Opinion
C. A. 9:19-cv-03411-JD-MHC
04-26-2022
Otis Owens, Plaintiff, v. Deputy Timothy Gibson, Deputy Erickson, Sheriff Michael Hunt, the Aiken County Sheriff's Office, and Aiken County, Defendants.
RPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Before the Court is a Motion for Summary Judgment filed by Defendants Deputy Timothy Gibson, Deputy Erickson, Sheriff Michael Hunt, the Aiken County Sheriff's Office, and Aiken County (collectively, “Defendants”). ECF No. 54. Plaintiff Otis Owens (“Plaintiff”) filed his Response in opposition to summary judgment, and Defendants filed a Reply. ECF Nos. 55, 58. The matter is ripe for review. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.). Because the Motion is dispositive, this Report and Recommendation is entered for review by the District Judge.
I. BACKGROUND
Plaintiff brought this action pursuant to 42 U.S.C. § 1983, alleging violations of his civil rights while a pretrial detainee at the Aiken County Detention Center. Specifically, in the Complaint, Plaintiff alleges that Defendants deprived him of his rights guaranteed by the First, Fourth, Fifth, Eighth, Fourteenth, and “other Amendments.” ECF No. 1-1 at 4, ¶ 28. Plaintiff requests a jury trial and seeks actual, statutory, and punitive damages, along with costs and attorney's fees. ECF No. 1-1 at 6.
Plaintiff's claims center on a pat-down search conducted on January 27, 2017, while he was a pretrial detainee at the Aiken County Detention Center. ECF No. 1-1 at 3, ¶ 11; ECF No. 54-2 at 3-4. Specifically, Plaintiff alleges that, as he was returning to his cell block from the recreation yard, Defendant Gibson stopped him and accused him of possessing dice (which is considered contraband). ECF No. 1-1 at 3, ¶ 11; ECF No. 54-4 at 2. Plaintiff alleges that Defendant Gibson then conducted a pat-down search where he “violently probed [P]laintiff's belly button, ran his hands up the inside of [P]laintiff's thighs, and grabbed and squeezed [P]laintiff's testicles and private area.” ECF No. 1-1 at 3, ¶ 12. Plaintiff maintains that Defendant Erickson observed the encounter but failed to intervene. ECF No. 1-1 at 3, | 14. Plaintiff claims that as a result of the pat-down search, he sustained injuries to his groin that were treated with a regime of pain medicine and antibiotics. ECF No. 1-1 at 3-4, ¶¶ 19-20; ECF No. 54-2 at 15-17.
In support of his claims, Plaintiff produced excerpts of deposition testimony, an affidavit, and medical records. In his deposition, Plaintiff testified that he was the first person to receive the pat-down search because he needed to go to the bathroom. ECF No. 55-1 at 5 (“I was beating on the door because I had to use the bathroom. So [Defendant] Erickson said, go ahead and pat Mr. Owens down first so he can go to the bathroom. So [Defendant] Gibson started [the pat-down].”). Plaintiff testified about how Defendant Gibson injured him, stating that Defendant Gibson “grabbed and squeezed” his testicles, which caused Plaintiff “excruciating” pain and later caused pain during urination. ECF No. 55-1 at 7, 12, 12. Plaintiff testified that it “[d]idn't take nothing but a second” for Defendant Gibson to grab Plaintiff's testicles and injure him. ECF No. 54-2 at 13. He testified that he then “started raising Cain” about the nature of the pat-down. ECF No. 542 at 13. Plaintiff averred that as Defendant Gibson searched Plaintiff, Plaintiff looked to Defendant Erickson and said, “you see this man, right? You see this man?” ECF No. 55-1 at 11-12. Plaintiff stated that Defendant Erickson told Plaintiff to calm down. ECF No. 55-1 at 11-12.
Plaintiff also testified that Defendant Gibson laughed during the encounter. ECF No. 55-1 at 15. Plaintiff averred other detainees received the same rough pat-down, noting that as Defendant Gibson searched for dice, the other detainees who were searched “complained that [Defendant Gibson] squeezed them, too and chopped them” and if Defendant Gibson “didn't grab them, [he] chopped them” during the bladed hand search. ECF No. 55-1 at 8-9.
