Opinion
C/A No. 4:19-00106-HMH-TER
07-07-2020
LEROY ANTHONY GRIFFIN, Plaintiff, v. CURTIS BROWN, NARDIA PRESSLEY, MYKIRA PRESLEY, AND SARAH THACKER, Defendants.
Report and Recommendation PROCEDURAL BACKGROUND
Plaintiff, a prisoner proceeding pro se, filed this action under 42 U.S.C. § 1983 on January 11, 2019, alleging a violation of his constitutional rights. (ECF No. 1). He filed an amended complaint on February 11, 2019, and a second amended complaint on March 13, 2019. (ECF Nos. 7 and 17). Plaintiff is currently incarcerated in FCI Bennettsville. At all times relevant to the complaint, Plaintiff was housed at the Williamsburg County Detention Center (WCDC). On September 19, 2019, Defendants Curtis Brown, Nardia Pressley, and Mykira Presley filed a motion for summary judgment along with a memorandum, exhibits, and affidavit in support. (ECF No. 75). On September 24, 2019, Defendant Sarah Thacker filed a motion for summary judgment along with an affidavit in support. (ECF No. 77). As the Plaintiff is proceeding pro se, the court issued an order on or about September 24, 2019, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately to the motions. Plaintiff filed a response in opposition to both motions on October 28, 2019. (ECF No. 88). Defendant Sarah Thacker filed a reply on October 31, 2019, (ECF No. 91) and Defendants Brown, Presley and Pressley filed a reply on November 27, 2019. (ECF No. 95).
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.
DISCUSSION
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed. R. Civ. P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through "depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any." Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
ALLEGATIONS
Plaintiff alleges his constitutional rights were violated while he was housed at the WCDC as a pretrial detainee. Specifically, Plaintiff alleges that he was denied or delayed dental care, that he was drugged by Officer Williams on August 5, 2018, causing him to urinate on himself, that he had daily cell searches, that he had a 72-hour confinement without any relief except a shower, that he was locked down for five days without due process on August 6, 2018, and locked down on December 7, 2018, for seven days without due process, that his dorm was covered in black mold and the doors were rusted, that the floors and walls were constantly wet and sweating from poor ventilation, and he and other pre-trial detainees were placed on lockdown in December of 2018, after the detainees peacefully protested the conditions of the detention center.
As to Defendant Sarah Thacker, Plaintiff alleges that he was denied or delayed dental treatment by this Defendant. Defendant Thacker asserts that she is not an employee of the WCDC but was a nurse practitioner providing medical services for Southern Health Partners at the WCDC. Defendant Thacker also raises the affirmative defense of failure to comply with the Prison Litigation Reform Act.
EXHAUSTION
Defendants Brown , Pressley, and Presley
Defendants Brown, Pressley, and Presley ("Defendants") have raised the affirmative defense of exhaustion in their motion for summary judgment along with an affidavit from Defendant Brown. Likewise, in her motion for summary judgment, Defendant Thacker incorporates by reference the co-defendants explanation of the procedure for an inmate to exhaust the administrative remedies at the WCDC and Defendant Brown's affidavit that Plaintiff failed to file any appeals related to his medical care.
In support of the motion for summary judgment, Defendants submitted the affidavit of Curtis Brown who attests that he is currently employed as a Major at the WCDC. (ECF No. 75-2 at 1-4). As Major, Brown is required to review all inmate requests/grievances forms and has reviewed the grievance history and associated records for the Plaintiff in this case. Id. The WCDC Inmate Guide explains and outlines the Inmate Request and Grievance System which has been in place and not changed for over ten years. Id. Inmates have access to the system through kiosks within WCDC or through hard-copy forms. Id. The WCDC inmate grievance procedure is a multi-step process. Id. First, an inmate submits their initial grievance within seventy-two hours of the incident the inmate is grieving. Id. After the inmate receives a response to his initial grievance, he may submit an appeal of his initial request within two days of receiving a response. Id. Once the inmate receives a response to his appeal, he may then submit a second appeal of the grievance to the Detention Center Administrator. Id. The Inmate Guide sets forth a time frame in which a grievance must be submitted and sets forth the appeals process if an inmate is not satisfied with the response. Id. Inmates at WCDC may file a "Sick Call Slip Medical Request" form directly with the nurse if he has a health-related request or problem. Id. If the inmate is not satisfied with the response he receives to this health-related request, he may file an appeal with Major Brown through the WCDC grievance system. Id. Brown attests that he does not have access to the initial "Sick Call Slip-Medical Request" request forms because they go directly to the nurse on duty. Id. However, Brown receives and reviews all appeals concerning health-related issues through the WCDC grievance system. Id. Brown has access to and reviews all detainees' grievances and grievance appeals, and reviews and works with the detainees and WCDC staff to resolve grievance issues. Id.
