Opinion
C. A. 1:20-3689-MGL-SVH
03-25-2021
Jason Michael Montgomery, Plaintiff, v. Officer German Galarza, Nurse Geri Gillespie, Lieutenant Tahirah Thomas, and Captain Michael Rasar, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Jason Michael Montgomery (“Plaintiff”), proceeding pro se and in forma pauperis, filed this complaint for alleged violations of his civil rights by the following employees of the Barnwell County Detention Center (“BCDC”): Tahirah Thomas (“Thomas”), Geri Gillespie (“Gillespie”), and Michael Rasar (“Rasar”) (collectively “Defendants”). More specifically, Plaintiff brings suit pursuant to 42 U.S.C. § 1983, alleging violations of his First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights, concerning treatment he received as a pretrial detainee at BCDC, including allegedly inadequate dental care. [See ECF No. 1 at 4].
Plaintiff misspells the name of Gillespie. The undersigned uses the correct spelling and directs the Clerk of Court to correct the spelling in the caption.
Plaintiff additionally sued German Galarza (“Galarza”) of the Barnwell County Sheriff's Department. On October 27, 2020, the undersigned issued a report and recommendation, recommending Galarza be dismissed as a defendant. [ECF No. 8]. The report and recommendation remains pending before the district judge.
This case is before the court on a motion for summary judgment filed by Thomas and Rasar [ECF No. 32] and a motion for summary judgment filed by Gillespie [ECF No. 35]. Having been fully briefed [ECF Nos. 40, 41, 42, 43, 44], the motions are ripe for disposition. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this case has been referred to the undersigned for all pretrial proceedings. Having carefully considered the record, the undersigned recommends the district judge grant Defendants' motions for summary judgment.
Plaintiff has additionally filed multiple letters with the court. [See, e.g., ECF Nos. 38, 39]. The undersigned has reviewed these filings and incorporates Plaintiff's evidence and arguments contained therein where applicable.
I. Factual Background
A. Dental Concerns
Gillespie is a licensed practical nurse in South Carolina and is employed by Southern Health Partners, Inc., as the medical team administrator at BCDC. [ECF No. 35-2 ¶ 1]. Dr. Robert Williams (“Williams”), who is not a defendant in this case, is the medical director and provides treatment to the detainees and oversees the care provided by Gillespie. Id.
Plaintiff was booked into BCDC on September 27, 2018. [ECF No. 32-4 at 11]. On October 1, 2018, Gillespie noted on Plaintiff's intake form that he had his “natural teeth” and his “teeth hurt.” [ECF No. 32-5 at 3-4]. On November 11, 2018, Plaintiff complained of tooth pain, stating he had “major problems, abscessed gums, broken teeth, like 4 or 5 very loose teeth.” Id. at 10. Gillespie saw Plaintiff in the medical area on the same day or the following day for “abscessed gum/teeth infection” regarding his front teeth. [ECF No. 32-5 at 2, 11-12]. Plaintiff was assessed as having bleeding, redness, foul odor, missing filling(s), swelling, decayed tooth, and tenderness. Id. Williams prescribed a ten-day course of amoxicillin and ibuprofen that Gillespie administered. [ECF No. 32-5 at 2, 11-12, ECF No. 35-2 ¶ 5]. Plaintiff was released from custody on November 27, 2018, but did not seek dental care while outside the detention center. [ECF No. 32-4 at 11, ECF No. 32-5 at 13, 15]
In support of both motions for summary judgment, Defendants have submitted Plaintiff's medical records produced by Southern Health Partners, Inc., pursuant to subpoena. [See ECF No. 32-5; ECF No. 35-2 at 5-55; see also ECF No. 32-1 at 2]. Plaintiff repeatedly argues that Defendants have falsified these records, but offers no admissible evidence in support of his argument.
The undersigned has corrected spelling and punctuation errors in Plaintiff's grievances and responses to the grievances.
On April 26, 2019, Plaintiff was again booked into BCDC and made complaints to Gillespie regarding his teeth at an April 29, 2019 health screening, but he was released on May 8, 2019. [ECF No. 32-4 at 11, ECF No. 32-5 at 13, ECF No. 35-2 ¶ 6]. On July 10, 2019, Plaintiff was again booked into BCDC. [ECF No. 32-4 at 11]. On July 18, 2019, Gillespie saw Plaintiff in medical regarding his “↑ top behind teeth” or “front behind tooth infection” and “educated [him] about going to dentist when released from custody.” [ECF No. 32-5 at 14-15, 18]. Plaintiff was prescribed amoxicillin and ibuprofen. See id.
No further dental complaints appear in Plaintiff's chart until mid-September. On September 15, 2019, Plaintiff requested to be seen by the medical department because of tooth pain, and Gillespie booked an appointment for the following day. [ECF No. 32-5 at 14-16, 20; ECF No. 35-2 ¶ 7]. However, that night, and before being seen by a doctor, Plaintiff pulled out his two front teeth. See Id. Plaintiff went to medical the following day, on September 16, 2019, and Gillespie recorded that Plaintiff complained of pain in all his teeth and of several teeth being loose, noted Plaintiff was a heavy methamphetamine user, and further noted all his teeth had decayed and had missing fillings. Id. at 14-16. Plaintiff was placed on the list to see the dentist and was prescribed amoxicillin and ibuprofen, along with saltwater rinses. See Id. Gillespie noted having explained to Plaintiff-who did not seem to understand and was antagonistic-that his infection must clear before he could be seen by the dentist because the dentist would not pull infected teeth. See id. Plaintiff was placed on suicide watch on the same date. See id.