Although neither party describes what a bladed hand search entails (see ECF No. 55-1 at 8, ll. 15-19) other courts have noted that “the term ‘bladed hands' means that the staff member keeps his fingers together and the palm and fingers flat as if he were laying his hand flat on the table [and then] [t]he staff member uses the side of the hand away from the thumb to slide under or between areas of the inmate's body to search for any contraband.” Lewis v. Stephen, No. 15-CV-051-JDP, 2016 WL 6638029, at *2 (W.D. Wis. Nov. 9, 2016), aff'd sub nom. Lewis v. Stephens, 710 Fed.Appx. 703 (7th Cir. 2018).
Plaintiff received medical treatment for injuries to his groin and was prescribed pain medication for the injury. ECF No. 55-1 at 4. Medical staff at the detention center found hydrocele pockets (fluid buildup) around Plaintiff's testicles. ECF No. 54-2 at 7; ECF No. 55-5 at 4.
Stephen Wilhite, a detainee who was present during the pat-down searches, corroborated Plaintiff's rendition of events in his deposition. ECF No. 55-3. Mr. Wilhite testified that when Defendant Gibson came to the area of Plaintiff's testicles during the pat-down, Plaintiff “raised to his tippy toes” and then said, “Man, you hurt me.” ECF No. 55-3 at 3. Mr. Wilhite testified that when Defendant Gibson grabbed Plaintiff's testicles, Plaintiff looked to Defendant Erikson for help. ECF No. 55-3 at 3-4. Defendant Gibson searched Mr. Wilhite after Plaintiff, and Mr. Wilhite testified that he sustained the same hydrocele injuries. ECF No. 55-3 at 6.
Jeremy Ard, another detainee who was present, signed an affidavit stating that the events as described in the Complaint were consistent with his recollection of events. ECF No. 55-4 at 2. He also provided deposition testimony, stating that Defendant Gibson also injured him during the pat-down search of all the detainees Defendant Gibson suspected of having dice. ECF No. 55-2 at 3-4. He further testified that Defendant Gibson has done this sort of inappropriate search in the past and that he reported the behavior. ECF No. 55-2 at 6-7.
Defendants deny that they violated any of the Plaintiff's rights, constitutional or otherwise. Specifically, while Defendant Gibson admitted to conducting searches of several detainees on January 27, 2017, he testified that he did so in a manner consistent with his training by utilizing an open hand blade search as the detainees were returning from the recreational yard. ECF No. 543 at 3-5. Defendant Gibson denied grabbing any of the detainees' groin areas in the manner described by Plaintiff. ECF No. 54-3 at 6.
Defendant Erickson averred that it never appeared to him that Plaintiff was at risk of harm during the search, as the pat-down appeared to be consistent with the policies and procedures of the Detention Center. ECF No. 54-4 at 3. He stated that although Plaintiff made comments about where Defendant Gibson was putting his hands, Plaintiff “did not make any comments about being hurt in any way from the search.” ECF No. 54-4 at 3. He further averred that Plaintiff made a comment to him that the search was inappropriate after Defendant Gibson had finished searching Plaintiff. ECF No. 54-4 at 3.
On October 23, 2019, Plaintiff filed his Summons and Complaint in the South Carolina Court of Common Pleas in Aiken County, asserting one cause of action against Defendants under 42 U.S.C. § 1983, alleging a number of constitutional violations. ECF No. 1. Defendants accepted service of the Complaint on November 26, 2019, and timely removed the Complaint to this Court on December 6, 2019. ECF No. 1. Defendants answered the Complaint on December 9, 2019. ECF No. 5. Discovery in this matter has been completed. Defendants move for summary judgment, seeking the dismissal of almost all but one of Plaintiff's alleged constitutional violations under § 1983.
Defendants “have elected not to move for summary judgment on behalf of Defendant Gibson as to the Plaintiff's claim for excessive use of force.” ECF No. 54-1 at 3 n.2.
II. LEGAL STANDARD
Defendants move for summary judgment on Plaintiff's claim pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 54. 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.
III. DISCUSSION
Defendants assert that they are entitled to summary judgment on all of Plaintiff's theories of liability under § 1983. Defendants Aiken County, Aiken County Sheriff's Office, and Sheriff Hunt contend Plaintiff has failed to establish a § 1983 claim against them, as a matter of law. Defendants Gibson and Erickson argue, inter alia, that (1) Plaintiff has failed to show essential elements of his § 1983 claim for deliberate indifference to a serious medical need; and (2) Plaintiff has failed to show any liability of Defendant Erickson at all. The Court agrees and recommends granting Defendants' Motion for Summary Judgment.
