Opinion
C. A. 4:23-2396-BHH-TER
03-07-2024
MICHAEL D. GALLMAN, Plaintiff, v. LIEUTENANT FREEMAN, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
PROCEDURAL BACKGROUND
Plaintiff, a prisoner proceeding pro se, filed this action under 42 U.S.C. § 1983on June 1, 2023, alleging a violation of his constitutional rights. Plaintiff filed an amended complaint on June 20, 2023, based on conditions of confinement/indifference while housed at the Evans Correctional Institution (ECI).Plaintiff is currently housed at the Broad River Correctional Institution. On October 5, 2023, Defendant filed a motion to dismiss pursuant to Rule 12(b)(1) and 12(b)(6) in conjunction with a memorandum in support. (ECF No. 37). As the Plaintiff is proceeding pro se, the court issued an order on or about October 13, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion to dismiss procedure and the possible consequences if he failed to respond adequately. Plaintiff filed a response on October 25, 2023, and Defendant filed a reply on November 1, 2023. (ECF Nos. 45 and 46).
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)(d), DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the district judge.
The Amended Complaint superceded the previous original complaint. An amended complaint replaces the original complaint and should be complete in itself. See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (“As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.”) (citation and internal quotation marks omitted).
STANDARD FOR MOTION TO DISMISS
This matter is before the court on Defendant Freeman's motion to dismiss pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Under Rule 12(b)(6) of the Fed.R.Civ.P., “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Lokhova v. Halper, 995 F.3d 134, 141 (4th Cir. 2021) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). “Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.' ” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiffs' burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
ANALYSIS
Plaintiff's allegations involve conditions of confinement/ failure to protect. (ECF No. 10). The following facts are taken as true for purposes of this motion to dismiss by Defendant. On December 19, 2022, Plaintiff was in cell #122 when the inmate in cell #123 set something on fire resulting in the smoke coming through the vent and “smoked out” Plaintiff's cell. (ECF No. 10 at 5). The smoke was so bad that Plaintiff could not see his hand in front of his face. (Id.). Plaintiff informed Lieutenant Freeman of the problem but she ignored Plaintiff and left the wing. (Id.at 5-6). The officers on the second shift “did the same thing.” (Id. at 6). Therefore, Plaintiff “dailed *22 and informed them of the issues.” (Id.). “All is on camera on the B-side of RHU on the above date.” (Id. at 6). Plaintiff was not seen by medical that day. The smoke caused Plaintiff pain and suffering, made it hard for him to breath, and he blew a black substance out of his nose onto a tissue. (Id.). Plaintiff requests punitive damages and monetary damages in the amount of $3,575.00 for pain and suffering, cruel and unusual punishment, and emotional distress. (Id.).
Defendant argues that Plaintiff has failed to allege facts sufficient to sustain an actionable constitutional violation under 42 U.S.C. §1983. Defendant asserts that there are no allegations that Defendant exhibited deliberate indifference to Plaintiff as he has made no allegations that Defendant, nor any other ECI personnel, knew or should have known of the risk of fire or otherwise failed to appropriately respond. Additionally, Defendant contends that Plaintiff has only alleged de minimis contemporaneous symptoms to the inhalation and has not alleged any severe injury to sustain a claim of deliberate indifference to medical needs. Defendant argues that Plaintiff merely disagrees with Defendant's response to his complaints that smoke entered his cell and failed to allege a sufficiently serious injury to adequately plead a constitutional violation.
Plaintiff filed a response to the motion to dismiss basically restating the allegations in his amended complaint. Plaintiff asserts that he “suffered headaches, throat problem, emotional distress, pain and suffering as a result of lack of protection” on December 19, 2022, while in RHU. Plaintiff states that he went to medical eight days after the incident “to be told that nothing was wrong with me. Improper procedure was handle then.” (ECF No. 45 at 3).
It appears from Plaintiff's response that he is attempting to rehash the allegations in his amended complaint and allege new causes of action and/or allegations not raised in the amended complaint. Any claims raised in the response that were not alleged in the amended complaint will not be addressed. See Cleveland v. Duvall, No. 8:14-CV-04305-RBH, 2015 WL 6549287, at *2 (D.S.C. Oct. 28, 2015), affd, 647 Fed.Appx. 156 (4th Cir. 2016).
In the amended complaint, Plaintiff did not allege that he suffered headaches or throat problems as asserted in his response to summary judgment. Further, Plaintiff attempts to raise for the first time a claim of equal protection; a claim that multiple inmates died in 2022 due to a “lack of proper assistance,”; a claim that his cell contained nothing but a source of water and toilet, with a concrete slab to lay the mattress on; a claim that he went to medical on December 27, 2022, and was told nothing was wrong with him; and, a claim for injunctive relief when he never set forth a request for injunctive relief in his amended complaint. These new allegations will not be considered.
In reply, Defendant asserts that Plaintiff attempts to raise new claims in his response that were not raised in the amended complaint which should be disregarded.
To establish a claim under the Eighth Amendment, a prisoner must satisfy two elements. First, the deprivation alleged must be, objectively, “sufficiently serious.” Wilson v. Seiter, 501 U.S. 294, 298 (1991). “Only 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). “[T]o demonstrate such an extreme deprivation, a prisoner must allege a serious or significant physical or emotional injury resulting from the challenged conditions or demonstrate a substantial risk of such serious harm resulting from the prisoner's exposure to the challenged conditions.” Id. (internal quotation marks and citation omitted). Second, a prisoner must present evidence that the prison officials had a “ ‘sufficiently culpable state of mind.' ” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson, 501 U.S. at 297). When an inmate challenges the conditions of his confinement under the Eighth Amendment, the requisite “state of mind is one of deliberate indifference to inmate health or safety.” Id. (quotation and citation omitted). A prison official shows deliberate indifference if he “knows of and disregards an excessive risk to inmate health or safety; the official must both 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.” Id. at 837. “In addition, prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted. A prison official's duty under the Eighth Amendment is to ensure reasonable safety.” Id. at 844 (internal quotation marks omitted).
As set forth above, “to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' 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.” Iqbal, 556 U.S. at 677-78 (quoting Twombly, 550 U.S. at 570.). This court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. Plaintiff aasserts that his cell was “smoked out” with so much smoke that he could not see his hand. He informed Defendant Freeman of the problem but she ignored him and left the wing after turning the lights out. Plaintiff suffered with difficulty breathing and blew a black substance out of his nose. Plaintiff did not receive medical care that day. Although his specific allegations against Defendant Freeman are slim, Plaintiff has pleaded facts in his amended complaint sufficient, if taken as true for the purpose of the motion to dismiss pursuant to Rule 12(b)(6), to allege that Defendant Freeman was aware of a condition that created a substantial risk and ignored the problem all of which was captured on camera. Therefore, dismissal at this stage of the litigation as to these claims is not appropriate.
CONCLUSION
Based on the above reasoning, it is recommended that the motion to dismiss filed by Defendant Freeman be denied. (ECF No. 37). Further, if this Report is adopted by the district judge, a scheduling order should be entered by the clerk of court regarding discovery and dispositive motion deadlines.
The parties' attention is directed to the important notice on the next page.