Opinion
Civil Action 2:22-01391-RMG-MGB
10-18-2022
Robbie Collins, Plaintiff, v. Samantha Bernedette, et. al., Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983, alleging Defendants were deliberately indifferent to Plaintiff's serious medical needs when Plaintiff contracted COVID-19. As background, in a separate proceeding, Plaintiff previously informed this Court that officials at McCormick Correctional Institution (“McCormick”) had purportedly denied him access to the Moderna vaccine for the prevention of COVID-19. See Collins v. Belzer, No. 2:20-cv-03752- RMG-MGB, 2021 WL 5311213 (D.S.C. Sept. 16, 2021), adopted, 2021 WL 4520175 (D.S.C. Oct. 4, 2021). McCormick officials assured the Court, however, that Plaintiff was scheduled to receive the vaccine in September 2021. See Id. at *3. In the instant action, Plaintiff claims that he never received the vaccine and, consequently, contracted COVID-19 in February 2022, causing body aches, labored breathing, and chest pains. (Dkt. Nos. 1-1; 17.)
Currently before the Court is Plaintiff's Motion for a Preliminary Injunction, which Plaintiff filed on September 21, 2022. (Dkt. No. 33.) Defendants responded in opposition to the motion on October 5, 2022. (Dkt. No. 39.) 0F Plaintiff has failed to file a reply brief and the deadline to do so has passed. For the reasons set forth below, the undersigned recommends Plaintiff's motion be denied.
Pursuant to 28 U.S.C. §636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge.
STANDARD
“The substantive standard for granting either a temporary restraining order or a preliminary injunction is the same.” Dyke v. Staphen, No. CV 6:18-402-TMC-KFM, 2018 WL 2144551, at *1 (D.S.C. Apr. 19, 2018), adopted by, 2018 WL 2136062 (D.S.C. May 9, 2018); see also Virginia v. Kelly, 29 F.3d 145, 147 (4th Cir. 1994) (showing that the standard for a temporary restraining order is the same as that applied to motions for preliminary injunction). To obtain a preliminary injunction or a temporary restraining order, a party must make a “clear showing” that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 21 (2008); see also, Smith v Ozmint, 444 F.Supp.2d 502, 504 (D.S.C. 2006). All four requirements must be satisfied in order for relief to be granted. Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010).
Because Plaintiff is representing himself, this standard must be applied while liberally construing his filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
DISCUSSION
Plaintiff asks that this Court issue injunctive relief and transfer Plaintiff “to another 24 hour medical facility.” (Dkt. No. 33 at 3.) According to Plaintiff, “staff is refusing to notify medical when I'm having a[n] asthma attack and taking 8-10 hours to get me to medical for my breathing treatment.” (Dkt. No. 33 at 4.) Plaintiff further alleges that: (1) “Ofc. Harris” has ignored his requests for new boxers; (2) Warden Palmer is denying Plaintiff outside recreation while Plaintiff is in lock-up; and (3) Plaintiff's legal work was thrown away when he was taken to lock-up.1F (Id. at 2-3.)
Of. Harris and Warden Palmer are not named defendants in this action.
In response to Plaintiff's motion, Defendants have submitted portions of Plaintiff's medical records and a “medical summary” for Plaintiff. (Dkt. No. Dkt. Nos. 39-1; 39-2.) Defendants assert that these medical records demonstrate that Plaintiff “is receiving appropriate treatment for his breathing issues, is non-compliant with his medications, demonstrates behavior inconsistent with breathing problems, and is known to be fine one moment and then change his breathing for the appropriate audience.” (Dkt. No. 39 at 3.)
The medical records provided by Defendants document that Plaintiff received a Nebulizer treatment on July 21, 2021, after he went to medical complaining that he could not breathe. (Dkt. No. 39-2 at 2.) Plaintiff was advised of the procedure to obtain a new inhaler and urged to use his inhaler correctly. (Id.) On August 10, 2021, Plaintiff visited medical complaining of an “asthma attack.” (Id. at 4.) The record shows that medical staff observed Plaintiff walk a fourth of a mile from his unit to medical at a “normal ambulatory pace,” and Plaintiff approached “the front of medical” with “unlabored” breathing. (Id.) At that point, Plaintiff's “breathing suddenly changed to an audible wheeze,” and Plaintiff claimed medical was refusing to provide him treatment. Plaintiff received the Nebulizer treatment, and thereafter, it was realized the order for this breathing treatment was “not active.” Plaintiff “was informed of this and reassured that medical is not refusing to [treat] him, but rather there needs to be proper indication for the [treatment].” (Id.)