Gillespie further notes she asked Plaintiff “while on streets, were you going to [the] dentist for teeth and I/M stated ‘no.' I/M stated drugs were more important that teeth. Now I/M wants to blame jail for his bad teeth.” [ECF No. 32-5 at 16].
On September 18, 2019, Gillespie told him to continue taking his medication and using the saltwater rinses and maintained him on suicide watch. See Id. The next day, Plaintiff was scheduled, through a referral form, to see an outside dentist, “Dr. Garnet[t] [“Garnett”] (Dentist) Aiken County Detention Center, ” on September 29, 2019. [ECF No. 32-5 at 23; see also Id. at 17 (Gillespie recording that she spoke with “dentist about I/M situation and dentist (Garnett) stated that he could not do anything until infection clear[s]”)]. Over the course of the next five days, Gillespie checked on Plaintiff at least four times, with Plaintiff yelling and cursing at her, and Gillespie repeatedly informing Plaintiff that he could not go to the emergency room or have his teeth pulled until the infection cleared. Id. at 17. Plaintiff was released from custody before his scheduled appointment. [ECF No. 32-4 at 11, ECF No. 32-5 at 23].
ECF No. 32-5 at 23, 27, 29, 31, 34, 35, 44; ECF No. 35-2 ¶ 8; see also ECF No. 43 at 6 n.6]. Plaintiff does not dispute that he did not see a dentist while released, but denies that he was released on medical bond, submitting evidence that he bonded out, but arguing that it was not a medical bond. [See, e.g., ECF No. 41 at 1-2, ECF No. 41-2 at 1-3]. Gillespie states that Plaintiff was released from custody “on medical bond on September 25, 2019.” [ECF No. 35-1 at 5 (citing ECF No. 32-5 at 23, 27, 29, 31, 34, 35, 44; see also ECF No. 35-2 ¶ 8]. Although Gillespie repeatedly references in her medical notes that Plaintiff was released on medical bond and/or that Plaintiff was expected to see a dentist when released, Defendants have not put forth evidence that Plaintiff was released on medical bond. [See
Plaintiff was booked into BCDC again on January 15, 2020, and has remained incarcerated since. [See ECF No. 32-4 at 11]. On January 23, 2020, at a medical screening, Gillespie notes Plaintiff, while he was released, “was to go to dentist to be seen for major teeth issues, ” but did not. [ECF No. 32-5 at 27]. On February 27, 2020, Plaintiff submitted a grievance requesting to see a dentist, stating he has a bad toothache that was becoming infected, and asking for the tooth to be pulled. Id. at 33. The following day he was seen by Gillespie at sick call regarding his “R ↑ back tooth infection, ” and was assessed, in part, with redness, foul odor, missing filling(s), discoloration, swelling, decayed tooth, and tenderness. Id. at 34. Gillespie's notes state as follows:
I/M released 9/25/2019 and was to go to dentist to have all dental problems fixed. I/M did not go to dentist to be seen. I/M re-incarcerated 1-15-2020 with the same dental problems.Id. at 35. Plaintiff was diagnosed with “multiple teeth infections, ” prescribed amoxicillin and ibuprofen, and restricted from eating sweets until completion of the antibiotic course. Id. at 27.
Gillespie testified she does not diagnose patients or prescribe medications, and those actions are taken by physicians and other qualified medical providers like Williams. [ECF No. 35-2 ¶ 3; see also ECF No. 32-5 at 35].
On March 9, 2020, Plaintiff filed a grievance complaining of not being allowed certain foods and not being allowed to see a dentist, stating “my tooth is pushing up in my gums.” [ECF No. 41-2 at 49, see also Id. at 48]. Plaintiff was taken off the dietary restriction after completing the course of antibiotics the same day. [ECF No. 32-5 at 27].
On April 3 and 4, 2020, Plaintiff filed three grievances, all of which reference ongoing and increasing dental problems and pain, but also state that “another tooth broke off again, ” although it is unknown which tooth. [ECF No. 41-2 at 56-58]. On April 5, 2020, Plaintiff filed a grievance stating as follows:
I have major issues with my teeth. I have black rotting gums and teeth breaking off and black diseased looking gums. It's getting worse and worse. I have been seen and medical and was told before that a dentist was not in their budget. I have been in pain for months. Now I have addressed this issue and pulled teeth out of my own mouth and was sent to a suicide cell for this never getting any medical attention whatsoever. I since then have seen medical again about my dental issues. I have no power to get help. I'm in the hands of the nurse who blames this institution and who this facility blames her. I'm not worried about who is at blame. I'm extremely worried about my well being and have been in a lot of pain and suffering. Please I need professional help medically and this is an emergency. I have been waiting and waiting and my teeth are getting more rotten and breaking off and it's extremely disgusting. Please help me. I'm begging you all.Id. at 44.
The next day, Plaintiff was seen in medical for “teeth infection” and “one small black spot on front gum.” [ECF No. 32-5 at 27, 36-38 (identifying injury/condition location as “all teeth”)]. Gillespie again explained the dentist could not pull a tooth during an active infection and that she would start him on a ten-day course of antibiotics. Id. Plaintiff refused to start a course of antibiotics and signed a refusal form. Id.
The same day, Plaintiff filed a grievance stating his “pain and suffering” was being noted by staff but not addressed. [ECF No. 41-2 at 50]. He received the following response from Gillespie: “Brought to medical to be treated for infection and you refused treatment.” Id. Three days later, Plaintiff filed a grievance stating “I requested to go to the dentist for a gum disease and loose hurting teeth and pain was told I had to have 50 dollars up front the dentist only would pull one tooth and it would be a really long wait [and] it's already been three months.” Id. at 47. He received the following response from Gillespie: “Addressed in earlier response.” Id.
