free from retaliation by prison officials for filing a grievance. Booker v. S.C. Dep't of Corrs., 855 F.3d 533, 546 (4th Cir. 2017).
A First Amendment retaliation claim under § 1983 consists of three elements: (1) the plaintiff engaged in constitutionally protected First Amendment activity; (2) the defendant took an action that adversely affected that protected activity; and (3) there was a causal relationship between the plaintiff's protected activity and the defendant's conduct. Id. at 537; Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685-86 (4th Cir. 2000). For purposes of a First Amendment retaliation claim under § 1983, “a plaintiff suffers adverse action if the defendant's allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005) (internal quotation marks omitted). Moreover, “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 [government official] would not have taken the alleged retaliatory action.” Huang v. Bd. of Governors of Univ. of N. Carolina, 902 F.2d 1134, 1140 (4th Cir. 1990).
It is undisputed in this case that Plaintiff has filed grievances regarding a No. of matters. For purposes of Defendant's Motion, the Court assumes Plaintiff has engaged in constitutionally protected activity or speech. Moreover, it appears Plaintiff continued to file grievances even after being moved to a different cell, which would suggest Plaintiff cannot meet the second element, i.e., whether the Detention Center Defendants took an action that adversely affected Plaintiff's protected activity. Regardless, however, Plaintiff cannot establish and has no evidence to support a causal relationship between his protected activity and the Detention Center Defendants' conduct.
The only evidence before the Court shows that Plaintiff was not moved to a different cell as punishment or out of retaliation for his grievances, but rather because of an internal housing need. ECF No. 90-5 at 1, ¶ 3. In his affidavit, Defendant Ham explains that Plaintiff was initially housed in a single man cell and was moved to another, larger single man cell. Id. Plaintiff also had the same privileges as he did in his prior cell and the only thing that changed was the location of the cell. Id. There is no evidence in the record to indicate otherwise. Plaintiff's bare assertions and conclusory allegations of retaliation in the Third Amended Complaint do not establish a claim of constitutional dimension. Adams, 40 F.3d at 74-75; see Goodman v. Smith, 58 Fed.Appx. 36, 38 (4th Cir. 2003). Plaintiff has failed to present any evidence to show that “but for” the filing of his grievances, the Detention Center Defendant would not have made the determination to move Plaintiff into a different cell. See Huang, 902 F.2d at 1140. Instead, the record shows that Plaintiff was moved to a similar, but different, cell based upon institutional needs. On this record, no reasonable jury could find that the Detention Center Defendants retaliated against Plaintiff for filing grievances. Therefore, they are entitled to summary judgment.
Plaintiff questions the internal housing need, arguing that the cell from which he was moved was vacant for at least five days. ECF No. 99 at 2. Notwithstanding that there is no evidence before the Court in that regard, leaving a single man cell unoccupied does not give rise to an inference of retaliation. Moreover, to the extent Plaintiff is claiming a constitutional right to remain in his original cell, a pre-trial detainee's transfer from one cell to another typically does not implicate a liberty interest. See Sheffield v. Edwards, C/A No. 9:07-3550-JFA-GCK, 2008 WL 4200442, at *14 (D.S.C. Sept. 3, 2008).
d. Claims Based on Discipline
Plaintiff next alleges that his due process rights were violated because a disciplinary hearing was conducted improperly, where he was not allowed to submit a statement or cross-examine a witness. ECF No. 42 at 3. He complains that he was required to remain in a red jumpsuit, even after his disciplinary conviction was overturned. Id. These allegations appear to implicate substantive and procedural due process concerns.
It is well-settled that pretrial detainees possess a constitutional right “to be free from punishment.” See Bell v. Wolfish, 441 U.S. 520, 535 (1979). This settled principle applies “to substantive and procedural due process claims pursued by pretrial detainees.” Williamson, 912 F.3d at 174-76; see Dilworth v. Adams, 841 F.3d 246, 251-53 (4th Cir. 2016) (applying Bell to pretrial detainee's procedural due process claim); Ford v. Bender, 768 F.3d 15, 24-27 (1st Cir. 2014) (distinguishing types of due process claims); Slade, 407 F.3d at 250 (assessing pretrial detainee's substantive due process claim under Bell principles).
i. Substantive Due Process
Typically, a substantive due process claim pursued by a pretrial detainee challenges the general conditions of confinement or the treatment of all detainees in a specific facility. Williamson, 912 F.3d at 174; see Slade, 407 F.3d at 250 (evaluating pretrial detainee's substantive due process claim challenging jail upkeep fees under Due Process Clause and Bell); Martin, 849 F.2d at 870 (assessing pretrial detainee's conditions of confinement claim under Due Process Clause and Bell). The controlling inquiry for such a claim is whether the conditions imposed on the pretrial detainee constitute “punishment.” Williamson, 912 F.3d at 174 (citing Bell, 441 U.S. at 535-39; Martin, 849 F.2d at 870). To prevail on a substantive due process claim, the pretrial detainee must show that a particular restriction was either: “(1) imposed with an expressed intent to punish or (2) not reasonably related to a legitimate nonpunitive governmental objective.” Id. (citing Slade, 407 F.3d at 251).
