Opinion
Civil Action 4:19-cv-1499-SAL-TER
03-01-2022
BRUCE LEE HUDSON, #299312, a/k/a Bruce Lee Hudson, #101021, a/k/a Bruce L. Hudson, Plaintiff, v. RICHLAND HOSPITAL, BAPTIST HOSPITAL, POLLY SMITH, Baptist Hospital Employee, TRISTAN NEVILLIE, Baptist Hospital Employee, BECKY BOUDE, Richland Hospital Employee, JENNIFER LATHAM, Richland Hospital Employee, JAMES MOORE, Richland Hospital Employee, JOEY SMITH, Richland Hospital Employee, LATISHA PITTS, CPD Police Officer, MALIK HOCKETT, SCDC Officer, OFFICER SHAW, Richland County Probation, Defendant.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This case arises from actions allegedly taken against Plaintiff, a pro se litigant, by the various Defendants while he was hospitalized in June of 2017. Plaintiff alleges his claims are under 42 U.S.C. § 1983. Plaintiff alleges violations of his First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights. The only Defendants remaining in this action are Malik Hockett and Officer Shaw. Presently before the court are Defendant Hockett's Moton for Summary Judgment (ECF No. 189) and Defendant Shaw's Motion for Summary Judgment (ECF No. 197). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motions could result in the motions being granted and his claims against the remaining Defendants dismissed. Plaintiff has failed to file a response to either motion. 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)(e), DSC. This report and recommendation is entered for review by the district judge.
II. RULE 41(B) DISMISSAL
“The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them, and this authority includes the power to order dismissal of an action for failure to comply with court orders. Fed.R.Civ.P. 41(b).” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989).
The Fourth Circuit, in Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978), recognizing that dismissal with prejudice is a harsh sanction which should not be invoked lightly, set forth four considerations in determining whether Rule 41(b) dismissal is appropriate: (1) the degree of personal responsibility on the part of the plaintiff; (2) the amount of prejudice to the defendant caused by the delay; (3) the presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal. Id. at 70.
Subsequently, however, the Fourth Circuit noted that “the four factors ... are not a rigid four-pronged test.” Ballard, 882 F.2d at 95. “Here, we think the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case from those cited by appellant. . . . In view of the warning, the district court had little alternative to dismissal. Any other course would have placed the credibility of the court in doubt and invited abuse.” Id. at 95-96.
In the present case, Plaintiff is proceeding pro se and, thus, is entirely responsible for his actions. He was advised that a failure to respond to Defendants' motions could result in dismissal of his case. Nevertheless, Plaintiff failed to respond to either motion. It is solely through Plaintiff's neglect, and not that of an attorney, that Plaintiff has failed to prosecute this case. Defendants cannot come to a resolution of this matter if Plaintiff fails to prosecute it. Accordingly, the undersigned concludes that Plaintiff has abandoned his claims against Defendants. For that reason, dismissal of this case is appropriate under Rule 41(b).
