Opinion
C/A No. 4:20-3241-HMH-TER
11-17-2020
Leroy Griffin, #33202-171, a/k/a Leroy Anthony Griffin, Plaintiff, v. Sherri Buddin, Sgt. Mrs. Reid, Lt. Moyd, Sgt. Jitt Wilson, Sgt. Rico Ravenell, Lt. Mr. Linbury, Lt. Lavoia Ceasar, Corp. Ms. Pressley, Ofc. Ohio Duke, Lt. Mr. Courtney, Ofc. Jada Fulton, Ofc. Laquisha Strong, Defendants.
Report and Recommendation
This is a civil action filed by a current federal prisoner and former detainee at the time of the allegations in the Amended Complaint, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. § 1915(e).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action "fails to state a claim on which relief may be granted," "is frivolous or malicious," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint "lacks an arguable basis either in law or in fact." Denton, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327.
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id. ; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990) (The "special judicial solicitude" with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges four general claims regarding dental care, receiving the wrong medication, lockdowns, and religious accommodations.
As to dental, Plaintiff alleges upon screening in July 2018 nonmedical personnel asked questions about his dental conditions. (ECF No. 13 at 11). Plaintiff alleges the careless screening caused pain and delay and involved Defendants Buddin, Wilson, and Pressley. Later in July, Plaintiff complained to Buddin about his dental pain and that he had a filling and extractions and was to have a root canal. Allegedly, Buddin stated it was a waste of money to give inmates fillings and root canals and should just be extractions. (ECF No. 13 at 12). Plaintiff complained again in August and was given antibiotics and Motrin. Plaintiff was seen by medical frequently, complained about pain, continually requested a dentist, and was sent back to his cell. (ECF No. 13 at 12, 15, 16, 17). In May 2019, Plaintiff was seen by Buddin about his dental condition and she allegedly asked him about his prior § 1983 action against Thacker. Plaintiff alleges he was finally sent to a dentist and the dentist stated there was extreme decay. (ECF No. 13 at 18). Plaintiff alleges he complained about Buddin and his dental pain to Wilson, Reid, Duke, Strong, Moyd, Courtney, Pressley, and Ravenell. (ECF No. 13 at 20, 21, 25, 27, 28, 31, 33, 37, 39).
Plaintiff alleges in July 2018, Defendant Wilson fed him pork and Plaintiff stated he was Muslim. Wilson stated if he did not eat he would starve. Plaintiff alleges every meal that day had pork in it. (ECF No. 13 at 22). Plaintiff alleges in July and August 2018, Defendant Reid told him if he did not eat pork he would starve and every meal that day had pork in it. (ECF No. 13 at 25, 41). Plaintiff alleges in 2018, Defendant Duke told him if he did not eat pork he would starve and every meal that day had pork in it. (ECF No. 13 at 27). Plaintiff alleges the same in August 2018 and September 2018 as to Defendant Ravenell. (ECF No. 13 at 28, 31, 39). Plaintiff alleges the same in July 2018 as to Defendant Courtney. (ECF No. 13 at 33). Plaintiff alleges the same in September 2018 as to Defendant Pressley. (ECF No. 13 at 37).
Plaintiff alleges in February 2019, Defendants Wilson, Reid, and Duke did not allow Plaintiff to attend Islamic religious services that were being held. (ECF No. 13 at 22, 25, 27). Plaintiff alleges in April 2019, Defendant Strong did not allow Plaintiff to attend Islamic services. (ECF No. 13 at 28-29). Plaintiff alleges in May 2019, the same as to Defendants Moyd and Courtney. (ECF No. 13 at 31, 33). Plaintiff alleges in June 2019, the same as to Defendants Linburg and Ravenell. (ECF No. 13 at 37, 39).
Plaintiff alleges in February 2019, he was locked down for days without a hearing and asked Defendant Reid to let him out and she did not. Plaintiff alleges he was allowed a shower every three days. (ECF No. 13 at 23). In August 2018 and December 2018, Plaintiff was locked down for 6 days and 7 days respectively without a hearing. Defendant Wilson would not let him out. Plaintiff alleges he was allowed a shower every three days. (ECF No. 13 at 23, 38). Plaintiff alleges in March 2018, he was locked down for five days without a hearing. Defendant Duke refused to open his cell and let him out. Plaintiff alleges he was allowed a shower every three days. (ECF No. 13 at 26). In February 2019, Plaintiff alleges he was locked down for 7 days without a report or hearing and Defendant Strong would not let him out. Plaintiff alleges he was allowed a shower every three days. (ECF No. 13 at 30). Plaintiff alleges in December 2018, he was locked down for 7 days without a report or hearing and Defendant Moyd would not let him out. Plaintiff alleges he was allowed a shower every three days. (ECF No. 13 at 32). Plaintiff alleges in December 2018, he was locked down for 7 days without a report or hearing and Defendants Fulton and Caesar would not let him out. Plaintiff alleges he was allowed a shower every three days. (ECF No. 13 at 34-35). Plaintiff alleges in May 2019, the same as to Defendant Linburg. (ECF No. 13 at 36).Plaintiff alleges in August 2018, he was locked down for 6 days with no hearing and no report and Defendant Courtney would not let him out.(ECF No. 13 at 40).