Brown attests that based on his review of Plaintiff's grievance history, Plaintiff filed one grievance form during his tenure at WCDC. (See ECF No. 75-4, Defendants' Exhibit B). However, Plaintiff did not appeal any request or grievance while housed at WCDC. Plaintiff may have filed initial "Sick Call Slip-Medical Request" forms directly to the nurse but never filed an appeal of the "Sick Call Slip-Medical Request" to Brown's attention. (ECF No. 75-2). Therefore, Brown avers that Plaintiff did not properly complete the inmate grievance process as set forth in the detention center policy and has not exhausted his administrative remedies with respect to any of his claims raised in this action. Id. Thus, Brown attests that Plaintiff has failed to properly take advantage of all the remedies available to him through WCDC's Inmate Grievance System with regard to any issues raised in his complaint. Id.
The Prison Litigation Reform Act ("PLRA") requires that a prisoner exhaust the available administrative remedies before filing a §1983 action concerning conditions of his confinement. 42 U.S.C. §1997e(a). In enacting the PLRA, Congress carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing a civil rights suit. The PLRA amended §1997e so that it now provides, "No action shall be brought with respect to prison conditions under §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." Id. § 1997e(a). Accordingly, before Plaintiff may proceed with his claims in this Court, he must first exhaust his administrative remedies available through the grievance process within the SCDC. The United States Supreme Court has held that "Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 741 (2001); see Porter v. Nussle, 534 U.S. 516 (2002); Jones v. Smith, 266 F.3d 399 (6th Cir. 2001)(exhaustion required even though Plaintiff claimed futility); Larkin v. Galloway, 266 F.3d 718 (7th Cir. 2001)(exhaustion required even though Plaintiff claimed he was afraid); see also Claybrooks v. Newsome, 2001 WL 1089548 (4th Cir., September 18, 2001)(unpublished opinion)(applying Booth v. Churner to affirm district court's denial of relief to Plaintiff). A failure to exhaust all levels of administrative review is not "proper exhaustion" and will bar actions filed by inmates under any federal law, including §1983. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2386 (2006).
Pretrial detainees are also subject to the exhaustion requirements of the PLRA. See Allen v. Lutz, No. CV 9:18-2542-HMH-BM, 2019 WL 117314, at *2 (D.S.C. Jan. 7, 2019) ("Allen was required to exhaust any available administrative remedies at GCDC in order to maintain the instant suit." (citing Rutland v. Dewitt, C.A. No. 8:09-13-SB, 2010 WL 288217, at *5 (D.S.C. Jan. 25, 2010) (unpublished) ("The exhaustion of administrative remedies is also required of pretrial detainees[.]"); Tate v. Anderson, C.A. No. 8:05-3085-HMH-BHH, 2007 WL 28982, at *4 (D.S.C. Jan. 3, 2007) (unpublished) ("[T]he PLRA's strict exhaustion requirement does indeed apply in actions brought by pretrial detainees[.]"))).
