Opinion
8:21-cv-03872-JMC-JDA
05-31-2022
Precias Kajuanna Freeman, Plaintiff, v. Pam Warden, Ray Lyn Haggan, Bramlette Dewey, Defendants.[1]
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on a motion for summary judgment filed by Defendants. [Doc. 36.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
Plaintiff, proceeding pro se, filed this action on November 24, 2021, alleging violations of her constitutional rights pursuant to § 1983, and the Clerk docketed an Amended Complaint on December 20, 2021. [Docs. 1; 12.] On March 28, 2022, Defendants filed a motion for summary judgment. [Doc. 36.] The next day, the Court issued an Order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and of the possible consequences if she failed to adequately respond to the motion. [Doc. 37.] On May 5, 2022, the Clerk docketed a response from Plaintiff in opposition to Defendants' motion, and on May 11, 2022, Defendants filed a reply. [Docs. 43; 45]. Defendants' summary judgment motion is now ripe for review.
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 November 24, 2021. [Doc. 1 at 12 (signature on the Complaint dated November 24, 2021).]
BACKGROUND
Viewed in the light most favorable to Plaintiff, the summary judgment record reveals the following facts.
On the night of November 26, 2018, Plaintiff and Jennifer Grant were both inmates detained at the City of Anderson Police Department Detention Center (“the City Jail”). [Doc. 36-2 ¶ 2.] At approximately 11:03 p.m., Corporal Wharton observed Grant getting off of the phone and returning to her cell. [Doc. 36-3.] Upon entering the cell, she immediately walked back out and began “yelling, screaming and using hand gesture at [Plaintiff] on the top.” [Id.] “Grant then proceeded up the stairs, and began hitting[] and kicking [Plaintiff] about her face area.” [Id.]
Plaintiff alleges in her Amended Complaint that the incident occurred on November 25, 2018, at approximately 10:50 p.m. [Doc. 12 at 5.] In her response opposing summary judgment, she at one point repeats her assertion that the incident happened the night of November 25, 2018 [Doc. 43 at 1], although she later asserts that it occurred on the night of November 26, 2018 [id. at 2]. In any event, she has not forecasted any evidence contravening the incident report entry at November 26, 2018, stating that the incident occurred on November 26, 2018, at 11:03 p.m. [Doc. 36-3; see also Doc. 36-4 at 12 (medical note dated November 27, 2018, stating that Plaintiff “was in a physical altercation last night”)].
Defendants were employed by the City of Anderson Police Department (“ACPD”)
on the date of the incident. [Doc. 36-2 ¶ 4.] On that date, Defendant Wharton was working in the “Women's Pod” at the City Jail and was the first staff member to respond to the assault. [Id. ¶ 5.] Upon observing the altercation, Wharton called for assistance to City Jail Sergeant Walker, and Corporal Miles entered the City Jail. [Doc. 36-3.] Neither Haggan nor Bramlett witnessed the incident. [Doc. 36-2 ¶¶ 6-7.] Haggan was handling booking and intake duties at the City Jail, and Defendant Bramlett was working the day shift, transporting detainees to and from federal court appearances. [Id.]
The ACPD contracts with Southern Health Partners to provide all medical services to detainees at the City Jail. [Id. ¶ 9.] Plaintiff was examined by a Southern Health Partners nurse on both November 27, 2018, and November 28, 2018, and she underwent CT scans at AnMed Health on November 29, 2018. [Id. ¶ 10; Doc. 36-4 at 1, 5-6, 11, 13, 16, 18-19, 24-26, 29-33, 55, 57-58.] Plaintiff was also examined by a Southern Health Partners nurse on December 14, 2018. [Doc. 36-2 ¶ 10.]