Plaintiff alleges in August 2018, he was dispensed the wrong medication that resulted in him sleeping very hard, urinating on himself, and having a fast heart beat. (ECF No. 13 at 13). Plaintiff refused to take pills the next day and from that day forward. Because of Plaintiff's refusal, his medications were discontinued by Defendant Buddin. (ECF No. 13 at 15).
Plaintiff alleges as injuries severe dental pain, psychological damage, weight loss, and headaches. Plaintiff requests monetary relief. (ECF No. 13 at 42). Plaintiff alleges he has exhausted by writing to the Major of the facility who makes all grievance decisions. Plaintiff alleges the process was not functional and he did not receive a response back. (ECF No. 13 at 43-44). Plaintiff alleges when he wrote grievances to officers, they would verbally say they could not help or that everything was up to Major Brown. (ECF No. 13 at 45).
Plaintiff reports a prior case filed in this court. (ECF No. 13 at 48). The prior complaint in the 2019 action, No. 4:19-cv-00106, contains some of the same allegations as the present Amended Complaint regarding delayed dental care, being locked down for five and seven days, and wrong medication causing urination. Id. (ECF No. 114). All claims except the medical claim regarding dental care were dismissed without prejudice for failure to exhaust administrative remedies. The dental care claim was addressed on the merits, citing to Plaintiff's treatment and finding Plaintiff received care even though it may not have been the care he desired. Assuming Plaintiff's allegations as true, the court found he showed nothing more than a disagreement with the medical treatment provided. Id.
Plaintiff provides sufficient allegations to withstand summary dismissal of only the claims in regard to religion as to food and religious services as to Defendants Wilson, Reid, Duke, Strong, Moyd, Courtney, Linburg, Ravenell, and Pressley. In a separately docketed order, the court has authorized issuance and service of process on these Defendants as to these particular claims only. Lockdowns
As to Plaintiff's allegations of brief sporadic lockdowns without a hearing or a report, Plaintiff has not alleged the taking of a protected liberty interest. Plaintiff attempts to allege constitutional right violations that arose out of his disciplinary proceedings. Constitutional due process rights are only at issue when the prisoner is deprived a protected liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 555-58, (1974); Lennear v. Wilson, No. 18-6403, 2019 WL 3980165, at *5 (4th Cir. Aug. 23, 2019)(published). For each of these incidents, Plaintiff does not allege the taking of any protected due process rights as lockdown custody placement does not constitute the type of atypical significant deprivation which can create a liberty interest as explained in Jones v. Ozmint, 2011 WL 1671557 (D.S.C. Mar. 17, 2011):
Further, to the extent that Plaintiff is challenging his placement in lockdown, he fails to show a constitutional violation. Generally, prisoners do not have a constitutionally recognized liberty interest in a particular security classification or prison placement. Hewitt v. Helms, 459 U.S. 460, 468 (1983) (no constitutional right under the Due Process Clause to a particular security classification or prison placement). An inmate does not have a constitutional right to be confined in a particular location. See Olim v. Wakinekona, 461 U.S. 238 (1983); Meachum v. Fano, 427 U.S. 215 (1976). In Sandin v. Conner, 515 U.S. 472 (1995), the United States Supreme Court held that a change in the condition of a prisoner's confinement that does not exceed the scope of the original sentence gives rise to a federally-protected liberty interest only if it "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 483. In Sandin, the Court concluded that the plaintiff's "segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." Id. at 485. Under the analysis set forth in Sandin, Plaintiff cannot show that he has a protected liberty interest in his security or custody classification. Id. at 483-85; see Backey v. South Carolina Dep't. of Corrections, 73 F.3d 356, 1996 WL 1737 (4th Cir. Jan.3, 1996) [Table] (allegations of wrongful placement in administrative segregation do not involve the kind of significant
or atypical hardship necessary to invoke due process rights); Joseph v. Gillespie, 73 F.3d 357, 1995 WL 756280 (4th Cir. December 21, 1995) [Table] ("Administrative segregation is not an ' atypical and significant hardship' relative to the ordinary incidents of prison life that would give rise to a liberty interest protected by any procedure."); Reffritt v. Nixon, 917 F. Supp. 409, 412 (E.D.Va.1996) (plaintiff has no protected interest in remaining in or being released into general population), aff'd, 121 F.3d 699 (4th Cir.1997).Jones v. Ozmint, No. 3:10-238-HFF, 2011 WL 1671557, at *4 (D.S.C. Mar. 17, 2011), report and recommendation adopted,, 2011 WL 1671565 (D.S.C. May 3, 2011), aff0.d, 449 Fed. Appx. 281 (4th Cir. 2011) . This court also addressed such specifically in the detainee context:
