Opinion
Case No. 8:17-cv-03116-HMH-JDA
11-15-2018
Imani Aliyah Braswell also known as Cathy Kirkland Braswell also known as Cathy Delores Kirkland, Plaintiff, v. Administrator Gillispie, Tim Eubanks, Lisa Gainey, Pam Byrd, Southern Health Partners, Veronica Deas, Nurse Corey, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on a motion for summary judgment filed by Defendants Administrator Gillispie, Tim Eubanks, and Lisa Gainey [Doc. 41] and another summary judgment motion filed by Defendants Southern Health Partners, Veronica Deese, Pam Byrd, and Nurse Corey [Doc. 49]. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
Counsel for "Deas" spells the last name as "Deese." [See, e.g., Doc. 49 at 1 n.1.] For purposes of this motion, the Court will employ that spelling.
Plaintiff, proceeding pro se, filed this action on October 31, 2017, alleging violations of her constitutional rights pursuant to 42 U.S.C. § 1983 based on her claim that Defendants were deliberately indifferent to her medical needs and also alleging violations of the Health Care Insurance and Portability and Accountability Act of 1996 ("HIPAA") and the Federal Privacy Act of 1974 (the "Privacy Act"). [Doc. 1.] On July 5, 2018, Defendants Gillispie, Eubanks, and Gainey filed a motion for summary judgment. [Doc. 41.] The next day, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised to respond to the motion and of the possible consequences if she failed to adequately respond. [Doc. 44] Defendants Deese, Byrd, Corey, and Southern Health Partners filed a motion for summary judgment on July 19, 2018. [Doc. 49.] And the following day, the Court filed another Roseboro order. [Doc. 50.] Subsequently, Plaintiff filed a letter in which she agreed to a Rule 41 dismissal of Defendants Gillispie, Eubanks, and Gainey but requested that the Court not dismiss her action as against Defendant Southern Health Partners. [Doc. 67.]
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). In this case, construing the filing date in the light most favorable to Plaintiff, this action was filed on October 31, 2017. [Doc. 1 at 12 (Complaint signature dated October 31, 2017).]
On August 24, 2018, with Plaintiff not having filed any response, this Court ordered Plaintiff to file a response or responses to the summary judgment motions and advised her that if she failed to do so, her action would be subject to dismissal for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and for failure to comply with early orders of this Court setting deadlines for the time for such responses. [Doc. 55.] The Court advised Plaintiff that such a dismissal would "be considered an adjudication on the merits, i.e., with prejudice. [Doc. 55.] On September 19, 2018, with Plaintiff not having filed any response, the undersigned recommended that the case be dismissed pursuant to Federal Rule of Civil Procedure 41(b). [Doc. 64.]
Plaintiff filed a motion on September 24, 2018, requesting an extension of time in which to respond to the motions. [Doc. 66.] The Court granted Plaintiff's motion for an extension and the Court advised that if Plaintiff failed to file a further response to the summary judgment motions by October 10, 2018, the Court would treat her previously filed letter as her response. [Doc. 69.]
On October 4, 2018, Plaintiff filed a response stating/requesting as follows:
Defendants Southern Health Partners, [Byrd, Deese, and Teal], are hereby asked that they provide[] me with a copy of my medical records from Chesterfield County Detention Center. All forms that I submitted and grievances that I wrote while in custody. The giving me the wrong medication the wrong dosage. The yellow sticky note w[h]ere they put on my folder denying me my meds.[Doc. 76.] The same day, Plaintiff filed another response conceding that Defendants Gillispie, Eubanks, and Gainey "are granted [summary judgment]." [Doc. 77.]