In her Amended Complaint, liberally construed, Plaintiff alleges that Defendants violated her constitutional rights under the Eighth Amendment to the United States Constitution by failing to protect her from Grant despite knowing of “her assaults on staff and inmates in the past” and that Grant “ha[d] several mental conditions for which she was not receiving med[ication]s . . . due to her pregnancy” and by failing to provide Plaintiff with prompt and adequate medical care for the injuries she sustained from the assault. [Doc. 12 at 4-6.] Plaintiff specifically alleges that Defendants took no action to assist her immediately following the incident despite being aware that she had lost consciousness. [Id. at 4.] In support of her claims, Plaintiff filed an affidavit of Toni M. McCurley, who witnessed the assault. [Doc. 35.] In the affidavit, McCurley states that “it took first responders 10 to 12 minutes to respond” to the incident. [Doc. 35 at 2.] Plaintiff also alleges that she “received medical attention only after [her] lawyer . . . sent a letter to ACPD threatening legal action if [she] did not rec[ei]ve adequ[ate] medical care.” [Doc. 12 at 6.]
As her injuries, Plaintiff alleges she suffered head trauma, contusions, bruises to the left and right sides of her face, blood drainage from her ears, headaches, dizziness, nausea, elevated blood pressure, black eyes, insomnia, and chipped teeth. [Id.] For her relief, she requests $98,190 in money damages. [Id.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe her pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for her. Small v. Endicott, 998 F.2d 411,417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under § 1983
This action is filed pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. 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 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, a civil 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 (1999).
Section 1983 provides, in relevant part,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant “deprived [the plaintiff] of a right secured by the Constitution and laws of the United States” and (2) that the defendant “deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage.” Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
The under-color-of-state-law element, which is equivalent to the “state action” requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids
imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.Id. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, “the deed of an ostensibly private organization or individual” may at times be treated “as if a State has caused it to be performed.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Specifically, “state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Id. (internal quotation marks omitted). State action requires both an alleged constitutional deprivation “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible” and that “the party charged with the deprivation [is] a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party's allegedly unconstitutional conduct is fairly attributable to the State requires the court to “begin[ ] by identifying the specific conduct of which the plaintiff complains.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (internal quotation marks omitted).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in her pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) 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; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, she must produce existence of a factual dispute on every element essential to her action that she bears the burden of adducing at a trial on the merits.
Fourteenth Amendment Deliberate Indifference
The Eighth Amendment is used to evaluate conditions of confinement for those convicted of crimes. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). However, the protections convicted prisoners are afforded under the Eighth Amendment extend to pretrial detainees, such as Plaintiff, through the Due Process Clause of the Fourteenth Amendment. Young v. City of Mt. Ranier, 238 F.3d 567, 575 (4th Cir. 2001).
The Eighth Amendment's prohibition on “cruel and unusual punishments” imposes certain basic duties on prison officials. Farmer v. Brennan, 511 U.S. 825, 832 (1994). These include maintaining humane conditions of confinement, including the provision of adequate medical care and “reasonable measures to guarantee the safety of the inmates.” Id. (internal quotation marks omitted). “In order to make out a prima facie case that prison conditions violate the Eighth Amendment, a plaintiff must show both ‘(1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.'” Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993). The Eighth Amendment “does not mandate comfortable conditions.” Rhodes v. Chapman, 452 U.S. 337, 349 (1981). Rather, “[o]nly extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim regarding conditions of confinement.” De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003).
Failure to Provide Adequate Medical Care
Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment and states a cause of action under § 1983 because deliberate indifference constitutes “the ‘unnecessary and wanton infliction of pain.'” Estelle, 429 U.S. at 104-05 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)). 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. Within the United States Court of Appeals for the Fourth Circuit, “the treatment must be so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness” to violate a prisoner's Eighth Amendment rights. Miltier v. Beorn, 896 F.2d 848, 851-52 (4th Cir. 1990), overruled in part on other grounds by Farmer, 511 U.S. at 837.
To prevail on an Eighth Amendment inadequate-medical-care claim, the prisoner must demonstrate (1) her medical condition was a sufficiently serious one and (2) subjectively, the prison officials acted with a sufficiently culpable state of mind, which is satisfied by showing deliberate indifference by the prison officials. Goodman v. Wexford Health Sources, Inc., No. 09-6996, 2011 WL 1594915, at *1 (4th Cir. Apr. 28, 2011). As the United States Supreme Court has explained,
“A medical need is ‘serious' if it is one that has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990); Hendrix v. Faulkner, 525 F.Supp. 435, 454 (N.D. Ind. 1981)).