A. Defendants Aiken County, the Aiken County Sheriff's Office, and Sheriff Hunt are entitled to summary judgment.
To state a § 1983 claim, Plaintiff must demonstrate that Defendants, acting under color of state law, deprived him of a right secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983; Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001).
Defendants argue that Plaintiff has failed to establish a § 1983 claim against Defendants Aiken County, the Aiken County Sheriff's Office, and Sheriff Hunt. For the reasons that follow, the Court agrees.
1. Aiken County
Defendants contend that, contrary to Plaintiff's allegations, Aiken County did not create and does not operate the Aiken County Sheriff's Office, such that Plaintiff's claims-which are premised on the actions of Aiken County Sheriff's Office employees-fail as to Aiken County. Plaintiff contends that he can still maintain a § 1983 claim against Aiken County under a theory of municipality liability based upon an alleged unconstitutional policy of Aiken County. The undersigned disagrees.
To maintain a § 1983 municipal liability claim, a plaintiff must affirmatively establish that the alleged constitutional violation was directly caused by an official practice, policy, or custom of the municipality. Monell v. Department of Social Services, 436 U.S. 658, 691-94 (1978). “Municipal policy may be found in written ordinances and regulations, in certain affirmative decisions of individual policymaking officials, or in certain omissions on the part of policymaking officials that manifest deliberate indifference to the rights of citizens[.]” Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (internal citations omitted). Outside of these formal decision-making channels, “a municipal custom may arise if a practice is so persistent and widespread and so permanent and well settled as to constitute a custom or usage with the force of law.” Id. (citation and internal quotation marks omitted).
Here, although Plaintiff vaguely alleges that a policy exists, he has failed to connect that policy to Aiken County. He has not pointed to any written ordinances, regulations, policies, or customs of Aiken County, nor has he shown any affirmative decisions by Aiken County policymakers caused the alleged harms in this case. Rather, Plaintiff seeks to hold Aiken County vicariously liable for the alleged actions of Defendants Gibson and Erikson, who are employees of Aiken County Sheriffs Office. Plaintiff's effort fails for two reasons.
First, Aiken County is not responsible for the actions of a deputy sheriff, who is hired and supervised by the elected Sheriff. See S.C. Code Ann. § 23-13-10; Williams v. Duyn, No. CV 4:16-1805-BHH, 2016 WL 6070144, at *1 (D.S.C. Oct. 17, 2016) (finding a plaintiff failed to state a § 1983 claim against Florence County because the plaintiff's claims arose out of the alleged actions of a Sheriff Deputy who served “at the pleasure of the Sheriff and not the county”); see also Allen v. Fid. & Deposit Co. of Maryland, 515 F.Supp. 1185, 1190 (D.S.C. 1981) (“The county government [in South Carolina] cannot hire or fire the deputies nor can it tell the sheriff the manner or method by which he and his deputies are to perform the official acts of his office.”), aff'd, 694 F.2d 716 (4th Cir. 1982). Indeed, Defendants Gibson and Erikson work at the Aiken County Detention Center and are, therefore, employees of the Aiken County Sheriff's Office-not Aiken County. See Jones v. Ervin, No. 2:19-CV-385-RMG, 2019 WL 2241860, at *2 (D.S.C. May 24, 2019) (noting county jails in South Carolina are operated by sheriffs, not counties, and holding “Greenville County is not liable for the incidents allegedly occurring in the jail” since it has no control over the operations or policy of the jail).
Second, even if Aiken County were responsible for the Aiken County Sheriff's Office, the case law is clear that a Monell claim cannot attach liability to a municipality on the basis of respondeat superior. See Monell, 436 U.S. at 690-91 (holding that although “Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies, ” it is clear 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” (emphasis in original)).
Thus, as Defendants argue, Plaintiff's claims against Aiken County fail as a matter of law. See, e.g., Allen v. Aiken Cty., No. C.A. 4:08-2464-PMD, 2009 WL 1065406, at *3 (D.S.C. Apr. 20, 2009) (holding, in a case where a plaintiff was attempting to hold Aiken County vicariously liable for the acts of employees at the Aiken County Detention Center, that the plaintiff's claims against Aiken County “must fail as a matter of law” because a Monell claim cannot be based on the doctrine of respondeat superior); see also Gulledge v. Smart, 691 F.Supp. 947, 955 (D.S.C. 1988) (“South Carolina's county governing bodies ‘have no measurable control over the appointment, discharge, . . ., duties, or policies of the [sheriff and his deputies].'” (alteration in original) (citation omitted)), aff'd, 878 F.2d 379 (4th Cir. 1989). Aiken County is entitled to summary judgment on Plaintiff's § 1983 claim.