III. MERITS
A. Facts
Plaintiff alleges that on June 11, 2017, Defendant Hockett, a officer with the South Carolina Department of Corrections (SCDC), abandoned his post guarding an SCDC inmate and entered his hospital room where he assaulted Plaintiff and ordered hospital security to punch Plaintiff and drag Plaintiff out of bed. Am. Compl. at 16 (ECF No. 56); Motion to Amend Date (ECF No. 78). Plaintiff alleges Columbia Police Officer Pitts saw Plaintiff was a victim of assault but told Plaintiff he could not press charges. Plaintiff alleges Pitts ordered hospital security to keep Plaintiff's phone and do whatever the hospital needed to do to control Plaintiff, that the police would back them. Plaintiff alleges this was in a conspiracy to violate Plaintiff's above listed constitutional rights. Am. Compl. at 16 (ECF No. 56). Plaintiff alleges probation officer Shaw ordered hospital employees Fields, Moore, and Boude to charge Plaintiff's GPS and call Shaw if Plaintiff tried to leave the hospital. Plaintiff alleges his medical records were shared with Shaw. Plaintiff alleges Shaw allowed hospital employees to act as state actors in his criminal court cases, such as speaking in court and with judges. Am. Compl. at 17 (ECF No. 56). Plaintiff also alleges that hospital employee Smith transported him to his court hearing against his will and without legal authority. Am. Compl. at 17 (ECF No. 56). He states in his complaint, “I'm unsure if Polly Smith kidnaped me, put me under duress believing she was a state actor, or if she was convinced to do what law enforcement nor probation could do. Take me in without warrant, by force and threat.” Am. Compl. at 17 (ECF No. 56). Plaintiff alleges hospital employee Moore presented at Plaintiff's court hearing, acting for probation against Plaintiff. Am. Compl. at 19 (ECF No. 56). Plaintiff alleges that, to the extent any Defendants would be private actors under normal circumstances, they became state actors as a result of their conspiracy with other state actors. Am. Compl. at 6 (ECF No. 56).
Defendant Hockett avers that on June 11, 2017, he was providing hospital coverage of an SCDC inmate assigned to the hospital. Hockett Aff. ¶ 8 (ECF No. 189-3). Upon hearing a commotion in a nearby room and a nurse yell for help, he entered the room and observed two or three hospital security personnel and two female nurses struggling with a combative patient, Plaintiff. Hockett Aff. ¶ 8 (ECF No. 189-3). One of the nurses asked Hockett for help with restraining Plaintiff, so he moved to one side of Plaintiff and attempted to restrain one arm while two hospital security personnel attempted to restrain his other arm. Hockett Aff. ¶ 8 (ECF No. 189-3). Plaintiff continued to struggle and bit Hockett's arm, leaving a bruise. Hockett Aff. ¶ 8 (ECF No. 189-3). Columbia Police were dispatched to the hospital and an officer issued a citation to Plaintiff for simple assault. Hockett Aff. ¶ 8 (ECF No. 189-3). Hockett denies ordering anyone to punch Plaintiff or that he dragged him out of his bed. Hockett Aff. ¶ 12 (ECF No. 189-3). Hockett avers that he was not acting in his capacity as an SCDC Corrections Officer but merely responded to a call for help as a bystander. Hockett Aff. ¶ 12 (ECF No. 189-3). He also avers that he did not personally know any of the hospital security personnel or nurses who were in Plaintiff's room on June 11, 2017.
Hockett Aff. ¶ 11 (ECF No. 189-3).
Defendant Shaw avers that he was a probation officer with the South Carolina Department of Probation, Pardon, and Parole Service (SCDPPPS) from April 17, 2013, until July 7, 2017. Shaw Aff. ¶ 2 (ECF No. 197-2). Plaintiff was convicted of fraud on October 18, 2016, and received a 5 year sentence with credit for time served and three years of probation. Shaw Aff. ¶ 5 (ECF No. 197-2). Part of his probation required GPS monitoring. Shaw Aff. ¶ 6 (ECF No. 197-2). On December 28, 2016, Plaintiff failed to report to SCDPPPS. Shaw Aff. ¶ 7 (ECF No. 197-2). Because he was the agent on call, Shaw responded to Plaintiff's last known location, a motel, and found the GPS monitor with a severed strap behind a dumpster. Shaw Aff. ¶ 7 (ECF No. 197-2). A tracking warrant and revocation of probation were issued at that time. Shaw Aff. ¶ 7 (ECF No. 197-2). SCDPPPS did not locate Plaintiff until it learned that Plaintiff had been shot and was in the hospital in February of 2017. Shaw Aff. ¶ 8 (ECF No. 197-2). Shaw was contacted by the investigator of the case who told him that Plaintiff was at Palmetto Health Richland. Shaw Aff. ¶ 8 (ECF No. 197-2).