Here, Plaintiff's allegations regarding placement in a red jump suit implicate substantive due process concerns. Plaintiff notes there are a No. of detainees required to wear red jump suits. ECF No. 42 at 8. The uncontroverted testimony of Defendant Ham, set forth in his affidavit, is that inmates at the Detention Center are placed in red jumpsuits not for disciplinary reasons but, instead, to make officers aware of a potential threat to their safety. ECF No. 90-5 at 2, ¶¶ 5, 6. These detainees do not lose any privileges because they are in the red jumpsuit. Id. at 2, ¶ 5. They are permitted to go wherever they would be allowed to go normally; however, they must be restrained when leaving their cell and are escorted by two officers. Id.
Plaintiff identified a No. of former and current detainees who wore red jump suits, claiming each had physically assaulted a staff member at the Detention Center. ECF No. 42 at 8. There is no evidence to substantiate his allegation as to why the detainees were wearing red jump suits.
Plaintiff alleges that wearing the red jumpsuit amounts to being administratively separated from general housing, locked down 23 hours a day and required to be handcuffed and shackled to take a shower. ECF No. 42 at 6. While the allegation of being handcuffed and shackled to take a shower is consistent with Defendant Ham's testimony, there is no evidence in the record to substantiate Plaintiff's allegations.
According to the uncontroverted evidence before the Court, Plaintiff had a bottle in his cell which contained a mixture of feces and urine. ECF Nos. 90-5 at 2, ¶ 5; 90-2 at 2-3, ¶ 6; 90-3 at 3- 4, ¶ 8. Plaintiff informed the officer who discovered the bottle that it was not for him but was for another officer, Officer Keyes. Id. Around this same time period, Plaintiff made statements in a Kiosk request that were considered to be of a threatening nature. Id. According to Defendant Ham's testimony, as a result of these incidents, and in light of the potential threat to officer safety, Plaintiff was placed in a red jumpsuit. ECF No. 90-5 at 2, ¶ 5.
Plaintiff has not presented any evidence to controvert the testimony in this case. He has not shown that the use of red jump suits was either: “(1) imposed with an expressed intent to punish or (2) not reasonably related to a legitimate nonpunitive governmental objective.” See Slade, 407 F.3d at 251. In fact, the uncontroverted evidence establishes that the use of red jump suits was for the express purpose of maintaining safety and security in the Detention Center. Under these circumstances, Plaintiff's substantive due process claim fails.
ii. Procedural Due Process
A pretrial detainee challenging individually-imposed restrictions-as opposed to shared conditions of confinement-is entitled to pursue a procedural due process claim. Williamson, 912 F.3d at 174 (citing Dilworth, 841 F.3d at 250-52). Jail officials are entitled to discipline pretrial detainees for infractions committed in custody and to impose restrictions for administrative purposes, but, as these restrictions implicate a detainee's liberty interests, he is entitled to certain procedural protections. Id. at 174-75; see also Bell, 441 U.S. at 546. Where restrictions are imposed as a disciplinary measure, the detainee must be provided notice, a hearing, and a written explanation of the disciplinary action taken. Id. at 176.
It is undisputed that, as a result of the bottle in Plaintiff's cell and the Kiosk message, Plaintiff also was charged with a disciplinary offense for threatening to harm an officer. ECF No. 90-2 at 2-3, ¶ 6. It is also undisputed that Plaintiff was written up for this offense, and a disciplinary hearing was conducted without Plaintiff present, after which Plaintiff's privileges were temporarily revoked. ECF No. 90-2 at 2-3, ¶ 6; ECF No. 42 at 3. Plaintiff subsequently appealed the disciplinary conviction because he was not allowed to provide a statement at the hearing. ECF No. 90-2 at 2-3, ¶ 6. As a result, Defendant Matheson overturned the disciplinary conviction, which restored all of Plaintiff's privileges. ECF No. 90-2 at 2-3, ¶ 6. Plaintiff was notified on April 7, 2020. ECF No. 42 at 3.