To determine whether an "atypical and significant hardship" has been imposed, the Supreme Court has outlined a fact intensive inquiry into "(1) the magnitude of confinement restrictions; (2) whether the administrative segregation is for an indefinite period; and (3) whether assignment to administrative segregation had any collateral consequences on the inmate's sentence." Incumaa, 791 F.3d at 530 (citing Wilkinson v. Austin, 545 U.S. 209, 214 (2005) ). Here, other than a loss of privileges, Plaintiff has alleged no other hardship associated with his segregation, Plaintiff was sentenced to maximum segregation for a period of thirty days, and Plaintiff has not alleged any collateral consequences on any sentence as he was a pretrial detainee and has since been released from the DCDC on June 27, 2018, pursuant to his notice of change of address (ECF No. 56).Scott v. Ray, No. 4:17-3100-RBH-TER, 2019 WL 575960, at *3 (D.S.C. Jan. 24, 2019), report and recommendation adopted, 2019 WL 569565 (D.S.C. Feb. 12, 2019). Plaintiff's brief lockdown periods here are less than 30 days and contained no collateral consequence on a sentence.
Plaintiff's allegations as to showers only every three days when on lockdown also does not arise to the level of a constitutional magnitude. The law is clear that bathing opportunities may be severely reduced or curtailed without violating a Eighth Amendment rights. See, e.g., Shakka v. Smith, 71 F.3d 162, 168 (4th Cir.1995) (inmate's constitutional rights were not violated where he was not given access to shower for three days); Davenport v. DeRobertis, 844 F.2d 1310, 1316-17 (7th Cir.1988), cert. denied, 488 U.S. 908 (1988) (holding that one shower per week did not violate constitutional rights); Blackburn v. South Carolina, No. 0:06-2011-PMD-BM, 2009 WL 63254, at *17 (D.S.C. Mar. 10, 2009) (ten days without a shower and, after that, an average of one shower per week was not a constitutional deprivation).
Thus, Plaintiff's claims as to lockdowns are subject to summary dismissal. Thus, Defendants Fulton and Ceasar are subject to dismissal with prejudice as no allegations have been made against them as to any serveable claim. Plaintiff has been previously notified of the deficiency in the original complaint, has been given an opportunity to amend his complaint, and has availed himself of the opportunity to amend but deficiencies remain regarding these two Defendants. Dental
Plaintiff alleges he was seen by medical and wanted to be seen by a professional dentist. As to Plaintiff's complaints as to dental care, which are similar to those adjudicated in the 2019 action, mere negligence, mistake or difference of medical opinion in the provision of medical care to prisoners do not rise to an Eighth Amendment deprivation under the Estelle standard. See Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977); Lee v. Downs, 470 F. Supp. 188, 192 (E.D. Va.1979); Estelle v. Gamble, 429 U.S. 97, 106 (1976)("a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."). The claims regarding dental care are subject to summary dismissal. Thus, Defendant Buddin is subject to dismissal with prejudice as no allegations have been made against her as to any serveable claim. Plaintiff has been previously notified of the deficiency in the original complaint, has been given an opportunity to amend his complaint, and has availed himself of the opportunity to amend but deficiencies remain regarding this Defendant. Wrong Medication
In medical needs cases, the Farmer test, Farmer v. Brennan, 511 U.S. 825, 832-35 (1994), requires a plaintiff demonstrate that a medical condition/need is objectively sufficiently serious. An official must be shown to be deliberately indifferent to a "serious" medical need that has either "been diagnosed by a physician as mandating treatment or ... 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). Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Plaintiff's allegations regarding his taking the wrong medication one time does not rise to the level of a claim of a constitutional magnitude under Farmer. This claim is subject to summary dismissal.
RECOMMENDATION
Accordingly, it is recommended that the district court partially dismiss the complaint in this case as to claims and defendants as discussed above. Specifically, it is recommended that Defendants Buddin, Fulton, and Ceasar be summarily dismissed with prejudice and without issuance and service of process. In a separately docketed order, the court has authorized the issuance and service of process on the remaining Defendants Wilson, Reid, Duke, Strong, Moyd, Courtney, Linburg, Ravenell, and Pressley.
s/ Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge November 17, 2020
Florence, South Carolina
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
Plaintiff is advised that he may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk of Court
United States District Court
Post Office Box 2317
Florence, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).