Opinion
Civil Action 4:21-cv-3513-TMC-TER
01-27-2023
DEMETRIUS ALEXANDER BROWN, #51104, Plaintiff, v. LT. JOHN SHIRAH, NURSE R. ENDICOTT, NURSE STEELE, NURSE ABRAHAM, NURSE H. JOE, NURSE M. DAVILA, and CPL. GREGG-WRIGHT, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
I. INTRODUCTION
Plaintiff, who is proceeding pro se in this matter, brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants retaliated against him and were deliberately indifferent to his serious medical needs during the time he was a pretrial detainee at the Sumter-Lee Regional Detention Center (SLRDC). Presently before the court are Defendants Shirah and Gregg-Wright's Motion for Summary Judgment (ECF No. 52) and Defendants Endicott, Steele, Abraham, Joe, and Davila's Motion for Summary Judgment (ECF No. 53). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motions could result in the motions being granted and his claims dismissed. Plaintiff filed a Response (ECF No. 63) only to Defendants Shirah and Gregg-Wright's motion. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(e), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
Plaintiff alleges that Defendants improperly administered a second dose of the Janssen (Johnson & Johnson) COVID-19 vaccine before it was authorized by the Food and Drug Administration (FDA). Am. Compl. p. 14 (ECF No. 11).
Plaintiff claims he received his original (first) shot of the Janssen (Johnson & Johnson) COVID-19 vaccine on May 25, 2021. Id. Plaintiff claims he signed up to receive the booster shot approximately six months later, on October 11 or 12, 2021, and he received the booster shot on October 15, 2021. Id. Plaintiff alleges this was before the FDA granted emergency use authorization for the booster shot and thus the Defendants were deliberately indifferent for administering it. Id. at p. 15. He alleges the medical providers misrepresented the FDA status of and the necessity for the booster shot, and that had he known it was not approved by the FDA, he would not have signed up to receive it. Id. Plaintiff admits the vaccine was administered by the South Carolina Department of Health and Environmental Control (“DHEC”) and that he signed a disclaimer “stating that the Sumter County Sherriff's Office or Mediko PC were not liable for anything that may go wrong with the vaccine.” Id. at p. 14.
Plaintiff claims he continues to experience side effects from the “severe reactions” he had to the shot he received on October 15, 2021. Id. at p. 19-20. He claims he asked the staff often to address his side effects and symptoms, but he was ignored. Id. Allegedly he never received proper treatment for his symptoms following the improper administration of a second Janssen COVID-19 vaccine. Id. at p. 19. According to Plaintiff, the administration of the vaccine and the failure of the medical staff to properly treat the side effects constituted deliberate indifference. Id. He identifies injuries including severe pain and suffering, anxiety, mental health issues, emotional distress, and mental anguish, and claims he now sees a mental health provider. Id. at p. 23.
Plaintiff's medical records reveal that Plaintiff did complete and sign a COVID-19 questionnaire on October 15, 2021, indicating he had not received a previous dose of the COVID vaccine. Pl. Med. Records 000048. On October 15, 2021, Patricia York, RN administered a Janssen COVID-19 vaccine to Plaintiff's left arm, based on the above response. Pl. Med. Records 000048. 14.
On October 16, 2021, around 5:30 pm, Sheryl Steele examined Plaintiff due to Plaintiff's complaints of symptoms following the vaccine. Pl. Med. Records 000002. Steele authored the following note on October 16, 2021,
Pt. c/o swelling in [bilateral extremities], headache, blurry vision, chills, swelling of the throat, and increased neuropathy in legs, related to him taking the “Jansen & Jansen” [sic] COVID vaccine on 10/15/21. Pt. stated, “Y'all gave me a COVID shot and I already took one in May 2021 so I wasn't supposed to get another according to USA Today.” I performed a head-to-toe assessment of pt. No swelling noted in BLE, all vital signs [within normal limits] and recorded in flow sheet, afebrile, throat w/no redness noted at this time. NP Sally notified of symptoms and gave stat order for Tylenol 1 gm BID by mouth x 10 days for pain. Pt. was given Tylenol and informed to contact medical if issues worsen or escalate. Pt. verbalized understanding and returned to bed.Pl. Med. Records 000002.
On October 18, 2021, Plaintiff was again seen by Steele:
Pt. seen by medical for the same issues as yesterday: blurry visions, headache, and pain. Pt.'s vital signs were [within normal limits] and pt. afebrile at this time. Pt. continues to show [signs and symptoms] of anxiety. Pt. repeating to me about reading in USA Today about not having to take 2 doses of Jansen [sic] COVID shot and symptoms that can occur if taken. . . informed him that he [provided] written [confirmation] that he already took it and signed up to receive the vaccine again. He also verbalized his knowledge of signed forms and knowledge he already received the vaccine. I told him to calm down and if [signs or symptoms] continue or worsen
to contact medical to be assessed, but I feel he needs a referral to [mental health].Pl. Med. Records 000002.