According to the Detention Center Defendants, because of issues related to Covid and concerns about officer safety, the disciplinary hearing was held in Plaintiff's absence. ECF Nos. 90-2 at 2- 3, ¶ 6; 90-3 at 3, ¶ 8. Nevertheless, even though a disciplinary hearing is held without the inmate present, the inmate can still provide a statement and identify witnesses. ECF No. 90-2 at 2-3, ¶ 6. Plaintiff was found guilty of the disciplinary offense on March 31, 2020, and had his privileges revoked. Id.; see also ECF No. 42 at 3.
Plaintiff argues that, because his disciplinary conviction was overturned, he should not have been required to continue wearing a red jumpsuit. ECF No. 42 at 3. Indeed, it is the continued wearing of the red jumpsuit that is the gravamen of Plaintiff's claim. However, as noted above, while the disciplinary conviction for threatening to harm an officer was overturned, placement of an inmate in a red jumpsuit is not done as a result of a disciplinary conviction but is a separate matter. Inmates again are placed in red jumpsuits to make officers aware of inmates who present a potential security threat, and an inmate can be placed in a red jumpsuit even without any type of disciplinary offense. There is no evidence before the Court to the contrary. In the present case, Plaintiff was placed in a red jumpsuit because of his actions and for the safety of officers and staff to warn them that Plaintiff posed a potential threat. Under these circumstances, Plaintiff's procedural due process claim fails.
Based upon the record evidence, it appears Plaintiff's privileges were revoked for approximately one week before his disciplinary conviction was overturned. While, in theory, that revocation could give rise to a limited damages claim, there is no evidence before the Court as to what those privileges may have been or whether any revocation was actually implemented before the conviction was overturned. Moreover, Plaintiff has not alleged or established any damages from, nor is he seeking relief for, the week-long loss of privileges. See ECF No. 42; see also notes 2 and 5, supra.
e. Claims Based on Conditions of Confinement
Plaintiff also alleges in his Third Amended Complaint that there was a flood light outside of his cell that caused him distress and headaches, for which he received medical care. ECF No. 42 at 6, 7. Plaintiff submitted Kiosk requests concerning the light in the hallway outside of his cell. ECF No. 90-3 at 4, ¶ 10. He complained that the light bothered him as it was too bright and stated that the type of light used was inappropriate as it was designed for outside use. Id. He also complained about the cleanliness of his cell, specifically concerns over mold in his cell. ECF Nos. 42 at 6, 7; 90-3 at 4, ¶ 11.
Although “a pretrial detainee, not yet found guilty of any crime, may not be subjected to punishment of any description[, ] . . . not every hardship encountered during pretrial detention amounts to ‘punishment' in the constitutional sense.” Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992). To establish a constitutional claim based upon his conditions of confinement, Plaintiff must prove that he was deprived a “basic human need” and that this deprivation was attended by deliberate indifference on the part of the defendants. Strickler, 989 F.2d at 1379; see also Martin, 849 F.2d at 870.
The test for whether a prison official acts with deliberate indifference is a subjective one: the official must “know[ ] of and disregard[ ] an excessive risk to inmate health and safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Further, the plaintiff must produce evidence of serious or significant physical or emotional injury resulting from challenged conditions to withstand summary judgment on prison conditions claim. Strickler, 989 F.2d at 1380-81.
Construing the evidence in the light most favorable to Plaintiff, the undersigned finds that Plaintiff has failed to establish a genuine issue of material fact as to whether he was deprived of a basic need or that any of the Detention Center Defendants acted with deliberate indifference. See Strickler, 989 F.2d at 1379.
With regard to the light outside Plaintiff's cell, Defendant Mitchell's undisputed affidavit testimony establishes that the type of light outside of Plaintiff's cell was selected to comply with the lumens requirement for lights established by the South Carolina Department of Corrections (“SCDC”), which performs inspections of the Detention Center. ECF No. 90-3 at 4, ¶ 10. Moreover, the light remains on during the day but is turned off at 9:00 p.m. each night and remains off until the following morning. Id.
