Opinion
C/A 8:20-cv-03590-JD-JDA
01-21-2021
Terron Dizzley, Plaintiff, v. Michael Stephon, Warden; Bryan Sterling, Director of SCDC; Thorton, Nurse; B. Williams, Grievance Coordinator, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Terron Dizzley (“Plaintiff”), proceeding pro se and in forma pauperis, brought this civil action pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate in the custody of the South Carolina Department of Corrections and is presently incarcerated at the Broad River Correctional Institution. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review such pleadings for relief and submit findings and recommendations to the District Court. Having reviewed the pleadings in accordance with applicable law, the undersigned finds that this action is subject to summary dismissal.
BACKGROUND
Plaintiff commenced this action by filing a Complaint on October 7, 2020. [Doc. 1.] By Order dated October 20, 2020, the Court notified Plaintiff that this action was subject to summary dismissal for the reasons identified by the Court in its Order. [Doc. 7.] The Court, however, noted that Plaintiff may be able to cure the deficiencies of his Complaint and granted Plaintiff twenty-one days to amend his Complaint. [Id. at 12.] Plaintiff was specifically warned as follows:
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on October 7, 2020. [Doc. 1-3 at 1 (envelope stamped received by prison mailroom on October 7, 2020).]
If Plaintiff fails to file an amended complaint that corrects those deficiencies [identified in the Court's Order], this action will be recommended for summary dismissal pursuant to 28 U.S.C. § 1915A (explaining that, as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).[Id. at 13.]
On December 4, 2020, Plaintiff filed objections in response to the Court's Order [Doc. 15], and a motion to amend and/or correct the Complaint [Doc. 16]. Plaintiff purportedly objects to the Court's Order to file an amended complaint, arguing that his original Complaint was in proper form and that “[f]orcing Plaintiff to re-write his entire Complaint substituting the original instead [of] amending the original is prejudicial to him . . . and is tantamount to denying Plaintiff access to the Courts.” [Doc. 15 at 2.] Plaintiff's objections remain pending before the Honorable Joseph Dawson, III.
Although Plaintiff objects to filing an amended complaint and appears to stand on the allegations contained in the original Complaint, he also seeks to amend and/or correct his Complaint by adding an additional Defendant, Nurse Nolita Belser, and adding additional allegations against the other Defendants to supplement his original Complaint. [Doc. 16 at 1.] Plaintiff contends that his objections contain a detailed account of the events giving rise to his claims. [Id.] The undersigned has granted Plaintiff's motion to amend by separate Order. As such, the Court treats the allegations contained in Plaintiff's objections together with the allegations in his original Complaint as an Amended Complaint in this matter. Nevertheless, Plaintiff has failed to cure the deficiencies of his Complaint, and this action is therefore subject to summary dismissal.
Plaintiff makes the following allegations in his original Complaint. [Doc. 1.] Plaintiff contends Defendants violated his rights under the First, Eighth, and Fourteenth Amendments. [Id. at 4.] Plaintiff asserts three separate claims in his Complaint, as summarized below.
First, Plaintiff asserts a claim against Defendants Warden Michael Stephon and Director Bryan Sterling for deliberate indifference under the Eighth Amendment. [Doc. 1-1 at 1.] According to Plaintiff, these Defendants' response to the COVID-19 pandemic placed inmates at serious risk, and they failed to implement appropriate safety measures to protect Plaintiff. [Id.] As a result, Plaintiff contracted COVID-19. [Id.] Inmates were issued only two handmade masks at the beginning of the pandemic and were not supplied with hand sanitizer or supplies to clean and disinfect their cells. [Id.] Corrections officers and contract workers do not wear their masks. [Id.] Jail administrators do not enforce social distancing and, under the current circumstances, social distancing in prison is not possible. [Id.] Inmates in the Character Based Unit, where Plaintiff is housed, are required to work with contract workers from outside the prison, exposing them to a higher risk of coming into contact with COVID-19. [Id. at 1-2.] Based on these allegations, Plaintiff alleges Defendants Stephon and Sterling failed to take appropriate measures to protect him, constituting deliberate indifference. [Id.]