The record indicates that where Plaintiff's grievances were resolved by “S Partner” or signed by “Nurse, ” Gillespie provided the response.
Defendants have not submitted to the court BCDC's dental care policy for detainees, including the mechanism for obtaining an appointment with a dentist, the copays involved, or what occurs when a detainee cannot afford those copays.
Plaintiff filed two grievances on April 22, 2020, stating in part as follows:
I need a dentist like 3 months ago. My gums are so rotten and the nurse will not allow me to go to the dentist. I am in pain. My bottom teeth are literally falling out. I'm in extreme pain and need a professional doctor or dentist. It has gotten so bad now I have already had one come out but the nurse said it was 50 dollars up front and I don't have money like that . . . . I need major dental work. My wisdom tooth is broken in half and its impacted up in my head causing me migraines. Tylenol won't heal it, and I'm not paying fifteen dollars for the nurse to tell me I'm on a list or [] Lt. Thomas to say pre trial detainees that the facility doesn't have to help us . . . .[ECF No. 39-1 at 4, 6]. One of the responses from Gillespie notes as follows: “On 4-6-2020 you were taken to medical to get an antibiotic and refused.” Id.
On April 23 and 24, 2020, Plaintiff filed grievances stating he was in pain due to “impacted wisdom tooth” and had been informed that even if he saw the facility's dentist, that dentist could not do the surgery. [ECF No. 41-2 at 27, 63]. On April 29, 2020, Plaintiff again filed a grievance stating as follows:
I have written so many grievances . . . [but] the nurse does nothing but charge me 15 dollars each time I see her stating the same thing over and over.. I need a professional medical doctor to examine my problem . . . . I have shown the judge my teeth that I have pulled and where my wisdom tooth broke off at the gumline in which the nurse has seen and told me that my situation requires surgery and that they don't have that in the budget and that their dentist doesn't do surgical tooth removals so I sit day after day in excruciating pain.[ECF No. 39-1 at 9]. Plaintiff received the following response from Gillespie:
“You are on the schedule to see the doctor on May 15, 2020 when he comes to the facility.” Id.
On May 3, 2020, Plaintiff filed a grievance stating, “the pain I have is so severe” and the “nurse said it wasn't in her budget to send me out and that I am nothing but a drug addict.” [ECF No. 41-2 at 54]. Plaintiff was provided the following response: “The doctor will see you on May 15, nothing [can] be done until you see the doctor.” Id.
On May 15, 2020, Plaintiff was seen by Williams. [ECF No. 32-5 at 28, see also ECF No. 35-1 at 6]. Although Williams' notes are brief and difficult to read, at the least, these notes record “multiple dental root caries” and a prescription for penicillin and ibuprofen for “tooth infection.” [See ECF No. 32-5 at 24, 28].
Following this visit, Plaintiff filed four grievances the same day and the two following days, complaining that he had not received the prescriptions he needed, but also repeatedly stating as follows:
I was just seen by the medical doctor. I was told that I need surgery and they don't do it. I need to go to a facility that does. This is cruel and unusual punishment . . . . has been looked at by a doctor who said I need surgery. I'm in immense pain and it feels like my whole body is sick. I need major help, and this place now knows that. I have gum disease and . . . the pain in my head is critical.[ECF No. 41-2 at 51; see also Id. at 30, 52, 53]. Plaintiff's complaints in each grievance were “noted, ” and he was informed on May 17, 2020, by Gillespie that his “antibiotic and pain medication will be here today.” Id. at 30.
According to her progress notes, on June 5, 2020, Gillespie scheduled an outside dental appointment with “Dr. Still/Reese” for June 18, 2020, for Plaintiff to have his “wisdom tooth” removed after Plaintiff “stated his family would pay for tooth to be removed.” [ECF No. 32-5 at 25, 28]. However, the next entry, recorded by Gillespie on June 9, 2020, is as follows:
Plaintiff argues that his medical records show that his dental problems were worsening, that the June 18, 2020 appointment was necessary, and that the appointment was made because he saw Williams on May 15, 2020, “who said I needed it removed.” [ECF No. 41 at 2; ECF No. 41-2 at 4-5, 7 (“Seen Dr. Williams, told I had a gum disease, that for the pain, rot, and infection to go away I needed my [tooth] removed. When I ask[ed] when I could get it done, the Nurse replied ‘when I got out or went to prison.'”); see also ECF No. 1 at 5 (alleging in unverified complaint that Defendants “refused me medical help I needed even after seeing a doctor on May 15, 2020 and being diagnosed with gum disease and told that I needed dental surgery to stop the infection, pain, migraines, and loss of hearing”)]. However, the medical record at issue does not indicate the doctor made a recommendation for any surgical procedure, and Plaintiff has submitted no admissible evidence in support of his statements that Williams informed him he needed further dental care beyond the prescriptions written.
Nurse asked I/M if family was going to be able to bring money $250-$350 to facility before dental appt. and I/M stated that they could not and that this facility was responsible for his bill. I/M educated against that when released 9 mos. ago on medical PR to go to dentist and did not that this facility is not responsible for pre-existing dental that was a direct cause of meth drug abuse by I/M. I/M refused to sign the release of responsibility form. Conversation witnessed by Dep. Boyle on the pod and signed that I/M refused to sign form after talking to nurse. I/M advised that if fam. decide to bring money to facility that nurse would reschedule appt. for dentist. This facility has a dentist that I/Ms are sent to but the dentist does not surgically remove teeth that I/M needs and C/O needing done.Id. at 29, see also Id. at 41.