A communication message on January 30, 2022, states that a nurse was called to Plaintiff's cell by security because Plaintiff stated his “asthma is acting up.” (Id. at 5.) According to the nurse, Plaintiff had
no signs of SOB on observation and no struggle to talk. This nurse asked inmate if he was using his inhalers. Inmate then informed this nurse that he did have both his Advair diskus and Ventolin HFA inhaler.... Inmate then informed this nurse that he is not using his Advair Diskus 250 mcg-50mcg. When asked why, inmate voiced he does not like the way it makes him feel, it irritates him. This nurse informed inmate that he needs to discuss his non-compliance with the Doctor. Then his nurse began to educate inmate on the importance of taking his medication as prescribe[d] and inmate then voiced he was not going to take the Advair Diskus.....(Id.) A communication message on January 31, 2022, indicates that a new medication was prescribed and that Plaintiff is advised to use Advair “for now and when Alvesco becomes available he can switch to that if he desires; also advise IM [new medication] may take up to 6 weeks to see significant improvement.” (Id.)
A clinical chart update dated September 7, 2022, states
Medical called r/t to inmate still complaining of shortness of breath. No wheezing noted. Explained to inmate that his inhaler is not an everyday inhaler and it is a rescue inhaler. Pharmacy was called and inhaler is not due until October 19, no indications for a nebulizer at this moment. Will see MD tomorrow.(Id. at 6.)
Upon review, the Court finds that Plaintiff has failed to make the required showing under Winter. First, Plaintiff has failed to demonstrate a likelihood of success on the merits of his claims for injunctive relief. With respect to the alleged conduct by McCormick medical staff, the record indicates Plaintiff cannot establish any deliberate indifference by McCormick medical staff to his serious medical needs. (Dkt. No. 65 at 2.) To establish deliberate indifference to a serious medical need, Plaintiff must demonstrate that Defendants actually knew of and disregarded a substantial risk of harm to his person. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Deliberate indifference is a very high standard-a showing of mere negligence will not meet it.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976); see also Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (holding that “[d]isagreements between an inmate and a physician over the inmate's proper medical care” are not sufficient to raise an Eighth Amendment claim pursuant to § 1983). Here, the medical record indicates that Plaintiff has received breathing treatments as needed. The record also indicates that Plaintiff has active prescriptions for medications to help his alleged asthma and breathing complications.
Plaintiff's remaining conclusory allegations also do not establish constitutional violations. Plaintiff does not allege any injury resulting from the denial of new boxers and loss of legal work. See Lewis v. Casey, 518 U.S. 343, 349 (1996) (holding that an inmate alleging denial of access to the courts must be able to demonstrate “actual injury” caused by the policy or procedure in effect at the place of incarceration in that his non-frivolous legal claim had been frustrated or was being impeded). With respect to the alleged denial of outside recreation, “penological considerations may justify [such] restrictions.” Koon v. Ozmint, No. 806-cv-1072-RBH, 2007 WL 1585161, at *1 (D.S.C. May 21, 2007) (citing Mitchell v. Rice, 954 F.2d 187, 192 (4th Cir. 1992)). The undersigned cannot find Plaintiff is likely to succeed on the merits of any constitutional claims arising from these allegations where the record contains no evidence on these issues.
Next, Plaintiff has failed to make a clear showing that he will suffer irreparable harm absent the injunctive relief. As discussed above, the record shows Plaintiff has been receiving medical treatment for his breathing complications, as needed. Further, Plaintiff has offered no evidence to support his remaining conclusory allegations.
Finally, Plaintiff has failed to establish that the balance of equities tips in his favor, and he has failed to show that an injunction is in the public interest. As the Fourth Circuit explained in Wetzel v. Edwards:
The realities of running a penal institution are complex and unique to the prison environment. Federal courts have traditionally been reluctant to interfere in the problems of prison administration. Indeed, the decisions made by prison administrators in their informed discretion have been accorded “wide-ranging
deference” by the federal courts.... Furthermore, federal courts have an additional reason to show deference to the decisions of prison authorities, where a state penal institution is involved. Procunier v. Martinez, [416 U.S. 396 (1974)]. The possible injury to the defendant-appellants if the preliminary injunction stands is potentially grave. The informed discretion of these penological experts could be radically limited with respect to inmate transfers specifically and, more importantly, with respect to prison discipline in general.635 F.2d 283, 288 (4th Cir. 1980) (emphasis added).
Granting an injunction to transfer Plaintiff to another 24-hour medical facility would require reversing prison administrators' decisions regarding Plaintiff's prison assignment. The undersigned cannot conclude that the public interest would be best served by mandating such extraordinary relief where the record contains only the Plaintiff's allegations and no evidence.
As Plaintiff has not demonstrated a likelihood of success on the merits or more than a possibility of irreparable harm, and because the balance of the equities and the public interest involved do not warrant the extraordinary remedy of injunctive relief, Plaintiff's motion should be denied.
CONCLUSION
For the foregoing reasons, this Court recommends that Plaintiff's Motion for a Preliminary Injunction (Dkt. No. 33) be DENIED.
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).