Shaw avers that he was never informed of Plaintiff's medical history or records beyond the fact that he was hospitalized due to a gunshot wound. Shaw Aff. ¶ 10 (ECF No. 197-2). He avers that it was necessary for him to have knowledge of Plaintiff's whereabouts, whether he was violating his probation, and when he would be ready for court and/or release. Shaw Aff. ¶ 10 (ECF No. 197-2). Shaw did not share Plaintiff's criminal history other than at his revocation hearing. Shaw Aff. ¶ 10 (ECF No. 197-2).
On March 3, 2017, Plaintiff was served with a GPS tracking warrant and given a PR bond. Shaw Aff. ¶ 12 (ECF No. 197-2). Another ankle monitor was installed as well. Shaw Aff. ¶ 12 (ECF No. 197-2). On March 10, 2017, Shaw signed an affidavit for Plaintiff's probation violation, and he was served with a probation citation while at the hospital on March 15, 2017. Shaw Aff. ¶ 12 (ECF No. 197-2); Probation Citation (ECF No. 197-4). Shaw avers that although he had regular contact with Plaintiff prior to his violation hearing, he never took him into custody. Shaw Aff. ¶ 11 (ECF No. 197-2).
As stated above, Plaintiff was charged with simple assault following the physical altercation in the hospital on June 11, 2017, and Shaw appeared at a bond revocation and probation revocation hearing on June 23, 2017. Shaw Aff. ¶ 15 (ECF No. 197-2). He gave testimony regarding Plaintiff's probation violations, including failure to inform and get consent from SCDPPPS for a new address, failure to attend substance abuse classes, failure to pay restitution, and failure to obtain his GED. Shaw Aff. ¶¶ 9, 15 (ECF No. 197-2). Witnesses from the hospital gave testimony regarding Plaintiff's combative nature at the hospital but did not specifically address any probation violations. Shaw Aff. ¶ 15 (ECF No. 197-2). The judge revoked Plaintiff's probation, and he was transported to SCDC. Shaw Aff. ¶ 16 (ECF No. 197-2); Probation Revocation Order (ECF No. 197-5). Plaintiff was not confined at the institution where Defendant Hockett worked. Hockett Aff. ¶ 11 (ECF No. 189-3).
B. Standard of Review
Under Fed.R.Civ.P. 56, 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. Id. 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 (4thCir. 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. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); 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.
C. Discussion
Plaintiff brings claims against Defendants Hockett and Shaw under 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, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). 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, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). To be successful on a claim 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 the color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).
1. Defendant Hockett
Hockett argues that he was not acting under color of state law when he responded to a call for help and entered Plaintiff's hospital room to restrain him. A person acts under color of state law “only when exercising power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” Polk County v. Dodson, 454 U.S. 312, 317-18, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)). However, even “private” actions can be considered state actions for purposes of § 1983 liability where they have “a sufficiently close nexus with the State to be fairly treated as the actions of the State itself.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). When a “defendant's public office provide[s] the impetus for [his] actions . . . those actions ‘ar[i]se out public, not personal, circumstances' and thus the defendant's actions possess the “requisite nexus” with his public office to be fairly attributable to the government. Id. at 524. In addition, the “identit[y] as [a] state officer[] play[s] a role” when the actions “were facilitated by [the officer's] apparent authority.” Davison v. Loudoun County Board of Supervisors, 267 F.Supp.3d 702, 712 (E.D.Va. 2017) (citing Rossignol, 316 F.3d at 526).
It is undisputed that Hockett was present at the same hospital as Plaintiff in his capacity as a SCDC corrections officer. He was providing coverage for an SCDC inmate who was a patient at the hospital at the same time as Plaintiff. Plaintiff was not an SCDC inmate at that time. Hockett avers that he did not personally know any of the hospital security personnel or nurses, but when he heard a commotion in a nearby room along with a call for help, he responded to the call and observed Plaintiff being combative and behaving violently towards the hospital staff. A nurse in the room requested Hockett's help and he assisted the others in the room to restrain Plaintiff. Hockett avers that he was not acting in his capacity as a SCDC corrections officer but simply reacting to a nurse yelling for help.