2. Aiken County Sheriff's Office
Plaintiff's claim against the Aiken County Sheriff's Office also fails, as the Aiken County Sheriff's Office is entitled to immunity under the Eleventh Amendment and is not considered a “person” for purposes of § 1983.
Under the Eleventh Amendment, federal courts are barred from hearing claims for monetary damages against a state or its agents, instrumentalities, and employees, unless the state has consented to the suit. Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“It has long been settled that [the Eleventh Amendment's] reference to ‘actions against one of the United States encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.”). Unless a state has consented to suit or Congress has waived a state's immunity pursuant to the Fourteenth Amendment, a state (and its agencies) may not be sued in federal or state court. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). Congress has not abrogated the states' sovereign immunity under § 1983, Quern v. Jordan, 440 U.S. 332, 343 (1979), and South Carolina has not consented to suit in federal district court. S.C. Code Ann. § 15 78-20(e).
Here, as courts in this district have consistently held, a county sheriff's office is considered a state agency, not a municipal department. See Williams v. Dorchester Cty. Det. Ctr., 987 F.Supp.2d 690, 692-93 (D.S.C. 2013); Gulledge, 691 F.Supp. at 954-55. Consequently, the Aiken County Sheriff's Office, as a state agency, is entitled to Eleventh Amendment Immunity. See, e.g., Collins v. Aiken Cty. Det. Ctr., No. 8:18-CV-2744-MGL-JDA, 2018 WL 6288115, at *2 (D.S.C. Oct. 24, 2018) (noting a Sheriff's office is entitled to Eleventh Amendment immunity), report and recommendation adopted, No. CV 18-2744-MGL, 2018 WL 6267756 (D.S.C. Nov. 30, 2018); Muhammad-Ali v. Klans, No. CV 1:15-308-MGL-SVH, 2015 WL 11109836, at *3 (D.S.C. Aug. 13, 2015) (“The Aiken County Sheriff's Department is also entitled to Eleventh Amendment Immunity. Sheriff's departments in South Carolina have repeatedly been held to be exempt from § 1983 liability, as they are considered state agencies.”), report and recommendation adopted sub nom. Muhammad-Ali v. Ku Klux Klan, No. CV 1:15-308-MGL, 2015 WL 11108438 (D.S.C. Sept. 22, 2015).
Furthermore, for purposes of § 1983, the Aiken County Sherriff's Office is not considered a “person” amenable to suit. See Will, 491 U.S. at 71 (“Neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.”); see also Hafer v. Melo, 502 U.S. 21, 26-27 (1991). Accordingly, the Aiken County Sheriff's Department is entitled to summary judgment on Plaintiff's § 1983 claim.
3. Sheriff Hunt
As noted above, Plaintiff must demonstrate Defendant Sheriff Hunt, acting under color of state law, deprived him of a right secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983; Mentavlos, 249 F.3d at 310. Plaintiff contends that Defendant Sheriff Hunt, “named in his individual capacity and as a policy maker, ” is subject to liability under § 1983 for the actions of Defendants Gibson and Erickson. The undersigned disagrees. For the reasons that follow, Plaintiff's claim against Defendant Sheriff Hunt fails.
To the extent Plaintiff is attempting to hold Defendant Sheriff Hunt liable in his official capacity as Sheriff of Aiken County-or Defendants Gibson and Erickson in their official capacities as deputies-such claim fails. At all times relevant to the present action, these Defendants were state officials, as they were serving as the Sheriff, Deputy Sheriffs, or employees on behalf of the Aiken County Sherriff's Office. Therefore, they are entitled to Eleventh Amendment immunity in their official capacities from suit in federal court. See McIlweine v. Harris, No. CIVA 4:07-1117 CMCTE, 2008 WL 2909358, at *12 (D.S.C. July 22, 2008) (noting South Carolina Sheriffs and their employees are state agents who are not amenable to suit in federal court by virtue of the Eleventh Amendment).
