Opinion
8:21-cv-03132-RMG-JDA
01-12-2022
Daniel Benedict Mishoe Plaintiff, v. SCDC Director Bryan Sterling; Mr. Cohen Levern, RCI Senior Warden; Dr. John Aldear; Casandra Means, Mental Health Supervisor; Lt. Michael Lang; K. Hawley, Caseworker; Sgt. E. Smith; Terry Marshal, Mental Health Supervisor; April Clark, Chief Deputy Medical Director, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge.
This matter is before the Court on a motion for judgment on the pleadings filed by Defendants. [Doc. 27.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
Plaintiff, proceeding pro se, filed this action on September 16, 2021, alleging violations of his constitutional rights pursuant to § 1983 as well as a claim for medical negligence. [Doc. 1.] Defendants filed an Answer on November 17, 2021, asserting numerous defense including failure to exhaust administrative remedies. [Doc. 22.] On December 9, 2021, Defendants filed a motion for judgment on the pleadings. [Doc. 27.] The next day, the Court issued an Order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 28.] On December 27, 2021, Plaintiff filed a response in opposition to Defendants' motion. [Doc. 30.] The motion is now ripe for review.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on September 16, 2021. [Doc. 1 at 12 (Complaint signed on September 16, 2021.]
The facts included in this Background section are taken from Plaintiff's Complaint.
Plaintiff has filed a Complaint on the standard court form [Doc. 1] as well as an attachment with additional allegations [Doc. 1-1]. The events giving rise to Plaintiff's claims occurred on October 9, 2019, at the Ridgeland Correctional Institution (“Ridgeland”). [Id. at 5.]
Plaintiff alleges that, on September 24, 2019, he was accused of assault by his cellmate, John Cook. [Doc. 1-1 at 2.] Prison officers conducted an investigation and found no evidence to support Cook's claims, and the investigation was closed and Cook and Plaintiff were separated into different cells. [Id.] However, shortly thereafter, Plaintiff was placed in lockup for further investigational purposes at the direction of Defendant Cohen, despite the findings of the prior investigation. [Id.] Plaintiff was escorted to his assigned lockup cell by Defendant Lang. [Id.] Defendant Hawley was responsible for making the cell assignment, and she placed Plaintiff in solitary confinement in the wrong wing with another inmate whose “custody level was ‘SD' at that time due to his repeated hostile-aggressive-assaultive behavior toward others.” [ Id. at 2-3.] According to Plaintiff, inmates with an S.D. custody level are required by policy to be placed in confinement away from other inmates due to safety risks. [Id.] Plaintiff contends that his custody level at that time was MT-2, medium custody, while his cellmate's (Steven Wilson) custody was SD, closed custody. [Id. at 3.] Plaintiff asserts that prison administrators took him out of his character program unit and placed him in lockup with no charges pending against him, into a hostile and unsafe environment with a known security threat. [Id.]
Plaintiff alleges that, on October 7, 2019, he asked Defendants Lang and Smith to have him moved out from the cell with Inmate Wilson because he was in fear of his life. [Id.] However, they denied his request. [Id.] On October 8, 2019, Plaintiff asked Defendant Smith to move him to another cell, but Smith said that he could not move Plaintiff. [Id.]
On October 9, 2019, Plaintiff was attacked by Inmate Wilson from behind. [Id.] Inmate Wilson violently assaulted Plaintiff by striking him repeatedly in the face, causing severe injuries to his nasal/orbital region. [Id.] An officer, Sgt. Pearl Rice, discharged chemical munitions into the cell, causing Plaintiff to struggle to breathe. [Id. at 3-4.] Plaintiff alleges he was unable to breathe because the assault by Inmate Wilson had caused restrictions to his nasal passage and the chemical munitions caused him difficulty with breathing through his mouth. [Id. at 4.] Plaintiff alleges the flap door was closed and he was left to fend for his life for 10 to 15 minutes before Officers Capt. Joseph Powell and Lt. James Walker arrived and opened the cell door to help secure the situation. [ Id.]