Second, Plaintiff asserts a claim against Defendant Nurse Thorton for deliberate indifference under the Eighth Amendment. [Id. at 3.] Specifically, Plaintiff alleges that Defendant Thorton denied him medical treatment and verbally abused him. [Id.] Plaintiff and several other inmates became sick with COVID-19 symptoms on August 10, 2020. [Id.] On August 11, 2020, Plaintiff's entire unit was placed on quarantine. [Id.] That same day, Plaintiff told Sergeant Pate that he was sick and needed to see a doctor, and he was given a request to staff member form. [Id.] Plaintiff completed the form and listed his symptoms, which included trouble breathing, extreme headaches, fatigue, nausea, chest pains, and a cough. [Id.] Plaintiff asked to be tested for COVID-19. [Id. at 4.] Nurses then began checking inmates' temperatures every day, and Plaintiff told these nurses about his symptoms. [Id.] Plaintiff again asked to see a doctor. [Id.] Plaintiff then asked his mother to contact prison officials; Plaintiff's mother also hired an attorney to help get Plaintiff tested for COVID-19 and receive medical treatment. [Id.] According to Plaintiff, Defendant Thorton came to his cell on August 20, 2020, “ranting and raving ‘extremely' loud verbally abusing [him] screaming that [he] needed to stop having his mother call the institution.” [Id.] Plaintiff filed an emergency grievance per SCDC policy on August 21, 2020, explaining these issues and noting he was in serious need of a doctor, testing, and treatment for COVID-19. [Id.] However, Defendant Williams refused to process Plaintiff's grievance. [Id. at 5.] Approximately 10 days later, after a few inmates died, the National Guard came and tested everyone in the dorm for COVID-19. [Id.] When the results came back, Plaintiff was informed that over 300 inmates had tested positive. [Id.] On September 12, 2020, Plaintiff was informed that he had tested positive for COVID-19. [Id.]
Third, Plaintiff asserts a claim against Defendant Williams for violations of his First and Fourteenth Amendment rights. [Id. at 6.] Plaintiff contends that he filed numerous grievances, but that Defendant Williams “found false reasons as to why [his] grievances were not processed and dismissed them without performing an investigation.” [Id.] Plaintiff alleges that each of his grievances addressed serious matters involving his health and safety. [Id.] Plaintiff makes other allegations, similar to those above, concerning the denial of his grievances. [Id.]
Plaintiff makes the following additional allegations in his objections. [Doc. 15.] Plaintiff contends that Defendant Stephon owes him a duty of care under the United States Constitution. [Id. at 3.] Plaintiff contends that various memoranda and notices were issued by Governor McMaster and government administrators related to COVID-19. [Id. at 4.] Additionally, the CDC issued safety measures to prevent the spread of COVID-19. [Id.] According to Plaintiff, Defendant “Stephon had personal notice and constructive notice of the safety measures that were required pursuant to [COVID-19] and the serious risk posed to inmates.” [Id.] Despite the CDC's recommendations, Defendant Stephon allowed recreation fields to remain open, allowed contract workers to enter the prison without a mask, allowed inmates to work with these contract workers, failed to screen or test inmates or contract workers for COVID-19, allowed inmates to continue to go to the cafeteria, issued inadequate masks to inmates, allowed corrections officers to wear masks with air vents, failed to supply inmates with hand sanitizer or disinfectants to clean their cells, allowed officers to work without wearing masks, allowed day rooms to remain open where inmates would socialize, and allowed inmates to congregate at various locations throughout the prison. [ Id. at 4-6.] According to Plaintiff, Defendant Stephon's actions and inactions constitute deliberate indifference in violation of his Eighth Amendment rights. [Id. at 6.]
Plaintiff contends that a massive COVID-19 outbreak occurred at the prison on August 10, 2020, resulting in the deaths of numerous inmates and over 300 inmates contracting COVID-19, including Plaintiff. [Id.] The prison was placed on lockdown quarantine on August 10, 2020. [Id. at 7.] Plaintiff's entire dorm was tested for COVID-19 on August 26, 2020, and all but about 40 inmates tested positive. [Id. at 8.] Inmates who tested negative were placed in cells together with other negative inmates and inmates who tested positive were placed in cells together with other positive inmates. [Id.] Plaintiff was tested a second time on September 12, 2020, and received a negative test result. [Id. at 9.]