Defendant Sheriff Hunt serves in a supervisory capacity as the Sheriff of Aiken County. Other than stating that Defendant Hunt is the Sheriff, Plaintiff's Complaint is devoid of any allegations against him. See ECF No. 1-1 at 2, ¶ 4. Plaintiff's failure to show, or even allege, that Defendant Sheriff Hunt had any personal involvement in the alleged constitutional violations is fatal to his § 1983 claim. See Williamson, 912 F.3d at 171 (noting a plaintiff must show that the official acted personally in violating the plaintiff's constitutional rights); Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017) (noting liability will only lie in § 1983 actions where it is “affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs' rights” (citation omitted)).
Moreover, to the extent Plaintiff alleges Defendant Sheriff Hunt is vicariously liable by virtue of the actions of his subordinates, that claim also fails. Pure supervisory liability will not lie in § 1983 actions. Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (“The doctrine of respondeat superior has no application under this section.” (quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977))). Rather, to hold a supervisor liable for a constitutional injury inflicted by a subordinate under § 1983, Plaintiff must show facts establishing the following elements: (1) the supervisor had actual or constructive knowledge that a subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to people like the plaintiff; (2) the supervisor's response was so inadequate as to constitute deliberate indifference or tacit authorization of the subordinate's conduct; and (3) there is an “affirmative causal link” between the supervisor's inaction and the plaintiff's constitutional injury. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
Plaintiff has failed to show, much less meaningfully argue, any of these required elements.Because Plaintiff has failed to point to evidence in the record that would support a § 1983 claim, Defendant Sheriff Hunt is entitled to summary judgment. See Celotex Corp., 477 U.S. at 322 (noting the non-movant must provide evidence of every element essential to his action to survive summary judgment); see also Timpson by & through Timpson v. Anderson Cty. Disabilities & Special Needs Bd., No. 20-1163, __ F.4th __, 2022 WL 1039771, at *13 (4th Cir. Apr. 7, 2022) (affirming summary judgment for supervisory and policymaking officials where the plaintiffs only mentioned the officials once in a boilerplate statement and failed to offer any evidence of personal or supervisory wrongdoing that violated the Constitution).
The only mention of Defendant Sheriff Hunt in Plaintiff's Response is a conclusory sentence stating that he “is subject to liability under Section 1983.” ECF No. 55 at 7.
B. Claims against Defendants Gibson and Erickson
Plaintiff's Complaint alleges that Defendants deprived Plaintiff of his rights guaranteed by the First, Fourth, Fifth, Eighth, Fourteenth, and “other Amendments.” ECF No. 1-1 at 4, ¶ 28.
As an initial matter, Defendants argue, and the Court agrees, that Plaintiff's Complaint is devoid of any factual allegations that could give rise to any claim pursuant to the First, Fourth, Fifth, or Eighth Amendments. Moreover, Plaintiff did not address Defendants' arguments in his Response, nor did he otherwise put forth any evidence that could support claims under these Amendments. Accordingly, to the extent any such claims were viable, the undersigned deems the arguments abandoned or waived. See Jones v. Fam. Health Ctr., Inc., 323 F.Supp.2d 681, 690 (D.S.C. 2003) (finding that Plaintiff waived claims not addressed in an opposition memorandum, even though counsel advised the court that she had not intended to abandon those claims), aff'd sub nom. Jones v. Fam. Health Centers, Inc., 98 Fed.Appx. 959 (4th Cir. 2004). Accordingly, Defendants Gibson and Erickson are entitled to summary judgment on Plaintiff's § 1983 claims based upon any alleged violation of these Amendments.
Plaintiff has not shown, much less alleged, any infringement of his speech or religion. See U.S. Const. amend. I.
The Fourth Amendment only “governs claims of excessive force during the course of an arrest, investigatory stop, or other ‘seizure' of a person” whereas “excessive force claims of a pretrial detainee [or arrestee] are governed by the Due Process Clause of the Fourteenth Amendment.” Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008) (citation omitted), abrogated on other grounds by Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015); see also Brooks v. Johnson, 924 F.3d 104, 114 n.4 (4th Cir. 2019) (explaining Kingsley's effect).
The Fifth Amendment provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V. Plaintiff has not explained, alleged, or shown how his rights under this Amendment were violated.