On October 21,2021, Plaintiff continued to complain of “.. .headaches, eye pain with blurred vision, sore throat. Pt. said, “It's a reaction to me receiving the Jansen & Jansen [sic] vaccine a second time since the one I received in May 2021.” Pl. Med. Records 000031-000032. Therefore, the medical staff referred Plaintiff to the physician for further treatment as needed. Id.
Plaintiff alleges from October 19 to 21, 2021, he submitted two more sick call requests he titled “COVID-19 Vaccine Emergency”, in which he described pain he was experiencing, but no medical staff responded to his requests. Am. Compl. p. 18. There is no record of any request on October 19, 2021. Plaintiff's request from October 21, 2021 was evaluated as stated above.
On October 22, 2021, Plaintiff input a medical request stating,
This is my 4th sick call since 10/16/21 in regard to my pain and side effects from my second one shot J&J COVID 19 vaccine shot in which I was under the impression it was a booster vaccine shot and I still have not received treatment for my severe headaches, eye aches, blurry vision, and sore throat??? Thank you.Pl. Med. Records 000125. On October 22, 2021, Heather Joe responded to Plaintiff's medical request stating, “Sir, you have been referred to nurse sick call and will be called when your turn comes up. Please know that all sick calls will be answered/seen.” Pl. Med. Records 000125.
On October 23, 2021, Margo Williams examined Plaintiff based on his recent medical request. Ms. Williams entered the following note based on Plaintiff's exam,
Inmate seen for symptoms of headaches with pain level of 7 or 8, blurry vision, headaches behind eyeballs, eyes running throat soreness, but it is not constant and has lessened since 89, 18 and 95% on room air. Inmate informed that on call NP would be contacted to further advise. Inmate voiced understanding. NP contacted and stated DHEC would need to be contacted on next business day to see what recommendations were in place to assist with these symptoms. Inmate informed of
plan of care and voiced understanding and stated no further concerns.Pl. Med. Records 000002.
On October 24, 2021, Ms. Williams again examined Plaintiff and entered the following note based on her findings,
Inmate seen today, says his head started hurting again. He laid down but it was still painful. Said his eyes had not started running today. Denied any other symptoms when asked. VS: 140/80, 87, 20, 97.9 and 97% on room air. NP notified and gave order for CBC and CMP. Inmate informed of labs to be drawn and verbalized understanding.Pl. Med. Records 000002.
On October 25, 2021, Dr. Sergei Ivantchev, examined Plaintiff based on his ongoing complaints and symptoms. Dr. Ivantchev authored the following note,
Pt. states he has a headache off and on that started after he received the second J&J COVID vaccine. He denies N/V, dizziness, or sinus infection. No fever or chills, no respiratory symptoms. Exam: VSS, slightly hypertensive. Normal exam. Neuro exam was done, is intact without focal findings. Advised to take his BP meds regularly. Will give him prn Tylenol for headache. Also, CBC, CMP, and INR will be ordered.Pl. Med. Records 000002.
On October 26, 2021, Tonie Abraham, LPN, collected blood for the labs Dr. Ivantchev ordered the previous day. Pl. Med. Records 000002.
On November 4, 2021, Plaintiff continued to request medical attention and the medical staff reminded him that he had been seen by Dr. Ivantchev and was scheduled to see Sally Blake, NP or Dr. Ivantchev to review lab results. Pl. Med. Records 000034. He was started on Tylenol to treat his headache complaints. Id.
Plaintiff received additional mental health care treatment and evaluation over the next few weeks. Pl. Med. Records 000003, 000115-000116.
On November 28, 2021, Dr. Ivantchev entered a note based on his review of Plaintiff's lab results. Pl. Med. Records 000003. Dr. Ivantchev assured Plaintiff that his lab results were normal, and his headaches were related to muscular tension and stress. Id.
There were no further requests or concerns relayed to the medical staff after this November 28, 2021, encounter with Dr. Ivantchev. See generally Pl. Med. Records 000001-000127.
Defendants in this action have each submitted affidavits addressing the allegations raised by Plaintiff, which are set forth below in the discussion section.
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 87475 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, arguing that Defendants violated his constitutional rights. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A legal action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). To be successful on a claim under § 1983, a plaintiff must establish 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, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The parties do not dispute that they were acting under color of state law in their individual capacities at all times relevant to this action.