As to the mold about which Plaintiff complained, “mere exposure to mold, mildew, and odors does not amount to ‘an excessive risk to inmate health or safety'” under the Fourteenth Amendment. Jordan v. Franks, 2010 WL 4007641, at *2 (S.D. Ga. Aug. 30, 2010); see also Webb v. Nicks, No. CV 1:18-2007-HMH-SVH, 2019 WL 2896447, at *1-4 (D.S.C. June 4, 2019), adopted by, No. CV 1:18-2007-HMH-SVH, 2019 WL 2869626 (D.S.C. July 3, 2019) (denying pretrial detainee's conditions-of-confinement claim based on alleged exposure to black mold in the showers and bunks; brown, foul-smelling drinking water from rusty pipes; lead paint peeling from the walls; most of the bathrooms in the bunks not functioning, leading to a bad smell; poor ventilation system; and overcrowding). Regardless, as Defendant Mitchell explained in his affidavit, inmates are offered cleaning supplies every day that they can use to clean their cells and that these cleaning materials will kill mold or mildew, if present. Id. at 4-5, ¶ 11. Inmates choose whether to accept the materials and clean the cell. Plaintiff was offered cleaning materials daily, such that he had the choice to clean his cell. In addition, when the inmate population allows, the Detention Center will move inmates to another area and pressure wash cells, which is generally done several times per year. Id.
Plaintiff has failed to establish a genuine question of fact as to whether his conditions of confinement violated his due process rights, such that the Detention Center Defendants are entitled to summary judgment on this claim.
f. Claims against Defendant McBride
Plaintiff does not allege that Defendant McBride personally participated in any of the actions giving rise to the claims in the Third Amended Complaint. The law is clear that personal participation of a defendant is a necessary element of a § 1983 claim against a government employee in his personal capacity. Doe v. Rosa, 795 F.3d 429, 439 n.7 (4th Cir. 2015); see Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001).
Although the Third Amended Complaint contains no allegations regarding personal actions by Defendant McBride, who is the Sheriff of Anderson County, it alleges that he is responsible for the constitutional deprivations by the other Defendants by virtue of his authority as sheriff. ECF No. 42 at 2, 7. In other words, Plaintiff seeks to hold Defendant McBride responsible pursuant to a respondeat superior theory. The doctrines of vicarious liability and respondeat superior, however, are generally not applicable in § 1983 actions. Doe, 795 F.3d at 439 n.7 (“Because principles of respondeat superior do not apply in imposing liability under § 1983, it is not enough that Rosa had general supervisory authority over Brandenburg and other Citadel employees. His own individual actions must violate the [plaintiffs'] rights.”) (internal quotation marks omitted) (citing Iqbal, 556 U.S. at 676; McWilliams v. Fairfax Cnty. Bd. of Supervisors, 72 F.3d 1191, 1197 (4th Cir. 1996)); see also Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978) (holding “that a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory”).
Moreover, even if Plaintiff were pursuing a supervisory theory of liability under § 1983 against Defendant McBride, the claim would fail. “[S]upervisory officials may be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates.” Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984). In such a case, liability “is not premised on respondeat superior, but on a recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.” Id. (citations omitted).
The Fourth Circuit has stated a plaintiff must show the following three elements to establish supervisor liability under section 1983:
(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.Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations and internal quotation marks omitted). Notably here, however, the allegations in the Third Amended Complaint do not support a claim for supervisory liability and, even if they somehow did, there is no evidence before the Court to support a supervisory liability theory against Defendant McBride.
As set forth in detail above, Plaintiff has not established any constitutional injury by any other Detention Center Defendant, such that he cannot make out any of the elements for a supervisory liability claim. Plaintiff has not stated, nor provided any evidence to support, a § 1983 claim against Defendant McBride. See Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own actions, has violated the Constitution.”); Trulock, 275 F.3d at 402 (in a civil rights action, “liability is personal, based upon each defendant's own constitutional violations.”); Langston v. Georgetown City Police Dep't, No. 2:14-CV-4536-RMG-MGB, 2015 WL 13106023, at *2 (D.S.C. Jan. 15, 2015), report and recommendation adopted, No. CV 2:14-4536-RMG, 2015 WL 13102613 (D.S.C. Feb. 19, 2015). Therefore, as to the § 1983 claim against Defendant McBride, the Detention Center Defendants' Motion should be granted.
g. Qualified Immunity
The Detention Center Defendants also argue that they are entitled to qualified immunity with regard to Plaintiff's claims against them. Pursuant to the doctrine of qualified immunity, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Iko v. Shreve, 535 F.3d 225, 237 (4th Cir. 2008) (citation omitted). “To overcome a defendant's claim of qualified immunity, the court must determine: (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.” Williamson, 912 F.3d at 186 (quotation marks and citation omitted). As explained above, Plaintiff has failed to forecast evidence sufficient to establish that any of the Detention Center Defendants violated a constitutional right. Accordingly, the Detention Center Defendants are also entitled to summary judgment on the basis of qualified immunity.