It is undisputed that Plaintiff was a pretrial detainee at the time of the alleged violation. The Eighth Amendment's prohibition against cruel and unusual punishment attaches after conviction and sentence and is, therefore, inapplicable. See Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977).
Indeed, the crux of Plaintiff's claim in this case is based upon an alleged deliberate indifference to a serious medical need in violation of the Fourteenth Amendment and excessive force during a pat-down search in violation of the Fourteenth Amendment. These allegations are addressed in turn.
1. Plaintiff fails to show Defendants Gibson and Erickson were deliberately indifferent to a serious medical need.
Plaintiff generally alleges in his Complaint that he requested medical attention for his injuries, but that the “defendants denied timely and appropriate medical treatment, again violating the plaintiff's civil rights.” ECF No. 1-1 at 3, ¶ 18. As a pretrial detainee, the standard for determining whether detention center officials violated Plaintiff's constitutional rights under the Fourteenth Amendment as to his medical care is “deliberate indifference.” See Belcher v. Oliver, 898 F.2d 32, 34 (4th Cir. 1990) (“The Fourteenth Amendment right of pretrial detainees, like the Eighth Amendment right of convicted prisoners, requires that government officials not be deliberately indifferent to any serious medical needs of the detainee.”); see also Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992).
Although these claims are analyzed under the Fourteenth Amendment, case law interpreting the standard of “deliberate indifference” under the Eighth Amendment is instructive. See, e.g., Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001) (stating that whether the plaintiff is a pretrial detainee or a convicted prisoner, the “standard in either case is the same-that is, whether a government official has been ‘deliberately indifferent to any [of his] serious medical needs'” (quoting Belcher, 898 F.2d at 34)).
To establish a constitutional claim under 42 U.S.C. § 1983, Plaintiff must make (1) a subjective showing that Defendants were deliberately indifferent to his medical needs and (2) an objective showing that those needs were serious. Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (noting a “plaintiff must demonstrate that the officers acted with ‘deliberate indifference' (subjective) to the inmate's ‘serious medical needs' (objective)”); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (noting, to state an Eighth Amendment claim, “a prisoner must allege acts or omissions sufficiently harmful to evidence [1] deliberate indifference to [2] serious medical needs” (emphasis added)).
The subjective prong of deliberate indifference is a “very high standard” and merely negligent behaviors do not meet the subjective mens rea requirement. Young v. City of Mount Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001). The Fourth Circuit has recognized two different aspects of an official's state of mind that must be shown to satisfy the subjective prong in this context: “First, actual knowledge of the risk of harm to the inmate is required” and, second, “the officer must also have recognized that his actions were insufficient to mitigate the risk of harm to the inmate arising from his medical needs.” Iko, 535 F.3d at 241 (emphasis in original) (internal quotation marks and citations omitted).
As to the objective 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.” Heyer v. United States Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (internal quotation marks omitted) (quoting Iko, 535 F.3d at 241).
Here, Plaintiff's claim fails for two reasons. First, as a general matter, the record- including Plaintiff's own testimony-indicates that Plaintiff's medical complaints were addressed, and his needs were treated. Indeed, Plaintiff admitted that he was referred to medical, where he was seen the next day “as soon as they come on.” ECF No 54-2 at 14. Plaintiff was seen by medical staff at the Aiken County Detention Center on three separate occasions over a span of approximately a week and a half. ECF No 54-2 at 5-7. As a result, Plaintiff received medication in the form of an antibiotic and ibuprofen. ECF No 54-2 at 5-7. Additionally, an ultrasound was performed on Plaintiff's testicles. ECF No 54-2 at 5-7. Plaintiff testified that he has had no further problems and has required no additional medication resulting from any pain in his testicles. ECF No 54-2 at 15-16. Thus, at most, Plaintiff has asserted a disagreement with the medical treatment that he was provided. However, Plaintiff's belief or opinion that he required better treatment does not establish a Constitutional violation. See Wright, 766 F.2d at 849 (“Disagreements between an inmate and a physician over the inmate's proper medical care do not state a § 1983 claim unless exceptional circumstances are alleged.”); see also Estelle, 429 U.S. at 107-08 (reasoning that merely contending that more should have been done by the way of diagnosis and treatment failed to state a cognizable § 1983 claim, and noting a medical decision to not pursue an avenue of treatment does not represent cruel and unusual punishment).