Plaintiff filed a response to summary judgment asserting that he exhausted all administrative remedies available to him and that he has not provided any evidence of exhaustion because he never received a response from a grievance or complaint except the one that Brown admitted to in his affidavit. (ECF No. 88). Further, Plaintiff asserts that he had never seen The Inmate Guide with reference to the grievance procedure that Defendants presented with their motion. (Id.). It is noted that Plaintiff checked in his second amended complaint form that there was a grievance process for all of his claims at the WCDC and that he had completed the grievance process because he had "wrote everyone up the chain of command still to no change. The grievance process is complete." (ECF No. 17 at 23 of 27). To the extent that Plaintiff contends that he did not know about The Inmate Guide and/or the grievance procedure, ignorance of the grievance process or the exhaustion requirement does not excuse his failure to exhaust administrative remedies. Adams v. Sw. Va. Reg'l Jail, C.A. No. 7:12cv00462, 2014 WL 3828392, at *3 (W.D. Va. Aug. 4, 2014) (unpublished) ("[A]ny contention that plaintiff's failure-to-exhaust should be excused merely on the basis of his ignorance about the process fails."), aff'd sub nom. Adams v. Ofought, No. 14-7234, 592 Fed. App'x 225 (4th Cir. Feb. 9, 2015) (unpublished). Additionally, there is no evidence that Plaintiff was prevented from utilizing the WCDC grievance procedures in order to excuse his failure to exhaust administrative remedies. In the Williamsburg County Sheriff's Office Williamsburg County Detention Center Inmate Guide, it states under the grievance procedure that if "at any point during the grievance process you do not receive a response to your grievance or appeal without any notification as to the reasons for the delay, you can consider the detention center's failure to respond to you as a denial of your grievance and may appeal to the next level." (ECF No. 75-3 at 14 of 19). As stated, Plaintiff has not provided any evidence to show that he filed a grievance with respect to any of his claims raised in this action and/or attempted to file an appeal. Further, if Plaintiff did file a grievance and did not receive a response to his initial grievance within the time allowed, the procedure would have been to submit an appeal. Plaintiff has not shown any evidence that he submitted a grievance with regard to these allegations but, to the extent he alleges that he did and did not receive a response, he has not submitted evidence that he followed the grievance procedure pursuant to the WCDC's inmate guide. (Id.). Plaintiff had another inmate, Christopher Pino, submit a handwritten letter to the court stating among other things that he was a trustee while housed at WCDC and that Pino submitted a grievance form on behalf of himself and several inmates. Specifically, Christopher Pino stated in his letter that he is "willing to testify under oath that I have signed myself a joint grievance(s) along with Mr. Griffin as to all of the matters stated above only to go unanswered with no return reply, on numerous occasions." (ECF No. 94). Defendants filed a reply and another affidavit from Defendant Brown addressing this letter from Pino. (ECF No. 95-1). Curtis Brown attests that Christopher Pino submitted two affidavits while housed at WCDC and attached a copy these as Exhibit 1. (Id.). One grievance was filed on January 9, 2019, concerning a religious holiday observance, and his assurance that he and other inmates would respect the rules and officers. (Id.). The second grievance form was on April 2, 2019, wherein he identified the inmates that were Muslim listing Plaintiff as one of the Muslims. (Id.). Brown avers that the grievances Mr. Pino submitted were limited and concerned only religious matters. (Id.). However, Mr. Pino never appealed any request or grievance while housed at WCDC and, therefore, Pino did not exhaust his administrative remedies through the WCDC Inmate Grievance System with respect to his claims. (Id.). Thus, other than Plaintiff's conclusory statements that he exhausted his administrative remedies with respect to the allegations in this action, no evidence has been presented to substantiate his claims. The letter from inmate Christopher Pino stating that Pino filed a grievance on behalf of himself and other inmates including Plaintiff with regard to religious matters did not substantiate the claims of exhaustion or attempted exhaustion on the matters raised in this action by Plaintiff. Plaintiff's conclusory response to the motion for summary judgment is insufficient to avoid summary judgment See, e.g., Daniels v. Stirling, 2020 WL 1644665, at *1 (D.S.C. Feb. 18, 2020) report and recommendation adopted by Daniels v, Stirling, 2020 WL 1640032, (D.S.C. Apr. 02, 2020) (citing Malik v. Sligh, No. 5:11-1064-RBH, 2012 WL 3834850, at *5 (D.S.C. Sept. 4, 2012), aff'd, 507 Fed.Appx. 294 (4th Cir. 2013)) (finding that a self-serving affidavit from the plaintiff was "simply not enough to create a genuine dispute as to any material fact" in light of the other evidence that disputed the credibility of plaintiffs self-serving claims); see also Pearson v. Stevenson, 2015 WL 733814, *2 (D.S.C. Feb. 20, 2015) (finding that "Plaintiff may not escape summary judgment by simply asserting that 'yes I did' exhaust administrative remedies"). Therefore, it is recommended that Defendants' motion for summary judgment (ECF No. 75) be granted and this action be dismissed against Defendants Brown, Pressley and Presley without prejudice for failure to exhaust administrative remedies. Defendant Thacker
Plaintiff's allegations that he exhausted his remedies because he wrote "up the chain of command" does not exhaust the remedies without filing the proper forms/grievances.
