Opinion
2:21-cv-1721-DCC-MGB
09-28-2022
Bilal L. Al-Haqq, Plaintiff, v. Kenneth L. James, Evonne Willingham, Joseph Canning, Elaine Freeman, Cpl. Lapoint, Mark Courtney, James Williams, Karen Mealer, Joshua McKie, Thomas Byrne, Ann Sheppard, Brian Kendall, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Bilal L. Al-Haqq is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) who currently is housed at Lieber Correctional Institution (“Lieber”) in Ridgeville, South Carolina. The events alleged in the Complaint took place both at Lieber and during the time Plaintiff was housed at Trenton Correctional Institution (“Trenton”) in Trenton, South Carolina. Defendants Warden Brian Kendall and Associate Warden Ann Sheppard are employed by SCDC at Lieber. The remaining Defendants, Warden Evonne Willingham, Associate Warden Elaine Freeman, Associate Warden Joseph Canning,0F Corporal LaPointe,1FLieutenant Mark Courtney, Lieutenant George Williams,2F Mail Room Supervisor Karen Mealer, Captain Joshua McKie, and Dr. Thomas Byrne are or were employed by SCDC at Trenton.
Plaintiff refers to this Defendant as both Joseph Canning and Cannon, while Defendants refer to this individual as Joseph Canning. For clarity, the undersigned refers to this Defendant as Canning.
Plaintiff refers to this Defendant as Lapoint, while Defendants refer to this individual as LaPointe. For clarity, the undersigned refers to this Defendant as LaPointe.
Defendants assert that the individual Plaintiff identifies as Defendant James Williams is actually George Williams. For clarity, the undersigned refers to this Defendant as George Williams.
On June 10, 2021, Plaintiff, proceeding pro se and in forma pauperis, filed a complaint pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights in various ways after Plaintiff was sexually assaulted by Defendant LaPointe. This matter is before the Court on Defendants' Motion for Summary Judgment. (Dkt. No. 107.) In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., Plaintiff's complaint was referred to the undersigned Magistrate Judge for pretrial handling. For the reasons set forth below, the undersigned recommends granting Defendants' Motion for Summary Judgment.
BACKGROUND
Plaintiff alleges that on June 24, 2019, while exiting his “inmate job” at Trenton, he was “sexually assaulted” when Defendant Cpl. LaPointe “grabbed [Plaintiff's] private[s] from behind and would not turn [him] loose.” (Dkt. No. 1-1 at 4.) Plaintiff alleges he immediately reported the incident to Defendants Lieutenant Mark Courtney and Lieutenant George Williams. According to Plaintiff, these Defendants sent him to his living unit, “as opposed to having [Plaintiff] seen by mental health and checked at medical.” (Id.) Plaintiff alleges he then reported the incident to Officer David Kinder,3F who tried to give Courtney an incident report. Courtney allegedly refused to accept the incident report. Plaintiff alleges Kinder also sent Plaintiff to speak with Defendant Associate Warden Freeman and Freeman told Plaintiff “she would start a PREA.” PREA is an acronym for the Prison Rape Elimination Act, 42 U.S.C. § 15601. Plaintiff alleges that two months later, he found out Freeman never reported the incident to anyone, including Defendant Warden Willingham. (Id.) Plaintiff alleges he attempted to contact Ms. Jennifer Feicht, “the PREA auditor,” but Defendant Karen Mealer, “after seeing the contents of the correspondence, refused to send out the mail.” (Id.)
Kinder is not a named defendant.
Plaintiff also alleges that Williams removed Plaintiff from his job “because of LaPointe.” (Id. at 6.) Plaintiff alleges that when he accused Williams of retaliation for reporting the assault, Williams cursed at him and escorted Plaintiff to his living unit. (Id.) Plaintiff alleges he “attempted several times to be checked by [Defendant] Dr. Byrne, the prison doctor, and he refused.” (Id.) Plaintiff also alleges that Dr. Byrne refused to treat Plaintiff after he fell on a wet surface and reinjured his groin in 2020. (Dkt. No. 17-1 at 5-6.)
According to Plaintiff, he had another meeting to address the incident with LaPointe. Plaintiff met with Freeman, who was “the PREA compliance manager,” and Defendant Associate Warden Joseph Canning, who was “the warden over security.” Plaintiff alleges he met with Canning privately, and Canning told Plaintiff “that [he] needed to drop it; that nothing was going to come of it, and that if they did do something, that [Plaintiff] would never know.” (Dkt. No. 11 at 6.) Plaintiff alleges “as a result of the trauma from the sexual assault, I was placed on mental health status and mental health meds in order to be able to sleep at night.” (Id.)
Plaintiff alleges that over a year after the assault occurred, he attended a meeting with Defendants Willingham, Canning, Freeman, Captain Joshua McKie, and Caseworker LaToya Reese.4F Plaintiff alleges that when he told Willingham about the assault, she claimed she did not know anything about it. According to Plaintiff, Willingham told Freeman to “call McCormick [Correctional Institution] for mental health to come see him” and to take Plaintiff to medical to be checked. (Id. at 6.) Plaintiff alleges he then obtained a mental health counselor from McCormick. According to Plaintiff, Willingham placed Plaintiff on lock-up, but failed to reprimand Freeman and Canning “for failure to report.” (Id.)
Reese is not a named defendant.
Plaintiff alleges that he later met with Willingham and she had him sign a “Disposition of PREA Report.” (Id.; at 6, 10.) This report is in the record and shows that it was signed by both Plaintiff and Freeman on September 22, 2020. (Id. at 10.) Under “Investigation Outcomes,” the report states that the reported sexual abuse was “unfounded.” (Id.) Plaintiff alleges that Willingham transferred Plaintiff to Lieber because Plaintiff “refused to drop the assault incident” and that she placed Plaintiff “in the worse unit on the yard.” (Id. at 7.) Plaintiff also alleges that “Defendants have refused to secure a warrant for Ofc. LaPointe” and that “Defendants have violated every PREA reporting guideline.” (Id.) Plaintiff alleges that after his transfer to Lieber, his family sent Plaintiff “soft shoes and eyeglasses” through Amazon and Defendants Warden Kendall and Associate Warden Sheppard did not allow Plaintiff to keep these items, despite doctor approval. (Dkt. No. 66 at 3.)
Plaintiff filed this action on June 10, 2021, pursuant to 42 US.C. § 1983. Liberally construed, the Complaint alleges the following claims: (1) sexual assault against Defendant LaPointe; (2) failure to report, investigate, and prosecute against Defendants Willingham, Canning, Freeman, Courtney, McKie, and Williams; (3) retaliation against Willingham, Williams, and Freeman; (4) access to courts, retaliation, and due process violation against Mealer; and (5) deliberate indifference to serious medical need against Dr. Byrne, Kendall, and Sheppard. Plaintiff seeks compensatory and punitive damages. (Dkt. No. 1-1 at 8.)