Since, we said, only the “‘unnecessary and wanton infliction of pain'” implicates the Eighth Amendment, a prisoner advancing such a claim must, at a minimum, allege “deliberate indifference” to his “serious” medical needs. “It is only such indifference” that can violate the Eighth Amendment; allegations of “inadvertent failure to provide adequate medical care,” or of a “negligent . . . diagnos[is],” simply fail to establish the requisite culpable state of mind.Wilson v. Seiter, 501 U.S. 294, 297 (1991) (emphasis and alteration in original) (citations omitted). Further, in the context of prisoner medical care, the Constitution requires only that prisoners receive adequate medical care; a prisoner is not guaranteed her choice of treatment. Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988); see Russell v. Sheffer, 528 F.2d 318, 318 (4th Cir. 1975); see also, e.g., Barton v. Dorriety, No. 9:10-cv-1362, 2011 WL 1049510, at *2 (D.S.C. Mar. 21, 2011). The fact that a prisoner believed she had a more serious injury or that she required better treatment does not establish a constitutional violation. See, e.g., Russell, 528 F.2d at 319. Additionally, to establish a claim for denial of medical care against non-medical personnel, a prisoner must show that the nonmedical personnel “intentionally den[ied] or delay[ed] access to medical care or intentionally interfered] with the treatment once prescribed.” Smith v. Smith, 589 F.3d 736, 738-39 (4th Cir. 2009). Moreover, because most prison officials are not trained medical personnel, they are entitled to rely on the opinions, judgment, and expertise of medical personnel concerning the course of treatment that the medical personnel deemed necessary and appropriate for the prisoner. Miltier, 896 F.2d at 854.
“A delay in treatment may constitute deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate's pain.” Abraham v. McDonald, 493 Fed.Appx. 465, 466 (4th Cir. 2012) (internal quotation marks omitted).
Failure to Protect
The law regarding failure-to-protect claims is similar to inadequate-medical-care claims. Corrections officers have “a duty to protect prisoners from violence at the hands of other prisoners” because “[b]eing violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.” Farmer, 511 U.S. at 833, 834 (alteration and internal quotation marks omitted). However, “not every injury suffered by a prisoner at the hands of another translates into constitutional liability for prison officials responsible for the victim's safety.” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (internal quotation marks omitted). A plaintiff must satisfy a two-part test; as with inadequate-medical-care claims, the test consists of both an objective and a subjective inquiry for liability to attach.
First, the inmate “must establish a serious deprivation of h[er] rights in the form of a serious or significant physical or emotional injury,” or a substantial risk thereof. Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014) (internal quotation marks omitted); see Farmer, 511 U.S. at 834. This objective inquiry “requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, 36 (1993). Second, an inmate must show that the prison official had a “sufficiently culpable state of mind,” which, in this context, consists of “deliberate indifference to inmate health or safety.” Farmer, 511 U.S. at 834 (internal quotation marks omitted); Odom v. S.C. Dep't of Corrs., 349 F.3d 765, 770 (4th Cir. 2003). This subjective inquiry requires “evidence suggesting that the prison official had actual knowledge of an excessive risk to the plaintiff's safety.” Danser, 772 F.3d at 347. The defendant must “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. An inmate can, however, prove an official's actual knowledge of a substantial risk “in the usual ways, including inference from circumstantial evidence.” Id. at 842. In other words, “a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. In the end, “the test is whether the [prison officials] know the plaintiff inmate faces a serious danger to h[er] safety and they could avert the danger easily yet they fail to do so.” Brown v. N.C. Dep't of Corrs., 612 F.3d 720, 723 (4th Cir. 2010) (internal quotation marks omitted).
DISCUSSION
Defendants argue they are entitled to summary judgment because Plaintiff has failed to forecast evidence of any constitutional violation. [Doc. 36-1 at 8-15.] Defendants also maintain that they are entitled to qualified immunity regarding claims asserted against them in their individual capacities for money damages. [Id. at 15-18.] Finally, they claim that Plaintiff's Complaint should be dismissed for failure to exhaust administrative remedies. [Id. at 18-19.] The Court agrees with Defendants on each point.
Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) provides, in pertinent part, that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). A defendant has the burden of establishing that a plaintiff failed to exhaust her administrative remedies. Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017).
Exhaustion is defined by each prison's grievance procedure, not the PLRA; a prisoner must comply with her prison's grievance procedure to exhaust her administrative remedies. Jones v. Bock, 549 U.S. 199, 218 (2007). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). Accordingly, “an untimely or otherwise procedurally defective grievance” does not satisfy the exhaustion requirement. Id. at 83-84. To survive a motion for summary judgment asserting she failed to exhaust, an inmate is required to produce competent evidence to refute the contention that she failed to exhaust. See Hill v. Haynes, 380 Fed.Appx. 268, 270 (4th Cir. 2010).
Defendants attached to their summary judgment motion an affidavit from ACPD Chief Jim Stewart. [Doc. 36-2.] In the affidavit, Stewart states that his duties include management of the City Jail. [Id. ¶ 1.] He explains that the City Jail's grievance procedure is described in a handbook that all detainees are given, and that the handbook is attached as an exhibit to his affidavit. [Id. ¶ 11; see Doc. 36-5.] The grievance procedure provides that “[t]he Inmate Grievance Form is to be used when the inmate has a question or complaint regarding custody treatment, medical treatment, jail policies and procedures, or other related matters, as well as actions by employees and inmates, and incidents occurring within the facility that affect them personally.” [Doc. 36-5 at 7.] Stewart notes that he had no reports of grievances filed by Plaintiff and Plaintiff did not attach any grievances to her Complaint. [Doc. 36-2 ¶ 11.] Indeed, Plaintiff admits in her Complaint that she did not file a grievance in the City Jail regarding her claims. [Doc. 12 at 7.]
Because Plaintiff has not forecasted evidence that she filed a grievance in the City Jail regarding her claims, the Court concludes that she has not exhausted the administrative remedies available to her. See Dickey v. SCDC, No. 9:17-2194-DCC-BM, 2018 WL 7291701, at *3-5 (D.S.C. Oct. 9, 2018), Report and Recommendation adopted by 2019 WL 591154 (D.S.C. Feb. 13, 2019), aff'd, 767 Fed.Appx. 578 (4th Cir. May 29, 2019). Accordingly, the Court recommends that Defendants' motion for summary judgment be granted.
In her response opposing summary judgment, Plaintiff argues that she exhausted her administrative remedies by complaining of ongoing pain from her injuries and by having her former attorney send a letter threatening legal action if she did not receive immediate medical care. [Doc. 43 at 3.] However, as noted, the City Jail's grievance procedure requires that grievances be filed on an Inmate Grievance Form, which Plaintiff does not maintain that she did. See Woodford, 548 U.S. at 83-84, 90.
Failure to Create a Genuine Dispute of Material Fact
Even assuming arguendo that Plaintiff exhausted her administrative remedies, the Court concludes that Defendants are entitled to summary judgment on Plaintiff's claims.
Failure-to-Protect Claim
Regarding Plaintiff's failure-to-protect claim, Defendants argue that Plaintiff has not forecasted evidence that any Defendant displayed deliberate indifference to her health and safety. [Doc. 36-1 at 10-11.] Defendants argue that, notwithstanding Plaintiff's allegations, “Grant's most recent assault on a fellow detainee [prior to the altercation with Plaintiff] was in 2006"; that “Grant did not have any ‘mental conditions' that would indicate to City Jail staff that she should not be housed with other detainees”; and that “City Jail records indicate that there were no ‘threatening incidents' or ‘exigent circumstances' involving [Grant] prior to the incident that would have placed [Defendants] on notice that [Grant] was a threat to [Plaintiff].” [Id. at 10.] Plaintiff responds that “Grant had pending assault charges at Anderson County Detention Center” that put Defendants on notice of her violent nature. [Doc. 43 at 2.] Plaintiff also argues that her evidence of Grant's 2006 assault of a fellow detainee, by itself, proves Grant's violent tendencies. [Id. at 5.] The Court agrees with Defendants that Plaintiff has not forecasted sufficient evidence to create a genuine dispute of material fact regarding this claim.