Plaintiff alleges that Defendant Belser violated his Eighth Amendment rights by denying him medical treatment. [Id. at 31.] Plaintiff alleges he filed a request to medical staff on August 11, 2020, complaining that he had trouble breathing, headaches, fatigue, chest pains, and trouble eating. [Id. at 32.] Plaintiff requested to see a doctor and get tested for COVID-19. [Id.] On August 14, 2020, Plaintiff filed a complaint on the prison kiosk explaining that he had headaches and shortness of breath, felt tired, and could not eat. [Id. at 33.] He requested to see a doctor and get tested for COVID-19 and explained that he felt like he was going to die. [Id.]
On August 14, 2020, Defendant Belser came to his cell, and Plaintiff explained to her that he was sick and needed to see a doctor and get tested for COVID-19. [Id. at 21.] Defendant Belser told Plaintiff that he was “fine” and told him that he did not have COVID-19. [Id.] Defendant Belser also listened to Plaintiff's heart with a stethoscope and again told Plaintiff he was “fine.” [Id. at 22.] Plaintiff told Defendant Belser that he was not fine, that he felt like he was going to die, and that he needed to be taken to medical to see a doctor. [Id.] Defendant Belser refused to take Plaintiff to medical to see a doctor. [Id.]
Plaintiff contends that an administrative response to his kiosk complaint indicates that Defendant Belser checked Plaintiff's respiration, which was determined to be “fine” and that Plaintiff did not complain of having chest pain or COVID-19 symptoms. [Id. at 33.] Plaintiff asserts that Defendant Belser fabricated her assessment and placed his life and health in grave danger. [ Id. at 33-34.] Plaintiff contends that Defendant Belser denied him medical care and fabricated her medical assessment in order to prevent Plaintiff from getting medical care. [Id. at 34.]
Plaintiff contends that Defendant Williams violated his First and Eighth Amendment rights to use the prison grievance procedures. [Id. at 37.] Plaintiff filed grievances requesting medical help and protection related to his health and safety. [Id.] Plaintiff contends Defendant Williams knew that his entire dorm was on quarantine due to COVID-19 and that inmates had died. [Id. at 37-38.] Plaintiff filed a grievance on August 21, 2020, explaining that he was seriously sick with COVID-19 symptoms, including breathing problems, headaches, chest and body aches, and coughing. [Id. at 38.] Plaintiff explained in his grievance that he had been sick since August 11, 2020, and attempted to get help from nurses, but no one would help him. [Id.] According to Plaintiff, Defendant Williams refused to process his grievance, investigate the matter, or provide any medical care. [Id.]
For his injuries, Plaintiff alleges that he contracted COVID-19. [Doc. 1 at 6.] Plaintiff contends he was not treated and experienced emotional distress and pain and suffering. [Id.] For his relief, Plaintiff seeks compensatory and punitive damages and medical treatment. [Id.; Doc. 1-1 at 11.]
STANDARD OF REVIEW
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, Plaintiff is a prisoner under the definition in 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, this Court is charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Amended Complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Because Plaintiff is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, even under this less stringent standard, Plaintiff's Amended Complaint is subject to summary dismissal. 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 Plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although the Court must liberally construe the pro se complaint and a plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in his pleadings, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact); cf. Skinner v. Switzer, 562 U.S. 521, 530 (2011) (holding that plaintiff need not pin his claim for relief to precise legal theory). “A claim has ‘facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014). While Plaintiff is not required to plead facts sufficient to prove her case as an evidentiary matter in the Complaint, he must allege facts that support a claim for relief. Bass v. DuPont, 324 F.3d 761, 765 (4th Cir. 2003).
DISCUSSION
Plaintiff filed this action pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
This action is subject to summary dismissal because Plaintiff has failed to state a plausible claim for relief under § 1983. The Court will address each claim in turn below by following Plaintiff's grouping of his claims by each Defendant.