On March 21, 2022, Defendants filed a Motion for Summary Judgment. (Dkt. No. 107.) On March 22, 2022, this Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment procedure and the possible consequences if he failed to adequately respond to Defendants' motion. (Dkt. No. 108.) Plaintiff filed a response in opposition to Defendants' motion on April 25, 2022, and he later amended and supplemented his response. (Dkt. Nos. 119; 121; 122.) Defendants' motion has been fully briefed and is ripe for review.
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” News & Observer Pub'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When a court considers the motion, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
Because Plaintiff is representing himself, these standards must be applied while liberally construing his filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
DISCUSSION
As noted above, Plaintiff alleges the following claims in this action pursuant to § 1983: (1) sexual assault against Defendant LaPointe; (2) failure to report, investigate, and prosecute against Defendants Willingham, Canning, Freeman, Courtney, McKie, and Williams; (3) retaliation against Willingham, Williams, and Freeman; (4) access to courts, retaliation, and due process violation against Mealer; and (5) deliberate indifference to serious medical need against Dr. Byrne, Kendall, and Sheppard.5F Defendants argue they are entitled to summary judgment because, inter alia, Plaintiff cannot establish a genuine issue of material fact that Defendants violated any of his constitutional rights.
The Complaint does not expressly allege any claims under state law, and Plaintiff does not address Defendants' assertion that, to the extent any state law claims are alleged, Defendants have immunity under the South Carolina Tort Claims Act (“SCTCA”). (Dkt. No. 107-1 at 32-33.) Based on the foregoing, the undersigned does not construe the Complaint as alleging any claims under South Carolina law. Further, it appears any such claims would be barred under the SCTCA. See Roberts v. City of Forest Acres, 902 F.Supp. 662, 671 (D.S.C. 1995) (“Under the Tort Claims Act, an employee of a governmental entity who commits a tort while acting within the scope of his official duty is generally not liable, and the plaintiff must sue the governmental agency itself.”) (citing S.C. Code Ann. § 15-78-70(a)).
The undersigned considers Plaintiff's claims in more detail, below.
A. Claims of sexual assault (Defendant LaPointe); Failure to report, investigate, and prosecute (Defendants Willingham, Canning, Freeman, Courtney, McKie, and Williams)
As discussed above, Plaintiff alleges that he was sexually assaulted by Defendant LaPointe, that LaPointe and other Defendants violated PREA, and that his constitutional rights were violated in connection with the assault and with Defendants' failure to report, investigate, and prosecute his allegations against LaPointe. As an initial matter, Defendants dispute Plaintiff's version of events and have submitted evidence in support of their Motion for Summary Judgment.6F Below, the undersigned considers the evidence in the record most relevant to Plaintiff's claims here.
In his briefings, Plaintiff insults defense counsel and claims she has submitted Defendants' affidavits “in bad faith.” (Dkt. Nos. 118 at 13-15; 119.) Plaintiff's baseless disparaging remarks will not be tolerated. His comments do not conform with the civility and decorum this Court expects of all litigants, including pro se litigants. The Court finds Defendants' affidavits comply with the Federal Rules of Civil Procedure, and Plaintiff's allegations here are without merit. See Fed.R.Civ.P. 56(c)(4).
1. Evidence
In his affidavit, LaPointe clarifies that the incident occurred at Trenton on June 27, 2019, when he performed a routine search on Plaintiff as Plaintiff “was exiting the school . . . to go to the dorms.” (Dkt. No. 107-2 at 1-2.) In documents drafted shortly after the incident occurred, Plaintiff also states the incident occurred during a search. (Dkt. No. 107-4 at 2, 4.) LaPointe avers that he “conducted a strict search of [Plaintiff] outside, on the yard, in full view of many people, including many inmates.” (Dkt. No. 107-2 at 2.) According to LaPointe, he “did not touch [Plaintiff's] testicles.” He continues,
I detected an object clipped to [Plaintiff's] right waist, inside his pants, and asked him about it. This was found to be keys to a locker. I asked [Plaintiff] to remove his hat for inspection, and he thrust it at me aggressively, speaking with an upset
tone. I searched his hat and his knit bag. I instructed him to mind his tone, as I was simply doing my job. [Plaintiff] was clearly displeased at being searched, but he made no remark about an improper search at the time. During the search, [Plaintiff] had pulled away and objected, so I called Lieutenant Courtney over, and he performed the search again, while I left the area to de-escalate the brewing conflict with the inmate. I would hear about an hour later, from another inmate, that [Plaintiff] intended to report me under PREA (Prison Rape Elimination Act). He also complained to Lieutenant Courtney in my presence during a search later in the day as he reentered the schoolhouse. For that reason, I thought I should write an incident report, which is attached as an exhibit.(Id.) The attached incident report repeats LaPointe's version of events. (Dkt. No. 107-4 at 5.)
Defendant Williams has submitted an affidavit in which he avers that at the time of the incident, he was the Lieutenant over Plaintiff's housing unit and school, and that LaPointe conducted the search at issue under Williams's supervision. (Dkt. No. 107-7 at 1-2.) According to Williams, after LaPointe completed the search, Plaintiff complained to Williams that “LaPointe had searched too high on his person while conducting the search.” (Id. at 2.) Williams avers that he told Plaintiff “to write his complaint and turn it into Associate Warden Freeman.... [and that] this concluded [Williams's] involvement.” (Id.)
Defendant Courtney has also submitted an affidavit in which he avers that Plaintiff “was in the company of Lieutenant George Williams immediately before coming to me to complain of LaPointe's search.” (Dkt. No. 107-8 at 2.) Courtney avers that Plaintiff's allegations about the incident “did not implicate PREA. He simply complained that LaPointe went too high while searching. [Plaintiff] did not report being injured in the search, nor being grabbed hard enough to cause injury. Had I received information of an injury, I would have sent the inmate to the medical area.” (Dkt. No. 107-8 at 2.) Courtney further avers that his “job duties within SCDC did not include investigation of sexual assault allegations within SCDC, nor criminal investigations, nor procurement of arrest warrants.” (Id.) According to Courtney, when Plaintiff complained to him, [Courtney] “was informed the matter had already been reported.” (Id.) Courtney made an incident report after Plaintiff was removed from the school job and claimed the change was due to a PREA complaint. (Id.) In his incident report, Courtney states that he and McKie spoke to Plaintiff “on his PREA allegations on Cpl. LaPointe” and he told Plaintiff “Cpl. LaPointe conducted a proper pat search touching the testicle area while searching his lower body.” (Dkt. No. 107-4 at 3.)