A. Defendant Gregg-Wright
Plaintiff appears to allege that Defendant Gregg-Wright was deliberately indifferent to his serious medical needs by failing to properly disclose to him that the second COVID vaccine he signed up for had not been approved by the FDA. He also appears to allege that Gregg-Wright retaliated against him for complaining that she did not provide him with sufficient information about the shot by not allowing him recreation time.
The standard for reviewing medical claims of pretrial detainees under the Fourteenth Amendment is essentially the same as that for a convicted prisoner under the Eighth Amendment-deliberate indifference to serious medical needs. Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992); Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988) (citing Estelle v. Gamble, 429 U.S. 97 (1976)). “The Fourteenth Amendment right of pretrial detainees, like the Eighth Amendment right of convicted prisoners, requires that government officials not be deliberately indifferent to any serious medical needs of the detainee.” Belcher v. Oliver, 898 F.2d 32, 34 (4th Cir. 1990) (citing Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988)). In order to state a claim, “[a] plaintiff must satisfy two elements ...: he must show a serious medical need and he must prove the defendant's purposeful indifference thereto.” Sires v. Berman, 834 F.2d 9, 12 (1st Cir. 1987). Unless medical needs were serious or life threatening, and the defendants were deliberately and intentionally indifferent to those needs of which he was aware at the time, a plaintiff may not prevail. Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986). A claim of deliberate medical indifference requires more than a showing of mere negligence, Estelle, 429 U.S. at 105-06, and “more than ordinary lack of due care for the prisoner's interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986). The Fourth Circuit has noted that 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 (4th Cir. 1990) (citation omitted).
A non-medical provider such as Gregg-Wright generally cannot be held liable for a failure to provide an inmate medical treatment where, as here, that inmate is under the care of medical personnel. Miltier, 896 F.2d at 854 (holding that non-medical personnel are entitled to rely on the professional judgment of medical practitioners to determine appropriate treatment for a patient); see also Iko v. Shreve, 535 F.3d 225, 242 (4th Cir. 2008) (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)) (holding “[i]f a prisoner is under the care of medical experts ..., a nonmedical prison official will generally be justified in believing that the prisoner is in capable hands.' ”). To establish a claim of deliberate indifference against non-medical prison staff, a plaintiff must show that the non-medical personnel (1) were personally involved in the treatment or denial of treatment, (2) deliberately interfered with treatment, or (3) tacitly authorized or were indifferent to the medical provider's conduct. Howell v. Walrath, No. 1:20cv1193, 2021 WL 5881803, at *5 (E.D. Va. Dec. 10, 2021); Hill v. Richmond Justice Ctr., No. 1:20cv467, 2021 WL 1428311, at *3 (E.D. Va. Apr. 15, 2021). To satisfy the subjective prong, the plaintiff must show that defendant had “actual knowledge of the risk of harm to the inmate” and the 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 (quoting Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004)).
Defendant Gregg-Wright testified that she was asked by medical to see if any inmates wanted to sign up for a Covid vaccine, but she had no information on what type vaccine was being administered, or if any inmates had already received a vaccine. Gregg-Wright Aff. ¶ 6. Therefore, she could not provide any information about what type of vaccine was being given, as to whether it was a first, second or booster shot, as she did not know. Id. She also testified that she assumed inmates knew if they had received a vaccine. Id. As she was asking, if an inmate wanted to receive a vaccine, she testified she would get their information and pass it on to the medical department and medical then worked with DHEC to administer the vaccines. Id. She went on to testify that employees of DHEC came to the jail to administer the vaccines and spent 5-10 minutes talking with the inmates about what vaccine each inmate was getting and answering any questions the inmates had prior to administering Covid vaccines. Id. ¶ 7. She also explained that inmates had to sign papers agreeing to the shot they were receiving. Id. Defendant Gregg-Wright summarized that she at no time attempted to mislead or provide inaccurate information to this inmate or any other inmate, as she did not know that information to provide to them. Id. ¶ 8. She was simply taking down names of any inmates interested in the vaccine and passing it on to medical. Id. Plaintiff asserts that when Gregg-Wright asked him if he wanted the COVID-19 vaccine, he asked her if it was the booster and she told him yes, which was misleading. Pl. Resp. pp. 7-8 (ECF No. 63).
The evidence in the record does not reveal that Gregg-Wright was deliberately indifferent to Plaintiff's medical needs. It is undisputed that Gregg-Wright did not administer the COVID-19 about which Plaintiff complains. It is further undisputed that the DHEC medical personnel who did administer the vaccine discussed it with each inmate for 5-10 minutes regarding what vaccine each inmate was getting and answering any questions the inmates had prior to administering it. Further, inmates were required to sign papers agreeing to the shot they were receiving. Viewing the evidence in the light most favorable to Plaintiff, even assuming Gregg-Wright incorrectly informed Plaintiff that he was signing up for a booster shot when he was in fact signing up for a second vaccine shot, such information would have been corrected when Plaintiff discussed the vaccine with DHEC personnel and signed a paper acknowledging which shot he was receiving prior to receiving it. Any misinformation provided by Gregg-Wright does not rise to the level of treatment that was so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness. Rather, it amounts to negligence, at best, which is not actionable under § 1983. Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999). Therefore, summary judgment is appropriate as to Plaintiff's deliberate indifference claim against Gregg-Wright.