The Officer Defendants also request that this case be dismissed as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1), because the lawsuit is meritless. ECF No. 90-1 at 27. The in forma pauperis statute provides judges broad discretion “to dismiss a claim based on an indisputably meritless legal theory, ” and those “claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989); Adams v. Rice, 40 F.3d 72 (4th Cir. 1994). In this case, the undersigned recommends denying the Detention Center Defendants' request for dismissal on this basis, as it appears that this is Plaintiff's first lawsuit under 28 U.S.C. § 1983, and the claims and facts alleged are not so clearly baseless as to constitute an indisputably meritless legal theory. See Davis v. Reynolds, No. CV51502398HMHKDW, 2016 WL 1358023, at *6 (D.S.C. Mar. 14, 2016), adopted by, No. CV 5:15-2398-HMH-KDW, 2016 WL 1321184 (D.S.C. Apr. 5, 2016) (recommending that action not be counted as a strike, even though plaintiff's Complaint failed to comply with Rule 8, Fed. R. Civ. P., and plaintiff did not offer any evidence in support of his allegations).
II. The Medical Defendants' Motions for Summary Judgment (ECF Nos. 94 and 95)
Plaintiff claims that the Medical Defendants violated the Eighth and Fourteenth Amendments, as well as the Americans with Disabilities Act, in denying him Hepatitis C treatment and mental health treatment. ECF No. 42 at 7. Plaintiff alleges that he has been deprived treatment for Hepatitis C altogether and that his requests to see a psychiatrist have been denied, as he is on the waiting list. ECF No. 42 at 6.
To the extent Plaintiff is claiming a violation of the Health Insurance Portability and Accountability Act (“HIPAA”), after his medical test results were read out loud in front of two training officers, ECF No. 42 at 5, that law does not create a private right of action. See Acara v. Banks, 470 F.3d 569, 571-72 (5th Cir. 2006); see also Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010) (“Any HIPAA claim fails as HIPAA does not create a private right of action for alleged disclosures of confidential medical information.”); Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1080 (9th Cir. 2007) (noting that HIPAA provides for no private right of action); Blackstock v. Pee Dee Mental Health, No. 4:17-cv-02055-RBH-KDW, 2017 WL 4838814, at *2 (D.S.C. Aug. 31, 2017), report and recommendation adopted, 2017 WL 4791087 (D.S.C. Oct. 23, 2017) (finding that because the plaintiff had no private cause of action, she could not sue the defendant under HIPAA for not providing her medical reports when requested). Accordingly, Plaintiff's allegations do not establish a plausible claim under HIPAA.
Specifically regarding Defendant Walker, Plaintiff alleges he “has refused to refer plaintiff an outside referral also for treatment of HCV.” Id. As well, Plaintiff claims Defendant Walker told him that he “was not sick enough for treatment.” Id. Regarding Defendant Brown, Plaintiff alleges he “has requested vitamins or supplements to help battle the fatigued [sic] known and associated with HCV” and that his requests have been denied “by Defendants [sic] Amber Brown ACDC nurse.” Id. Plaintiff also claims “Amber Brown has refused to refer Plaintiff to an outside doctor for a GI consult” and that she, too, told Plaintiff he was not “was not sick enough for treatment.” Id. Plaintiff also alleges that both Medical Defendants refused to allow him to participate in an HCV program and refused him mental health treatment. Id.
Viewing the evidence in the light most favorable to Plaintiff, Plaintiff has failed to establish that either of the Medical Defendants, or any other Defendant, was deliberately indifferent to his serious medical needs. Accordingly, the undersigned concludes that summary judgment should be granted to the Medical Defendants.
According to the uncontroverted affidavit of Defendant Matheson, the Detention Center does not employ medical providers but, instead, contracts with an outside entity to provide trained medical providers to provide medical care to inmates. ECF No. 90-2 at 3, ¶ 7. To bring a denial of medical treatment claim against a non-medical prison official, an inmate must show that such official was personally involved with a denial of treatment, deliberately interfered with prison doctor's treatment, or tacitly authorized or was indifferent to the prison doctor's misconduct. Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Shakka v. Smith, 71 F.3d 162, 167 (4th Cir. 1995) (officials entitled to rely on judgment of medical personnel); Boblett v. Angelone, 957 F.Supp. 808 (W.D. Va. 1997) (explaining that “correctional officials are entitled to rely on their institution's medical staff and can only be held liable for inadequate medical treatment if they interfere with the medical staff's treatment or were aware the staff was providing grossly inadequate medical care, or tacitly authorized the provision of such care”). The Detention Center Defendants do not have any advanced medical training and rely on the expertise of these trained medical personnel to provide medical care to all inmates. ECF Nos. 90-3 at 5, ¶ 12; 90-5 at 3, ¶ 8. They are not directly involved in the medical care of inmates and have no first-hand knowledge concerning the medical care provided to the Plaintiff. Id. These Detention Center Defendants had the right to rely upon the licensed medical providers as to the proper course of treatment and cannot be held liable on the basis that Plaintiff was not provided proper medical care.
