Opinion
8:22-cv-00306-JMC-JDA
05-20-2022
Randy Lee Grainger, Plaintiff, v. JRL Det Center, Mediko, Corporal Cribb, Corporal Vermeer, Officer Childers, Officer Oliver, Officer Linnen, Nurse Rachel Mental Health Couns Jennifer Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on a partial motion to dismiss filed by Defendants Corporal Cribb, Corporal Vermeer, Officer Childers, Officer Oliver, and Officer Linnen (“Moving Defendants”). [Doc. 24.] 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 filed this action in this court on January 27, 2022. [Doc. 1.] On April 1, 2022, Moving Defendants filed a motion to dismiss two of Plaintiff's four claims. [Doc. 24.] The same day, the Court issued an Order pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and the possible consequences if he failed to adequately respond to the motion. [Doc. 26.] On April 15, 2022, the Clerk docketed a response from Plaintiff opposing the motion, and on April 22, 2022, Moving Defendants filed a reply. [Docs. 30; 31.] The motion is now ripe for review.
BACKGROUND
Plaintiff is a pre-trial detainee at the J. Reuben Long Detention Center (“the Detention Center”) in Horry County, South Carolina. [Doc. 1 at 1.] He alleges several discrete incidents as the basis for his claims.
First, he alleges that on or about December 3, 2021, Officer Childers was standing next to “Mental Health Counselor ‘Jennifer'” as Plaintiff was talking with the counselor. [Id. at 3.] Plaintiff alleges that as he was telling the counselor that he had previously used “Maryland medical cannabis,” Officer Childers made a “toke” motion to his mouth and said, “Ooooooo medical canabis” (“the First Incident”). [Id.]
Second, Plaintiff alleges that at approximately 11:15 or 11:30 p.m. on January 2, 2022, he was in his cell when Officer Oliver and Corporal Cribb entered the cell. [Id. at 4.] Plaintiff alleges that Officer Oliver was talking on a phone on speaker to Defendant “Nurse Rachel” about Plaintiff's medical records, his mental condition, his medications-including thorazine-and his allergy to fish, such that all of Plaintiff's cellmates heard the conversation. [Id.] Officer Oliver continued the call even after Plaintiff complained that his privacy rights were being violated. (“the Second Incident”). [Id.]
Third, Plaintiff alleges that on January 5, 2022, Officer Oliver entered his cell and asked Plaintiff's cellmate whether he-the cellmate-“was ok” without asking about Plaintiff's health (“the Third Incident”). [Id. at 4-5.] Plaintiff alleges that from that point on, his fellow detainees started avoiding him. [Id. at 5.]
Fourth, Plaintiff alleges that on the morning of January 20, 2022, Plaintiff was cleaning his cell when another inmate stepped into the doorway and began verbally assaulting him. [Id.] The inmate then sprayed Plaintiff with an unknown fluid from a spray bottle and struck Plaintiff in the head. [Id.] Plaintiff suffered blindness in his left eye and had a lump on his head. [Id.] Plaintiff closed the door to his cell and rang the officers' desk for assistance. [Id.] Officer Linnen then came to the cell and told Plaintiff he would call medical. [Id. at 6.] A Nurse eventually came to Plaintiff's cell and the other inmate was locked down. [Id.] Plaintiff was taken to medical and his eyes were flushed for 15 minutes. [Id.] He was promised eye drops, but he never received them. [Id.] Later, Corporal Vermeer came to Plaintiff's cell to inform him that he had received a 48-hour lockdown writeup, which was later changed to 24 hours. [Id.] Plaintiff filed a Prison Rape Elimination Act (“PREA”) report on the unit kiosk. [Id. at 7.] However, Plaintiff did not receive a response. [Id. at 7-8.]
Plaintiff also contends that his armband has an incorrect spelling of his name and that he believes this is causing him not to receive his mail. [Id. at 8.]
On January 23, 2022, Nurse Rachel came to his cell to give him his medications. [Id. at 9.] Plaintiff noticed a yellow pill that had not been prescribed to him. [Id.] Later that night, after taking the pill, Plaintiff woke up with serious chest pain and breathing problems, and he was escorted to medical. [Id.] A nurse took his vitals, which showed that he had a low heart rate and high blood pressure. [Id. at 10.] The nurse then ran an EKG on Plaintiff. [Id.] Plaintiff asked what the yellow pill had been, but Nurse Rachel did not answer. [Id.] Nurse Rachel then gave Plaintiff his regular thorazine pill, which is a white pill. [Id. at 11.] Plaintiff's heart rate and blood pressure then became normal and Plaintiff was returned to his cell. [Id.]