Plaintiff also alleges that Gregg-Wright retaliated against him for “reporting” her for giving him “misleading” information about the vaccine by not allowing him recreation time. To state a claim of retaliation under § 1983, “a plaintiff ‘must allege that (1) [ ]he engaged in protected First Amendment activity, (2) the defendant[ ] took some action that adversely affected [his] First Amendment rights, and (3) there was a causal relationship between [his] protected activity and the defendant's] conduct.'” Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)). An inmate must present more than conclusory accusations of retaliation, Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994), and must provide facts that show the exercise of his constitutional right was a substantial factor motivating the retaliation, see, e.g., Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996); Hughes v. Bledsoe, 48 F.3d 1376, 1387 n.11 (4th Cir. 1995).
Plaintiff alleges that when Gregg-Wright found out that he had reported to “security staff supervisors and to medical that she was the cause of me being administered the second, unauthorized Janssen (Johnson & Johnson) COVID-19 shot,” she retaliated against him by not allowing to come out of his cell for recreation time for seven days, until Friday, October 22, 2021. Am. Compl. p. 15. It is not clear from the record when Plaintiff made these reports. Nevertheless, Defendants do not dispute for purposes of this motion that these reports amount to protected First Amendment activity. However, they argue that Plaintiff cannot meet the second and third elements of a retaliation claim.
The second element may be satisfied if the plaintiff alleges facts showing that the defendant's action adversely affected his future exercise of his constitutional rights. Martin, 858 F.3d at 249. To do so, the plaintiff must demonstrate that the defendants' alleged retaliatory conduct caused more than de minimis inconvenience and that it “would likely deter a person of ordinary firmness from the exercise of First Amendment rights.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005). Plaintiff argues that he was denied recreation time for seven days. Defendant argues that this de minimis inconvenience would not deter a person of ordinary firmness from the exercise of First Amendment rights. Nevertheless, assuming Plaintiff a denial of recreation for seven days would deter a person of ordinary firmness from exercising First Amendment rights, Plaintiff fails to show a causal connection between his report of Gregg-Wright and his lack of recreation time for seven days. In Martin v. Duffy, 977 F.3d 294, 299 (4th Cir. 2020) (“Martin II”), the Fourth Circuit applied the burden-shifting, “same-decision” test from Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), to causation in inmates' retaliation claims. The same-decision test proceeds in two steps. First, an inmate must show “that protected conduct was a substantial or motivating factor in a prison guard's decision to take adverse action.” Martin II, 977 F.3d at 301. If the inmate does so, the burden shifts to the defendant to demonstrate by a preponderance of the evidence that he “would have reached the same decision ... in the absence of the protected conduct.” Id. at 299 (quoting Mt. Healthy, 429 U.S. at 283).
Plaintiff cannot show that her report of Gregg-Wright was a substantial or motivating factor in Plaintiff's failure to receive recreation time for seven days. “In order to establish this causal connection, a plaintiff in a retaliation case must show, at the very least, that the defendant was aware of [his or] her engaging in protected activity.” Constantine, 411 F.3d at 501. Plaintiff does not dispute Gregg-Wright's affidavit testimony that she was unaware that Plaintiff had complained about her or reported her regarding the COVID-19 vaccination. Gregg-Wright Aff. ¶ 11. Nevertheless, even if Plaintiff could show that Gregg-Wright knew about Plaintiff's complaints, Gregg-Wright has produced evidence showing the same result would have occurred with respect to the timing of Plaintiff's recreation regardless of Plaintiff's complaints.