Plaintiff's response actually stated that Defendants Gillispie, Eubanks, and Gainey should be granted "motion 49." [Doc. 77.] Given that Docket Numbers 41 and 49 corresponded to Defendants' respective motions for summary judgment, the Court construes Plaintiff's filing as conceding that Defendants Gillispie, Eubanks, and Gainey are entitled to summary judgment. In so doing, the Court recognizes that the summary judgment motion of these Defendants was actually Docket Number 41; it was the motion of Defendants Deese, Byrd, Corey, and Southern Health Partners that was Docket Number 49. With Plaintiff having conceded that Defendants Gillispie, Eubanks, and Gainey are entitled to summary judgment, the Court concludes that summary judgment should be granted in their favor. See Buzzard v. Ballard, No. 2:15-cv-06376, 2018 WL 4323929, at *4 (S.D. W. Va. Sept. 10, 2018). In any event, the Court also notes that even absent Plaintiff's concession, these Defendants would have been entitled to summary judgment for the same reasons that the Court will explain entitle Defendants Deese, Byrd, Corey, and Southern Health Partners to summary judgment.
On October 11, 2018, Defendants Deese, Byrd, Corey, and Southern Health Partners filed a reply opposing Plaintiff's request for discovery and responding to Plaintiff's filing to the extent the filing opposed summary judgment for other reasons. [Doc. 79.] The two summary judgment motions are now ripe for review.
BACKGROUND
Plaintiff was a pretrial detainee at the Chesterfield County Detention Center ("the CCDC") during all times relevant to this action. [Doc. 1 at 7; see also Doc. 49 at 2.] During the times relevant to the action, Southern Health Partners had a contract to provide medical services at the CCDC, and Defendants Byrd, Deese, and Teal were nurses employed by Southern Health Partners doing work at the CCDC. [Doc. 49 at 2.]
Plaintiff alleges Defendants disclosed private information regarding her medical condition to other CCDC inmates. [Doc. 1 at 6, 15-16.] She also alleges that Defendants failed on some days to provide her with certain medications that she needed for particular health conditions. [Id. at 6, 16-20.] Based on these factual allegations, Plaintiff alleges violations of her rights under HIPAA, the Privacy Act, and the Eighth Amendment. [Id. at 4-5, 15-20.] Plaintiff seeks $500,000 in actual damages and $1,000,000 in punitive damages and an order requiring Defendants to "[g]ive classes on HIV/AIDS." [Id. at 6.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for her. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under § 1983
This action is filed pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, a civil action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
Section 1983 provides, in relevant part,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant "deprived [the plaintiff] of a right secured by the Constitution and laws of the United States" and (2) that the defendant "deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage." Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
The under-color-of-state-law element, which is equivalent to the "state action" requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.Id. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, "the deed of an ostensibly private organization or individual" may at times be treated "as if a State has caused it to be performed." Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Specifically, "state action may be found if, though only if, there is such a 'close nexus between the State and the challenged action' that seemingly private behavior 'may be fairly treated as that of the State itself.'" Id. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). State action requires both an alleged constitutional deprivation "caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible" and that "the party charged with the deprivation [is] a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party's allegedly unconstitutional conduct is fairly attributable to the State requires the court to "begin[ ] by identifying 'the specific conduct of which the plaintiff complains.'" Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.(A) 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; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
DISCUSSION
Discovery
The Court initially addresses Plaintiff's request for discovery. "The Court may defer considering a motion for summary judgment '[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.'" Keith v. Cartledge, No. 1:13-1131-RMG, 2014 WL 3867838, at *1 (D.S.C. Aug. 6, 2014) (citing Fed. R. Civ. P. 56(d)). "To be successful on a Rule 56(d) request, a party must provide specific reasons why discovery was necessary and identify information that he believes would be adduced at discovery." Id. (citing Mercer v. Arc. of Prince Georges Cty., Inc., 532 F. App'x 392, 400 (4th Cir. 2013)). The summary judgment should be denied or deferred when "the nonmoving party has not had the opportunity to discover information that is essential to his opposition." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986) (discussing precursor to Rule 56(d)). On the other hand, "if the nonmoving party has not been diligent in pursuing discovery or if additional discovery will not create a genuine issue of material fact, a Rule 56(d) motion is properly denied." Keith, 2014 WL 3867838, at *1 (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 n.2 (4th Cir. 2004); Strag v. Bd. of Trustees, Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995)).