Defendants Stephon and Sterling
Plaintiff's deliberate indifference claim against Defendants Stephon and Sterling under the Eighth Amendment is subject to summary dismissal. “The Eighth Amendment prohibits the infliction of cruel and unusual punishment on one convicted of a crime.” Shakka v. Smith, 71 F.3d 162, 165 (4th Cir. 1995). The Eighth Amendment “provides protection with respect to ‘the treatment a prisoner receives in prison and the conditions under which he is confined.'” Shakka, 71 F.3d at 165-66 (quoting Helling v. McKinney, 509 U.S. 25, 31 (1993)). In Farmer v. Brennan, 511 U.S. 825 (1994), the United States Supreme Court explained that a prison official violates the Eighth Amendment only when two requirements are met: (1) the alleged deprivation must be objectively “sufficiently serious, ” meaning it results “in the denial of ‘the minimal civilized measure of life's necessities, '” and (2) the prison official must have a “‘sufficiently culpable state of mind, '” i.e., “‘deliberate indifference' to inmate health or safety.” Id. at 834 (citations and internal quotation marks omitted). The Supreme Court further determined that its standard for “deliberate indifference” would be “subjective recklessness as used in the criminal law.” Id. at 839-40. “In short, the Court concluded that ‘a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.'” Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997) (citing Farmer, 511 U.S. at 847). Although “prisoners do not shed all constitutional rights at the prison gate, . . . lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Sandin v. Conner, 515 U.S. 472, 485 (1995) (citations and internal quotation marks omitted).
Here, Plaintiff alleges that Defendants Stephon and Sterling failed to properly respond to the COVID-19 pandemic, placing inmates at serious risk, and that they failed to implement appropriate safety measures to protect Plaintiff. [Doc. 1-1 at 1.] However, Plaintiff does not allege any facts showing how these Defendants were personally involved in any of the alleged unconstitutional actions or circumstances identified in the Complaint. Thus, Plaintiff's cursory allegations fail to state a claim because “[a] plaintiff must do more than make generalized and conclusory statements to state a plausible claim for relief.” Hewitt v. Stirling, No. 6:19-cv-3014-JFA-KFM, 2020 WL 1704613, at *3 (D.S.C. Jan. 28, 2020) (concluding the director of SCDC was entitled to dismissal for lack of personal involvement), Report and Recommendation adopted by 2020 WL 913787 (D.S.C. Feb. 26, 2020). Because Plaintiff makes no allegations against these two Defendants about their personal involvement in his claims, he has failed to assert a plausible claim against them in their individual capacities. See id.
Additionally, to the extent Plaintiff is attempting to sue Defendants Stephon and Sterling in their supervisory capacities, his claims against them are subject to dismissal because the doctrines of vicarious liability and respondeat superior are generally not applicable to § 1983 suits. Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981); Glenn v. Jackson, No. 6:18-cv-3179-DCC-KFM, 2020 WL 1355183, at *5 (D.S.C. Jan. 23, 2020), Report and Recommendation adopted by 2020 WL 1330765 (D.S.C. Mar. 23, 2020). A review of Plaintiff's allegations shows that Stephon, the Warden of Broad River, and Sterling, the Director of SCDC, have been named as Defendants by virtue of their respective offices, not because of anything they have personally done to Plaintiff. Thus, Plaintiff appears to base his claims against these Defendants on the theory of supervisory liability. Nevertheless, his claims are without merit. Because the doctrine of respondeat superior does not apply to § 1983 claims, a defendant is liable in his individual capacity only for his personal wrongdoing or supervisory actions that violated constitutional norms. See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (setting forth elements necessary to establish supervisory liability under § 1983). A plaintiff must establish three elements to prevail under § 1983 on a theory of supervisory liability:
Such liability “is not premised upon respondeat superior but upon ‘a recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.'” Shaw, 13 F.3d at 798 (quoting Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir. 1984)).
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to the knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices[ ]”; and (3) that there was an “affirmative causal link” between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.Id. (citations omitted) (footnote added).
Stated differently,
“[A]bsent an allegation that a named defendant has personally subjected the plaintiff to a deprivation of his constitutional rights or has caused the conduct complained of or participated in some manner in the allegedly unlawful actions of his employee or subordinate officer, this Court has held a complaint insufficient to state a claim against defendant under § 1983.”Shaw, 13 F.3d at 799.
Here, Plaintiff has failed to state a § 1983 claim against Defendants Stephon and Sterling based on a theory of supervisory liability because he has failed to allege that they had actual or constructive knowledge of subordinates engaging in pervasive or widespread conduct that posed a risk of injury to inmates like Plaintiff. Therefore, the Complaint fails to state a claim against these Defendants for the violation of a federal right under § 1983.
