Opinion
C. A. 4:23-3022-SAL-TER
08-08-2023
Aryee Henderson, #237887, a/k/a Aryee Henderson, #59105, Plaintiff, v. Sgt. Frierson, Tonya Williams-Wallace, Melissa Franklin, Ursula Dean, Nurse Scott, Beverly Woods, Ester Labrador, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a pro se litigant, proceeding 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 Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 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); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
Plaintiff's 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 frivolity can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
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 may be 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
Some claims and Defendants in this action are subject to summary dismissal for failure to state a claim upon which relief can be granted.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. 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 and citation omitted). A legal 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). Under § 1983, a plaintiff must establish two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation “was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff alleges his Eighth and Fourteenth Amendment rights were violated. (ECF No. 1 at 5). Plaintiff's request for relief is to be “placed within a therapeutic environment,” receive an IRS stimulus check with interest, be seen every thirty days by a “psych doctor”, and monetary damages. (ECF No. 1 at 7). No injuries are listed under injury section of the Complaint. (ECF No. 1 at 9).
As to the first claim, Plaintiff alleges in January 2022, Defendant Frierson sprayed him with chemicals in the face in a crisis intervention cell “without justification.” (ECF No. 1-1 at 2). Plaintiff alleges before he was sprayed, Plaintiff was stuffing tissue in a flap padlock and when Frierson told Plaintiff to stop and he did. (ECF No. 1-1 at 3). But when Frierson left, Plaintiff admits he again stuffed tissue in the padlock. (ECF No. 1-1 at 3). There is video. Then Plaintiff was sprayed without a second warning to get off the flap. Plaintiff alleges he had loss of breath, appetite, anxiety, homicidal ideations and his face was on fire all night. (ECF No 1-1 at 4). At this stage of proceedings, Plaintiff has stated a claim against Defendant Frierson to surpass summary dismissal, and this same day by separate order, service has been authorized on Defendant Frierson as to this first claim for excessive force and liberally construed regarding lack of medical care.
As to the second claim, with no transition in facts, Plaintiff then alleges the IRS stated he should receive a refund check and he did. (ECF No. 1-1 at 5). In May 2022, he asked cooperative ministry to file a tax return so he could get a stimulus check. His tax return was rejected because someone else had already filed a return with his social security number. Plaintiff asked nondefendants Eastridge and Lee for help getting an IRS check and was “brushed off.” “In June 2022, I went on [crisis intervention] because staff here at Lee would not help me receive my stimulus check.” Plaintiff was transferred to Broad River. On June 14, 2022, Defendant Dean wrote Plaintiff to authenticate his identity for a refund. In August 2022, Defendant Williams-Wallace, an IRS employee, wrote stating an additional 60 days would be needed. (ECF No. 1-1 at 8). In December 2022, an IRS letter stated Plaintiff needed to contact a prison rep for help with responding to the TPP letter. Plaintiff responded that staff was not willing to help him. In February 2023, Franklin from IRS said Plaintiff needed to call. He wrote back stating he cannot call because staff refused to help. Williams-Wallace stated in May 2023 that without a 1040 Plaintiff could not get recovery rebate credit. Plaintiff alleges: “This is discriminatory.” Plaintiff alleges other prisoners get their checks. Plaintiff alleges because of the check refusal he suffers from anxiety, weight loss, and suicidal/homicidal ideations. These particular Defendants are federal employees. Section 1983 is inapplicable to federal employees. To the extent plaintiff is attempting to bring suit against these individually named defendants in their individual capacity pursuant to Bivens, Plaintiff's claims against these IRS employees are subject to dismissal because Plaintiff may not sue individual IRS employees or officials under Bivens due to the various statutory remedies otherwise available to a taxpayer. Aderinto v. Treasury Inspector Gen. for Tax Admin., No. 3:08-cv-1940-JFA-BM, 2008 WL 2434134, at *3 (D.S.C. June 12, 2008); Al-Sharif v. Bradley, 2008 WL 410364 (S.D. Ga. Feb.12, 2008)(collecting cases, agreeing with courts which have held relief against an IRS employee pursuant to Bivens is foreclosed based upon meaningful and adequate statutory remedies provided by Congress); see Schweiker v. Chilicky, 487 U.S. 412, 420-423(1988). This claim and Defendants Williams-Wallace, Franklin, and Dean are subject to summary dismissal.