A. Plaintiff Has Not Established That Either Medical Defendant Was Deliberately Indifferent to His Serious Medical Needs.
“[D]enial-of-medical-care claims asserted by pre-trial detainees [under the Fourteenth Amendment] are governed by the [Eighth Amendment's] deliberate indifference standard.” Patten v. Nichols, 274 F.3d 829, 834 (4th Cir. 2001); see also Young v. City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001) (“Pretrial detainees are entitled to at least the same protection under the Fourteenth Amendment as are convicted prisoners under the Eighth Amendment.”). To state a claim for deliberate indifference to a serious medical need, a plaintiff must show that, objectively, he had serious medical needs and that, subjectively, the defendant acted with deliberate indifference to those needs. Heyer v. United States Bureau of Prisons, 849 F.3d 202, 210-11 (4th Cir. 2017).
As to the first prong, a “serious medical need” is “one that has been 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.” Iko, 535 F.3d at 241. As to the second prong, a claim of deliberate indifference requires a showing that the defendant actually knew of and ignored the plaintiff's serious need for medical care. See Young, 238 F.3d at 575. A claim of medical indifference requires more than a showing of mere negligence. Farmer, 511 U.S. at 835. Moreover, an inmate's constitutional “right to treatment is . . . limited to that which may be provided upon a reasonable cost and time basis and the essential test is one of medical necessity and not simply that which may be considered merely desirable.” Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir. 1977). The conduct 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 (4th Cir. 1990), overruled in part on other grounds by Farmer, 511 U.S. at 837.
Assuming Plaintiff's Hepatitis C and mental health concerns constitute serious medical needs, he has failed to show that either of the Medical Defendants demonstrated deliberate indifference to either of those needs. The medical records reflect, and the affidavits of Defendants Walker and Brown confirm, that Plaintiff's Hepatitis C and mental health needs were properly and thoroughly evaluated and addressed at the Detention Center.
Although Plaintiff refused his first opportunity for Hepatitis C testing on August 6, 2020, he was tested two months later, on October 6, 2020. ECF No. 95-2 at 2, ¶¶ 12, 13. Because of his positive result, Defendant Walker explained to Plaintiff that his liver function would be monitored every six months, and indeed, his liver enzymes were tested and assessed in December 2020. Id. at ¶¶ 15-19, 21. The process did not involve medications or supplements for the disease. Id. Defendant Walker assessed the repeat bloodwork Plaintiff underwent in December 2020, the results of which did not reflect progression of the disease. Id. There is no evidence even suggesting that Defendant Walker delayed any monitoring for Plaintiff's testing and/or treatment plan. Plaintiff fails to establish and his medical records do not reflect that Defendant Walker ignored any requests, refused to assess him, or denied him access to medical care.
Defendant Brown was not personally involved in the testing or monitoring process of Plaintiff, but even if she had been involved, as a nurse, she is not authorized to prescribe medications or make outside referrals. ECF No. 94-2 at 4, ¶ 16. There is no evidence even suggesting that Defendant Brown refused or delayed any of the recommendations for Plaintiff's testing and/or treatment plan. Plaintiff fails to establish, and his medical records do not reflect, that Defendant Brown ignored any requests, refused to assess him, or denied him access to medical care. Under these circumstances, Plaintiff has not alleged the kind of incompetence or inadequacy by either Medical Defendant that amounts to deliberate indifference under the Eighth Amendment.
As for Plaintiff's mental health needs, the evidence before the Court establishes that, when Plaintiff was initially offered an appointment with the mental health liaison in February of 2020, he refused. ECF No. 95-2 at 2-3, ¶ 21; ECF No. 94-2 at 2, ¶ 9. In his unverified Responses, Plaintiff denies having refused mental health treatment. ECF Nos. 102 at 1; 104 at 1. Nevertheless, it is undisputed that Defendant Walker prescribed psychotropic medications for Plaintiff as part of his mental health treatment, on which he remained until he made a follow-up request five months later in July to be seen by mental health. ECF No. 95-2 at 2-3, ¶ 21. In October of 2020, Plaintiff ultimately saw the mental health provider, who did not recommend any different medications or course of treatment. Id.; ECF No. 94-2 at 4, ¶ 17. Plaintiff's complaint appears largely based upon the delay in being seen by mental health. However, a detainee complaining that a delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of delay to succeed. See Fitch v. White, Civil Action No. 9:17-0134-TMC-BM, 2017 WL 6334126, at *6 (Sept. 28, 2017) (citing Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1188-89 (11th Cir. 1994), overruled in part by Hope v. Pelzer, 536 U.S. 730, 739 n.9 (2002)). Plaintiff has not done so here.
