Opinion
C. A. 6:21-cv-02308-JD-KFM
12-02-2021
Cederick Wise, Plaintiff, v. Warden Nelson, Arthur Frederick, Kenneth Greggs, Sherman Anderson, John Doe 1 Doctor at Broad River Correctional Institution, Defendants.[1]
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE
The plaintiff, a state prisoner proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on August 23, 2021 (doc. 10). By Order filed October 19, 2021, the plaintiff was informed that his complaint was subject to summary dismissal because it failed to state a claim upon which relief may be granted, and that he could attempt to cure the defects identified in his complaint by filing an amended complaint within 14 days (doc. 25). The plaintiff was informed that if he failed to file an amended complaint or otherwise cure the deficiencies outlined in the order, the undersigned would recommend that his case be dismissed (id. at 10-11). On November 5, 2021, the plaintiff's amended complaint was entered on the docket (doc. 27). Because the plaintiff's amended complaint likewise fails to state a claim upon which relief may be granted, the undersigned recommends dismissal of the case.
ALLEGATIONS
The plaintiff, a state prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and located at Broad River Correctional Institution (“Broad River”), brings this action alleging that the defendants have violated his constitutional rights (doc. 27). The plaintiff alleges that in 2011, while incarcerated, he was diagnosed with gastroesophageal reflux disease (“GERD”) and prescribed a heart healthy diet (among other things) to help treat the plaintiff's GERD symptoms (id. at 13-14). The plaintiff was instructed to avoid red meat, to sit up two hours after eating, and increase his water intake, which has helped his GERD (id. at 14-15). The plaintiff was transferred to Broad River on November 17, 2020, but was not provided an opportunity to report to medical to note his need for a heart healthy diet (id. at 15). The plaintiff was not able to eat lunch or dinner because he was not provided a diet tray - so he was only able to eat breakfast (id. at 15). The plaintiff then submitted a kiosk request to be placed on the heart healthy diet, and the response was that his request would be forwarded to medical (id. at 15-16). The plaintiff alleges that John Doe 1 did not honor his heart healthy diet request, and violated his rights by not reviewing the plaintiff's entire SCDC file and by determining that the plaintiff did not require a heart healthy diet (id. at 16-19). Two months later, the plaintiff again requested placement on the heart healthy diet, and the response from SCDC was that the plaintiff's request had been resolved (id. at 17).
The plaintiff contends that during this time he continued to be limited to avoiding eating lunch and dinner because any food on those trays would cause severe heartburn (id. at 18). He contends supervisory liability against defendants Warden Nelson, A/W Frederick, and Maj. Greggs (id. at 19-24). He contends that these defendants failed to perform their security checks of the cells (although he asserts that each time he saw these defendants he asked for his heart healthy diet) and improperly denied the plaintiff's grievances (id. at 20-21, 22). The plaintiff further contends that on May 2, 2020, he was recommended to return to general population, but he was not released (id. at 21).
For injuries the plaintiff alleges weight loss, acid reflux, psychological harm, and hunger headaches (id. at 6). For relief, the plaintiff seeks money damages (id. at 27-28).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
This case is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendants. However, the plaintiff's amended complaint is subject to summary dismissal. As an initial matter, to the extent the plaintiff, for the first time, in passing, asserts that his rights were violated because he was not returned to general population after being recommended, the claim is subject to dismissal because prisoners generally do not have a constitutionally recognized liberty interest in a particular security classification or prison placement. Hewitt v. Helms, 459 U.S. 460, 468 (1983) (finding no constitutional right under the due process clause to a particular security classification or prison placement), overruled in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).
Deliberate Indifference to Medical Needs Claim
Liberally construed, the plaintiff claims that the defendants have denied him medical treatment in the form of a heart healthy diet (doc. 27 at 16-19). Not “every claim by a prisoner [alleging] that he has not received adequate medical treatment states a violation of the [Constitution].” Estelle v. Gamble, 429 U.S. 97, 105 (1976). The government is required to provide medical care for incarcerated individuals. Id. at 103. However, to establish deliberate indifference, the treatment “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, 851-52 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837 (1994).
In order to state a claim, a plaintiff must show a serious medical need as well as that the defendant “knowingly disregarded that need and the substantial risk it posed.” DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018) (citing King v. Rubenstein, 825 F.3d 206, 218-20 (4th Cir. 2016); Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209-11 (4th Cir. 2017)). A “serious medical need” is a condition “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, 849 F.3d at 210 (citation omitted). “Deliberate indifference may be demonstrated by either actual intent or reckless disregard. A defendant acts recklessly by disregarding a substantial risk of danger that is either known to the defendant or which would be apparent to a reasonable person in the defendant's position.” Miltier, 896 F.2d at 851-52 (citation omitted). “It is only such indifference that can offend ‘evolving standards of decency' in violation of the Eighth Amendment.” Estelle, 429 U.S. at 106. Mere negligence or malpractice does not violate the Eighth Amendment. Id. Moreover, disagreements between an inmate and a physician over the inmate's proper medical care do not state a Section 1983 claim unless exceptional circumstances are alleged. Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985).