Plaintiff disputes that he agreed to have his family cover the costs, [ECF No. 41-2 at 7], but has not submitted any admissible evidence in support.
Gillespie attests concerning this incident as follows:
The primary incident in which Mr. Montgomery appears to complain that I denied him medical care relates to a dental specialist appointment that I scheduled for him on June 18, 2020. He claims I denied him access to the specialist he wanted to see to have his wisdom teeth removed. This appointment was not deemed medically necessary by Dr. Williams or the dental providers, but was an elective procedure. Mr. Montgomery was advised that if he wanted to proceed with having his wisdom teeth removed while detained, we would make the arrangements for him with the specialist and request that he be transported to the appointment, but he would be financially responsible for the visit. Mr. Montgomery informed me that his family would cover the cost, so I scheduled the specialist appointment for him. However, before the date on which he was to be seen by the specialist, Mr. Montgomery told me that his family did not provide him with the necessary funds, and I cancelled the appointment per this conversation. I did not deny Mr. Montgomery access to the specialist. I told Mr. Montgomery that if things changed and his family provided the funds, I would reschedule the appointment for him.[ECF No. 35-2 ¶ 9].
The parties do not dispute that Gillespie canceled Plaintiff's appointment to see a specialist, although they may dispute when this cancelation occurred. [See, e.g., ECF No. 41 at 1-2, ECF No. 41-2 at 29].
As to this incident, Rasar, as director of BCDC, has attested as follows:
The detention center uses the services of a dentist within the Aiken County Detention Center, a secure facility, but that dentist does not surgically remove teeth. Mr. Montgomery was not satisfied with that arrangement, because he desired to have a private dentist or oral surgery provider surgically remove a tooth. That provider was not under contract to the detention center. I agreed to have him transported to a dental professional of his choice within the local area, even though such a transport to a nonsecure facility requiring additional detention manpower, provided he pay for the services, since he would not use our contract dentist. He agreed to this, and I was informed his family would pay for the service. Shortly before the date of the visit, the appointment was canceled, because Mr. Montgomery told the nurse his family would not, after all, be paying for the services.[ECF No. 32-2 at 3-4].
On the evening of June 9, 2020, Plaintiff filed a grievance stating in part “I don't understand how this facility can allow me to sit in pain. I can't have my major issue fixed because I'm financially not able.” [ECF No. 41-2 at 46]. Plaintiff received the following response: “This was already explained to you.” Id.
On July 28, 2020, Plaintiff filed a grievance requesting dental assistance and stating that his dental problems were increasing, including the “broken impacted tooth.” [ECF No. 40-2 at 5]. Plaintiff received the following response from Gillespie: “I can bring you up for sick call and put on an antibiotic and pain meds. but Lt. Thomas gave you paper on pre-trial inmates. The jail does not send to oral surgeon and pay the bill especially when it is pre-existing.” Id. The next day, Plaintiff filed another grievance stating that his dental condition was worsening and requesting medical attention, stating that he is in “constant pain.” [ECF No. 41-2 at 39]. Plaintiff received the following response from Gillespie: “Will bring up for a sick call to start on antibiotics and your condition is pre-existing that you were to take care of this last year when out on bond.” Id. On July 30, 2020, Plaintiff filed a grievance stating he had seen a doctor on May 15, 2020, was diagnosed with gum disease and an impacted wisdom tooth, and that the condition was worsening. Id. at 62. Plaintiff received the following response from Gillespie: “Already answered.” Id.
On July 30, 2020, Plaintiff was seen in medical for “↑ back R tooth.” [ECF No. 32-5 at 43-44]. Gillespie again assessed Plaintiff as having, in part, redness, foul odor, missing fillings, swelling, agitation, decayed tooth, and tenderness. Id. at 43. Williams prescribed penicillin and ibuprofen, and Gillespie's notes state that Plaintiff “has had pre-existing teeth problems for years, ” but again noted he did not go to the dentist during the four months while released. Id. 43-44.
The next day, Plaintiff filed a grievance stating “the nurse charging me for the same issues I've been having” and that the “problem has not been fixed, ” further stating “the medical staff has denied me even after being told by a doctor also the nurse told me I was nothing but a drug addict and it wasn't in their budget to help me.” [ECF No. 39-1 at 7]. Plaintiff received the following response from Gillespie: “you were not told it was budget; it is because of pre-trial. Lt. Thomas has discussed this with you several times. Every time seen in medical and for medications you will be charged just like everyone else.” Id.
On August 3, 2020, Plaintiff filed a grievance requesting dental assistance and stating again he was diagnosed with gum disease on May 15, 2020. [ECF No. 39-1 at 5]. Around this time, Plaintiff was scheduled, through a referral, to see “Dr. Garnett Dentistry” in Aiken, South Carolina, on August 21, 2020, for 1 tooth extraction due to “pain and decayed.” [See ECF No. 32-5 at 46, see also Id. at 25]. Plaintiff received the following response to his August 3, 2020 grievance from Gillespie: “You have been scheduled for dental appt for 1 tooth extraction. It will be after you been infection free for at least 2 weeks after stopping antibiotics.” [ECF No. 39-1 at 5].