In her affidavit, Gregg-Wright explained that this inmate was housed in B pod, which is a closed cell pod. Id. ¶ 12. Recreation for inmates in B pod is done on a rotation system, where the officer starts with one cell, and goes through each cell, one at a time to let them out for recreation. Id. ¶ 13. She also explained that there are times where inmates cannot come out of their cells, such as during meal times for inmates, when DHEC is at the jail providing vaccines, when an incident occurs, or when there is a lock down of the pod due to behavior issues or health issues. Id. ¶ 14. However, when there is an interruption in the recreation schedule, recreation picks back up with the next cell in the rotation. Id. Defendant Gregg-Wright also explained that she kept records on providing recreation in her pod and can testify without question this inmate was treated the same as all other inmates in B pod in regard to recreation during this time. Id. ¶ 17. Defendant Gregg-Wright explained that this inmate came out on recreation just before DHEC came in for Covid vaccines. Id. ¶ 19. She also advised that it usually takes at least 2-3 days to go through the recreation rotation, unless there are interruptions. Id. ¶ 20. She testified that DHEC was in the jail on Friday, October 15, giving Covid vaccines, so no recreation was allowed that day, and then October 16-17 was a weekend. Id. ¶ 18. Monday, October 18 was the continuation of the recreation from before DHEC was in, as there were numerous inmates who had not yet had recreation since the Plaintiff had recreation. Id. ¶ 20. Recreation was started on October 19 continuing the rotation, but there were issues noted with locks in B pod, and a locksmith had to be called to the pod to deal with this serious safety issue, and only a couple inmates came out on recreation that day. Id. ¶ 21. She also testified that no one was allowed recreation on October 20, as several sprinkler heads had been broken, and plumbers had to come in and fix the water system in the pod, so no inmates came out on recreation that day. Id. ¶ 22. Recreation was started back up on October 21, but she explained they could not get to every inmate in the rotation that began on October 19. Id. ¶ 23. October 22 was when the rotation came back to this inmate's cell, and he was allowed out on recreation, as part of the regular schedule. Id. ¶ 24. Gregg-Wright summarized that this inmate was not treated differently from any other inmate, and as soon as the rotation got back to his cell, he was allowed out on recreation. Id. ¶ 25. Plaintiff disputes Gregg-Wright's affidavit and argues that every other inmate received two days of recreation during the same period of time. However, the records he submits in support of his argument actually supports Gregg-Wright's testimony. See Resident Request Report (ECF No. 63-2 p. 2) (in which Major Lumpkin describes the same recreation schedule as set forth by Gregg-Wright in her affidavit). Accordingly, Plaintiff fails to present sufficient evidence to create a genuine dispute of fact as to whether he was denied recreation time by Gregg-Wright as a result of his complaint against her. Accordingly, summary judgment is appropriate as to Plaintiff's retaliation claim against Gregg-Wright.
Recreation does not occur on weekends for staffing reasons and safety reasons. Shirah Aff. ¶ 17.
B. Defendant Shirah
Plaintiff also asserts a claim against Shirah, another non-medical personnel, for deliberate indifference to Plaintiff's serious medical needs. As stated above, to establish a claim of deliberate indifference against non-medical prison staff, a plaintiff must show that the non-medical personnel (1) were personally involved in the treatment or denial of treatment, (2) deliberately interfered with treatment, or (3) tacitly authorized or were indifferent to the medical provider's conduct. Howell v. Walrath, No. 1:20cv1193, 2021 WL 5881803, at *5 (E.D. Va. Dec. 10, 2021); Hill v. Richmond Justice Ctr., No. 1:20cv467, 2021 WL 1428311, at *3 (E.D. Va. Apr. 15, 2021). To satisfy the subjective prong, the plaintiff must show that defendant had “actual knowledge of the risk of harm to the inmate” and the 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 (quoting Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004)).
Plaintiff alleges that he told Shirah about the side effects he was experiencing from the second COVID-19 vaccine shot, including swelling of legs and throat, headache, blurred vision, and body aches, around 7 am on Saturday, October 16, 2021, the day after the shot, and Shirah told Plaintiff to make a request for sick call on the kiosk the next time he was scheduled for recreation, which was supposed to be in four days. Am. Compl. p. 11. Plaintiff argues that Shirah acted with deliberate indifference by failing to allow Plaintiff medical care for his side effects at the time Plaintiff requested it.
Defendant Shirah avers that during one of his security checks he did recall Plaintiff telling him that he had received a second Covid vaccine and wanted to see medical. Shirah Aff. ¶ 9. Shirah testified that he advised the inmate to fill out a sick call request, in accordance with policy, and even offered to get the inmate a request form, which was refused. Id. Shirah went on to explain that the reason he did not escort the Plaintiff to medical was that policy states that inmates must sign up for medical in non-emergent situations, and medical will review the request and decide when to see the inmate. Id. ¶ 10. Shirah testified that it did not appear to be an emergent situation, based on what Plaintiff was telling him. Id. However, Shirah went on to testify that he did advise the pod officer, Marquez, of this interaction, and told him Plaintiff might later request a sick call request form, and it was fine to give him one. Id. ¶ 11. While he had no other involvement with Plaintiff dealing with this issue, Shirah did testify just as Plaintiff claimed in this Complaint, that Plaintiff was given a sick call request form by officer Marquez, and it was forwarded to medical. Id. ¶ 12. Shirah also confirmed, just as the Plaintiff mentioned in this Complaint, that a nurse actually assessed Plaintiff later the same day, when she was in the pod passing out medications and she determined that he was not having any problems. Id. ¶ 13. Therefore, Shirah testified that it appeared both officers and medical worked hard to accommodate Plaintiff with this issue. Id.