It is undisputed that Plaintiff was not an SCDC inmate at the time he was hospitalized at Palmetto Health. It is further undisputed that Hockett was not at the hospital for the purpose of providing security coverage for Plaintiff or to provide security generally. He was there to provide security coverage specifically for the SCDC inmate who was a patient at the time. Thus, Hockett was not acting in his role as an SCDC corrections officer at the time of incident. However, as set forth above, even private actions can be considered state actions where either the defendant's public office provides the impetus for his actions or if the defendant's actions were facilitated by his apparent authority as a state officer. Rossignol, 316 F.3d at 523, 526. Courts have found that an officer was acting under color of state law though otherwise not acting within the scope of his duties “when an officer shot a civilian over an argument whose genesis was unquestionably in the performance of police duties, when an officer conspired with two civilians to murder a woman who had filed police brutality charges against him, [and] when officers sought to censor plaintiffs' criticism of them in their official roles and use their official positions as an intimidating asset in the execution of their plan.” Nexus Servs., Inc. v. Vance, No. 5:17-CV-00072, 2018 WL 542977, at *3 (W.D. Va. Jan. 24, 2018) (internal citations and quotations omitted). Here, the impetus for Hockett's actions did not arise from his position as an SCDC corrections officer. Hockett had no previous history with Plaintiff, much less in connection with his position as an SCDC corrections officer. In addition, there is nothing in the record to indicate that the nurse who called for help specifically called for Hockett as a result of his “apparent authority” as a state officer. Hockett did not know the nurse or the hospital security personnel prior to responding to a call for help. In the absence of action under the color of state law, no cause of action exists under § 1983. Therefore, summary judgment is appropriate as to Plaintiff's claims against Hockett.
2. Defendant Shaw
Shaw does not dispute that he was acting under color of state law as Plaintiff's probation officer. Thus, the only question before the court is whether Shaw violated Plaintiff's constitutional rights. Plaintiff alleges generally that all Defendants violated his “1, 4, 5, 8, and 14 amendment” rights. With respect to Shaw, Plaintiff alleges that he ordered employees at the hospital to “charge my leg ‘GPS'” and “call him if [Plaintiff] tr[ied] to leave hospital.” Am. Compl. p. 17 (ECF No. 56). Plaintiff also alleges that Shaw allowed hospital employees to “act as state actors in my criminal court cases such as speaking in court, speaking with judges, even telling them my court dates.” Am. Compl. p. 17 (ECF No. 56). He also alleges more generally that “probation” made hospital employee Smith believe she could transport Plaintiff to his court hearing against his will and without legal authority. As set forth above, Shaw was notified that Plaintiff was in the hospital because a tracking warrant and probation revocation had been issued as a result of Plaintiff violating several conditions of his probation and removing his GPS monitoring device. The warrant was served on Plaintiff in the hospital and a new GPS monitoring device was installed. Plaintiff appeared for a bond revocation and probation revocation hearing, and Shaw provided testimony regarding his probation violations while hospital employees provided testimony regarding his combative nature. The judge found that Plaintiff had “willfully and intentionally violated the terms and conditions of his probation” and revoked Plaintiff's probation in full. Hearing Tr. 17 (ECF No. 189-2). As a result, Plaintiff was taken into SCDC custody.