Cf. Poe v. Bryant, 2013 WL 6158023, at *2 (D.S.C. Nov. 21, 2013) (holding that defendants satisfied their burden of showing a failure to exhaust administrative remedies with exhibits detailing the grievance process and showing that Plaintiff failed to exhaust this remedy, and that Plaintiff's contradictory statements in response including that the Defendant would not provide him a grievance, were not sufficient to avoid summary judgment in light of the contradictory evidence).
In CTB, Inc. v. Hog Slat, Inc., 954 F.3d 647 (4th Cir. 2020), the court held:
. . . a party's "self-serving opinion ... cannot, absent objective corroboration, defeat summary judgment." *659 Williams v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir. 2004); see also Williams v. Genex Servs., LLC, 809 F.3d 103, 110 (4th Cir. 2015) ("It is well-settled that a plaintiff may not avoid summary judgment by submitting contradictory evidence."); Harris v. Home Sales Co., 499 F. App'x 285, 294 (4th Cir. 2012) (noting that "[a]lthough we do not make credibility determinations at the summary judgment phase, we should also not find a genuine dispute of material fact based solely on [a party's] self-serving testimony"); Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) ("Unsupported speculation is not sufficient to defeat a summary judgment motion.").
As set forth above, Defendant Thacker filed a motion for summary judgment (ECF No. 77) arguing that this action should be dismissed because Plaintiff failed to comply with the PRLA reform act by failing to exhaust his administrative remedies, that Plaintiff has not demonstrated that Defendant was deliberately indifferent to Plaintiff's rights, any claims of medical malpractice fail for failure to follow appropriate process, and that Defendant Thacker is entitled to qualified immunity.
With regard to exhaustion, Defendant Thacker relies on the Defendants' motion for summary judgment and the affidavit of Curtis Brown that Plaintiff failed to appeal any claims related to his medical care. As set forth above, Brown attests that he does not have access to the initial "Sick Call Slip-Medical Request" request forms because they go directly to the nurse on duty. Id. However, Brown attests that he receives and reviews all appeals concerning health-related issues through the WCDC grievance system. Id. Defendant Brown attests that Plaintiff may have filed initial "Sick Call Slip-Medical Request" forms directly to the nurse but never filed an appeal of the "Sick Call Slip-Medical Request" to Brown's attention. (ECF No. 75-2). A review of the WCDC grievance system within the WCDC Inmate guide states: "The detention center has set up a system on the commissary kiosks to allow you to file grievances and receive replies to your concerns. Please be advised, however, that matters involving. . . medical treatment/diagnoses. . . are not considered grievable items... Submit any health care complaints regarding your diagnosis or treatment plan directly to the health care provider using a Request/Grievance Form." (ECF No. 75-3 at 13-14 of 19). A review of The Inmate Guide provided by Defendants does not instruct the inmate to file an appeal from medical to Curtis Brown through the grievance system. (See ECF 75-3 at 13-14; ECF 75-2 at 2 of 4). Therefore, it is recommended that Defendant Thacker's motion for summary judgment be denied for failure to exhaust the administrative remedies.
MEDICAL INDIFFERENCE
Defendant Thacker
Plaintiff argues that he was delayed or denied care for his dental care which resulted in pain. Defendant Thacker ("Thacker") asserts that the record establishes that Plaintiff received the requisite level of care and treatment and that he merely disagrees with the medical provider about her treatment of his dental care.Defendant Thacker contends that Plaintiff has only provided uncorroborated conclusory allegations and has failed to designate an expert to testify as to any alleged deficiency regarding the care and treatment that Defendant Thacker provided.