Defendant Thorton
Plaintiff's deliberate indifference claim against Defendant Thorton fails to state a claim under the Eighth Amendment. As noted, deliberate indifference exists when prison officials know of a substantial risk to a prisoner's health or safety and consciously disregard that risk. See Farmer, 511 U.S. at 836. To state an Eighth Amendment claim for denial of medical care, a plaintiff must allege facts showing prison officials were deliberately indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 105 (1976) (explaining that, to show inadequate medical treatment rises to the level of a constitutional violation, a plaintiff “must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs”). “Thus, plaintiff must allege two distinct elements to state a claim upon which relief can be granted. First, he must allege a sufficiently serious medical need. Second, he must allege deliberate indifference to that serious medical need.” Quick v. Hercules, No. 1:12-cv-962-TSE-TCB, 2012 WL 4758679, at *2 (E.D. Va. Oct. 4, 2012) (citations omitted).
Here, Plaintiff has failed to allege facts showing Defendant Thorton was deliberately indifferent to his serious medical need. Although Plaintiff makes general allegations about the onset of his COVID-19 symptoms, his attempts to get tested and receive treatment, and his subsequent positive test results, he makes no specific allegations about Defendant Thorton's denial of medical care other than alleging she verbally abused him when he requested treatment. Such a cursory allegation, without more, fails to state a claim for deliberate indifference against this Defendant.
Additionally, Plaintiff's claim that Defendant Thorton's verbal abuse constituted cruel and unusual punishment fails to state a claim for relief. As a matter of law, “[v]erbal abuse of a prisoner is not actionable under § 1983.” Boone v. Eagleton, No. 5:15-cv-3225-DCN-KDW, 2015 WL 6855665, at *3 (D.S.C. Nov. 5, 2015) (collecting cases); see also Cameron v. Bonney, 523 Fed.Appx. 969, 970 (4th Cir. 2013). Accordingly, because verbal threats or abusive language toward a prisoner do not state a constitutional claim, Plaintiff's claim is subject to dismissal. See Hulon v. Powell, No. 0:13-cv-2861 DCN, 2014 WL 108322, at *5 (D.S.C. Jan. 9, 2014).
Defendant Belser
Plaintiff's claim that Defendant Belser violated his constitutional rights by denying him medical care fails to state a claim for relief. The crux of Plaintiff's claim against Defendant Belser is that she denied him medical treatment even though he became violently sick with COVID-19 symptoms, requested to see a doctor, and requested to be tested. [Doc. 15 at 34.]
Plaintiff presents no allegations to support his cursory claim for deliberate indifference to his medical needs against Defendant Belser. To the contrary, Plaintiff alleges that nurses, including Defendant Belser, responded to his requests to be seen by medical staff and came to his cell to take his temperature, that Defendant Belser checked his respiration and evaluated him for COVID-19, that he was tested at least twice for COVID-19, that he was given medication, and that he was placed on quarantine after testing positive. However, beyond conclusorily asserting that he was denied care because he was not taken to see a doctor after exhibiting symptoms of COVID-19, his pleadings are void of plausible allegations regarding injuries that required medical care other than what he received. See Griffith v. State Farm Fire & Cas. Co., No. 2:12-cv-00239-DCN, 2012 WL 2048200, at *1 (D.S.C. June 6, 2012) (finding that the plausibility standard requires more than “‘an unadorned, the-defendant-unlawfully-harmed-me accusation.'” (quoting Iqbal, 556 U.S. at 678)). Although Plaintiff concedes that he was examined by numerous nurses and was tested and quarantined, he appears to disagree with the medical care he received. Nevertheless, he is not entitled to the treatment of his choice. See Sharpe v. S.C. Dep't of Corrs., 621 Fed.Appx. 732, 733 (4th Cir. 2015) (noting that “mere disagreement between an inmate and medical staff regarding the proper course of treatment provides no basis for relief” under § 1983); see also Hallinan v. Scarantino, 466 F.Supp.3d 587, 606 (E.D. N.C. 2020) (finding no deliberate indifference in prison's response to COVID-19 and noting “[t]he important point, for purposes of the deliberate indifference analysis, is that medical staff are evaluating inmates who develop symptoms and making medical judgment calls about which inmates require isolation”). As such, Plaintiff's Complaint fails to state a claim for medical indifference. See Carter v. S.C. Dep't of Corr., No. 6:20-cv-02549-RBH-KFM, 2020 WL 7033447, at *3 (D.S.C. Oct. 19, 2020), Report and Recommendation adopted by 2020 WL 7029848 (D.S.C. Nov. 30, 2020).