On August 11, 2020, Plaintiff filed a grievance requesting dental assistance and stating he should receive the same care as federal inmates and complaining that his specialist appointment was canceled because his family is poor. [ECF No. 39-1 at 12]. He received the following response from Gillespie: “You are schedule[d] to go out to the dentist for 1 tooth extraction. What the federals get and don't get is no concern to you because you are not a federal inmate.” Id. On the same day, later that night, Plaintiff filed another grievance stating he was being unfairly treated including that he was being denied oral surgery because his family has insufficient funds. [ECF No. 40-2 at 8]. He received the following response from Rasar: “This information is not true. You are already going through Southern Health Partners dental protocol and have visits schedule for tooth extractions. We are under no obligation to have dental work paid for pre-trial inmates in the state of South Carolina.” Id. Plaintiff filed two more grievances, on August 14 and 20, 2020, before being seen by the dentist, complaining of inadequate medical care. [ECF No. 41-2 at 23, 38].
On August 21, 2020, Garnett recorded the following: “Findings: #2 severely broken tooth, ” and “Planned Treatment: #2 (4) root tips removed.” [ECF No. 32-5 at 46, see also ECF No. 35-2 ¶ 10]. On August 23, 2020, Plaintiff submitted an inmate grievance form stating as follows:
I just wanted to say thank you for getting my tooth pulled. I feel so much better. The last 4 months of my life were extremely painful and the pain that the pressure is off. I do apologize but this was a major issue for me. I also was going to ask if I was supposed to get any pain meds because the other guys did and I didn't thank you for your help. I do feel better now.[ECF No. 32-5 at 47]. Gillespie responded that the others referenced did not receive pain medication. Id.
More recently, on March 5, 2021, Plaintiff was scheduled to see a dentist for an additional tooth extraction. [ECF Nos. 42-1, 42-2]. Plaintiff declined treatment and stated in a grievance filed March 7, 2021, that taking him to the dentist for one tooth extraction at a time “is a waste of time and money, ” stating also that he has seven loose teeth. See id.; see also Id. at 42-1 (Rasar attesting that “I am aware it is generally the dentist's practice to pull only one tooth at a visit, but that is a matter for the dentist to decide.”).
B. Additional Concerns
On September 9, 10, and 14, 2020, Plaintiff filed grievances complaining that he had been “stuck in all day lock down, ” but had not broken any rules. [ECF No. 40-2 at 6, 11; ECF No. 41-2 at 24, 33]. Plaintiff received the following response: “Your continued harassment and misuse of the kiosk and untruthfulness is why you were left in the dickens unit. You may request your classification be reviewed every 30 days as I already explained to the housing unit. Do not resubmit on this topic again unless it is your 30 day reclass.” [ECF No. 41-2 at 24]. On September 15, 2020, Plaintiff filed a grievance complaining in part that others were allowed to move to different housing units but he was not, even though he had not broken any rules. [ECF No. 40-2 at 10]
On September 23, 2020, Plaintiff was disciplined for “[m]aking or submitting a false and/or malicious report/grievance, ” providing as follows:
I/M Jason Montgomery w/m were given several directives from Captain Rasar about the abuse of the kiosk. However, Montgomery ignored the directives and he is still writing several grievances about the same issue that have been answered on numerous occasions.[ECF No. 17 at 16]. Plaintiff served 15 days in disciplinary separation and lost certain privileges. Id.
On October 27, 2020, Plaintiff filed a grievance stating he had been told he could be transferred from where he was housed and requesting to be moved. [ECF No. 41-2 at 55]. He received the following response from Thomas: “I don't know who told you that. However, we don't have any room over there right now.” Id.
Rasar attests that Plaintiff “has not been placed in lockdown (known as supermax), but has been placed in max custody, at times for medical observation, and, at other times, because there is no suitable placement for him within the detention center.” [ECF No. 32-2 at 1]. Rasar attests that Plaintiff is currently in a medium security closed unit and makes frequent demands, sometimes several in a day, to the staff via the detention center's electronic kiosk. Id. at 1-2.
In this Circuit, verified complaints by pro se prisoners are to be considered as affidavits when the allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). However, neither Plaintiff's complaint, nor any other filings submitted by Plaintiff to the court are verified. Plaintiff has submitted numerous grievances he filed at BCDC and almost exclusively relies on these as evidentiary support in response to Defendants' motions for summary judgment.
II. Discussion
A. Standard on 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either 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;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly 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.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
1. Deliberate Indifference to a Serious Medical Need
Actions brought pursuant to 42 U.S.C. § 1983 by pretrial detainees are evaluated under the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535, 537 n. 16 (1979); Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). Plaintiff's rights under the Fourteenth Amendment are at least as great as Eighth Amendment protections available to prisoners. Martin, 849 F.2d at 870.
A prisoner has a constitutional right to the medical care necessary to address his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 103- 04 (1976). And a prison official's “deliberate indifference to an inmate's serious medical needs constitutes cruel and unusual punishment under the Eighth Amendment.” See Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). A claim of deliberate medical indifference requires more than a showing of mere negligence, Estelle, 429 U.S. at 105-06, and “more than ordinary lack of due care for the prisoner's interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986). Treatment “must be 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) (citation omitted).