Initially, the Court notes that the assault charges at Anderson County Detention Center referenced by Plaintiff arose out of an incident that apparently occurred in 2020. [Doc. 40 at 7.] To the extent the incident occurred after Grant's altercation with Plaintiff, it could not possibly have given Defendants reason to know, prior to Grant's altercation with Plaintiff, that Grant posed a particular threat. As for Grant's conviction for a 2006 assault and battery-and other convictions for a 2006 malicious injury to animal and for domestic violence incidents occurring in 2012, 2013, and 2016 [Id. at 2-6]-they do not demonstrate that Grant posed a “substantial risk of serious harm” to Plaintiff. See Fuller v. Cnty. of Charleston, 444 F.Supp.2d 494, 498 (D.S.C. 2006) (finding that the “fact that plaintiff was put in contact with other inmates, some of whom were incarcerated for violent crimes, is not evidence of any actual knowledge on the part of the prison officials that [the plaintiff] was in danger,” and that “[o]ccasional, isolated attacks by one prisoner on another may not constitute cruel and unusual punishment, absent some evidence that the prison officials actually were aware of the risk of harm”). Additionally, although Plaintiff alleges in her Amended Complaint that Grant had certain mental conditions, she has not forecasted any evidence of the nature of any such mental conditions, let alone any evidence that she posed a particular risk of violence because of them and that Defendants were aware of the risk.
In sum, Plaintiff has failed to forecast evidence creating a genuine dispute of material fact regarding whether any Defendant was deliberately indifferent to a substantial risk of serious harm to Plaintiff posed by Grant. Accordingly, the Court concludes that this provides an alternative basis for granting summary judgment to Defendants to the extent Plaintiff asserts liability under a failure-to-protect theory.
Inadequate Medical Care Claim
As noted, Plaintiff alleges that Defendants did not seek to get appropriate medical treatment for her in the days following the altercation despite the fact that she had lost consciousness as a result of the attack. [Doc. 12 at 4.] She alleges that Bramlett and Wharton knew about the incident the night it occurred, and Haggan was informed of the assault the morning after. [Id. at 9.] Plaintiff alleges that although Haggan escorted her to a nurse, the nurse “only took [Plaintiff's] blood pressure after [Plaintiff] explained [her] loss of consciousness.” [Id.] Defendants argue that, her allegations notwithstanding, Plaintiff has failed to forecast evidence that any Defendant was deliberately indifferent to her medical needs. [Doc. 36-1 at 13-15.] The Court agrees.
As the Court has stated, to show that nonmedical jail officials such as Defendants are liable for deliberate indifference to a prisoner's serious medical need, a prisoner must show that the officers “intentionally den[ied] or delay[ed] access to medical care or intentionally interfere[ed] with the treatment once prescribed.” Smith, 589 F.3d at 738-39 (internal quotation marks omitted). Plaintiff has not forecasted evidence that could satisfy that standard here. Plaintiff simply argues that “any reasonable person who witnesses someone being hit and kicked about the face would know that the victim . . . needs immediate medical care from qualified medical officials since no one was in the medical [department] at the jail, EMTs should have been called or the victim should have been transported to the nearest emergency department.” [Doc. 43 at 4 (internal quotation marks omitted).] However, even assuming that a reasonable person would have known that Plaintiff needed to receive immediate medical care, a non-medical official's failure to appreciate that fact at most amounts to mere negligence, which is not sufficient to show deliberate indifference. See Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) (“Deliberate indifference is a very high standard-a showing of mere negligence will not meet it.”); Foxworthy v. Sluss, No. 2:18-cv-00040, 2019 WL 2996924, at *3 (W.D. Va. July 9, 2019) (dismissing cause of action for failure to state a claim for deliberate indifference to medical needs when the plaintiff alleged that prison guards found a prisoner unconscious and injured yet allowed approximately 30 minutes to pass before they called an ambulance; reasoning that “the sole fact of the 30-minute delay is insufficient to show that the conditions posed a substantial risk of serious harm to [the injured prisoner], that the defendants recognized any risk, or that the defendants subjectively recognized that their acts or failures to act were inappropriate”); Small v. Eagleton, No. 2:16-cv-2553-HMH-MGB, 2017 WL 2373206, at *1, 5 (D.S.C. May 12, 2017) (granting summary judgment against a prisoner in his claim for deliberate indifference to medical needs when the prisoner alleged that he was being transported in a van without a seatbelt when the van struck a deer; the prisoner told the defendant-guards he had hurt his head, back, and neck, and needed to go to the hospital; but no ambulance was called to the scene and instead the prisoner was transported back to the prison where he was seen by medical personnel the following morning), Report and Recommendation adopted by 2017 WL 2362385 (D.S.C. May 31, 2017), aff'd, 699 Fed.Appx. 206 (4th Cir. 2017).
