Opinion
C. A. 5:23-1065-TMC-KDW
01-09-2024
Jonathon Borrero, Plaintiff, v. Warden Charles Williams; Deputy Warden Daniel Harouff; Nurse Practitioner Amy Enloe, and Catherine Burgess, R.N., Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE.
Jonathon Borrero (“Plaintiff”), proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983 alleging Defendants violated his constitutional rights while he has been incarcerated at Perry Correctional Institution. On June 30, 2023, Defendants Catherine Burgess, Amy Enloe, Daniel Harouff, and Charles Williams filed a Motion to Dismiss for Failure to State a Claim. ECF No. 49. Plaintiff filed his Response on July 19, 2023. ECF No. 53. On July 26, 2023, Defendants filed a Reply. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. This matter is now ready for review.
I. Factual and Procedural Background
Plaintiff brings this lawsuit against Charles Williams, Warden of Perry Correctional Institution (“PCI”), Deputy Warden Daniel Harouff, Nurse Practitioner Amy Enloe, and Nurse Catherine Burgess for violations of the rights afforded to him under the Eighth Amendment to the United States Constitution. ECF No. 25 at 2-4. In Plaintiff's Amended Complaint, Plaintiff alleges that on October 1, 2022, at approximately 5:30 p.m., after noticing that the window in his cell was leaking, he moved his mattress to avoid it getting wet. ECF No. 25 at 6. Plaintiff alleges that he notified Officer Kimbrell about the leak, and the officer told Plaintiff, “it usually does that, ask second shift to get you a jumpsuit to soak up the water.” Id. Plaintiff alleges he was moving his belongings from the window to stop them from getting wet when he slipped and hit the left side of his temple/eye. Id. at 6. Plaintiff alleges he asked Officer Kimbrell for help; however, he was not provided aid until approximately 6:30 p.m. Id. Plaintiff generally alleges Defendants were aware of the leak but failed to remedy it and placed Plaintiff in the cell knowing it was an excessive risk to Plaintiff's health or safety. Id. Plaintiff alleges Defendants failed to provide him with humane conditions of confinement. Id. at 7. Plaintiff did not name Officer Kimbrell as a defendant in this action.
Plaintiff also alleges Defendants acted with deliberate indifference to a prison condition that exposed Plaintiff to an unreasonable risk of harm, and Defendants were reasonably expected to know of the conditions causing his eye injury. Id. at 6-7. Plaintiff alleges that after the incident, he was seen by an eye doctor on October 26, 2022 and underwent x-rays on October 18, 2022. Id. at 7. Plaintiff alleges he has complained about neck, left shoulder, and back pains, as well as blurred vision. Id. Plaintiff further alleges he was treated on January 5, 2023 by Defendant Enloe, at which time she was supposed to reschedule x-rays as well as an additional doctor's appointment, but she failed to do so. Id. Plaintiff alleges Defendants Enloe and Burgess violated his Eighth Amendment rights. Id. Plaintiff claims he had severe swelling and bruising over his left eye, severe headaches, pain in his neck, left shoulder and back, and blurred vision and hemorrhaging in his left eye and is “complaining still” about these injuries. Id. at 7-8.
II. Discussion
A. Standard of Review
Defendants have moved to dismiss this action based on Rule 12(b)(6) of the Federal Rules of Civil Procedure. To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (quoting Bell Alt. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
This court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support [the legal conclusion].” Young v. City of Mount Rainier, 238 F.3d 567, 577 (4th Cir. 2001).
B. Analysis
Defendants argue that because Plaintiff fails to provide any factual allegations that would support any causes of actions against them, they are entitled to dismissal of the claims against them. Defendants provide several arguments in support of their Motion. The undersigned will discuss these arguments below.