Additionally, Plaintiff's allegations that Defendant Belser's affirmative attempts to sabotage his medical care by lying and fabricating his medical records fail to state a claim for relief. Even crediting Plaintiff's bald assertions about Defendant Belser's fabrication of his medical records as true, such conduct does not support his claim for deliberate indifference. Plaintiff appears to contend that he complained to medical staff about his COVID-19 symptoms, but Defendant Belser only documented Plaintiff's complaints about a headache and noted that his respiration and other vitals were “fine.” As noted, “[a] § 1983 claim is not stated by disagreements between an inmate and a physician over treatment, diagnosis, or other questions of medical judgment.” Barton v. Dorriety, No. 9:10-cv-01362-RBH, 2011 WL 1049510, at *2 (D.S.C. Mar. 21, 2011). Further, “[t]he mere failure to treat all medical problems to a prisoner's satisfaction, even if actual medical malpractice is involved, is insufficient to support a claim under § 1983.” Id. (noting the plaintiff's allegations that medical staff conspired to fabricate medical records did not state a claim for deliberate indifference and finding the plaintiff's claim to be essentially “one of disagreement with his medical treatment plan”). Plaintiff was prescribed medication, nurses took his temperature and evaluated him on numerous occasions, he was tested for COVID-19, and he was quarantined after testing positive. Thus, despite Plaintiff's claim that Defendant Belser failed to accurately document each of his symptoms and complaints, he has not alleged facts showing that she acted with deliberate indifference to any medical need.
Defendant Williams
Plaintiff's claim that Defendant Williams violated his constitutional rights by failing to properly process his grievances or follow SCDC policies fails to state a claim for relief. Inmates do not have a constitutional right to a grievance process. See Jenkins v. Porter, No. 3:09-cv-2697-HMH-JRM, 2010 WL 2640253, at *3 (D.S.C. June 3, 2010) (“Even assuming that Defendant violated SCDC grievance procedures, such actions do not state a claim which is actionable under § 1983.”), Report and Recommendation adopted by 2010 17 WL 2640257 (D.S.C. June 29, 2010). The “Constitution creates no entitlement to grievance procedures or access to any such procedure voluntarily established by the state.” Adams v. Rice, 40 F.3d 72, 75 (4th Cir.1994); see also Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C. 1992) (finding that § 1983 “does not provide any relief against prison rules violations assuming, arguendo, that such a violation occurred”). Thus, even assuming that Defendant violated the SCDC grievance procedures, such conduct does not support a claim that is actionable under § 1983, see Brown v. Dodson, 863 F.Supp. 284 (W.D. Va.1994), and Plaintiff's allegation that Defendant Williams did not follow SCDC policies or procedures, standing alone, does not amount to a constitutional violation, see Wright v. Newsome, No. 2:18-cv-01587-JMC-MGB, 2019 WL 6091065, at *4 (D.S.C. June 25, 2019), Report and Recommendation adopted by 2019 WL 3852506 (D.S.C. Aug. 16, 2019). Accordingly, Plaintiff's claim arising from Defendant Williams' alleged mishandling of his grievances is subject to dismissal as a matter of law.
CONCLUSION AND RECOMMENDATION
In light of all the foregoing, it is recommended that the District Court DISMISS this action pursuant to 28 U.S.C. § 1915 and § 1915A without leave to amend and without issuance and service of process.
As noted above, Plaintiff was directed to file an amended complaint to cure the deficiencies noted by the Court in its Order dated October 20, 2020. [Doc. 7.] Plaintiff has failed to cure the deficiencies of his original filings. Accordingly, the undersigned recommends dismissal without further leave to amend. See Workman v. Morrison Healthcare, No. 17-7621, 2018 WL 2472069, at *1 (4th Cir. June 4, 2018).
IT IS SO RECOMMENDED.
Plaintiff's attention is directed to the important notice on the next page.
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 300 East Washington Street, Room 239 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).