As to the third claim, Plaintiff alleges in May 2023, Plaintiff was in pill line and took pills in front of Defendant Scott and nondefendant Copeland. (ECF No. 1-1 at 12). Plaintiff reported he was suicidal to “the nurse” and wanted to be taken out of his unit, and no one helped him. An hour after the pills, Plaintiff had headache, nausea, chest pain, paranoia, lack of appetite, and mental anguish. (ECF No. 1-1 at 12). Plaintiff alleges “the very next day was unremarkable.” (ECF No. 1-1 at 12). Plaintiff filed a grievance which was responded to by telling him if he felt bad he needed to sign up for sick call. (ECF No. 1-1 at 13). Plaintiff fails to make a causal connection in his allegations from acts to persons. In order to assert a plausible § 1983 claim against any particular state actor, a “causal connection” must exist between the conduct alleged by the plaintiff and the particular defendant named in the suit. See Kentucky v. Graham, 473 U.S.159, 166 (1985); Rizzo v. Good, 423 U.S. 362, 371-72 (1976) (a § 1983 plaintiff must show that he suffered a specific injury resulting from a specific defendant's specific conduct and must show an affirmative link between the injury and that conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (for an individual to be liable under § 1983, the Plaintiff must show that the defendant named acted personally in the deprivation of the plaintiff's rights). Plaintiff here must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed. App'x 212, 215 (4th Cir.2001) (affirming dismissal of the plaintiff's claim against five defendants when the plaintiff did not allege any of the defendants were personally involved in the alleged deprivation of his civil rights). “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). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. Defendants will not know how to respond to conclusory allegations, especially when “the pleadings mentioned no specific time, place, or person involved.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 565 n. 10. (2007). Complaints should contain facts in regard to who did what to whom and when. Id. Also, Plaintiff's allegations as to medical are vague and conclusory and Plaintiff has failed to state a claim of constitutional magnitude as to claims regarding medical care. 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.”) This claim and Defendant Scott are subject to summary dismissal.
As to the fourth claim, Plaintiff alleges in July 2022, unnamed nurses had been giving Plaintiff 50mg benadryl crushed and mixed in water. Dr. Woods prescribed this form “even though
I did not request it nor did I consent to it.” (ECF No. 1-1 at 13). Plaintiff alleges this medicine causes adverse effects and he told Dr. Woods about that and asked for liquid medication instead of crushed tablets. (ECF No. 1-1 at 14). Plaintiff alleges Dr. Woods refused. In November 2022, Plaintiff wrote a grievance to Defendant Labrador and was “brushed off” and told to talk to Dr. Woods. Plaintiff filed a step 1 grievance about it in March 2023. (ECF No. 1-1 at 15). Nondefendant Prince denied the grievance as untimely. Plaintiff has not stated a claim as to Defendant Labrador as writing a grievance to someone and being told another person managed medication does not state a claim of constitutional magnitude. See Green v. Beck, 539 Fed.Appx. 78, 80 (4th Cir. 2013) (failure to respond to inmate grievance, without additional personal involvement in grieved situation is not sufficient to establish supervisor's liability under § 1983). As discussed above in the prior claim, difference in opinion of method of medication does not rise to constitutional magnitude under the Eighth Amendment deprivation under the Estelle standard. See Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977) Defendant Woods and Defendant Labrador are subject to summary dismissal and this fourth claim is subject to summary dismissal.
As to the fifth claim, Plaintiff alleges he has denial of adequate shelter. Plaintiff alleges every time it rains his cell flooded from an out take vent above toilet down to floor. Plaintiff alleges he filed grievance about it, which was denied because “they” claimed it was fixed. “Wing officers” did not allow him out of his flooded cell or give him cleaning materials. (ECF No. 1-1 at 16). Plaintiff alleges he has had no heat. Plaintiff alleges his flooded cell happens 10 days a month. As discussed above, Plaintiff fails to assert a “causal connection” between the conduct alleged by the plaintiff in this claim and the particular defendant named in the suit. See Kentucky v. Graham, 473 U.S.159, 166 (1985); Rizzo v. Good, 423 U.S. 362, 371-72 (1976) (a § 1983 plaintiff must show that he suffered a specific injury resulting from a specific defendant's specific conduct and must show an affirmative link between the injury and that conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (for an individual to be liable under § 1983, the Plaintiff must show that the defendant named acted personally in the deprivation of the plaintiff's rights); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff's fifth claim is subject to summary dismissal.
As discussed above, Defendants Williams-Wallace, Franklin, Dean, Scott, Woods, and Labrador and all of Plaintiff's claims, except the first claim in regard to the use of chemicals by Defendant Frierson, are subject to summary dismissal for failure to state a claim upon which relief can be granted.
RECOMMENDATION
Accordingly, it is recommended that the District Court partially dismiss the complaint in this case. Specifically, it is recommended that Defendants Williams-Wallace, Franklin, Dean, Scott, Woods, and Labrador and all of Plaintiff's claims, except the first claim in regard to the use of chemicals by Defendant Frierson, 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 Defendant Frierson as to only the first claim in the Complaint.
It is recommended that this action be partially dismissed without leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they 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
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
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).