Plaintiff alleges that no treatment was provided to him at medical, even though he had sustained a deviated septum, two black eyes, popping and cracking of his nasal bones, and swelling of his nose. [Id.] Plaintiff was not given any medication despite his injuries, and he received no treatment for the discomfort and injuries from the chemical munitions. [Id.] After being taken to medical, Plaintiff was returned to lockup. [Id.] On October 10, 2019, Plaintiff asked Lang and Smith for medical treatment due to his injuries, but he did not receive any. [Id.] Plaintiff then learned from Smith that Inmate Wilson “was a known security hazard by SCDC staff” and that Inmate Wilson had previously assaulted several other inmates in the same manner that he had attacked Plaintiff. [Id. at 5.] Plaintiff continued to seek medical treatment for his injuries on October 11 and 12 from Lang and Smith. [Id.] Medical care was denied until the following week, at which time he was given Tylenol. [Id.] From October 9, 2019, through February 2021, nearly one and a half years, Plaintiff continued to seek medical help. [Id.] In February 2021, Plaintiff finally was able to get surgical repairs to fix his nose. [Id.] Throughout that time, however, Plaintiff suffered difficulty breathing, constant pain, headaches, sinus pressure, stress, depression, irritability, and anxiety. [Id.]
Plaintiff contends Defendants have violated his rights as follows: (1) 8th Amendment violations, (2) 14th Amendment violations, (3) “medical care / negligence, ” (4) deprivation of constitutional and statutory rights, (5) “police actions, ” and (6) solitary confinement and segregation. [Doc. 1 at 4.] Plaintiff contends he suffered the following injuries: (1) a deviated septum and nasal region displaced, swollen nasal bridge, two black eyes, popping of nasal bones, soreness and pain; (2) delayed treatment for two weeks and the only treatment he received was Tylenol and nasal spray; (3) x-rays were delayed for weeks; (4) surgery to repair his deviated septum did not occur until February 2021, one and a half years after his injury, causing him to suffer during that time from constant headaches, pressure issues, internal sinus pain, stress and emotional suffering, and restricted air intake on the right side of his nasal passage causing lack of oxygen, lack of energy, and irritability. [Id. at 6.] For his relief, Plaintiff seeks compensatory and punitive damages in the amount of $75,000. [Id.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under § 1983
This action is filed pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, a civil action under § 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).
Section 1983 provides, in relevant part,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements:
(1) that the defendant “deprived [the plaintiff] of a right secured by the Constitution and laws of the United States” and (2) that the defendant “deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage.” Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
The under-color-of-state-law element, which is equivalent to the “state action” requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.Id. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, “the deed of an ostensibly private organization or individual” may at times be treated “as if a State has caused it to be performed.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Specifically, “state action may be found if, though only if, there is such a ‘close nexus between the State and the challenged action' that seemingly private behavior ‘may be fairly treated as that of the State itself.'” Id. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). State action requires both an alleged constitutional deprivation “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible” and that “the party charged with the deprivation [is] a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party's allegedly unconstitutional conduct is fairly attributable to the State requires the court to “begin[ ] by identifying ‘the specific conduct of which the plaintiff complains.'” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).
Judgment on the Pleadings Standard
Rule 12(c) permits a party to move for judgment on the pleadings “[a]fter the pleadings are closed-but early enough not to delay trial.” Fed.R.Civ.P. 12(c). In reviewing a motion for judgment on the pleadings, a court should “construe the facts and reasonable inferences . . . in the light most favorable to the [nonmoving party].” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). Thus, “[t]he court must accept all well pleaded factual allegations in the non-moving party's pleadings as true and reject all contravening assertions in the moving party's pleadings as false.” Integon Gen. Ins. Co. v. Bartkowiak ex rel. Bartkowiak, No. 7:09-cv-03045-JMC, 2010 WL 4156471, at *2 (D.S.C. Oct. 19, 2010) (internal quotation marks omitted). A court should grant a motion for judgment on the pleadings “only if the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.” Lewis v. Excel Mech., LLC, No. 2:13-cv-281, 2013 WL 4585873, at *2 (D.S.C. Aug. 28, 2013) (internal quotation marks omitted).