The record includes a grievance Plaintiff submitted in connection to the incident, in which Plaintiff claims that after leaving his “inmate job in education,” LaPointe conducted a “pat search” of Plaintiff “from behind.” (Id. at 2.) According to Plaintiff, “[LaPointe] went between my legs and grabbed my private. When I informed him that he was holding me, he still didn't turn loose. I had to snatch myself away from him.” (Id.)
In her affidavit, Freeman avers that on August 9, 2019, she submitted the relevant incident reports and Plaintiff's grievance “to Kenneth James, the SCDC PREA Coordinator and inquired whether the allegations implicated PREA.” (Dkt. No. 107-3 at 2.) Freeman has provided her emails with James in which he states that the incident “does not fit the definition of sexual harassment.” (Dkt. No. 107-4 at 1.) Freeman further avers that she does “not conduct criminal investigations” or “participate in procuring arrest warrants for SCDC employees.” (Id.) According to Freeman, if a Police Services investigation is warranted, “that is determined at a level higher than the institution.” (Id.)
2. Analysis
a. Sexual Assault
Plaintiff alleges that Defendant LaPointe sexually assaulted Plaintiff during a routine search when he “grabbed [Plaintiff's] private[s] from behind and would not turn [him] loose.” (Dkt. No. 1-1 at 4.) Plaintiff's allegations against LaPointe do not amount to an Eighth Amendment violation. “A prison guard may violate the Eighth Amendment by sexually harassing or sexually assaulting an inmate. Sexual assault is not a legitimate part of a prisoner's punishment, and the substantial physical and emotional harm suffered by a victim of such abuse are compensable injuries under § 1983.” Ellis v. Elder, No. 7:08-CV-00642, 2009 WL 275316, at *3 (W.D. Va. Feb. 4, 2009) (internal quotation marks omitted); see also Woodford v. Ngo, 548 U.S. 81, 118 (2006) (“Accordingly, those inmates who are sexually assaulted by guards, or whose sexual assaults by other inmates are facilitated by guards, have suffered grave deprivations of their Eighth Amendment rights.”); Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (“A sexual assault on an inmate by a guard-regardless of the gender of the guard or of the prisoner-is deeply offensive to human dignity.” (internal quotation marks and citation omitted)); Boddie v. Schneider, 105 F.3d 857, 861 (2d Cir. 1997) (“Because sexual abuse by a corrections officer may constitute serious harm inflicted by an officer with a sufficiently culpable state of mind, allegations of such abuse are cognizable as Eighth Amendment claims.”).
Courts have recognized, however, that not every allegation of sexual abuse is “objectively, sufficiently serious” for purposes of the Eighth Amendment. See Wilkins v. Gaddy, 130 S.Ct. 1175, 1178 (2010) (“[N]ot every malevolent touch by a prison guard gives rise to a federal cause of action.”); Boddie, 105 F.3d at 861 (“[I]solated episodes of harassment and touching . . . are despicable ....But they do not involve a harm of federal constitutional proportions as defined by the Supreme Court.”) (citing Farmer v. Brennan, 511 U.S. 825, 833-34 (1984)). Instead, courts must conduct a fact-intensive, case-by-case inquiry to determine if the sexual abuse was sufficiently serious.
Here, where LaPointe allegedly “grabbed” Plaintiff's testicles during a routine search, more is needed to establish a constitutional violation.7F See, e.g., Strickland v. Turner, No. 9:15-cv-0275-PMD-BM, 2018 WL 3151639, at *21 (D.S.C. Jan. 26, 2018) (granting summary judgment where plaintiff alleged that correctional officer squeezed groin area during a pat down); adopted by, 2018 WL 1443953 (D.S.C. Mar. 23, 2018); Givens v. Aaron, No. 3:14-CV-378-FDW, 2016 WL 4546448, at *5 (W.D. N.C. Aug. 31, 2016) (plaintiff cannot establish Eighth Amendment violation based on allegations of being searched, “even where an inmate alleges that his private parts were touches during the search”), aff'd, 688 Fed.Appx. 231 (4th Cir. 2017); Brown v. Vela, No. 9:09-cv-2495-RBH-BM, 2010 WL 1027801, at *2 (D.S.C. Feb. 16, 2010) (plaintiff cannot establish constitutional violation based on allegation that “Defendant touched him on his buttock on one occasion while he was in handcuffs”) adopted by, 2010 WL 1009972 (D.S.C. Mar. 16, 2010); see also Sherwood v. Schofield, 2013 WL 3943542 at *5 (E.D. Tenn. July 30, 2013) (groping of genitals during one, routine pat-down search is insufficient to state claim); Young v. Brock, 2012 WL 385494, at *4 (D. Colo. Feb. 7, 2012) (where officer allegedly fondled and squeezed inmate's genitals during pat-down search, “case law is clear that such a single pat-down search cannot be said to violate the Constitution”); Tuttle v. Carroll Cnty. Detention Ctr., No. 105693, 2012 WL 4215747, at *1 (6th Cir. Sept. 21, 2012) (affirming the district court's conclusion that a pretrial detainee failed to state a claim of constitutional dimension based on allegations that a police officer “grabbed [the plaintiff's] privates and squeezed them really hard” while conducting a pat-down search during booking).
Plaintiff cites Rodriguez v. McClenning, 399 F.Supp.2d 228, 236-38 (S.D.N.Y. 2005) to support finding a constitutional violation. (Dkt. No. 118 at 17.) The undersigned does not find Rodriguez compelling, given that it is contrary to Second Circuit precent, see Boddie, 105 F.3d at 861, as well as the vast majority of district court decisions. See Hilson v. Maltese, 2012 WL 6965105, *8, n.12 (N.D.N.Y. Dec. 14, 2012), adopted by, 2013 WL 375489 (N.D.N.Y. Jan. 30, 2013); Harry v. Suarez, 2012 WL 2589080 (S.D.N.Y. Jul. 3, 2012).
Based on the foregoing, Plaintiff has failed to establish facts sufficient to support a claim against LaPointe for a violation of the Eighth Amendment.
b. Failure to report, investigate, and prosecute
Plaintiff further alleges that Defendants Willingham, Canning, Freeman, Courtney, McKie, and Williams failed to properly report, investigate, and prosecute the alleged sexual assault. (Dkt. Nos. 1-1 at 4-7.; 118 at 10-13.) Plaintiff alleges Freeman did not process a grievance pertaining to the assault. (Dkt. No. 118 at 13.) According to Plaintiff, this conduct violated PREA, SCDC policy, and Plaintiff's constitutional rights.