More specifically, Plaintiff must first show, objectively, that he had a serious medical condition. “A medical condition is shown as objectively serious when it ‘would result in further significant injury or unnecessary and wanton infliction of pain if not treated.'” Formica v. Aylor, 739 Fed.Appx. 745, 755 (4th Cir. 2018) (citing Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010)). Plaintiff must then show a prison official's subjective indifference to that need. To satisfy the subjective inquiry of a deliberate indifference claim, the plaintiff must show that the public official “knows of and disregards an excessive risk to inmate safety or health.” See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Here, Plaintiffs extensive dental problems are not in dispute. As early as September 2019, Gillespie was aware that Plaintiff was scheduled for a tooth extraction, although he was released from BCDC prior to seeing the dentist. Gillespie made a note when Plaintiff was reincarcerated in January 2020, that he had the “same dental problems” as when he had been released and had failed to see a dentist while released. In February 2020, Plaintiff requested an infected tooth be pulled, and Gillespie saw Plaintiff concerning his “R ↑ back tooth, ” presumably the tooth that was originally scheduled to be removed in September 2019 and was eventually removed late August 2020.
Because of the undisputed and extensive nature of Plaintiffs dental problems, and because Plaintiffs medical records and grievances rarely indicate which teeth are being referenced, it is not clear, for example, when Plaintiff first complained about the specific tooth that was eventually extracted, particularly where Plaintiff repeatedly complained of an “impacted wisdom tooth, ” various “broken teeth, ” multiple loose teeth, and general and extensive dental pain. Notwithstanding, the record shows that Plaintiff was scheduled in September 2019 to have a tooth removed, presented the same dental problems in January 2020, complained of his “R ↑ back tooth” one month later, and had his tooth #2 extracted by an outside dentist in August 2020, a tooth in the back right-hand side of the mouth. See Hall v. Yup, C/A No. 3:15-00242-RCJ-VPC, 2018 WL 1514380, at *1 n.1 (D. Nev. Mar. 7, 2018) (“The court takes judicial notice of the Universal System of classifying teeth.”).
This is evidence of a serious medical need, particularly where Plaintiff has provided additional evidence of “frequent complaints of severe pain.” See Webb v. Hamidullah, 281 Fed.Appx. 159, 167 (4th Cir. 2008); Wilder v. Krebs, C/A No. 2:17-00763-CMC-MGB, 2018 WL 4574866, at *5 (D.S.C. July 5, 2018), report and recommendation adopted, C/A No. 2:17-763-CMC-MGB, 2018 WL 4020211 (D.S.C. Aug. 23, 2018) (finding serious medical need where “Plaintiff had a cavity that Defendant, a dentist, recognized as needing a filling”); Formica, 739 Fed.Appx. at 756 (“[A] ‘tooth cavity is a degenerative condition, and if it is left untreated indefinitely, it is likely to produce agony and to require more invasive and painful treatments, such as root canal therapy or extraction,' and ‘presents a serious medical need.'”) (citing Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000)).
As to the subjective prong, the Fourth Circuit's opinion in Formica is instructive. In that case, a nurse who was closely involved in the plaintiffs dental treatment process received a complaint from him about a cavity in his molar. Thereafter, she continued to deny him treatment unless he would make a copay, despite his repeated complaints, including canceling appointments to see the jail dentist for lack of copay and twice declining to schedule an appointment with a surgeon for lack of copay, even after the jail dentist's referred the plaintiff to the surgeon. 739 Fed. App'x. at 758 (“The record reflects that Nurse Pitts was aware of or at least must have strongly suspected the substantial risks posed by the untreated Molar, as she was informed of such risks by both Formica and the Jail dentist, and she personally witnessed the degeneration of the Molar's condition.”). This lasted for a period of eight months. The Fourth Circuit reversed grant of summary judgment to the nurse as to the plaintiff's Eighth Amendment claim, holding that the nurse “declined to schedule the extraction unless Formica could pay for the procedure in advance, thereby failing to acknowledge that Formica suffered from a serious medical condition and to take reasonable steps in response.” Id.
There are certain similarities between Formica and the instant case. For example, Gillespie was closely involved in Plaintiff's dental treatment over the course of multiple years and knew of Plaintiff's “major teeth issue, ” including, it appears, the need to have a tooth pulled for almost a year before Plaintiff's tooth was extracted. Additionally, Gillespie repeatedly told Plaintiff that he could not see a dental care provider without paying the necessary costs. However, unlike in Formica, Defendants have put forth evidence that the reason Plaintiff's tooth was not pulled for almost a year was primarily because Plaintiff refused treatment offered to him, including refusing to see the dentist used by BCDC.
As detailed above, on April 6, 2020, Plaintiff was seen in medical for “teeth infection” and Gillespie explained the dentist could not pull a tooth during an active infection, and she would start him on a ten-day course of antibiotics. Plaintiff refused to start a course of antibiotics and signed the refusal form, and answers provided by Gillespie to the numerous grievances filed thereafter reminded Plaintiff that he refused treatment.
After Plaintiff's May 2020 appointment with Williams, who prescribed penicillin and ibuprofen and noted multiple dental carries, in June 2020 Gillespie scheduled, and cancelled, an appointment for Plaintiff to see a specialist, stating the “appointment was not deemed necessary by Dr. Williams or the dental providers, but was an elective procedure.” [ECF No. 35-2 ¶ 9]. Plaintiff has submitted no admissible evidence to refute Gillespie's statement. More significantly, Rasar attests that BCDC uses the services of a dentist who does not surgically remove teeth, Plaintiff “was not satisfied with that arrangement, because he desired to have a private dentist or oral surgery provider surgically remove a tooth, ” and “he would not use our contract dentist, ” Garnett. [ECF No. 32-2 at 3-4; see also ECF No. 32-5 at 17, 23, 25, 46 (indicating Garnett is the contract dentist)].