In this case, it is apparent that Plaintiff has not been diligent in pursuing discovery. Plaintiff filed this case on October 31, 2017. [Doc. 1 at 12.] Defendants Southern Health Partners, Byrd, Deese, and Teals ("Defendants") note that nearly six months later, on May 21, 2018, they served discovery, but that Plaintiff never served any discovery upon them. [Doc. 79 at 1.] Defendants filed their summary judgment motion on July 19, 2018, the deadline the Court had established for the parties' filing dispositive motions. [Docs. 46; 49.] It was only in her response, docketed months later on October 4, 2018, that Plaintiff sought discovery for the first time. [Doc. 76]. She did so without offering any explanation as to why she had not done so previously in the many months during which her case was pending, before Defendants filed their summary judgment motion. In the absence of such an explanation, there is no basis for the Court to defer consideration of Defendants' summary judgment motion. Keith, 2014 WL 3867838, at *1. Accordingly, the Court turns to the merits of the issues presented.
HIPAA
Defendants first argue that they are entitled to summary judgment regarding Plaintiff's HIPAA claim because HIPAA does not confer a private right of action on an individual. [Doc. 49 at 8-9.] The Court agrees with Defendants. See White v. Brand, No. 2:08-cv-255, 2009 WL 2105993, at *2 (E.D. Tenn. July 13, 2009); Suggs v. N. Strand OB/GYN, No. 07-3911-TLW-TER, 2009 WL 113445, at *5 (D.S.C. Jan. 14, 2009); Williams v. Jones, No. 9:07-cv-3437-MBS-GCK, 2008 WL 948285, at *5 (D.S.C. Apr. 4, 2008) (finding that Plaintiff cannot file a § 1983 claim based upon a violation of HIPAA).
The Privacy Act
Defendants next contend that they are entitled to summary judgment concerning Plaintiff's Privacy Act claim. Again, the Court agrees.
"The [Privacy] Act gives agencies detailed instructions for managing their records and provides for various sorts of civil relief to individuals aggrieved by the failure on the Government's part to comply with the requirements." Doe v. Chao, 540 U.S. 614, 618 (2004). To recover under the Privacy Act, a plaintiff must prove pecuniary loss; merely alleging general damages is not sufficient. Poursaied v. EEOC, No. 1:15-cv-548, 2015 WL 7112008, at *3 (M.D.N.C. Nov. 13, 2015); Cornelius v. McHugh, No. 3:14-cv-00234-MGL, 2015 WL 4231877, at *7 n.6 (D.S.C. July 13, 2015). As Defendants point out, Plaintiff has not alleged any pecuniary loss, let alone forecasted evidence of such a loss. [Doc. 49 at 10-11.] Accordingly, Defendants are entitled to summary judgment on Plaintiff's Privacy Act claim.
The Privacy Act defines "agency" as "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C. § 552a(a)(1) (incorporating 5 U.S.C. § 552(f), which in turn incorporates 5 U.S.C. § 551(1)). The Act applies only to federal agencies. Linder v. Friedman, No. 1:12-cv-3051, 2012 WL 6633905, at *1 (D.S.C. Dec. 20, 2012); see also Wilson v. Benedict Coll., No. 3:05-3614, 2006 WL 2433794, at *4-5 (D.S.C. Aug. 21, 2006).
Eighth Amendment Deliberate Indifference
Defendants finally maintain they are entitled to summary judgment on Plaintiff's Eighth Amendment claim alleging that they were deliberately indifferent to her medical needs. The Court agrees.
The Eighth Amendment prohibits prison officials from acting with deliberate indifference to a prisoner's serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). To establish deliberate indifference, an inmate must allege both that he experienced a deprivation that was "objectively sufficiently serious" and "that subjectively the officials acted with a sufficiently culpable state of mind." De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003). Negligence or medical malpractice will not establish a sufficiently culpable state of mind. Id. at 634; Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999). Instead, a constitutional violation does not occur unless the medical provider's actions were "so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness." Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837 (1994). An inmate's mere disagreement with the course of treatment provided by medical officers will not support a valid Eighth Amendment claim. Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975). Further, in the context of prisoner medical care, the Constitution requires only that prisoners receive adequate medical care; a prisoner is not guaranteed his choice of treatment. Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988) (citing Layne v. Vinzant, 657 F.2d 468, 471 (1st Cir. 1981)).