As an initial matter, to the extent Plaintiff alleges Defendants' conduct violated PREA, his allegations do not provide any basis for a § 1983 claim under this statute. It is well established that “PREA does not give rise to a private right of action.” Jones v. Greenville Cnty. Det. Ctr., No. 4:21-cv-1587-TLW-TER, 2021 WL 4690999, at *2 (D.S.C. Oct. 7, 2021). “The PREA is intended to address the problem of rape in prison, authorizes grant money, and creates a commission to study the issue....The statute does not grant prisoners any specific rights.” Chinnici v. Edwards, 2008 WL 3851294, at *3 (D. Vt. Aug. 12, 2008) (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 27980 (2002) (“Nothing short of an unambiguously conferred right will support a cause of action brought under § 1983”)). Accordingly, any claims premised on Defendants' alleged violations of PREA should be dismissed as a matter of law. See Byrd v. South Carolina Dep't of Corr., No. 5:11-cv-3340-MGL, 2013 WL 5309759, at *11 (D.S.C. Sept. 19, 2013) (“Because § 1983 itself does [not] create any rights, and the text and the structure of the PREA provide no indication that Congress intended to create new individual rights, there is no basis for a private right of action for inmates to sue prison officials for noncompliance with the Act.”) (footnote and citations omitted); see also Hill v. Hickman County Jail, 2015 WL 5009301, *3 (M.D. Tenn. August 21, 2015) (collecting cases holding that there is no private right of action under PREA, and holding that “[t]o the extent the complaint might be construed as bringing a claim under the PREA, such claim must be dismissed”).
Likewise, to the extent Plaintiff alleges Defendants' conduct violated SCDC policy, “violations of prison policy alone are not sufficient to state a constitutional violation under Section 1983.” Givens, 2016 WL 4546448, at *5 (citing Jackson v. Sampson, 536 Fed. App'x. 356, 357 (4th Cir. 2013)). Similarly, Plaintiff cannot bring a § 1983 claim based on Freeman's alleged failure to process a grievance. See Booker v. S.C. Dep't of Corr., 855 F.3d 533, 541 (4th Cir. 2017) (“[I]nmates have no constitutional entitlement or due process interest in access to a grievance procedure.”); Coleman v. Stevenson, No. 0:09-cv-872-HMH, 2010 WL 2990737, at *4 (D.S.C. June 22, 2010) (“Without more, allegations of a failure to investigate an issue, a failure to process a grievance, or a denial of a grievance are insufficient to establish personal involvement by a defendant in the deprivation alleged.”), adopted by, 2010 WL 2990740 (D.S.C. July 26, 2010), aff'd, 407 Fed.Appx. 709 (4th Cir. 2011).
Further, there is no constitutional right to the investigation, termination, arrest, or criminal prosecution of any other person. See Gilliam v. Sealey, 932 F.3d 216, 240 (4th Cir. 2019) (“[T]here is no independent constitutional right to investigation of a third party.”); Smith v. McCarthy, 349 Fed.Appx. 851, 859 (4th Cir. 2009) (finding no right to criminal investigation or criminal prosecution of another); Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1988) (stating that there is no constitutional right “as a member of the public at large and as a victim to have the defendants criminally prosecuted”). Also, there is no evidence to refute the sworn statements of Courtney, Williams, and Freeman that they are not responsible for the criminal investigation or procurement of warrants for arresting SCDC officials.
Finally, to the extent Plaintiff asserts these Defendants failed to protect him from this sexual assault in violation of his constitutional rights, there is no evidence that any Defendant had actual knowledge of a substantial risk of harm to an inmate and disregarded that substantial risk. Farmer, 511 U.S. at 847; Parrish v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (observing that “deliberate indifference” requires actual knowledge and disregard of a substantial risk of serious injury). Plaintiff offers no compelling argument on this issue.
B. Claims of retaliation (Defendants Willingham, Freeman, McKie, and Williams)
Plaintiff alleges that he was improperly removed from his work assignment and transferred to Lieber in retaliation for reporting the sexual assault. (Dkt. Nos. 1-1 at 7; 118 at 2-3, 7.) Plaintiff also vaguely alleges that he received disciplinary charges in retaliation for reporting the sexual assault. (Dkt. Nos. 1-4 at 3; 118 at 5.) He appears to bring these claims against Defendants Willingham, Freeman, McKie, and Williams. Below, the undersigned considers the evidence in the record most relevant to Plaintiff's claims here.
1. Evidence
In his affidavit, Defendant McKie avers that Williams and LaPointe were his subordinates at the time of the incident. McKie avers that he “know[s] of no retaliation by any person against [Plaintiff] for his allegations.” (Dkt. No. 107-9 at 2.) According to McKie, Plaintiff is responsible for losing his school library job. (Id.) In support, McKie has provided an incident report submitted on September 27, 2019. (Dkt. No. 107-18.) The incident report, submitted by JaNean Martin, states that she found Plaintiff and another inmate in the school library “trying to hook a DVD player up to the television.” According to Martin, the inmates “were not to do anything else with the contents but to move them.” Martin “also noticed that 3 board games that were on the desk in the library the day before were now not there,” and that when asked about this, Plaintiff said he put the games in the cabinet “to get them out of the way.” (Id.) Under “Major/Responsible Authority,” McKie has written “Please remove these offenders from the school” and he has signed the incident report. (Id.)
Defendant Williams also avers that Plaintiff was removed from his library job because of “school staff dissatisfaction with him as a worker.” (Dkt. No. 107-7 at 2.) Williams continues, “[p]rior to the search incident, I recall that [Plaintiff] had been implicated in checking out a hollowed out book to another inmate, and also taking a DVD player from the school to another location and renting or lending movies.” (Id.) According to Williams, “[a]t some point, a school employee asked that [Plaintiff] be removed from his job in the library.” (Id.)
With respect to Plaintiff's transfer to Lieber, McKie avers that Plaintiff's disciplinary charges and medical status resulted in his transfer:
[Plaintiff] had six incidents for use or possession of between April 10, 2020, and July 24, 2020, and one incident of striking an inmate with or without a weapon on April 10, 2020, which all resulted in conviction. For this reason, when consulted in August 2020 about his custody level, my recommendation, which was only a recommendation, was closed custody, which is incompatible with the custody level of Trenton, and would, if adopted as his custody level, have resulted in a transfer. I am further informed and believe [Plaintiff's] medical status was incompatible with his remaining at Trenton, and would have necessitated a transfer. Ultimately, however, his custody level and institutional placement would be decided by Central Classification.(Dkt. No. 107-9 at 2-3.) McKie further disputes that Plaintiff's disciplinary charges had any connection to his allegations against LaPointe. According to McKie, the charges Plaintiff received for contraband possession and drug use within the institution “were appropriate, and he was convicted.” (Id. at 2.)