This is the only evidence submitted by Defendants that Plaintiff refused the services of Garnett and sought a specialist instead beyond what is evidenced from Plaintiff's own grievances, where Plaintiff repeatedly states he needs to see a specialist or surgeon. Other than the September 2019 and August 2020 tooth extraction referrals, Plaintiff's medical records do not indicate he was otherwise referred to Garnett or that Plaintiff declined any referral. Notwithstanding, Plaintiff had not refuted, or even addressed, the above evidence provided by Defendants, and instead, in briefing, has maintained that he was entitled to see a specialist.
It is troubling that the medical record before the court indicates that from September 2019 to August 20, 2020, Plaintiff was never referred to, scheduled to see, or saw a dental care provider and instead received only repeated prescriptions for antibiotics and ibuprofen for his teeth. Notwithstanding, the undisputed evidence presented in this case is that the services of Garnett were available to Plaintiff, and Plaintiff would not see Garnett of his own accord during this time period. The undersigned additionally notes that Thomas and Rasar, in briefing, but without evidentiary support, argue “Plaintiff complains that he was to be charged for the services of the detention center's contract dentist, but he was never required to prepay for those services and was never denied those services for lack of funds.” [ECF No. 42 at 2].
After Gillespie cancelled the specialist appointment, Plaintiff's numerous and ensuing grievances were repeatedly denied in part because he was not entitled to the services of an oral surgeon under the circumstances. In early August 2020, Williams referred Plaintiff to Garnett, not a specialist, who, on August 21, 2020, found a severely broken tooth and performed four root extractions.
Plaintiff's grievances were also denied because, according to Gillespie, BCDC is not responsible for preexisting conditions. Defendants make much of the fact that Plaintiff's dental concerns were preexisting, and that Plaintiff failed to seek treatment during the multiple times he was released from incarceration. However, Defendants have not cited, nor is the court aware, of any case law holding detention personnel exempt from providing care because a serious medical need was preexisting and because the incarcerated person could have sought care while not incarcerated. See, e.g., Formica, 739 Fed.Appx. at 757 (“As the Supreme Court has recognized, when a medical professional of a jail facility knows of a serious medical need, the Eighth Amendment requires reasonable action.”).
Gillespie argues that “[t]he record supports only one conclusion, ” that she “often and repeatedly provided appropriate and reasonable care to Plaintiff-and demonstrates that Plaintiff merely disagrees with the care he received, believing that he should have been given different, better or more care.” [ECF No. 35-1 at 9 (citing Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986) (holding that where records demonstrated prisoner received substantial and prompt medical treatment, there was no deliberate indifference by medical defendants warranting summary judgment))].
Plaintiff argues in response as follows:
Gillespie made me a much needed dental appointment and lied and stated that because I medically P.R. Bonded that this facility wasn't responsible and that I had to have the money up front, and when I could not provide the money she then denied me the much needed medical/dental appointment, left me sick with major pain, rotten gums, and infected teeth all because I couldn't afford it an am a poor (indigent) detainee. While I sit in this detention center sick with my rotten, infected, and painful issue she allowed other detainees to go to the dentist . . . .[ECF No. 41 at 3]. As stated, Plaintiff offers no argument or evidence in response to Defendants' evidence that he was offered and refused Garnett's services.
Notwithstanding his arguments to the contrary, Plaintiff is not entitled to receive the treatment of his choice. As has been held by this court:
While the Constitution requires a prison to provide inmates with medical care, it does not demand that a prisoner receive the treatment of his choice. Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988). “[A] prisoner's mere difference of opinion over matters of expert medical judgment or a course of medical treatment fail[s] to rise to the level of a constitutional violation.” Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010) (internal quotation marks and citation omitted) (alterations in original) . . . .Hewitt v. Birch, C/A No. 0:12-2230-MGL, 2013 WL 4056288, at *5 (D.S.C. Aug. 12, 2013); Benninger v. Patel, No. 6:00-2812-13-JFA, 2001 WL 34684733, at *4 (D.S.C. Apr. 4, 2001) (holding “[n]ot referring Plaintiff to a cervical spine specialist simply does not rise to the level of deliberate indifference” where defendant presented evidence that the South Carolina Department of Corrections' staff could adequately treat all of the plaintiff's medical complaints); see also Martin v. Bowman, C/A Nos. 94-6246, 94-6256, 1995 WL 82444 (4th Cir. Feb. 24, 1995) (holding “no evidence exists to support the contention that the treatment afforded to Plaintiffs was so inadequate as to ‘shock the conscience' or ‘be intolerable to fundamental fairness, '” where, in part, the recommended knee surgery was elective).
Given the recommendation above, it is unnecessary to address Gillespie's additional arguments, including that Plaintiff failed to establish he suffered substantial harm due to her, particularly where Plaintiff has put forth evidence of, at least “frequent complaints of severe pain.” See Sharpe v. S.C. Dep't of Corr., 621 Fed.Appx. 732, 734 (4th Cir. 2015) (“A delay in treatment may constitute deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate's pain.”) (citations omitted)).
Accordingly, the undersigned recommends the district judge grant Gillespie's motion for summary judgment as to Plaintiff's claim for violation of his Fourteenth Amendment rights. Likewise, this claim also fails against Thomas and Rasar. The record reveals that Thomas and Rasar has little personal involvement in the provision of Plaintiff's dental care. See Williamson v. Stirling, 912 F.3d 154, 171 (4th Cir. 2018) (“To establish personal liability under § 1983 . . . the plaintiff must affirmatively show that the official charged acted personally in the deprivation of the plaintiff's rights.” (citations omitted)). Regarding Thomas, the only evidence in the record relevant to this claim are Plaintiff and Gillespie's comments about Thomas found on grievances. These comments indicate Thomas provided Plaintiff with information concerning BCDC's policy on treatment provided to pretrial detainees, a policy that has not been challenged in the instant suit nor been provided to this court, and discussed with Plaintiff several times why BCDC was not obligated to pay to send Plaintiff to a specialist. Rasar's involvement is even more limited, consisting of one response to one grievance informing Plaintiff he was scheduled for a tooth extraction the following day, also referencing the aforementioned policy. This is insufficient evidence to show deliberate indifference by Thomas or Rasar to Plaintiff's serious medical needs.