1. Eleventh Amendment Immunity
Defendants argue that they are entitled to immunity pursuant to the Eleventh Amendment as to any claims brought against them in their official capacity. The Eleventh Amendment provides: “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” U.S. CONST. amend. XI. The United States Supreme Court has long held that the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001). Eleventh Amendment immunity also extends to “arms of the State” and state employees acting in their official capacity. Doe v. Coastal Carolina Univ., 359 F.Supp.3d 367, 378 (D.S.C. Jan. 9, 2019). Relatedly, the Supreme Court has held that neither a State nor its officials acting in their official capacities are “persons” under § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Moreover, a state cannot, without its consent, be sued in a District Court of the United States by one of its own citizens upon the claim that the case is one that arises under the Constitution and laws of the United States. Edelman, 415 U.S. at 663.
Defendants argue that the law is therefore clear that in this case, Defendants are immune from suit in their official capacity. Plaintiff did not respond to this argument. The undersigned agrees that the Eleventh Amendment immunity applies to Plaintiff's claims against state actors in their official capacity. Thus, the undersigned recommends granting summary judgment in favor of Defendants as to Plaintiff's claims brought against them in their official capacity pursuant to § 1983.
2. No Constitutional Violation
Defendants next argue that Plaintiff fails to state a claim for relief against any of the named Defendants. In liberally construing Plaintiff's Amended Complaint, he alleges two plausible causes of action pursuant to § 1983, which the undersigned considers below. Plaintiff attached additional documents to his Response, which include incident reports, medical requests and Plaintiff's grievances. However, at the motion to dismiss stage, the court may only consider the operative complaint, as well as documents attached or incorporated into the complaint. E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). Defendants argue that going outside of Complaint to consider these documents is improper. The court notes that Defendants do not argue that Plaintiff failed to exhaust his administrative remedies and the parties have yet to engage in discovery. Moreover, because the court accepts Plaintiff's allegations in the Amended Complaint as true and construes them in a light most favorable to Plaintiff, the undersigned does not find it determinative at this stage of the litigation to consider the documents Plaintiff chose to attach to his Response.
a. Conditions of Confinement
Plaintiff alleges that his cell had a window leak that caused water to seep into his cell. As a result, Plaintiff alleges he suffered several injuries, including a severely swollen and bruised eye and hemorrhaging in his eye, as well as neck, left shoulder and back pain when he slipped and fell in water. Plaintiff alleges that Defendants were aware of the leak and failed to remedy the leak, knowingly putting him at risk and ignoring a dangerous condition. Under 42 U.S.C. § 1983, relief may be sought when a plaintiff alleges the violation of a right secured by the Constitution by a person acting under color of state law. West v. Askins, 487 U.S. 42, 48 (1988). To state a claim that conditions of confinement violated one's constitutional rights, a plaintiff must show both: “(1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.” Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (quoting Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991)). To establish a deprivation of a basic human need, a plaintiff must allege that prison officials failed to provide him with humane conditions of confinement, such as adequate food, clothing, shelter, and medical care, as well as taking reasonable measures to ensure the safety of inmates. Farmer v. Brennan, 511 U.S. 825, 832 (1994). To establish a prison official was deliberately indifferent, a plaintiff must show an official had actual knowledge of a substantial risk of harm to a prisoner and disregarded that risk. Id. at 847. Defendants succinctly point out that Plaintiff fails to allege any of the named Defendants were involved with the alleged slip and fall. Plaintiff counters that Defendant Harouff was aware of the leak but did not remedy the leak, and Defendant Williams, as Warden, is responsible for the safety of inmates.