Based on these allegations, Plaintiff's Complaint purports to allege four causes of action. First, he contends Defendants breached their duty to protect him when they disclosed his medical information in violation of HIPAA (“the Medical Privacy Claim” or “Claim One”). [Id.] Second, Plaintiff alleges Defendants failed to administer adequate medical and security remedies. [Id. at 12.] Third, Plaintiff alleges Defendants engaged in retaliatory treatment for filing grievances and a PREA complaint. [Id.] Fourth, Plaintiff alleges Defendants subjected him to public humiliation and degradation (“the Public Humiliation Claim” or “Claim Four”). [Id. at 13.] For his relief, Plaintiff requests an order from the Court declaring that Defendants have “acted with flagrant indifference and unprofessional conduct” in violation of Plaintiff's rights and for an award of $300,000 in compensatory damages. [Id.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); 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. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. 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) (internal quotation marks omitted). 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. (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).
Because there is no doctrine of respondeat superior in § 1983 claims, Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691-94 (1978), 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:
(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 that 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 and footnote added).
Motion to Dismiss Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cnty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.”).
“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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)-the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
DISCUSSION
Moving Defendants argue that Plaintiff fails to state a claim on which relief may be granted as to the Medical Privacy Claim and the Public Humiliation Claim. [Docs. 24 at 4-7; 31.] The Court agrees and will address these claims seriatim.
The Medical Privacy Claim
Plaintiff alleges that Defendants acted “to deprive Plaintiff of his Constitutional right(s) as set forth more fully below” and then proceeds to claim that Defendants violated his rights under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)during the First and Second Incidents. [Doc. 1 at 3-4.] However, Plaintiff's allegations fail to state a claim under 42 U.S.C. § 1983.
“In general, HIPAA governs confidentiality of medical records and regulates how ‘covered entities' can use or disclose ‘individually identifiable health (medical) information (in whatever form) concerning an individual.'” White v. Brand, No. 2:08-cv-255, 2009 WL 2105993, at *2 (E.D. Tenn. July 13, 2009) (citation omitted). However, “HIPAA does not provide a private cause of action for an individual who asserts a violation of that law.” Arthur v. Williams, No. 821-cv-01934-HMH-JDA, 2021 WL 4177241, at *5 (D.S.C. Aug. 17, 2021) (collecting cases), Report and Recommendation adopted, 2021 WL 4171403 (D.S.C. Sept. 14, 2021); see Gamble v. Simmons, No. 5:20-cv-3618-RMG, 2020 WL 7706621, at *2 (D.S.C. Dec. 29, 2020) (“[T]here is no private cause of action under HIPAA.”). Rather, the remedy for an alleged HIPAA violation “is to lodge a written complaint with the Secretary of Health and Human Services, through the Office of Civil Rights, who has the discretion to investigate the complaint and impose sanctions.” White, 2009 WL 2105993 at *2.
Additionally, to the extent Plaintiff is attempting to assert a claim separate from HIPAA under § 1983 based on these allegations, there is no constitutional right to privacy in this context. See Gamble, 2020 WL 7706621, at *2 (“[T]here is . . . no fundamental right of privacy in personal medical information.”); McElrath v. Stevenson, No. 5:13-317-BHH, 2015 WL 302904, at *6 (D.S.C. Jan. 23, 2015) (holding that an individual “has no constitutional right to privacy in his personal medical information”); see also Wilson v. S. Health Partners Nursing Staff, No. 1:18-cv-00013-FDW, 2018 WL 1972716, at *3 (W.D. N.C. Apr. 26, 2018) (stating that “neither the Supreme Court nor the Fourth Circuit Court of Appeals has recognized a constitutional right in the privacy of an inmate's medical information”).
For all of these reasons, Plaintiff fails to state a cognizable claim against Defendants based upon a disclosure of his medical information. Accordingly, the Court recommends that Moving Defendants' partial motion to dismiss be granted as to the Medical Privacy Claim, Claim One.
The Public Humiliation Claim
It is unclear what allegations form the basis of the Public Humiliation Claim. However, it is well-settled that allegations of verbal harassment do not state a cognizable claim under § 1983. See, e.g., Henslee v. Lewis, 153 Fed.Appx. 178, 180 (4th Cir. 2005) (“Mere threats or verbal abuse by prison officials, without more, do not state a cognizable claim under § 1983.”); Salmeri v. Jones III, No. 1:21-1507-BHH-SVH, 2021 WL 3195908, at *2 (D.S.C. June 7, 2021) (“Bullying and verbal abuse, without more, is insufficient to state a constitutional deprivation.”), Report and Recommendation adopted sub nom., Salmeri v. Jones, 2021 WL 3190399 (D.S.C. July 28, 2021); Ajaj v. United States, 479 F.Supp.2d 501, 538 n.16 (D.S.C. 2007) (finding allegations of “verbal harassment or taunting” cannot establish a constitutional violation and collecting cases). Accordingly, the Court concludes that Plaintiff's Public Humiliation Claim, Claim Four, fails to state a claim upon which relief can be granted, and the Court recommends that Moving Defendants' partial motion to dismiss be granted as to that claim.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Moving Defendants' partial motion to dismiss [Doc. 24] be GRANTED as to Claims One and Four.
IT IS SO RECOMMENDED.