More importantly, Plaintiff produces no evidence that either Medical Defendant ignored a serious medical need with an intent to cause harm. While Plaintiff may disagree with Defendant Walker's plan to monitor his liver function, his mental health treatment and/or Defendant Brown's actions in carrying out those orders, such disagreement is unavailing to his claim. Plaintiff has not provided this Court with any evidence that Defendant Walker's actions to ensure proper treatment and care of his Hepatitis C or his mental health were anything other than the result of his clinical judgment as a medical doctor. See Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975) (holding that questions of medical judgment are not subject to judicial review). Plaintiff has not even shown that he was deprived of attention or treatment from Defendant Walker, let alone that Defendant Walker acted with malintent. Nor has he provided any evidence that Defendant Brown's actions to ensure proper treatment and care of his Hepatitis C or his mental health were anything other than the result of her informed judgment as a nurse. Plaintiff has not even shown that he was deprived of attention or treatment from Nurse Brown, let alone that Nurse Brown acted with malintent. Therefore, he fails to show that either Medical Defendant's actions were “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier, 896 F.2d at 851.
Plaintiff also argues in his Responses that the Medical Defendants were “negligent.” ECF Nos. 102 at 2; 104 at 2. Plaintiff did not assert a negligence claim in his Third Amended Complaint. See ECF No. 42. Negligence claims arise under state law, and that is not the issue before this Court. Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”); see DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 200-03 (1989) (§ 1983 does not impose liability for violations of duties of care arising under state law).
B. Plaintiff Has Failed to Establish a Viable ADA Claim Against Any Defendant.
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Under Title II of the ADA, state correctional institutions are considered public entities. Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998); see 42 U.S.C. § 12131(1) (defining a “public entity” as any state or local government, instrumentality thereof, or the National Railroad Passenger Corporation and any commuter authority). Accordingly, the Court addresses Plaintiff's ADA claim under the provisions of Title II.
As an initial matter, individuals are not liable under Title II of the ADA for discrimination claims. See Blackburn v. South Carolina, No. CA 006-2011-PMD-BM, 2009 WL 632542, at *20 (D.S.C. Mar. 10, 2009), aff'd, 404 Fed.Appx. 810 (4th Cir. 2010) (citing Garcia v. SUNY Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001)); Pathways Psychosocial v. Town of Leonardtown, 133 F.Supp.2d 772, 780 (D. Md. 2001). Accordingly, Plaintiff's claim for alleged disability discrimination against the Medical Defendants or the Detention Center Defendants must be dismissed. See Blackburn, 2009 WL 632542, at *20.
To the extent that Plaintiff is attempting to bring a claim against any Defendant in his or her official capacities, a “suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.” Id. (quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)). Therefore, just as actions against a state or state agencies generally are barred by the doctrine of sovereign immunity, any action against individual Defendants in their official capacities are also barred by sovereign immunity, unless Congress has explicitly created an exception. See id.
In this instance, the ADA does create a limited exception to state sovereign immunity. A disabled inmate may sue a state institution for ADA violations that also violate the Eighth or Fourteenth Amendment. See Id. (citing United States v. Georgia, 546 U.S. 151, 159 (2006)); see also Spencer v. Earley, 278 Fed.Appx. 254, 257-59 (4th Cir. 2008). As noted by the court in Blackburn, it is not sufficient for Plaintiff to show that Defendants did not comply with the requirements of the ADA. Rather, to withstand sovereign immunity, Plaintiff must show that the actions of Defendants “so deprived him of the essential needs . . . that it violated his Eighth Amendment rights as applied to the states under the Fourteenth Amendment.” Blackburn, 2009 WL 632542, at * 21.
Here, Plaintiff's claims that his ADA rights were violated are the same as his claims that Defendants were deliberately indifferent to his serious medical needs. Because this Court has already determined that Plaintiff has not established an issue of material fact on his Fourteenth Amendment deliberate indifference claims, the Court similarly concludes that his ADA claims regarding his medical treatment fail as a matter of law.