Here, the plaintiff has failed to state a claim for deliberate indifference to medical needs. First, his vague and conclusory allegations that he spoke to the defendants when they came by his cell and requested a heart healthy diet do not plausibly allege personal involvement by the defendants. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1997) (“Having failed to allege any personal connection between [the defendants] and any denial of [the plaintiff's] constitutional rights, the action against him must fail.”). Additionally, the plaintiff's complaint specifically notes that after he requested placement on the heart healthy diet, defendant John Doe 1 indicated that he did not require a heart healthy diet (doc. 27 at 16-19). As such, it appears that the plaintiff preferred a “treatment” of a heart healthy diet; however, the plaintiff is not constitutionally entitled to the treatment of his choice. See Sharpe v. S.C. Dep't of Corrs., 621 Fed.Appx. 732, 733 (4th Cir. 2015) (unpublished per curiam opinion) (noting that “mere disagreement between an inmate and medical staff regarding the proper course of treatment provides no basis for relief” under § 1983 (citing Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975))). Moreover, even presuming the plaintiff alleges a violation of SCDC policy because he was not provided with a heart healthy diet - he still has not alleged a plausible claim because a violation of a policy or rule of the SCDC on its own does not constitute a violation of the plaintiff's constitutional rights. See Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C. 1992); Johnson v. S.C. Dep't of Corrs., C/A No. 3:06-cv-02062-CMC-JRM, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007) (The plaintiff's allegation that defendants did not “follow their own policies or procedures, standing alone, does not amount to a constitutional violation.”).
Additionally, the plaintiff's claim still fails even if considered as a claim regarding a constitutionally inadequate diet. The Supreme Court has found that the Eighth Amendment imposes a duty on prison officials to provide inmates with “adequate food.” Farmer, 511 U.S. at 832. As recognized by the Fourth Circuit, other circuits have reasoned (although in unpublished decisions) that the duty includes providing a medically appropriate diet - if the diet is medically necessary. Scinto v. Stansberry, 841 F.3d 219, 233-34 (4th Cir. 2016) (internal citations omitted). The Fourth Circuit went on to note that only “an ‘extreme deprivation' is actionable under the Eighth Amendment.” Id. at 234. Here, the plaintiff's amended complaint has still not plausibly alleged that there was no combination of foods in each meal that would have provided him with adequate sustenance without adverse medical consequences - indeed, the trays included more than just red meat, which is the only item the plaintiff contends had the ability to trigger his acid reflux (see doc. 27 at 18-19). As such, whether considered as a claim for deliberate indifference or based upon a constitutionally inadequate diet, the plaintiff's claim that he was wrongfully denied a heart healthy diet fails to state a claim for relief.
Supervisory Liability
The plaintiff's supervisory liability claims are also subject to summary dismissal. The doctrines of vicarious liability and respondeat superior are generally not applicable to § 1983 suits. 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 individual actions, has violated the Constitution.”); Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (noting that “Section 1983 will not support a claim based on a respondeat superior theory of liability” (emphasis in original)). Indeed, to allege a plausible claim requires a showing that the supervisor (1) had actual or constructive knowledge that his/her subordinates engaged in conduct posing a pervasive or unreasonable risk of constitutional injury; (2) the supervisor's response to the knowledge was “so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices;” and (3) an affirmative causal link between the inaction by the supervisor and the particular constitutional injury suffered by the plaintiff. Green v. Beck, 539 Fed.Appx. 78, 80 (4th Cir. 2013). As noted above, the plaintiff's unsubstantiated allegations that he requested a heart healthy diet from the defendants when they came by his cell (despite allegations that they failed to complete security checks of his dorm) and that they improperly denied his grievances by not ensuring he received his heart healthy diet do not allege a supervisory liability claim. Griffith v. State Farm Fire and Cas. Co., C/A No. 2:12-cv-00239-DCN, 2012 WL 2048200, at *1 (D.S.C. June 6, 2012) (finding that the plausibility standard requires more than “‘an unadorned, the-defendant-unlawfully-harmed-me accusation.'” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))); see also Taylor v. Lang, 483 Fed.Appx. 855, 858 (4th Cir. 2012) (unpublished per curiam opinion) (recognizing that an inmate's access to and participation in a prison's grievance process is not constitutionally protected) (citing Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994)). As such, the plaintiff has not stated a supervisory liability claim against the defendants. See Ford v. Stirling, C. A. No. 2:17-02390-MGL, 2017 WL 4803648, at *2 (D.S.C. Oct. 25, 2017); London v. Maier, C. A. No. 0:10-00434-RBH, 2010 WL 1428832, at *2 (D.S.C. Apr. 7, 2010).
Oath of Office Claims
Additionally, to the extent that the plaintiff purports to bring any independent claims for “violation of oath of office” by the defendants, these are not cognizable, independent, claims under either state or federal law. See Alford v. Mecklenburg Cnty. Clerk of Superior Ct., C/A No. 3:19-cv-00156-MOC-DSC, 2019 WL 2881556, at *6 (W.D. N.C. July 2, 2019).
Abandoned Claims
It appears that the plaintiff has abandoned his access to the courts and retaliation claims (see doc. 27). The plaintiff was warned that an amended complaint replaces the complaint and “should be complete in itself (doc. 25 at 10-11 (citing Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001)). As such, the undersigned recommends dismissal of the plaintiff's abandoned claims. To the extent the plaintiff did not intend to abandon them, for the reasons set forth in the court's prior order, these claims would still be subject to summary dismissal (see doc. 25 at 6-8).
RECOMMENDATION
By order issued October 19, 2021, the undersigned gave the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment. Despite filing an amended complaint, the plaintiff has not cured the deficiencies identified in the order dated October 19, 2021 (doc. 25). Therefore, the undersigned recommends that the district court decline to give the plaintiff further leave to amend his complaint and dismiss this action with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, 724 Fed.Appx. 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, the district court was directed on remand to “in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order”) (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020). The attention of the parties is directed to the important notice on the following page.
IT IS SO RECOMMENDED.
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 committees 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 250 East North Street, Room 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).