Defendant Canning likewise believes Plaintiff's transfer to Lieber “was necessitated by a change in his medical classification.” (Dkt. No. 107-10.) Defendant Byrne's affidavit provides some context for this change to Plaintiff's medical status. According to Byrne,
Some months after [Plaintiff] alleges he was assaulted, he requested or was referred for mental health services, and, for a time, was seen by a mental health professional based at McCormick Correctional Institution, as Trenton does not have a mental health professional on-site. Inmates with ongoing mental health needs and health issues requiring 24-7 access to nursing staff are not housed at Trenton, but are
placed in other institutions. If an inmate develops a need for ongoing mental health services or frequent medical care, he would generally be transferred out of Trenton to another institution.(Dkt. No. 107-12 at 3.)
In her affidavit, Defendant Willingham also denies any retaliatory reason for Plaintiff's transfer to Lieber. She avers that she “was informed that [Plaintiff] was transferred to Lieber . . . because he required evening medication and his custody level was changing. Additionally, [Plaintiff] was utilizing mental health services. This would also have resulted in a facility transfer. Trenton has never had in-house mental health care, nor constant medical care.” (Dkt. No. 107-11 at 3.) According to Willingham, “[i]f an inmate develops a need for long-term, regular, mental health care, or requires round-the-clock medical staffing, and his classification so reflects, he must be transferred, and that is done by the Classification at agency level.” (Id. at 4.)
In his briefings, Plaintiff acknowledges the medical and mental health treatment he received upon his transfer to Lieber. (Dkt. No. 118 at 7.) Plaintiff claims that he should have been transferred to McCormick Correctional Institution because he was seeing a mental health counselor at this institution before his transfer to Lieber. (Id.)
2. Analysis
As an initial matter, inmates do not have a constitutional right to a prison work assignment or to placement in a particular institution. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“We have held that the Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement.”); Johnson v. Knable, 862 F.2d 314, 1988 WL 119136 at *1 (4th Cir. 1988) (noting “prison work assignments are matters within the discretion of prison officials, and denial of employment does not, in and of itself, abridge any constitutional right of the inmate”). However, inmates do have a right under the First Amendment to be free from retaliation in the form of a prison transfer or the loss of work assignment.
More specifically, “[a]n action motivated by retaliation for the exercise of a constitutionally protected right is actionable, even if the act, when taken for a different reason, might have been legitimate.” Martin v. Duffy, 977 F.3d 294, 306 (4th Cir. 2020) (citing Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995); Maben v. Thelen, 887 F.3d 252, 262-63 (6th Cir. 2018); Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000); Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991)). Courts view retaliation claims in the prison context with an eye toward avoiding “‘excessive judicial involvement in prison administration.'” Id. (citing Pratt v. Rowland, 65 F.3d 803, 807 (9th Cir. 1995)).
In Martin, the Fourth Circuit adopted the “same-decision” test from Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283 (1977), an employment retaliation case, and applied it to prisoner litigation. Pursuant to Mt. Healthy, a prisoner must establish a prima facie case of retaliation. The burden then shifts to the correctional officer to prove, by a preponderance of the evidence, that it would have reached the same decision in the absence of the protected conduct. See Martin, 977 F.3d at 299. If the correctional officer fails to carry that burden, the inference is that “but for” causation has been shown: the plaintiff would not have been harmed had his rights not been violated by the defendant. Id. (quoting Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011)).
Based on the current record before the Court, Plaintiff cannot establish a prima facie case of retaliation. There is simply insufficient evidence beyond Plaintiff's mere allegations to support a retaliation claim. Further, in another case before this Court, Plaintiff complained of the very same disciplinary charges at issue here. See Case No. 2:20-3233-DCC-MGB. Plaintiff may not repeatedly litigate the same claim. Based on the findings above in sections A and B, the undersigned recommends summary judgment be granted as to any § 1983 claims against Defendants LaPointe, Willingham, Canning, Freeman, Courtney, McKie, and Williams.
Because Plaintiff disputes his transfer to Lieber and his job assignment in this action, Defendants seek to have his claim on these issues dismissed, deemed frivolous, and counted as a strike. (Dkt. No. 107-1 at 19.) In support, Defendants note that Plaintiff has litigated these issues in this Court “multiple times, to no avail, and has been warned that repeated similar claims could be deemed frivolous and counted as strikes under the Prison Litigation Reform Act (PLRA).” (Id.) When a prisoner seeks relief in a civil action from a governmental entity or officer, a court must dismiss the complaint if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(a)(b)(1). The Prison Litigation Reform Act's three-strikes rule “generally prevents a prisoner from bringing suit in forma pauperis (IFP) - that is, without first paying the filing fee - if he has had three or more prior suits ‘dismissed on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim on which relief may be granted.'” Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 1723 (2020) (quoting 28 U.S.C. § 1915(g)). The undersigned finds that Plaintiff's claims were not frivolous, malicious, or that he failed to state a claim. The undersigned recommends that the District Court decline to deem the complaint a “strike” pursuant to § 1915(e)(2)(B)(i).
C. Claims regarding mishandling of mail (Defendant Mealer)
Plaintiff alleges that Defendant Mealer, the former mailroom supervisor at Trenton, refused to send Plaintiff's mail to the PREA auditor, withheld legal mail, opened Plaintiff's mail, and gave Plaintiff's mail to Defendant Freeman. (Dkt. No. 1-1 at 3; Dkt. No. 118 at 18.) Below, the undersigned considers evidence relevant to this claim.
1. Evidence
Plaintiff has submitted a declaration stating, inter alia, that Defendant Mealer opened his mail marked “Confidential,” including mail sent from “the PREA people.” (Dkt. No. 5 at 30.) According to Plaintiff, Mealer's conduct violated PREA policy. (Id.) In a separate declaration, Plaintiff alleges Mealer violated Plaintiff's “first amendment right to redress of grievances and also my fifth and fourteenth amendment due process rights.” (Id. at 46.) In support of these claims, Plaintiff asserts that Mealer refused to send unsealed mail and shared Plaintiff's outgoing mail with Defendant Freeman. (Id.)
In her affidavit, Defendant Mealer avers that at the time period relevant to this action, she worked as a postal director at Trenton, where her “duties involved receiving and distributing or processing incoming and outgoing mail, including inmate mail.” (Dkt. No. 107-16 at 1.) Mealer avers that Defendant Freeman was her supervisor in that position. She denies mishandling any of Plaintiff's mail. With respect to Plaintiff's alleged attempt to send mail to the PREA auditor, Mealer avers that
[Plaintiff] came to the mailroom on at least one occasion with a letter addressed to a female, whose name was not known to me, and sealed. The envelope was not addressed to anyone that I recognized as associated with ‘Legal' or ‘Privileged' mail, it was not marked in any manner to indicate PREA, and it did not appear to fit the category of ‘Legal' or ‘Privileged.' I directed that the letter had to be brought back unsealed. [Plaintiff] disputed my direction, and I talked with my supervisor, Associate Warden Freeman, who also spoke with [Plaintiff] on the subject. Any discussion by me with Associate Warden Freeman was for proper purposes, not for simply telling [Plaintiff's] business to someone.(Id. at 2.)