Plaintiff does not identify who “denied” him medical care, in his Complaint nor in his Response to Defendants' Motion for Summary Judgment, referring only to “defendants” generally.
Second, specifically as to Defendants Gibson and Erickson: these Defendants are correctional officers who do not provide medical care to inmates. Rather, they direct inmates to sign up for medical care via the electronic kiosks or call medical to provide care in the event an inmate needs it because of an emergency. See ECF Nos. 54-2 at 5-7, 14, 55-3 at 5. Thus, to the extent Plaintiff levels his claim at Defendants Gibson and Erickson, the more appropriate characterization of this claim is not one of denial of medical care altogether but rather an alleged denial of, or delay in, access to that medical care by these Defendants. See Krug v. Loranth, No. 1:13-CV-01409-DCN, 2014 WL 4955365, at *7 (D.S.C. Sept. 29, 2014) (“Non-medical prison employees can be found to have acted with deliberate indifference by ‘intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.'” (quoting Estelle, 429 U.S. at 104-05)), aff'd, 599 Fed.Appx. 512 (4th Cir. 2015); Smith v. Smith, 589 F.3d 736, 738-39 (4th Cir. 2009) (noting deliberate indifference can be manifested “by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed”).
This claim fails. As noted above, Plaintiff admitted that he was referred to medical and was seen the next day “as soon as they come on.” ECF No 54-2 at 14. Thus, he has failed to show that Defendants Gibson and Erickson intentionally denied, or delayed, his access to medical care, as he was seen as soon as possible. Additionally, Plaintiff testified that he has had no further problems and has required no additional medication resulting from any pain in his testicles. ECF No 54-2 at 15-16. Consequently, Plaintiff failed to show how any denial of, or delay in, access to medical care “result[ed] in some substantial harm.” Formica v. Aylor, 739 Fed.Appx. 745, 755 (4th Cir. 2018) (“Where a deliberate indifference claim is predicated on a delay in medical care, we have ruled that there is no Eighth Amendment violation unless ‘the delay results in some substantial harm to the patient,' such as a ‘marked' exacerbation of the prisoner's medical condition or ‘frequent complaints of severe pain.'” (emphasis in original) (citations omitted)). Thus, Plaintiff has failed to state a claim for deliberate indifference to medical needs against Defendants Gibson and Erickson, and summary judgment should be granted to them on Plaintiff's § 1983 claim for the alleged violation of the Fourteenth Amendment.
That is, Plaintiff has failed to show that these Defendants' actions rose to the level of being deliberately indifferent. See Campbell v. Florian, 972 F.3d 385, 395 (4th Cir. 2020) (“[Deliberate indifference is a form of mens rea (or ‘guilty mind') equivalent to criminal-law recklessness.”), as amended (Aug. 28, 2020); Grayson v. Peed, 195 F.3d 692, 696 (4th Cir. 1999) (noting deliberate indifference requires “more than ordinary lack of due care for the prisoner's interests or safety”).
2. Plaintiff has failed to show Defendant Erikson used excessive force or that he was liable as a bystander.
As noted, Defendants “have elected not to move for summary judgment on behalf of Defendant Gibson as to the Plaintiff's claim for excessive use of force.” ECF No. 54-1 at 3. With regard to Defendant Erickson, Defendants contend Plaintiff does not allege that Defendant Erickson ever touched him. Rather, Plaintiff alleges in his Complaint that Defendant “Erickson watched as [Defendant] Gibson violated [Plaintiff's civil rights and allowed and/or encouraged the violation to continue unchecked.” See ECF No. 1-1 at 3, | 14. Under these circumstances, an excessive force claim against Defendant Erickson fails. See McDaniel v. Jackson, No. 2:18-CV-01939-RMG-MGB, 2019 WL 7900171, at *7 (D.S.C. Sept. 27, 2019) (“Here, Plaintiff provides no allegations that would establish an excessive force constitutional violation by Defendant Finch. Plaintiff does not allege that Defendant Finch ever touched him or used any force against him.”), report and recommendation adopted, No. 2:18-CV-01939-RMG, 2019 WL 6463788 (D.S.C. Dec. 2, 2019).