In reviewing the Amended Complaint, Plaintiff's only specific allegations as to any prison officials regarding the slip and fall were that Plaintiff notified Officer Kimbrell who indicated that the window often leaked. Plaintiff further alleged that Officer Kimbrell ignored his cries for help once he fell. Otherwise, Plaintiff generally alleges Defendants were aware of the leak. However, Plaintiff's conditions of confinement claim fails for several reasons. First, liability under § 1983 involves a showing that “the official charged acted personally in the deprivation of the plaintiff's rights.” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). The doctrine of respondeat superior is inapplicable in these cases. Id.; see Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (stating that there is no respondeat superior liability under § 1983). Simply alleging that prison officials who oversee the prison are responsible for the safety of inmates is insufficient to state a claim for relief. Thus, the undersigned recommends dismissing the conditions of confinement claim against Defendant Williams. Further, there are no allegations in the Amended Complaint that Defendant Harouff was aware of the leak; Plaintiff alleges that for the first time in his response to Defendants' Motion. However, even accepting this allegation in his response as true, the undersigned still finds this allegation insufficient to establish a conditions of confinement claim. Plaintiff does not allege that Defendants Williams or Harouff deprived him of a basic human need,nor does he allege that they were aware the window leak would lead to any unsafe condition. Plaintiff alleges in his Response that these Defendants were “well aware of” the leak but his pleadings do not allege this was a pervasive problem. Indeed, in his Amended Complaint, Plaintiff alleges he did not notice the leak until the day he slipped and fell. At best, Plaintiff's allegations that Defendants' failure to remedy the leaking window might plausibly state a negligence claim. It is well settled law that negligence is not actionable in a § 1983 action. Pink v. Lester, 52 F.3d 73, 78 (4th Cir. 1995). For this reason, the undersigned recommends dismissing Plaintiff's conditions of confinement claim against Defendants.
Defendants do not address whether a leaking window within a cell constitutes the deprivation of a basic need. That issue aside, even assuming Plaintiff suffered a deprivation, Plaintiff does not allege these Defendants had any knowledge of this condition.
b. Deliberate Indifference
Plaintiff also makes several allegations regarding the alleged lack of care he received subsequent to his fall. He alleges that since the incident on October 1, 2022, he was taken for x-rays, as well as seen by an eye doctor; however, he argues that he has still been complaining about neck, left shoulder, and back pains and blurred vision. He further alleges that Defendant Enloe was supposed to schedule follow up x-rays, as well as an eye doctor visit, but she failed to do so. Plaintiff argues that both Defendants Enloe and Defendant Burgess violated his Eighth Amendment rights by being deliberately indifferent to his injuries as well as his pain and suffering.
The Eighth Amendment prohibits the infliction of cruel and unusual punishments. U.S. CONST. amend. VIII. Adequate medical care is a basic condition of human confinement. Farmer, 511 U.S. at 832. For this reason, a prison official's deliberate indifference to the serious medical needs of a prisoner constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97 (1976). To establish a deliberate indifference claim, a plaintiff must establish that the alleged deprivation was “sufficiently serious,” (the objective prong); and that the prison officials acted with “deliberate indifference” (the subjective prong). Pfaller v. Amonette, 55 F.4th 436, 445 (4th Cir. 2022). Liberally construing Plaintiff's claims, the only allegations regarding inadequate medical care are directed toward Defendants Amy Enloe and Catherine Burgess. To the extent Plaintiff claims generally that all Defendants were deliberately indifferent because had knowledge of a substantial risk, the undersigned again points out that there are no allegations lodged against Defendants Williams or Harouff as to the inadequacy of Plaintiff's medical care in either the Amended Complaint or in Plaintiff's response to Defendants' Motion. Accordingly, the undersigned analyzes this particular claim against Defendants Enloe and Burgess.
In considering the objective prong of this analysis, while not explicitly clear, it does not appear Defendants strongly protest Plaintiff's allegations that the alleged failure to treat Plaintiff's eye and his related injuries constitutes a sufficiently serious deprivation. Defendants argue that Plaintiff “merely alleged he slipped and hit the left side of his eye/temple in an area . . he knew to be wet;” however, that statement oversimplifies his claims. Plaintiff alleges he was housed in a cell that developed a leak, he notified Officer Kimbrell that there was leaking water and attempted to move his belongings away from the window. In this process, he slipped because, as he alleges, the water seeped onto the floor. He further alleges that on the day of the fall, he waited for an hour before someone gave him aid, and since the time he suffered these injuries he has not been provided adequate follow-up medical care by a medical provider. The injuries he alleges he sustained include an eye injury and blurred vision, as well as neck, shoulder, and back pain. Viewing the facts in a light most favorable to Plaintiff, the undersigned recommends finding that he has satisfied the first prong of this analysis.