According to Plaintiff's complaint, he made a written request for sick call at approximately 11:00 am following his initial conversation with Shirah at 7:00 am. He was then was seen by Nurse Steele at approximately 5:30 pm on the same day. Nurse Steele assessed his symptoms and gave him two tylenol to alleviate his symptoms while she attempted to speak with someone from DHEC. Am. Compl. p. 11. Thus, to the extent Shirah could be considered to have interfered with Plaintiff's treatment, his failure to immediately take Plaintiff for medical treatment or allow his to make a formal sick call request, delayed his treatment by, at most, approximately four hours because Plaintiff made another request at 11:00 am with another staff member. Where a deliberate indifference claim is predicated on a delay in medical care, the Fourth Circuit has ruled that “there is no Eighth Amendment violation unless ‘the delay results in some substantial harm to the patient,' such as a ‘marked' exacerbation of the prisoner's medical condition or ‘frequent complaints of severe pain.' ”Formica v. Aylor, 739 Fed.Appx. 745, 755 (4th Cir. 2018) (quoting Webb v. Hamidullah, 281 Fed.Appx. 159, 166-67 (4th Cir. 2008)); see also Sharpe v. S.C. Dep't of Corr., 621 Fed.Appx. 732, 734 (4th Cir. 2015) (“A delay in treatment may constitute deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate's pain.” (internal quotation marks omitted)). As stated above, Shirah testified in his affidavit that he did not immediately seek medical treatment for Plaintiff because his symptoms did not appear to be emergent. Further, when Plaintiff was later seen by Nurse Steele, he was treated with Tylenol, which supports Shirah's believe that his symptoms did not constitute an emergency. Thus, the court cannot conclude that Shirah's failure to immediately seek medical care for Plaintiff, when his symptoms were not emergent, he was able to request medical care from another staff member within a few hours, and was ultimately seen and treated by medical personnel with ten hours, rose to the level of a constitutional violation. The delay in treatment was not “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 (4th Cir. 1990) (citation omitted). Accordingly, summary judgment is appropriate as to Plaintiff's claim for deliberate indifference against Shirah.
C. Defendant Endicott
Plaintiff alleges that on October 16, 2021, he submitted a sick call request to Cpl. Marquez around 11:00 am regarding side effects from the COVID-19 vaccine and Cpl. Marquez indicated to Plaintiff that he would give the request to Endicott soon as she was the only nurse on duty. Am. Compl. p. 16. He further alleges that Cpl. Marquez told him around 4:15 pm that he had given Endicott the sick call request and told her it was an emergency. Am. Compl. p. 16. Endicott did not examine Plaintiff on October 16, 2021. Rather, Plaintiff was examined by Steele at approximately 5:30 pm that day. Plaintiff argues that Endicott was deliberately indifferent to his serious medical needs for failing to examine him on the 16th.
Endicott avers that she has no recollection of ever receiving a sick call request that day or otherwise being informed of Plaintiff's medical concerns. Endicott Aff. ¶ 18 (ECF No. 53-3). She further avers that she worked the night shift at that time and would not have been present at 11:00 am when Plaintiff first submitted the sick call request, and, as a night shift nurse, she did not review sick call requests. Id.
Plaintiff further alleges that he spoke with Endicott on October 18, 2021, around 9:35 pm and informed her that he never received the two Tylenol he needed earlier that evening. Am. Compl. p. 17. He alleges that Endicott told him she had nothing for him and he needed to stop faking it. Id. Endicott avers that she made rounds to deliver medication at that time but has no recollection of this conversation. Endicott Aff. ¶ 19.
The facts in the record fail to show that Endicott was deliberately indifferent to Plaintiff's serious medical needs. Plaintiff does not allege that he spoke with Endicott on October 16, 2021, only that another officer told him he would tell Endicott of his medical request. Endicott testified that she was not made aware of any medical requests made by Plaintiff on that date. Further, it is undisputed that Plaintiff received treatment from Steele on that date. Likewise, on October 18, 2021, Plaintiff was again seen by Steele. As stated, Endicott has no recollection of an encounter with Plaintiff while she was making rounds to deliver medication. Nevertheless, even when viewing the facts in the light most favorable to Plaintiff that Endicott told him she did not have any medication for him, this single encounter is insufficient to show that Endicott's treatment of Plaintiff was “so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier, 896 F.2d at 851. Thus, summary judgment is appropriate as to Plaintiff's claims against Endicott.