DISCUSSION
Defendants argue that they are entitled to dismissal of Plaintiff's claims. [Doc. 27 at 2.] Defendants maintain that Plaintiff “admitted in his Complaint that his administrative remedies have not yet been exhausted” regarding his § 1983 claims “and that the process is still ongoing.” [Id.] Defendants also argue that Plaintiffs claim for “Medical Negligence” is not actionable under § 1983, but rather arises under South Carolina state law. [Id.] Defendants further contend that under South Carolina law, claims for medical practice, medical negligence, or professional negligence require a pre-suit filing of a notice of intent to file suit contemporaneously with an affidavit of an expert witness under S.C. Code Ann. § 15-79-125, and that Plaintiff's failure to comply with this rule warrants dismissal of his medical negligence claim. [Id.] The Court will address these issues seriatim.
Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) provides, in pertinent part, that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). A defendant has the burden of establishing that a plaintiff failed to exhaust his administrative remedies. Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017). The PLRA's exhaustion requirement is mandatory and “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 524, 532 (2002). The exhaustion requirement applies even if the relief sought in the civil action is not available in the administrative proceedings. See Booth v. Churner, 532 U.S. 731, 741 (2001).
Exhaustion is defined by each prison's grievance procedure, not the PLRA; a prisoner must comply with his prison's grievance procedure to exhaust his administrative remedies. Jones v. Bock, 549 U.S. 199, 218 (2007). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). An inmate's failure to “properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983.” Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002); see also White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997) (upholding dismissal of an inmate's complaint because the inmate failed to proceed beyond the first step in the administrative grievance process). But see Jones, 549 U.S. at 219-24 (rejecting “total exhaustion rule” and holding that when presented with a complaint containing exhausted and unexhausted claims, courts should “proceed[] with the good and leave[] the bad”). Courts within the District of South Carolina have found an inmate exhausts his administrative remedies when he completes all steps of a prison's grievance procedure, and that § 1997e(a) does not require inmates to further appeal to South Carolina's Administrative Law Court. See, e.g., Ayre v. Currie, No. 05-3410, 2007 WL 3232177, at *7 n.5 (D.S.C. Oct. 31, 2007); Charles v. Ozmint, No. 05-2187, 2006 WL 1341267, at *4 n.3 (D.S.C. May 15, 2006).
Pursuant to the SCDC Inmate Grievance Procedure, an inmate seeking to complain of prison conditions generally is required to attempt to resolve the grievance informally by submitting a Request to Staff Member Form (an “RTSM”) to the appropriate supervisor or staff member within eight days of the incident. See SCDC Grievance Policy GA-01.12 ¶ 13.2. If the issue remains unresolved, the inmate then may file a Step 1 grievance. Id. And if the inmate is dissatisfied with the response he receives to the Step 1 grievance, he may then appeal with a Step 2 grievance. Id. at ¶ 13.7.
The policy can be found online by visiting the following web address: http://www.doc.sc.gov/policy/policy.html, and selecting the link for GA-01.12.
As a general rule, because failure to exhaust is an affirmative defense, “a district court, at the pleadings stage, may not dismiss a claim based on the plaintiff's failure to affirmatively show exhaustion.” Foster v. Warden of Tyger River Corr. Inst., No. 9:17-cv-945-TMC, 2018 WL 451720, at *1 (D.S.C. Jan. 17, 2018). “Nevertheless, despite the fact that failure-to-exhaust is an affirmative defense, a prisoner's complaint may be dismissed for non-exhaustion in the rare case where failure to exhaust is apparent from the face of the complaint.” Wilcox v. Brown, 877 F.3d 161, 167 (4th Cir. 2017) (internal quotation marks omitted); see also Custis, 851 F.3d at 361 (explaining that a court may dismiss a complaint, even sua sponte, “when the facts alleged in the complaint, taken as true, prove that the inmate failed to exhaust his administrative remedies”).
In this case, the facts Plaintiff alleges in his Complaint demonstrate that he has failed to exhaust his administrative remedies regarding the complained-of actions. In his original complaint, Plaintiff states that he filed a Step 1 grievance at Ridgeland that was processed but not answered, and that he filed one at Evans Correctional Institution (“Evans”) that was processed but not addressed. [Doc. 1 at 8.] He attached to his Complaint the grievance he filed at Evans, in which he requested that he be allowed prompt medical treatment from an ear, nose, and throat specialist. [Doc. 1-1 at 8.] The grievance indicates that it was processed but the merits were not addressed because Plaintiff failed to attach an RTSM. [Id.]