Mealer further avers that where mail does not appear to fit the definition of “Legal” or “Privileged,” but it is marked “Confidential,” the mail must be presented unsealed, to be inspected by mail personnel before being sent. According to Mealer, “[h]ad the mail been sealed, but properly addressed to designate it as PREA-related, I would have sent it out sealed with a stamped disclaimer that it had not been inspected.” (Id. at 2-3.)
Defendant Freeman's affidavit supports Mealer's representation of these events. Freeman avers that Plaintiff “made complaints regarding Ms. Mealer's decisions, and I found she had correctly applied SCDC policy....The mail which [Plaintiff] complained of would not have been recognized as ‘legal' or ‘privileged.'” (Dkt. No. 107-3 at 3.)
2. Analysis
Plaintiff claims that Mealer mishandled his mail in violation of his constitutional rights under the First, Fifth, and Fourteenth Amendments. Construed liberally, the Complaint alleges interference with Plaintiff's right of access to the courts, retaliation, and a due process claim for violation of prison policy.
In order to state a constitutional claim of denial of access to the courts, the deprivation must have denied the inmate of a “reasonably adequate opportunity” to challenge their sentence or conditions of confinement. Bounds v. Smith, 430 U.S. 817, 828 (1977); Lewis v. Casey, 518 U.S. 343, 354-55 (1996). Deprivation of access to courts “in some theoretical sense” does not establish a claim. Lewis, 518 U.S. at 351. Rather, a plaintiff must allege facts showing that the challenged action has actually “hindered his efforts to pursue” a nonfrivolous legal claim. Lewis, 518 U.S. at 351.
Here, there is no evidence in the record to support that Mealer's actions deprived Plaintiff of the ability to challenge his conviction or the conditions of his confinement. Plaintiff has failed to alleged any actual injury that occurred from Mealer allegedly opening or failing to deliver his legal mail. See, e.g., Tate, v. Davis, No. 7:21-cv-00361, 2021 WL 3037411, at *2 (W.D. Va. July 19, 2021) (dismissing access to courts claim where inmate “has not alleged that he lost any claim or that the case was actually affected by the delay in mail”); Taylor v. Amason, No. 2:13-cv-3449-RMG, 2015 WL 5707826, at *9 (D.S.C. Sept. 28, 2015) (dismissing access to courts claim where inmate failed to allege any actual injury occurred from defendants' opening or failing to deliver his legal mail).
Likewise, Plaintiff offers no evidence or allegations that would support a First Amendment retaliation claim or due process violation against Mealer. While prisoners have a First Amendment right to send and receive mail, prison officials may place reasonable restrictions on these rights so long those restrictions are “reasonably related to legitimate penological interests.” Lewis, 518 U.S. at 361 (citing Turner v. Safley, 482 U.S. 78, 89 (1987); see also Thornburgh v. Abbott, 490 U.S. 401, 413 (1989); Pellv. Procunier, 417 U.S. 817, 822 (1974); Bellv. Wolfish, 441 U.S. 520, 54452 (1979)). Maintaining safety and internal security are “core functions of prison administration” that can affect restrictions on prisoner mail. Turner, 482 U.S. at 92.
Here, Plaintiff offers no evidence or factual allegations to support an inference that his legal mail was mishandled with a retaliatory motive or otherwise to hinder due process. And, to the extent Plaintiff alleges Mealer's conduct violated prison policy, this alone would not amount to a due process violation under § 1983. See Tate, 2021 WL 3037411, at *1 n.1 (finding no constitutional claim where inmate alleged due process violation based on the holding of his mail in violation of prison policy) (citing Riccio v. Cty. of Fairfax, 907 F.2d 1459, 1469 (4th Cir. 1990) (holding that 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 violation)). In short, Plaintiff fails to state any constitutional violation based on Mealer's alleged conduct.
For these reasons, the undersigned recommends summary judgment be granted, and Plaintiff's claims against Mealer be dismissed.
D. Claims of deliberate indifference to serious medical need (Defendants Bryne, Williams, Courtney, Sheppard, or Kendall)
Plaintiff alleges that after he reported the sexual assault to Defendants Courtney and Williams, they sent Plaintiff to his “living unit, as opposed to having [Plaintiff] seen by mental health and checked at medical.” (Dkt. No. 1-1 at 4.) Plaintiff alleges Defendant Dr. Byrne refused to treat his groin area both after the alleged sexual assault in 2019 and after Plaintiff reinjured his groin area in a slip on a wet surface in 2020. (Dkt. Nos. 1-1 at 3-5; 17-1 at 5-6.) Plaintiff also asserts Dr. Byrne changed Plaintiff's “medical classification concerning Plaintiff's eyeglasses and shoes.” (Dkt. No. 118 at 18.) Plaintiff alleges that after his transfer to Lieber, his family sent Plaintiff “soft shoes and eyeglasses” through Amazon and Defendants Kendall and Sheppard did not allow Plaintiff to keep these items, despite doctor approval. (Dkt. No. 66 at 3.) According to Plaintiff, the above conduct constituted deliberate indifference to a serious medical need.
Below, the undersigned considers the evidence in the record most relevant to Plaintiff's claims here.
1. Evidence
Plaintiff has submitted a letter he sent to the South Carolina State Board of Nursing on April 25, 2020, complaining about his medical treatment. In this letter, he alleges that he “slipped and fell in a puddle of water” on April 24, 2020, while being escorted in handcuffs. (Dkt. No. 171 at 1.) Plaintiff states that he went into a full split when he fell and injured his left knee, pulled his groin, and pulled his left thigh and left shoulder. (Id.) Plaintiff alleges he was taken to medical after his fall and examined by a Nurse Williams. According to Plaintiff, Nurse Williams examined Plaintiff and told him his left knee was swollen, but not broken. Plaintiff alleges he told Nurse Williams his “groin was in bad pain,” and she told him there is “nothing [she] can do about that.” (Id. at 2.) Plaintiff alleges “Nurse Williams then instructed Nurse Livingston to give me an ice pack, . . . and she gave me Tylenol or ibuprofen.” (Id.)