Nevertheless, Plaintiff contends Defendant Erickson should be held liable under a theory of bystander liability. As the Fourth Circuit has recognized, “an officer may be liable under § 1983, on a theory of bystander liability, if he: (1) knows that a fellow officer is violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.” Randall v. Prince George's Cty., Md., 302 F.3d 188, 204 (4th Cir. 2002) (footnote omitted). In other words, officers cannot stand on the sidelines; rather, in certain situations, they are “obliged to act.” Id.; see also Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (“It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.”).
Here, Plaintiff's bystander liability claim against Defendant Erickson fails under the second element-whether Defendant Erickson had a reasonable opportunity to prevent the harm. In viewing the evidence in a light most favorable to Plaintiff, his own testimony reflects that the alleged excessive force “[d]idn't take nothing but a second” to occur. ECF No. 54-2 at 13. As Defendant Erickson averred, the pat-down appeared to be consistent with the policies and procedures of the Detention Center, and Plaintiff didn't start “raising Cain” until after the alleged excessive force occurred. ECF No. 54-4 at 3. Although there is testimony by Mr. Wilhite that Defendant Gibson also used excessive force on other inmates-including himself who received the same injuries as Plaintiff-this does not show, and there is no evidence before the Court, that Defendant Erickson had a reasonable opportunity to prevent the harm to Plaintiff, as Plaintiff was the first detainee to receive the pat-down from Defendant Gibson. Accordingly, even if the Court were to assume that Defendant Erickson knew Defendant Gibson was violating Plaintiff's constitutional rights, Plaintiff has not shown that Defendant Erickson had a reasonable opportunity to prevent the allegedly unconstitutional harm. See N.C. ex rel. Hailey v. Westmoreland, 267 F.Supp.2d 497, 502 (M.D. N.C. 2003) (finding that the defendant officer did not have a reasonable opportunity to prevent harm to the plaintiff where another officer's act in striking the plaintiff occurred, if it all, “without warning” and in a “very brief” time period); Dukes v. Richards, No. 5:06-CT-3094-D, 2009 WL 9056101, at *5 (E.D. N.C. Aug. 27, 2009) (granting summary judgment on a bystander liability claim where the testimony in the record indicated that “even if [the defendant officer] was standing next to [the plaintiff] during the alleged incident, [the defendant] would not have had a reasonable opportunity to prevent some other officer's sudden decision to kick [the plaintiff]”), aff'd, 366 Fed.Appx. 467 (4th Cir. 2010).
Accordingly, Defendant Erickson is entitled to summary judgment on Plaintiff's claim under § 1983 for excessive use of force and bystander liability. See Kelly v. Solomon, No. 3:17-CV-311-FDW, 2020 WL 247539, at *14 (W.D. N.C. Jan. 15, 2020) (holding an excessive force claim against one Defendant officer who allegedly struck Plaintiff in the temple survived summary judgment, but that a bystander liability claim against another Defendant officer did not survive summary judgment because there was no evidence the bystander officer had a reasonable opportunity to prevent the single strike to Plaintiff's head).
3. Defendant Erickson is entitled to Qualified Immunity
Defendant Erickson is also entitled to qualified immunity from Plaintiff's claim. The doctrine of qualified immunity offers some protection to a government employee being sued in his or her individual capacity, as is the case with Defendant Erickson here. The Supreme Court has held that “[g]overnment 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Renn by and Through Renn v. Garrison, 100 F.3d 344, 349 (4th Cir. 1996).
“The threshold inquiry a court must undertake in a qualified immunity analysis is whether a plaintiff's allegations, if true, establish a clear constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). If a violation of a constitutional right in fact exists, qualified immunity nonetheless shields a prison official from liability, unless the violation was of a “clearly established right of which a reasonable person would have known.” Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (citation and internal quotation marks omitted).
As set forth in detail above, Plaintiff has failed to establish a genuine issue of material fact on whether Defendant Erickson's actions or inactions constituted a deprivation of Plaintiff's constitutionally protected rights. Because Defendant Erickson did not violate Plaintiff's constitutional rights, he is also shielded from liability by qualified immunity.
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motion, ECF No. 54, be GRANTED and that Plaintiff's claims against Defendants Erickson, Sheriff Hunt, the Aiken County Sheriff's Office, and Aiken County be dismissed. If the recommendation is adopted by the District Judge, the only remaining claim is Plaintiff's claim for excessive force in violation of the Fourteenth Amendment against Defendant Gibson, as Defendants did not move for summary judgment on that claim.
The parties are directed to the attached Notice for their rights to file objections to this recommendation.
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).