In considering Defendants' motion for judgment on the pleadings, “this [C]ourt may consider indisputable authentic documents related to Plaintiff's grievance without converting the motion to one for summary judgment.” Bolden v. Blocker, 9:18-3473-DCC-BM, 2019 WL 7944415, at *1 (D.S.C. Oct. 15, 2019) (regarding a motion to dismiss or, in the alternative, for summary judgment), objections overruled by 2020 WL 415899 (D.S.C. Jan. 27, 2020), aff'd, 824 Fed.Appx. 181 (4th Cir. 2020).
In answer to a question on the Court's complaint form of whether he appealed those decisions and whether the grievance process was completed, Plaintiff responded:
Did not appeal because the grievance system would not accept my kiosk records or medical records as proof of informal resolution attempt even though all my records are in the system. Included in my grievance was a statement I made about my medical records, suggesting they look at my history of sick calls yet they would not [ac]cept the systems records. Instead they wanted paper records which I didn't have at that time.[Doc. 1 at 8.] Plaintiff added that, in addition to not appealing the two Step 1 grievances he had filed, he did not file a third Step 1 grievance because he “was disheartened by the lack of regard and the ridiculousness of the whole process.” [Id. at 9.]
Because Plaintiff concedes that he did not file a Step 2 grievance, and does not contend that he was somehow prevented from doing so, the Court agrees with Defendants that Plaintiff failed to exhaust his administrative remedies and that Defendants' motion for judgment on the pleadings should be granted regarding the § 1983 claims. See Strickland v. Creel, 9:18-0819-BHH-BM, 2019 WL 2028773, at *2 (D.S.C. Feb. 19, 2019) (noting that claims for which the plaintiff filed a Step 1 grievance but did not file a Step 2 grievance are subject to dismissal for failure to exhaust), Report and Recommendation adopted by 2019 WL 2026843 (D.S.C. May 8, 2019); see also Williams v. Reynolds, No. 4:12-cv-138-RMG, 2013 WL 4522574, at *4 (D.S.C. Aug. 27, 2013) (noting that dismissal of a claim was proper when “even if Plaintiff did file a Step 1 grievance that was returned unprocessed, there is no evidence that Plaintiff filed a Step 2 grievance or otherwise appealed the decision not to process the Step 1 grievance”).
Medical Negligence Claim
Defendants also argue that they are entitled to dismissal of Plaintiff's claim for medical negligence. [Doc. 27 at 2-3.] The Court agrees.
Where a plaintiff brings claims arising from alleged negligent medical treatment, the claims are for medical malpractice. Millmine v. Harris, No. 3:10-1595-CMC, 2011 WL 317643, at *1 (D.S.C. Jan. 31, 2011); see also Delaney v. United States, 260 F.Supp.3d 505, 509-12 (D.S.C. 2017) (evaluating whether a claim is an ordinary negligence claim or a medical malpractice claim). To pursue a malpractice claim in South Carolina, a plaintiff is first required to “file as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim.” S.C. Code Ann. § 15-36-100. A failure to file such an affidavit with the complaint requires dismissal of the case in state court. See Rotureau v. Chaplin, No. 2:09-cv-1388-DCN, 2009 WL 5195968, at * 6 (D.S.C. Dec. 21, 2009). And the same result applies when such a claim is brought in federal court under the FTCA. See Frederick v. United States, No. 2:15-2699-MGL-BM, 2016 WL 1317528, at * 6 (D.S.C. Mar. 14, 2016), Report and Recommendation adopted by, 2016 WL 1301270 (D.S.C. Apr. 4, 2016), aff'd, 668 Fed.Appx. 521 (4th Cir. 2016); Chappie v. United States, No. 8:13-cv-1790-RMG, 2014 WL 3615384, at *1, 5 (D.S.C. July 21, 2014); Millmine, 2011 WL 317643, at *2. Therefore, because Plaintiff did not file an expert affidavit contemporaneously with his Complaint, Defendant's motion for judgment on the pleadings should be granted as to Plaintiff's medical negligence claim.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendants' motion for judgment on the pleadings [Doc. 27] be GRANTED.
IT IS SO RECOMMENDED.