D. Defendant Steele
The record reveals that when Steele first examined Plaintiff on October 16, 2021, his vital signs were normal and there was no swelling in his legs. Pl. Med. Records 000002; Steele Aff. ¶18 (ECF No. 53-2). Steele gave him Tylenol and instructed him to advise the medical staff of any worsening symptoms. Id. Plaintiff alleges on October 18, 2021, around 10:00 am, he called Sr. Cp. “B” to request another paper sick call request, entitled “COVID-19 Vaccine Emergency” due to his worsening symptoms, which included a severe headache, blurred vision, a sore throat, and eye aches. Am. Compl. p. 17. Plaintiff further alleges Sr. Cp. “B” said he would take the sick call request to the medical department, and he gave it to Ms. Steele. Id. Plaintiff called Sr. Cp. “B” around 4:00 pm to inquire into the status of his medical request. Id. Sr. Cp. “B” went to medical to check on the status and relayed to Plaintiff that the medical staff would be to his cell shortly. Id.
Around 5:15 pm, Plaintiff alleges Steele came to his cell with two copies of the disclaimer he had signed for his COVID-19 vaccines. Id. He further alleges she “stat[ed] that the Sherriff's Office or Mediko, PC wouldn't be liable for anything in regard to the vaccines and [I] stated that the facility knows [he] love[s] to document everything.” Id. Plaintiff further alleges that I wanted him to see the “two disclaimers he signed,” but he goes on that he did not “care who was liable,” since he alleges he was in pain “from the symptoms and side effects from the shot” and he needed medical attention. Am. Compl. pp. 17-18.
Plaintiff alleges Steele said she would administer two Tylenol for pain, which she never did. Am. Compl. p. 18. He alleges this constitutes deliberate indifference. Id. Steele avers that Plaintiff was not in any medical distress when she examined him on October 18, 2021. Pl. Med. Records 000002; Steele Aff. ¶24. His vital signs were within normal limits, and he did not have a fever. Id. There was no swelling in his legs. Id. Steele advised him that receipt of the second dose was purely voluntary, and he chose to go forward with the second dose. Id. She advised him of the possible side effects associated with this vaccine and vaccines in general. Id.
Plaintiff fails to show how Steele demonstrated deliberate indifference to his serious medical needs. The medical records reflect that Steele examined Plaintiff on two occasions regarding his symptoms. Viewing the facts in the light most favorable to Plaintiff, Steele failed to give him Tylenol on one of those occasions. This failure does not rise to the level of a constitutional injury. Although the Constitution does require that prisoners be provided with a certain minimum level of medical treatment, it does not guarantee to a prisoner the treatment of his choice.” Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985); see Russell v. Sheffer, 528 F.2d 318, 318 (4th Cir. 1975) (citing Blanks v. Cunningham, 409 F.2d 220 (4th Cir. 1969); Hirons v. Director, 351 F.2d 613 (4th Cir. 1965)) (“Prisoners are entitled to reasonable medical care”). Upon her examination of Plaintiff on October 18, 2021, Steele believed that Plaintiff's needs were more psychological rather than physical and that Plaintiff may need to see a mental health provider to address his anxiety over receiving the second shot. Though Plaintiff did not receive the treatment he believed he needed from Steele on October 18, 2021, he fails to show that she was deliberately indifferent to his serious medical needs. The record reveals that Plaintiff continued to be seen regarding his concerns by other medical personnel over the next several days. Accordingly, summary judgment is appropriate as to Plaintiff's claims against Steele.
E. Defendant Abraham
Plaintiff alleges that on October 17, 2021, around 5:00 am at medication pass, he spoke with Abraham and told her about “his situation” and that the “two Tylenol wore off” that Steele gave him the night before. Am. Compl. p. 16-17. Plaintiff alleges he still had a severe headache, eye aches, blurred vision, and a sore throat. Id. He alleges that Abraham said “[he] would be alright and [she] knew a lot of people who had a second shot of Janssen, when a second shot or booster shot had not been approved by the FDA yet.” Am. Compl. p. 17. Plaintiff also alleges Abraham stated, “it's not [our] fault it was DHEC's fault,” to imply that they were the folks responsible for the vaccine and its administration. Id. Abraham has no recollection of this conversation, but avers that she likely told Plaintiff that side effects will lessen overtime, as side effects from any COVID-19 vaccine commonly dissipate over time, and that DHEC was administering the COVID-19 vaccines to all the inmates, so Plaintiff would need to direct any of his questions or concerns about the COVID-19 vaccine to DHEC, since they were administering the vaccines. Abraham Aff. ¶¶ 20-22 (ECF No. 534).