In his affidavit, Defendant Byrne avers that during the time period relevant to this action, he worked one day per week at Trenton and he worked at other institutions during the rest of the week. (Dkt. No. 107-12 at 1-2.) Byrne avers that Plaintiff “received regular and appropriate healthcare by me and the nursing staff of Trenton” and that he never refused to see Plaintiff for medical care. (Id. at 2.) Byrne continues:
I recall that [Plaintiff] complained of chest pain on more than one occasion. He was seen frequently and was appropriately evaluated and treated, including having electrocardiograms. I do not recall [Plaintiff] ever informing me of an alleged sexual assault. I am aware through this litigation that [Plaintiff] alleges an officer forcefully touched him in the genital area in June 2019, and I have reviewed a September 2020 document in which [Plaintiff] alleges I refused to treat a groin problem that he says arose from that incident and was exacerbated by a fall or slip in a puddle of water. I do not recall being consulted about such a problem, but the touching described in the pleadings, if it occurred, would not likely leave any effect capable of being observed, diagnosed, or treated, especially over a year later.(Id.)
In his affidavit, Courtney avers that after the incident with LaPointe, Plaintiff complained to him that “LaPointe went too high while searching. [Plaintiff] did not report being injured in the search, nor being grabbed hard enough to cause injury. Had I received information of an injury, I would have sent the inmate to the medical area.” (Dkt. No. 107-8 at 2.)
Plaintiff has submitted to the Court many grievances and requests to staff member forms (“RTSM”) dated from 2020 and 2021 concerning his medical treatment. (Dkt. No. 54-1; 17-1.) Plaintiff has not pointed to any documents dated from 2019 pertaining to his medical treatment following the alleged sexual assault, and the Court has not found any in the record.
On September 1, 2020, Plaintiff submitted a RTSM alleging inadequate medical treatment by Byrne and his nurses, claiming Byrne “has refused to treat me for a groin problem after being sexually assaulted and exacerbated after I slipped and fell in a puddle of water while in restraints.” (Dkt. No. 5 at 17.) Plaintiff received two responses that appear relevant to his grievance here.
On October 29, 2020, Plaintiff received a response to a RFSM stating,
You have been examined by the nurses/ MD at Trenton for a variety of concerns. On these dates you received assistance from health services: 9-15 sick call, 9-15-MD visit complaints of chest pain near cyst on chest, 9-16 EKG/no significant findings, 9-21 med renewals and health education, 9-22 optometry appt., 9-28 outside medical elective form provided your request/your multiple concerns forwarded to SCDC doctor, 9-29 in RHU hitting your fist on wall/brought to medical for emergency and you stated there was no emergency, you requested a mouth ulcer be looked at, 10-5 continued complaints/another outside elective form provided to you, l0-6 seen by mental health & received med changes, 10-7 transferred to Lieber, 10-15 seen by the QMHP, and 10-20 you were examined by the Psychiatrist/Lieber. You have received access to medical care/your concerns have been addressed. If your condition changes, you may sign up to be seen by the medical staff at Lieber to address those concerns. In the future submit your RTS on form 19-11.(Id. at 33.)
On January 18, 2021, Plaintiff received another response to a RTSM stating:
While at Trenton you were seen by the medical staff on the following dates: 9-1620, 9-22-20, 9-21-20, 9-28-20, 9-29-20, 10-5-20, 10-6-20. You were examined by staff and the MD during September 2020. On October 7, 2020 you were transferred to Lieber. On Oct. 20, 2020, you had medications renewed for you. You have had access to care at Trenton and Lieber and your concerns have been addressed.(Id. at 17.)
With respect to Plaintiff's allegations concerning his shoes and eyeglasses, Dr. Byrne avers that Plaintiff's special shoes “were not medically necessary in my medical judgment, when last I treated him in 2020.” (Dkt. No. 107-12 at 3.) Dr. Byrne also avers, “[w]hen I last treated [Plaintiff] ¶ 2020, sunglasses were not medically necessary in my opinion, and I knew of no current recommendation by an optometrist for sunglasses.” (Id.) Dr. Byrne notes that Plaintiff “had a recommendation for sunglasses by an optometrist in 2017, for a corneal injury, but that issue resolved.” (Id.)
In her affidavit, Defendant Sheppard avers that “there must be a documented medical need” in order for an inmate to receive shoes or eyewear other than the standard SCDC-supplied items. (Dkt. No. 107-15 at 1-2.) With respect to medically authorized special shoes, Sheppard avers that these shoes “can only be provided by the vendor approved by SCDC, which is Capitol Prosthetics and Orthotics, not Amazon.” (Id. at 2.) She explains,
If shoes or other disallowed shipments are received at the prison from Amazon, the inmate can pay the postage to have the items shipped to his family members. Otherwise, the items will be rejected for return to sender. [Plaintiff] and I met on March 8, 2022, to again discuss this issue, and he was allowed to place the shoes received from Amazon with the mailroom staff, to be mailed home to his family, but they will not be shipped until there is money in his inmate account to pay for the shipping.(Id.) As for eyewear, Sheppard avers,
Eyewear approved by the physician and Warden can be sent by the inmate's family through vendors such as Amazon. but it must conform to SCDC standards. [Plaintiff] and I discussed on March 8, 2022, that he actually had four pairs of eyeglasses, although he was only allowed to possess one pair, so he was allowed to keep only one pair, and he will be permitted to place the others in the mailroom for shipping to his family, but they will not be shipped until there is money in his inmate account to pay for the shipping.(Id.)
Sheppard avers that she “was not involved in the approval process for [Plaintiff's] shoes or eyewear” and she is “not aware of any properly authorized medical shoes or eyewear that have been denied to [Plaintiff].” (Id.)
Defendant Kendall has submitted an affidavit in which he avers that at Lieber, Plaintiff's first request for physician-approved medical shoes was dated January 4, 2022. (Dkt. No. 107-13 at 2.) According to Kendall, a physician approved the request for shoes on January 11, 2022, and directed Plaintiff to submit a separate request for eyewear. Kendall approved the shoes on that same day. (Id.) Kendall has provided the form documenting “Approval for Prosthesis and Release of Liability,” which supports his version of events. (Dkt. No. 107-14.)
2. Analysis
Liberally construed, the Complaint alleges that Defendants Williams and Courtney were deliberately indifferent to Plaintiff's serious medical needs when they did not send him to medical immediately after his alleged sexual assault. The Complaint further alleges that Byrne was deliberately indifferent to his serious medical needs by refusing to provide Plaintiff medical treatment in 2019 and 2020 and for changing his medical classification. Finally, the Complaint alleges Kendall and Sheppard were deliberately indifferent to Plaintiff's serious medical needs by denying him access to medical shoes and sunglasses sent through Amazon.