Plaintiff contends that Defendants were deliberately indifferent to her depression, her diabetic neuropathy, her gallbladder stones, and her HIV/AIDS. [Doc. 1 at 16-20.] Attached to their summary judgment motion, Defendants submitted the affidavit of Kendra McQueen Fling. [Doc. 49-1.] In the affidavit, Fling states that she is a nurse practitioner who "work[s] for Southern Health Partners, providing medical services for [the CCDC] and that she "reviewed Ms. Braswell's Complaint and [her] medical records from the CCDC." [Id. at 1.] The affidavit states that "[t]he medical records establish that Ms. Braswell received medical care, received appropriate meals, and received her prescribed medications." [Id. at 2.] The affidavit then proceeds to address each of Plaintiff's alleged instances of deliberate indifference and explains why in each instance Plaintiff received appropriate medical care. [Id. at 2-5.]
The Court concludes that Plaintiff has failed to create a genuine factual dispute regarding Defendants' deliberate indifference to any of her alleged conditions.
Regarding her depression, Plaintiff concedes that Defendants were treating her depression with the appropriate type of medication, but she alleges that Defendants were giving her 80 mg of the medication twice a day when the appropriate treatment would be 40 mg twice per day. [Doc. 1 at 16-17.] Plaintiff's mere disagreement with the course of treatment provided for her depression cannot support a valid Eighth Amendment claim, however. See Russell, 528 F.2d at 319.
Plaintiff's complaints regarding the treatment she received for her other conditions were based not on Defendants' judgment as to how the conditions should be treated, but on Defendants' alleged failings in executing its treatment. She alleges Defendants on two occasions did not give her medicine for her diabetic neuropathy. [Id. at 17-18.] She claims that on one occasion she was "[d]enied treatment for gallb[la]dder stones." [Id. at 18.] And she alleges that on three particular days she did not receive some or all of her HIV/AIDS medication, and on another day she received her medication, but it was four hours late. [Id. at 18-20.] Such allegations of isolated failings during the course of medical treatment do not support a claim under the Eighth Amendment. Jones v. Busch, No. 9:15-0722-MGL, 2015 WL 6125428, at *3-4 (D.S.C. October 16, 2015) (ruling that prisoner plaintiff did not state a valid Eighth Amendment claim when he "allege[d] that on a few occasions he was given the wrong medications, the wrong dosage of medication, or that his receipt of his prescribed medication was delayed" but did not "assert[] that he suffered any harm or negative effects from the[] alleged actions"). Accordingly, the Court concludes that Defendants are entitled to summary judgment on this claim as well.
Fling's affidavit noted that Plaintiff's records reflect that she complained about pain related to gallstones on September 8, 2017, and she received treatment the same day, specifically a prescription for Phenergan, Imodium, and Tylenol. [Doc. 49-1 at 3.] Also in response to Plaintiff's gallstones complaint, "Medical staff notified the CCDC kitchen staff to supply a liquid tray for [Plaintiff's] lunch" the next day. [Id.]
The Court also notes that even to the extent that Plaintiff's pro se Complaint could be construed to allege a medical malpractice claim, such a claim would fail as a matter of law because Plaintiff has failed to satisfy the pre-suit requirements, including the requirement under S.C. Code Ann. § 15-79-125, which requires the filing of a "Notice of Intent to Sue."
Because the Court determines that summary judgment should be granted to Defendants on each of Plaintiff's claims for the reasons the Court has identified, the Court declines to address Defendants' remaining arguments offered in support of their summary judgment motion. --------
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendants' motions for summary judgment [Docs. 41; 49] be GRANTED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge November 15, 2018
Greenville, South Carolina