Plaintiff further alleges that on October 25, 2021, he was seen by the physician on site, who completed blood work and started Plaintiff on “a high dose of Tylenol to this date to stop [his] pain.” Am. Compl. p. 18-19. Plaintiff alleges he has never been informed of the results of this lab work. Id. Although Abraham physically drew Plaintiff's blood for his lab work on October 26, 2021, as ordered, she was not authorized to determine his care or treatment thereafter. Pl. Med. Records 000032; Abraham Aff. ¶25.
These limited encounters with Abraham fail to show that she was deliberately indifferent to Plaintiff's medical needs. On the first encounter, Abraham was simply distributing medication to inmates that had already been ordered by other medical professionals. On the second encounter, Abraham drew Plaintiff's blood as ordered by the physician. Plaintiff fails to show that Abraham was deliberately indifferent to Plaintiff's serious medical needs or treated him in a manner that was “so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier, 896 F.2d at 851. Summary judgment is appropriate as to Plaintiff's claims against Abraham.
F. Defendant Joe
The record reveals that Joe responded to Plaintiff's sick call request on October 22, 2021. Pl. Med. Records 000032, 000125; Joe Aff. ¶21 (ECF No. 53-5). She examined him based on his complaints of headaches, and she followed the nursing protocol by placing him on the list to be evaluated by the physician for further intervention. Id.
Joe was present during the physician's evaluation of Plaintiff at the October 25, 2021 appointment, the purpose of which was to assess his complaints of headaches, eye pain with blurred vision, and sore throat. Pl. Med. Records 000033; Joe Aff. ¶23. Joe avers that the physician appropriately evaluated and treated Plaintiff, and she merely observed. Joe Aff. ¶24. She played no role in diagnosing him or determining his care or treatment plan. Id. As an LPN, Joe is not authorized to make diagnoses or create treatment plans. Id. Joe's limited involvement with Plaintiff fails to give rise to a constitutional injury. As with each of the defendants named by Plaintiff in this action, Plaintiff's complaints amount to nothing more than his disagreement with the treatment provided. As stated above, once prison officials are aware of a serious medical need, they only need to “respond[ ] reasonably to the risk.” Farmer v. Brennan, 511 U.S. at 844. “Disagreements between an inmate and a [medical professional] over the inmate's proper medical care” are not actionable absent exceptional circumstances. Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985). Deliberate indifference is “more than mere negligence,” but “less than acts or omissions [done] for the very purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at 835. Plaintiff's allegations against Joe fail to give rise to a constitutional claim. Accordingly, summary judgment is appropriate.
G. Defendant Davila
Plaintiff alleges from October 19 to 21, 2021, he submitted two additional sick call requests that he titled “COVID-19 Vaccine Emergency”, wherein he described pain he was experiencing, his symptoms, and his side effects, but no medical staff responded to his requests. Am. Compl. p. 18. Plaintiff alleges these requests were neglected by the weekly sick call nurses, including Davila. Am. Compl. p. 19. He alleges their failure to respond to his sick call requests constitutes deliberate indifference to his medical needs. Id.
Davila avers that she worked on a PRN basis and only spent a few days at the facility a month, where she had little interaction with Plaintiff. Davila Aff. ¶19 (ECF No. 53-6). Davila has no recollection of Plaintiff's COVID-19 related complaints. Id. at ¶20. She recalls no inmates making any complaints related to reactions from the COVID-19 vaccines. Id. To her knowledge, there were no issues, concerns, or emergencies involving COVID-19 at the facility. Id.
In reviewing Plaintiff's medical records, Davila confirms her name appears a few times, but not during the relevant time of Plaintiff's allegations. Pl. Med. Records 000001, 000019, 000022, and 000024; Davila Aff. ¶21. She mostly saw him for weekly blood pressure checks for his chronic hypertension and for minor medical maintenance issues. Id. Other than Plaintiff's assumption that Davila was working at the time of his sick call requests between October 19-21, had knowledge of these requests, and ignored them, there is no evidence in the record that Davila ignored Plaintiff's requests for treatment regarding his vaccine side effects. Accordingly, summary judgment is appropriate.
In sum, Plaintiff's medical records reveal that Plaintiff was seen on several occasions by different medical personnel regarding his complaints following the second COVID-19 vaccination. Plaintiff fails to show that the treatment he received by any of these individuals was “so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier, 896 F.2d at 851. Accordingly, Plaintiff's claims of a constitutional violation with respect to this issue are without merit and summary judgment is appropriate.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants Shirah and Gregg-Wright's Motion for Summary Judgment (ECF No. 52) be granted, Defendants Endicott, Steele, Abraham, Joe, and Davila's Motion for Summary Judgment (ECF No. 53) be granted, and this case be dismissed in its entirety.