Defendant Thacker submitted her affidavit attesting that she is a Nurse Practitioner in good standing with the South Carolina Board of Nursing and is an independent contractor for Southern Health Partners providing medical services at the WCDC. (ECF No. 77-1). Thacker avers that Plaintiff alleges he was denied dental care during his confinement in the WCDC from claims that arose from July 22, 2018, through March 6, 2019. (Id.). Thacker attests that the medical records establish that medical care was provided to the Plaintiff for his alleged dental pain including observations, testing, care, and treatment throughout the duration of Plaintiff's confinement at the WCDC. (Id.). Thacker attests that the medical records reveal the following with regard to the allegations of dental pain: the medical staff performed an intake screening on July 20, 2018, and responded "no" when asked if he had a painful dental condition, and he did not complain of dental pain or issues on his transfer form from Dillon County Detention Center to the WCDC. (Id.). A physical screening was also performed and it was noted that Plaintiff had no decay in his teeth. (Id.). On August 10, 2018, Plaintiff submitted a sick call slip complaining for the first time of a toothache and requesting a special diet. (Id.). Plaintiff was seen by medical on August 14, 2018, where a treatment plan was implemented. (Id.). In response to his pain even though medical was unable to visualize any tooth decay or swelling, Plaintiff was prescribed 500 mg of Amoxicillan, an antibiotic prescribed to treat infections for complaints of red, swollen gums, two times a day for ten days, and 800mg Motrin, prescribed to treat severe pain. (Id.). Further, medical advised Plaintiff that it was sending a request to the United States Marshals Service to send Plaintiff to a dentist in response to his requests and explained to Plaintiff that medical had to have permission from the USMS for an outside dental visit because they authorize whether or not he would be seen by a dentist. (Id.). However, Plaintiff refused the dental visit stating he did not want his tooth pulled and stating to medical that his pain was not "that bad." (Id.). On August 15, 2018, Plaintiff began his treatment regime of 500 mg of Amoxicillin twice a day for ten days and Motrin 800 mg twice a day for seven days in response to his complaints of dental/tooth pain. (Id.). Plaintiff did not complain of pain in his teeth again until February 23, 2019, when he submitted a sick call slip. Plaintiff was seen by medical on February 26, 2019, and assessed by medical on his vitals and blood pressure. (Id.). Medical did not notice any decay on Plaintiff's teeth. (Id.). However, in response to the complaints of pain, Thacker prescribed Plaintiff Ibuprofen twice daily. (Id.).
Thacker attests that she did not refuse to provide medical care or treatment to any of the Plaintiff's requests for dental care and responded to his requests with the care and treatment which was within her authority as a nurse practitioner at a correctional facility. (Id.). In response to complaints of dental pain, Plaintiff was prescribed antibiotics and pain medication and referred to an outside dentist by way of the Marshals Service to receive further treatment, but Plaintiff refused to see the dentist. (Id.). Plaintiff was seen on more than a dozen other times and did not complain of pain in his teeth and refused medical treatment for sick call on November 7, 2018, December 6, 2018, January 9, 2019, February 1, 2019 and February 13, 2019. (Id.).
In Plaintiff's response to summary judgment, he states that he began putting in sick call slips in July 2018 for dental pain, and did not "reach the dentist until after this complaint in June of 2019." (ECF No. 88 at 2 of 4). Plaintiff further argues that the Defendants have not provided any documents or evidence that he was not denied dental care. Plaintiff asserts that he did not receive dental care until after he filed this action, that he never refused dental treatment, and that he never said that his teeth did not hurt that bad. However, Plaintiff admits that he said he didn't want his front teeth pulled. Of note, Plaintiff states that "It didn't need to be pulled it could've been saved. Thats what I told nurse Sherri since my first visit for oral pain on Aug. 10, 2018 (emphasis added). One thing that they're leaving out is that in June I went to the dentist across the street from W.C.D.C. and got a filling in that same tooth that I didn't want to get pulled 11 months earlier." Plaintiff goes on to assert that "Sara Thacker has lied, fabricated and left out important details because the truth is not good enough for her to win this lawsuit."
"[D]eliberate indifference to the serious medical needs of a pretrial detainee violates the due process clause." Young v. City of Mount Ranier, 238 F.3d 567, 575 (4th Cir.2001). In order to make out a prima facie claim of deliberate indifference, Plaintiff must allege "that the defendants actually knew of and disregarded a substantial risk of serious injury to [him] or that they actually knew of and ignored [his] serious need for medical care." Id. at 575-76. The standard for reviewing medical claims of pretrial detainees under the Fourteenth Amendment is essentially the same as that for a convicted prisoner under the Eighth Amendment-deliberate indifference to serious medical needs. Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir.1992); Martin v. Gentile, 849 F.2d 863, 871 (4th Cir.1988) (citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). "The Fourteenth Amendment right of pretrial detainees, like the Eighth Amendment right of convicted prisoners, requires that government officials not be deliberately indifferent to any serious medical needs of the detainee." Belcher v. Oliver, 898 F.2d 32, 34 (4th Cir.1990) (citing Martin v. Gentile, 849 F.2d 863, 871 (4th Cir.1988)). In order to state a claim, "[a] plaintiff must satisfy two elements . . . : he must show a serious medical need and he must prove the defendant's purposeful indifference thereto." Sires v. Berman, 834 F.2d 9, 12 (1st Cir.1987). Unless medical needs were serious or life threatening, and the defendants were deliberately and intentionally indifferent to those needs of which he was aware at the time, a plaintiff may not prevail. Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976);. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Sosebee v. Murphy, 797 F.2d 179 (4th Cir.1986). A serious medical need 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." Iko v. Shreve, 535 F.3d 225, 241 (4th Cir.2008). The deliberate indifference prong is met where an officer "knows of and disregards the risk posed by the serious medical needs of the inmate." Id.