III. Plaintiff's Motions for Summary Judgment and Injunctive Relief
Plaintiff's cross-Motion for Summary Judgment is, in essence, a Response in Opposition to Defendants' Motions for Summary Judgment and either asserts reasons why Plaintiff contends that he is entitled to judgment as a matter of law on his claims or argues that he has demonstrated a genuine issue of material fact on the claims. See ECF No. 102. The undersigned has considered all of the arguments set forth in Plaintiff's cross-Motion for Summary Judgment in analyzing, reviewing, and setting forth reasons why Defendants are entitled to summary judgment. For all of the reasons set forth above, Plaintiff is not entitled to judgment as a matter of law, and the undersigned recommends denying Plaintiff's Motions for Summary Judgment.
Plaintiff also seeks “injunctive relief” or “preliminary injunctive relief” ordering Defendants to treat Plaintiff for his HCV virus. ECF No. 119 at 2. As an initial matter, Plaintiff no longer is housed at the Detention Center, such that his claims for injunctive relief are moot. See ECF No. 82 (Pl.'s change-of-address notice); Slade, 407 F.3d at 248-49 (presuming that former detainee plaintiff will abide by the criminal laws in the future, finding no reasonable probability that he will return to the jail as a pretrial detainee, and holding that former detainee's request for injunctive relief was moot).
Notwithstanding the mootness of his request for injunctive relief, Plaintiff cannot establish an entitlement to injunctive relief. It is well established that a party seeking injunctive relief must demonstrate that: (1) “he is likely to succeed on the merits, ” (2) “he is likely to suffer irreparable harm in the absence of preliminary relief;” (3) “the balance of equities tips in his favor, ” and (4) “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Similarly, “the party seeking the preliminary injunction must demonstrate by a ‘clear showing' that, among other things, [he] is likely to succeed on the merits at trial” and that he would be irreparably harmed by the denial of the injunction, and that the injunction would be in the public interest. The Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 345 (4th Cir. 2009). Plaintiff makes essentially the same allegations in his Motion for Preliminary Injunction and/or Injunctive Relief as in his Third Amended Complaint and claims that the alleged constitutional violations are ongoing since he has not received treatment for Hepatitis C and has not been referred to a Gastroenterologist (GI Specialist) for further examination and treatments. As set forth in detail above, Defendants are entitled to summary judgment on Plaintiff's claims, such that he necessarily cannot establish the first requirement for injunctive relief, i.e., that he is likely to succeed on the merits in this case.
Plaintiff argues that, pursuant to Geissler v. Stirling, Civil No. 4:17-cv-01746-MBS, 2019 WL 3561875 (D.S.C. Aug. 5, 2019), he must immediately begin Hepatitis C treatment. ECF No. 119 at 2. However, his reliance on the Geissler case is misplaced. The Geissler case approved a class action settlement regarding testing for and treatment of prisoners in SCDC custody with HCV. The case notes that all South Carolina jails and detention centers must test inmates for Hepatitis C and monitor that condition and its progress in each positive inmate in accordance with CDC guidance. Id. The case does not require all HCV-positive inmates immediately undergo treatment but, instead, only those inmates who have a confirmed chronic diagnosis, where the HCV is affecting liver function, must undergo treatment. Id. Here, the uncontroverted affidavit of Defendant Walker establishes that Plaintiff was timely tested for HCV because of his complaints of fatigue and prior intravenous drug use. ECF No. 95-2, ¶ 13. Inmates do not qualify for treatment unless and until diagnostic tests (including bloodwork) indicate that the Hepatitis C is affecting liver function, which was explained to Plaintiff and is in accordance with Geissler. Id. Plaintiff was placed on a list for his bloodwork to be monitored every six months for progression of the disease. Id. There is no evidence before the Court that the Hepatitis C is affecting Plaintiff's current liver function. Accordingly, Plaintiff is not entitled to injunctive relief, such that the undersigned recommends denying Plaintiff's Motion for Injunctive Relief.
RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that the Detention Center Defendants' Motion for Summary Judgment (ECF No. 90) be GRANTED; Defendant Brown's Motion for Summary Judgment (ECF No. 94) be GRANTED; Defendant Walker's Motion for Summary Judgment (ECF No. 95) be GRANTED; Plaintiff's Motion for Summary Judgment (ECF No. 102) be DENIED; and Plaintiff's Motion for Preliminary Injunction (ECF No. 119) be DENIED
Finally, it is RECOMMENDED that this action be DISMISSED.
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).