The subjective prong of the analysis has two parts. A plaintiff must show: (1) a prison official had “actual knowledge of the risk of harm to the inmate,” and (2) “recognized that his actions were insufficient to mitigate the risk of harm to the inmate arising from his medical needs.” Pfaller, 55 F. 4th at 445 (citing Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)). While mere negligence will not meet this standard, “actual purposive intent” is not required. Pfaller, 55 F. 4th at 445. The undersigned is mindful of the fact that at the motion to dismiss stage, the analysis is whether Plaintiff has stated a plausible claim for relief in his Amended Complaint. In his Amended Complaint, Plaintiff alleges that he was seen by Defendant Amy Enloe on January 5, 2023 after he continued to complain about the injuries he allegedly sustained from the fall. Defendant Enloe, according to Plaintiff, was supposed to re-schedule Plaintiff for x-rays and an eye doctor visit, but she never scheduled either visit. Plaintiff further alleges that he has been “complaining still” about his neck, left shoulder, and back pains, as well as blurred vision. He also alleges both Amy Enloe and Catherine Burgess violated his Eighth Amendment rights by being deliberately indifferent to his injuries, his pain, and his suffering. In his response, Plaintiff alleges that he wrote to nurse Enloe multiple times regarding his pain and suffering, which is consistent with his allegations in his Amended Complaint that he filed grievances but was given “the run-around.” See ECF No. 25 at 10. As to Defendant Burgess, Plaintiff does not allege any set of facts suggesting Defendant Burgess treated him or was aware he was being treated. In other words, aside from generally alleging she is a nurse and was deliberately indifferent to his needs, he does not set forth any claims alleging that she ever treated or interacted with Plaintiff regarding his care after he slipped in his cell or that she was aware he was to be provided follow-up care. Thus, the undersigned recommends dismissing any alleged Eighth Amendment violation claim against Defendant Burgess.
Defendants argue that that only specific allegation made against Defendant Enloe is that she allegedly failed to re-schedule an x-ray and failed to schedule a visit to the eye doctor; however, they argue Plaintiff does not allege any actual damages associated with this alleged failure to schedule his follow up visits. At best, they argue, Plaintiff simply alleges the inadvertent failure to provide medical care, and certainly he has not alleged conduct that “shocks the conscience.” See ECF No. 49-1 at 9. Viewing the Amended Complaint in a light most favorable to Plaintiff, and keeping in mind the applicable pleading standard, the undersigned finds that Plaintiff has asserted a plausible claim against Defendant Enloe. Plaintiff's allegations are that he was treated by Defendant Enloe, thus he has pled sufficient facts to establish she was aware of his medical condition. Plaintiff further alleges that Defendant Enloe was deliberately indifferent to his medical condition in that she did not schedule either x-rays or a follow up with an eye doctor that he alleges she was “supposed to reschedule,” despite his complaints of blurred vision and neck, shoulder and back pains; thus, affording Plaintiff a liberal construction of his pleadings, he alleges she was aware he needed follow-up treatment. He further alleges that he has been “complaining still” that his medical issues remained, despite his allegations that he was not scheduled for follow-up treatment. Thus, Plaintiff is alleging that his medical issues remained, at least in part, due to lack of continued treatment.
Defendants draw the court's attention to the analysis in the report and recommendation which was adopted in Samuel v. Nolland, No. 2:11-3417-PMD, 2013 WL 361083, at *1 (D.S.C. Jan. 30, 2013). However, Samuel is distinguishable because not only was that case analyzed under the summary judgment standard, but the plaintiff alleged he received little to no care or that he received deficient care. Here, Plaintiff is not alleging he disagreed with the type of care he received; he is alleging he continued to complain about his injuries, and a treating medical provider, Defendant Enloe, was to schedule him for two follow-up visits (one for diagnostic testing and one to see an eye doctor), but she allegedly failed to do so for five months. Plaintiff further alleges he filed grievances related to this issue but was given the “run-around.” Thus, keeping in mind the applicable pleading standard and the liberal construction afforded to pro se litigants, the undersigned finds that Plaintiff pled sufficient facts to state a deliberate indifference claim against Defendant Enloe.