A prison official demonstrates deliberate indifference if he “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). A prison official is deliberately indifferent if he has actual knowledge of a substantial risk of harm to a prisoner and disregards that substantial risk. Id. at 847; Parrish v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (observing that “deliberate indifference” requires actual knowledge and disregard of a substantial risk of serious injury).
In Estelle v. Gamble, 429 U.S. 97, 104 (1976), the Supreme Court held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment.” The test for deliberate indifference has two parts. A plaintiff “must prove (1) that ‘the deprivation of [a] basic human need was objectively sufficiently serious,' and (2) that ‘subjectively the officials act[ed] with a sufficiently culpable state of mind.'” De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (quoting Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993)). To satisfy the first part of the test, a plaintiff must show that the injury was objectively serious. Farmer, 511 U.S. at 834. 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 v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (internal citation omitted).
To satisfy the subjective component, a plaintiff must show that a defendant knew of and disregarded the risk posed by the serious medical need. Farmer, 511 U.S. at 837. Two components must be shown to satisfy a defendant had a culpable state of mind. First, actual knowledge of the risk of harm to the inmate is required. Iko, 535 F.3d at 241 (citing Young v. City of Mt. Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001)) (emphasis in original); see also Cleveland, 372 F.3d at 303 (“It is not enough that the officers should have recognized [a substantial risk of harm].”). Second, a defendant “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 (citing Parrish, 372 F.3d at 303) (emphasis in original).
An assertion of mere negligence or malpractice is not enough to state a constitutional violation, plaintiff must allege and demonstrate “[d]eliberate indifference . . . by either actual intent or reckless disregard.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled in part on other grounds by Farmer, 511 U.S. at 837. In other words, a plaintiff must allege facts demonstrating that defendant's actions were “[s]o grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Id.; see Whitley v. Albers, 475 U.S. 312, 319 (1986) (“[C]onduct that does not purport to be punishment at all must involve more than ordinary lack for due care .... [O]bduracy and wantonness, not inadvertence . . . characterize the conduct prohibited by [the Eighth Amendment].”); see also Moore v. Winebrenner, 927 F.2d 1312, 1316 (4th Cir. 1991) (citing Fourth Circuit cases adopting the Supreme Court's reasoning in Whitley).
Where the Eighth Amendment claim is premised on delayed medical care, the plaintiff must show “the delay results in some substantial harm to the patient,” such as “marked exacerbation of the prisoner's medical condition or frequent complaints of severe pain.” Formica v. Aylor, 739 Fed.Appx. 745, 755 (4th Cir. 2018) (internal quotation omitted) (emphasis in original); Sharpe v. S.C. Dep't of Corr., 621 Fed.Appx. 732, 734 (4th Cir. 2015); Webb v. Hamidullah, 281 Fed.Appx. 159, 166-67 (4th Cir. 2008).
Further, to bring a denial of medical treatment claim against non-medical prison personnel, an inmate must show that such officials were personally involved with a denial of treatment, deliberately interfered with prison doctors' treatment, or tacitly authorized or were indifferent to the prison physicians' misconduct. Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990), overruled in part on other grounds by Farmer, 511 U.S. at 837. “Mere knowledge is not sufficient to establish personal participation.” Coleman v. Stevenson, No. 0:09-cv-872-HMH, 2010 WL 2990737, at *4 (D.S.C. June 22, 2010), adopted by, 2010 WL 2990740 (D.S.C. July 26, 2010), aff'd, 407 Fed.Appx. 709 (4th Cir. 2011).
Upon careful review, there is insufficient evidence beyond Plaintiff's mere allegations to support any deliberate indifference claim. With respect to Dr. Byrne, the Complaint vaguely alleges that sometime after the June 24, 2019 assault occurred, “Plaintiff attempted several times to be checked by Dr. Byrne the prison doctor and he refused.” (Dkt. No. 1-1 at 5.) Plaintiff does not provide any specifics about these alleged attempts, and there is no compelling evidence in the record pertaining to Plaintiff's medical treatment prior to 2020. With respect to the April 2020 incident, by Plaintiff's own account, he received immediate medical treatment for his injuries. (Dkt. No. 17-1 at 1-2.) The record further indicates that Plaintiff received regular medical treatment at Trenton in 2020. (Dkt. No. 5 at 17, 33.) While Plaintiff may believe he should have received different medical treatment, “[a] disagreement as to the proper treatment to be received does not in and of itself state a constitutional violation.” Mickell v. Ozmint, No. 3:08-cv-2973-RBH, 2009 WL 1361873, at *4 (D.S.C. May 11, 2009) (granting summary judgment on § 1983 deliberate indifference claim where “plaintiff disagrees with the treatment he has been offered”).
Similarly, while the Complaint alleges Williams and Courtney sent Plaintiff to his living unit rather than sending Plaintiff to medical immediately after the alleged assault, there is no evidence that there was reason to believe medical attention was needed at that time. Although Plaintiff asserts that he should have been sent to medical in accordance with prison policy, a violation of prison policy does not amount to a constitutional violation. (Dkt. No. 118 at 15.) Finally, there is no basis to find that the shoes and sunglasses sent to Plaintiff at Lieber by his family were medically necessary, such that any denial of access to these items constitutes deliberate indifference. Likewise, there is no evidence Dr. Byrne changed Plaintiff's medical classification pertaining to his ability to obtain medical shoes and eyewear.
In short, Plaintiff cannot establish that Defendants Bryne, Williams, Courtney, Sheppard, or Kendall had actual knowledge of an objectively serious medical need and disregarded that need. Farmer, 511 U.S. at 837; see Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (“To show an Eighth Amendment violation, it is not enough that an official should have known of a risk; he or she must have had actual subjective knowledge of both the inmate's serious medical condition and the excessive risk posed by the official's action or inaction.”); Lee v. Doe, No.:06-cv-00454, 2009 WL 2060072, at *4 (S.D. W.Va. July 8, 2009) (dismissing Eighth Amendment deliberate indifference claim where plaintiff alleged Defendants failed to provide medical treatment for his alleged groin and lower back injuries because, inter alia, plaintiff “fails to allege that Defendants knew of and disregarded an excessive risk to his health or safety”). Summary judgment should therefore be granted, and Plaintiff's claims for deliberate indifference to a serious medical need should be dismissed.8F
Having recommended dismissal of this action on the above grounds, the undersigned does not consider Defendants' remaining arguments for summary judgment.
CONCLUSION
For the reasons stated, it is RECOMMENDED that Defendants' Motion for Summary Judgment (Dkt. No. 107) be GRANTED and this action be dismissed in its entirety. The undersigned RECOMMENDS that the District Court decline to deem the complaint a “strike” pursuant to § 1915(e)(2)(B)(i).
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 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).