Further, incorrect medical treatment, such as an incorrect diagnosis, is not actionable under 42 U.S.C. § 1983. Estelle v. Gamble, supra. Negligence, in general, is not actionable under 42 U.S.C. § 1983. See Daniels v. Williams, 474 U.S. 327, 328-36 & n. 3 (1986); Davidson v. Cannon, 474 U.S. 344, 345-48 (1986); Ruefly v. Landon, 825 F.2d 792, 793-94 (4th Cir.1987); and Pink v. Lester, 52 F.3d 73, 78 (4th Cir. 1995) (applying Daniels vs. Williams and Ruefly v. Landon: "The district court properly held that Daniels bars an action under § 1983 for negligent conduct."). Secondly, 42 U.S.C. § 1983 does not impose liability for violations of duties of care arising under state law. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 200-03 (1989). Similarly, medical malpractice is not actionable under 42 U.S.C. § 1983. Estelle v. Gamble, supra, at 106 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.") See also Brooks v. Celeste, F. 3d 125 (6th Cir. 1994) (Although several courts prior to the Supreme Court's decision in Farmer v. Brennan, supra, held that "repeated acts of negligence could by themselves constitute deliberate indifference, Farmer teaches otherwise."); Sellers v. Henman, 41 F.3d 1100, 1103 (7th Cir. 1994) ("If act A committed by the X prison shows negligence but not deliberate indifference, and B the same, and likewise C, the prison is not guilty of deliberate indifference."); White v. Napoleon, 897 F.2d 103, 108-109 (3rd Cir. 1990); and Smart v. Villar, 547 F.2d 114 (10th Cir. 1976) (affirming summary dismissal).
Any claim of negligence under state law would be considered a claim for medical malpractice. However, the claim would fail under South Carolina law because Plaintiff did not file an expert affidavit contemporaneously with his complaint. Where a plaintiff brings claims arising from alleged negligent medical treatment, the claims are for medical malpractice. Millmine v. Harris, No. 3:10-1595-CMC, 2011 WL 317643, at *1 (D.S.C. Jan. 31, 2011). As the Defendant correctly notes in its brief, in order to pursue a malpractice claim in South Carolina, a plaintiff is first required to file "as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim....". See S.C.Code Ann. § 15-36-100. A failure to file such an affidavit with the Complaint requires dismissal of the case in state court. See Rotureau v. Chaplin, No. 09-1388, 2009 WL 5195968, at * 6 (D.S.C. Dec. 21, 2009).
Although the Constitution does require that prisoners be provided with a certain minimum level of medical treatment, it does not guarantee to a prisoner the treatment of his choice." Jackson v. Fair, 846 F. 2d 811, 817 (1st Cir. 1988). Although the provision of medical care by prison officials is not discretionary, the type and amount of medical care is discretionary. See Brown v. Thompson, 868 F. Supp. 326 (S.D.Ga. 1994). Further, a disagreement as to the proper treatment to be received does not in and of itself state a constitutional violation. See Smart v. Villar, 547 F. 2d 112 (10th Cir. 1976); Lamb v. Maschner, 633 F. Supp. 351, 353 (D.Kan. 1986). Mistakes of medical judgment are not subject to judicial review in a § 1983 action. Russell v. Sheffer, 528 F. 2d 318, 319 (4th Cir. 1975).