3. Qualified Immunity
Defendants argue that, to the extent there is evidence of a constitutional violation, Defendants are entitled to qualified immunity. Because the undersigned finds that Plaintiff failed to state a claim for relief that Defendants Williams, Harouff, and Burgess violated his constitutional rights, the undersigned will only consider whether Defendant Enloe is entitled to qualified immunity. When a qualified immunity defense is raised, the courts apply a two-part test. First, the court must determine whether the facts viewed in the plaintiff's favor make out a violation of one's constitutional rights, and second, whether the violated right was clearly established at that time. Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (citing Pearson v. Callahan, 555 U.S. 233, 231 (2009)). Under the second prong, “the state of the law at the time must have given an official ‘fair warning' that his treatment of the prisoner was unconstitutional.” Pfaller, 55 F.4th at 445. In order to perform this analysis, a court needs to pinpoint the constitutional right at issue in order to determine whether it is clearly established. Id. (citing Halcomb v. Ravenell, 992. F.3d 316, 319-20 (4th Cir. 2021). In so doing, a court must avoid defining the right at a “high level of generality” because the question is whether the “violative nature of particular conduct is clearly established.” Pfaller, 55 F.4th at 445 . There is no requirement that the conduct in question has been previously held as unlawful for a “reasonable” official to be on notice that his or her conduct violated that right. Id. at 445-446 (citing Scinto v. Stansberry, 841 F.3d 219, 235 (4th Cir. 2016)).
In Thorpe v. Clarke, the Fourth Circuit recently held that when a plaintiff has made a showing “sufficient to demonstrate an intentional violation of the Eighth Amendment, ‘they have also made a showing sufficient to overcome any claim to qualified immunity.'” 37 F.4th 926, 934 (4th Cir. 2022) (quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n. 15 (3d Cir. 2001)). Thorpe reasoned that because qualified immunity does not shield someone from knowing violations of the law, and an Eighth Amendment deliberate indifference standard requires knowing conduct, an official who is alleged to have been deliberately indifferent could not also believe their actions “comported with clearly established law.” Pfaller, 55 F.4th at 446 (quoting Thorpe, 37 F.4th at 939). In Pfaller, the Fourth Circuit further explained Thorpe does not “eliminate the clearly established law prong in every case where a dispute of fact related to defendant's mental state remains.” 55 F.4th at 446 (emphasis in original). This is true because Eighth Amendment cases run a broad spectrum, and in some is it necessary to conduct an analysis to determine whether there is an “attenuation between the risk of harm and the defendant's knowledge” that certain specified conduct is constitutionally deficient. Id. (emphasis in original). In this case, Plaintiff has alleged that Defendant Enloe was supposed to reschedule him for x-rays and at least one follow-up appointment but “never did to this day.” ECF No. 25 at 7. He further alleges Defendant Enloe was “deliberately indifferent” to his injuries, his pain and his suffering. Id. When considering Plaintiff's allegations in a light most favorable to him upon a motion made pursuant to Federal Rule 12(b)(6), the undersigned finds that Plaintiff's Amended Complaint contains sufficient allegations as to Defendant Enloe to survive a motion to dismiss. The undersigned's recommendation does not address the merits of Plaintiff's claims nor expresses a view on the likelihood that Plaintiff will ultimately be able to prevail. Rather, under the 12(b)(standard) the facts, as alleged by Plaintiff, state a plausible claim.
III. Conclusion and Recommendation
Based on the above analysis, the undersigned recommends granting in part and denying in part Defendants' Motion to Dismiss, ECF No. 49. The undersigned recommends dismissing all claims brought against Defendants Williams, Harouff and Burgess. The undersigned further recommends denying the Motion as to the Eighth Amendment claim alleged against Defendant Enloe.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and 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 2317
Florence, South Carolina 29503
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).