To the extent Plaintiff is alleging that Shaw was in a conspiracy with hospital employees to violate his constitutional rights by asking them to charge his GPS monitoring device and to notify Shaw if Plaintiff tried to leave the hospital, and transporting Plaintiff to a court hearing, his claims fail. To establish a civil conspiracy claim actionable under § 1983, a plaintiff must demonstrate that the defendants “acted jointly in concert and that some overt act was done in furtherance of the conspiracy, ” resulting in deprivation of a federal right. Glassman v. Arlington Cnty., Va, 628 F.3d 140, 150 (4th Cir. 2010) (quoting Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996)). “To establish a conspiracy claim under § 1983, a plaintiff ‘must present evidence that the [defendants] acted jointly in concert and that some overt act was done in furtherance of the conspiracy which resulted in [the] deprivation of a constitutional right.' ” Penly v. McDowell Cnty. Bd. of Educ., 876 F.3d 646, 658 (4th Cir. 2017) (quoting Massey v. Ojaniit, 759 F.3d 343, 357-58 (4th Cir. 2014)). “This burden is ‘weighty.' ” Id. (quoting Hinkle, 81 F.3d at 421). “While they need not produce direct evidence of a meeting of the minds, [plaintiffs] must come forward with specific circumstantial evidence that each member of the alleged conspiracy shared the same conspiratorial objective.” Id. (quoting Hinkle, 81 F.3d at 421) The evidence “must, at least, reasonably lead to the inference that [the defendants] positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan.” Id. (quoting Hinkle, 81 F.3d at 421). Because Plaintiff did not respond to Shaw's motion, the only evidence with respect to any alleged conspiracy are the allegations in Plaintiff's verified amended complaint. Plaintiff fails to identify how Shaw's request to hospital employees to charge Plaintiff's GPS monitor or notify him if Plaintiff attempted to leave the hospital violated some constitutional right. Further, Plaintiff's allegations regarding a conspiracy to transport him to court for a court hearing are vague and speculative. First, he does not specifically allege that Shaw told Smith to transport him. Second, he alleges that he is “unsure” as to how Smith came to transport him to court-whether she kidnaped him, put him under duress, or was convinced by an unnamed individual “to do what law enforcement nor probation could do.” Am. Compl. at 17 (ECF No. 56). This evidence is insufficient to create a genuine dispute of fact as to whether there was a meeting of the minds to deprive Plaintiff of a constitutional right.
Further, Plaintiff's claims that Shaw allowed hospital employees to speak against him at the probation revocation hearing are barred by Heck v. Humphrey, 512 U.S. 477 (1994), which requires that a plaintiff must successfully challenge his conviction or imprisonment before he can recover damages for an unconstitutional imprisonment. Pursuant to Heck, a district court must “consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” Id. at 487. If so, then the plaintiff must “demonstrate that the conviction or sentence has already been invalidated.” Id. The Supreme Court's ruling in Heck applies to probation and parole violation proceedings. McGrew v. Texas Bd. Of Pardons & Paroles, 47 F.3d 158, 161 (5th Cir. 1995) (finding that an action challenging validity of probation revocation proceedings calls into question the fact of confinement and thus is subject to Heck); Singleton v. United States, 2011 WL 5509024 * 2 (D.S.C. July 19, 2011) (holding that “Plaintiff's allegations of wrongdoing by Defendants in connection with his arrest/pick-up on and prosecution of the 2010 probation-violation charges are also Heck-barred because it is obvious that Plaintiff's conviction on the charges has not been overturned since he is still incarcerated on that conviction.”).
A judgment in Plaintiff's favor on his claim that regarding the presentation of testimony against him during the hearing would imply the invalidity of his conviction and the unlawfulness of his imprisonment. As to the second prong of the Heck analysis, Plaintiff has not shown that his convictions have been overturned by direct appeal, by post-conviction relief, or by issuance of a writ of habeas corpus. Accordingly, summary judgment is appropriate as to Plaintiff's claims against Shaw as well.
IV. CONCLUSION
For the reasons discussed above, it is recommended that this case be dismissed for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). In the alternative, it is recommended that Defendant Hockett's Moton for Summary Judgment (ECF No. 189) be granted, Defendant Shaw's Motion for Summary Judgment (ECF No. 197) be granted, and this case be dismissed in its entirety.
The parties are directed to the important information on the following page.