In her Complaint, Plaintiff alleges that she lost consciousness at some point. [Doc. 12 at 4; see also Docs. 35 at 2 (McCurley's affidavit stating her conclusion that Plaintiff “lost consciousness,” based on the facts that “her expression did not change” and she “did not defend herself when Grant kicked and struck her”); 12-1 at 22 (letter from Plaintiff's attorney to ACPD Chief James Stewart stating that Plaintiff “was knocked unconscious, for at least an instant”).] She alleges that she “filled out an incident report with [Bramlett and Wharton] immediately following the incident” and thus that Bramlett and Wharton “were aware that [she had] lost consci[ou]sness.” [Doc. 12 at 9.]
Besides complaining about the delay in receiving medical care, Plaintiff also complains that when Haggan escorted her to see a nurse the day after the altercation, the care the nurse gave her was inadequate insofar as the nurse only took her blood pressure even after the Plaintiff explained that she had lost consciousness. [Doc. 12 at 9.] However, Plaintiff forecasts no evidence that Haggan believed that Plaintiff had received inadequate care or that Haggan delayed or interfered with her care in any way. See Smith, 539 F.3d at 738-39; Miltier, 896 F.2d at 854
Plaintiff asserts in her response opposing summary judgment that she “experienced bleeding from [her] ears and other symptoms when [she] was transported to Cleveland County Detention Center in Shelby, NC,” approximately two to three weeks after the altercation. [Doc. 43 at 3.] Plaintiff does not allege that any Defendant had any knowledge of this symptom or delayed or interfered with her ability to receive treatment for it.
In sum, Plaintiff has failed to forecast evidence creating a genuine dispute of material fact regarding whether any Defendant was deliberately indifferent to her medical needs. Accordingly, the Court concludes that this provides an alternative basis for summary judgment regarding that claim.
For the same reasons that Plaintiff has failed to create a genuine dispute of material fact regarding whether Defendants violated her constitutional rights, the Court concludes that, to the extent Plaintiff sued Defendants in their individual capacities, Defendants would be entitled to summary judgment on the basis of qualified immunity even if she had exhausted her administrative remedies. See Roach v. White, No. 7:20-cv-03601-DCC, 2022 WL 1173874, at *3 (D.S.C. Apr. 20, 2022) (granting summary judgment to the defendant government official on the basis of qualified immunity when the plaintiffs failed to create a genuine issue of material fact regarding whether their constitutional rights were violated). The Court notes, however, that Plaintiff checked the box on her Amended Complaint indicating that she was suing Wharton, Haggan, and Bramlett in their official, rather than their individual, capacities. [Doc. 12 at 2-3.]
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendants' motion for summary judgment [Doc. 36] be GRANTED, and that Plaintiff's claims be dismissed without prejudice.
See Hair v. Parker, No. 2:19-cv-2741-TMC, 2021 WL 805536, at *4 (D.S.C. Mar. 3, 2021) (granting summary judgment and dismissing the plaintiff's claims without prejudice based on the plaintiff's failure to exhaust administrative remedies under the PLRA); see also Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (“[A]ll dismissals under § 1997e(a) should be without prejudice.” (emphasis added)).
IT IS SO RECOMMENDED.