Plaintiff has failed to show that he was denied or delayed treatment for his dental pain by Defendant Thacker. Plaintiff asserts that he did not see a dentist until June of 2019, after filing this action. However, it is noted that Plaintiff admitted in his response that he was seen by "nurse Sherri" for oral pain on August 10, 2018, which is the first time Defendant Thacker attested that he complained of oral pain. On June 23, 2020, the court gave Plaintiff and Defendant Thacker ten days to provide any documentation in support of their respective positions. Defendant Thacker provided Plaintiff's medical records to the court which support her affidavit. (ECF No. 111-1). The records reveal that on intake there were no dental complaints made and no tooth decay was observed. (ECF No. 111-1 at 36 and 39 of 94). Plaintiff did not submit a sick call clip complaining of dental pain until August 10, 2018, in which Plaintiff stated "My tooth is aching really bad I just need a few antibiotics if you can please because I'm not getting it pulled!" (ECF 111-1 at 32 of 94). Plaintiff was seen by medical on August 14, 2018, wherein the notes reveal medical was unable to visualize any decay, redness or swelling. (Id. at 30 of 94). However, because Plaintiff insisted he was in pain and requested medication, Plaintiff was prescribed an antibiotic, Amxoil 500, and Ibuprofen 800 mg for pain per protocol. (Id. at 3 and 31 of 94). The medical notes reveal that Plaintiff was advised that a request would be sent to the United States Marshals Service for a dentist visit but plaintiff refused stating he did not want his tooth pulled. (ECF No. 31 of 94). The notes state that "Explained that we have to go thru SMS to get permission for visit and they will decide based on Dentist notes. Continues to refuse 'Stating. It ain't that bad' Amoxil and Ibuprofen started as above per protocol." (Id.). There are no other sick call slips or notes indicating that Plaintiff complained of pain in his teeth until February 23, 2019, when Plaintiff submitted a sick call slip stating that "My teeth still hurt. . ." (ECF No. 19- of 94). Plaintiff was seen by medical on February 26, 2019, and the notes indicate that Plaintiff was prescribed Ibuprofen 600 mg for five days but no decay was noted. (Id. at 17-19 of 94).
Based on the documents before the court, Plaintiff received medical care from Defendant Thacker even though it may not have been the medical care he so desired. As held in Estelle, 429 U.S. at 107, a complaint of negligence in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Even if Plaintiff's allegations are true, he has shown nothing more than a disagreement with the medical treatment provided, not that he was completely denied medical treatment. Further, the record reflects that Plaintiff received a medical evaluation and exam upon arriving at WCDC and no tooth decay was seen and no complaints from Plaintiff regarding teeth pain. "Although the Constitution does require that prisoners be provided with a certain minimum level of medical treatment, it does not guarantee to a prisoner the treatment of his choice." Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988). Prison officials implement the type and amount of medical treatment at their discretion. See Allah v. Hayman, 442 F. App'x 632, 635 (3d Cir. 2011) (holding that deliberate indifference standard "requires much more" than taking issue with the "amount and kind of medical care" an inmate received); Johnson v. Doughty, 433 F.3d 1001, 1014 (7th Cir. 2006) (finding that a prison doctor who prescribed non-surgical means of treating an inmate's hernia was not deliberately indifferent to the inmate's medical needs where the doctor formed a professional opinion, other doctors agreed, and the inmate continued to have associated abdominal pain); Faison v. Rosado, 129 F. App'x 490, 492 (11th Cir. 2005) (noting that although a prisoner "might not agree with the method of treatment provided, matters of medical judgment do not give rise to a § 1983 claim"). Additionally, even assuming for the sake of argument Plaintiff made a showing of delay in treatment, he fails to show that any alleged delay caused further injury. See Kane v. Hargis, 987 F.2d 1005, 1009 (4th Cir. 1993) (holding that alleged delays in providing adequate care also do not rise to the level of deliberate indifference where the delay does not cause further injury); Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1188 (11th Cir. 1994)("An inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of a delay in medical treatment to succeed."). Thus, Plaintiff fails to show that Defendant Thacker violated his constitutional rights with respect to the medical treatment he received.
Because Plaintiff has failed to establish a constitutional violation, the court does not need to address the issue of qualified immunity.
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that the motion for summary judgment filed by Defendants Brown, Presley and Pressley (ECF No. 75) be granted without prejudice for failure to exhaust administrative remedies.
Further, it is recommended that the motion for summary judgment filed by Sarah Thacker (ECF No. 77) be granted. It is further recommended that any outstanding motions be deemed moot.
Respectfully Submitted,
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge July 7, 2020
Florence, South Carolina