Plaintiff also argues that, as to his health care and other conditions at BCDC, he has been treated differently and worse than other detainees. [See, e.g., ECF No. 44 at 1]. “[T]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citations omitted). “To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Plaintiff fails to provide any admissible evidence in support.
As stated previously, Plaintiff was not entitled to his choice of treatment via an appointment with a specialist. See Hewitt, 2013 WL 4056288, at *5. Additionally, “jail officials are ordinarily entitled to defer to the judgment of medical professionals.” Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 676 (7th Cir.2012); see also Gordon v. Schilling, 937 F.3d 348, 358 (4th Cir. 2019) (noting “a nonmedical prison official can generally defer to the decisions of prison medical personnel at the institutional level”).
Thomas and Rasar also assert a qualified immunity defense. Under this defense, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity ensures that “[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Maciarie lo v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Whether an officer is entitled to qualified immunity is a question of law for the court and, when there are no relevant disputed material facts, a court should rule on the qualified immunity issue at the summary judgment stage. Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005) (“Ordinarily, the question of qualified immunity should be decided at the summary judgment stage.”).
Gillespie has not asserted a qualified immunity defense.
To resolve a qualified immunity defense, the court must (1) determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendants' conduct violated a constitutional right, and (2) determine whether the right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts may address the two prongs of the qualified immunity analysis in whichever order is appropriate in light of the circumstances of the particular case at hand. Id.
As stated, the facts alleged, taken in light most favorable to Plaintiff, do not show that Thomas and Rasar's conduct violated Plaintiff's Fourteenth Amendment rights, thereby entitling them to qualified immunity. In sum, the undersigned recommends granting Defendants' motions for summary judgment as to Plaintiff's claim for violation of his Fourteenth Amendment rights regarding his dental care.
Defendants note that Plaintiff has failed to produce expert witness testimony regarding his medical care [ECF No. No. 35-1 at 10 n.8, ECF No. 32-1 at 7], with Thomas and Rasar arguing that “[i]f a medical negligence action requires expert testimony to establish the standard of care and deviation therefore, so must this action, ” where “[t]he burden of proof in this case is much higher than in a medical negligence case.” [ECF No. 32-1 at 7]. Plaintiff has not brought a claim for medical malpractice or negligence, and the court is not aware of any requirement that Plaintiff must submit expert witness evidence to support his constitutional claim. See, e.g., Scinto v. Stansberry, 841 F.3d 219, 229-30 (4th Cir. 2016) (“Regarding the absence of expert medical testimony, plaintiffs alleging deliberate indifference must, ‘[a]t a minimum, . . . . specifically describe not only the injury but also its relation to the allegedly unconstitutional condition.' There is no requirement, however, that a plaintiff alleging deliberate indifference present expert testimony . . . .”) (citation omitted). Accordingly, the undersigned declines to recommend grant of summary judgment on this basis.
2. Conditions of Confinement
To state a claim that conditions of confinement violate constitutional requirements, “a plaintiff must show both (1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.” Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993). To demonstrate that the conditions deprived him of a basic human need, a plaintiff must allege that officials failed to provide him with humane conditions of confinement, such as “adequate food, clothing, shelter, and medical care, and [taking] reasonable measures to guarantee the safety of the inmates.” Farmer, 511 U.S. at 832. As to the second prong, a prison official is deliberately indifferent if he has actual knowledge of a substantial risk of harm to a prisoner and disregards that substantial risk. Id. at 847; see also Parrish v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (stating the standard of deliberate indifference requires actual knowledge and disregard of a substantial risk of serious injury).
Plaintiff appears to assert a claim based on his housing assignment within BCDC, calling it a lockdown unit, but has submitted no admissible evidence that he was on lockdown or any other evidence regarding his claim beyond the grievances he submitted concerning this issue. In contrast, Rasar has submitted evidence that Plaintiff was not housed in “lockdown, ” also known as supermax, “but has been placed in max custody, at times for medical observation, and, at other times, because there is no suitable placement for him within the detention center.” [ECF No. 32-2 at 1].
Because Plaintiff has failed to offer any admissible evidence that his constitutional rights were violated by being housed in max custody, his claim fails. See Slezak v. Evatt, 21 F.3d 590 (4th Cir. 1994) (holding the Constitution vests no liberty interest in inmates retaining or receiving any particular security or custody status as long as the conditions or degree of confinement is within the sentence imposed); Orange v. Patterson, C/A No. 9:14-3614-RBH-BM, 2015 WL 8731950, at *10 (D.S.C. Nov. 9, 2015) (holding inmate had “no general constitutional right to placement in any particular prison or to certain privileges, nor does he have any constitutional right to placement in any particular custody classification”), report and recommendation adopted, C/A No. 9:14-03614-RBH, 2015 WL 8665344 (D.S.C. Dec. 11, 2015).
To the extent Plaintiff challenges the September 23, 2020 disciplinary action taken against him for “[m]aking or submitting a false and/or malicious report/grievance, ” he has failed to submit any admissible evidence in support of his challenge. See, e.g., Sandin v. Connor, 515 U.S. 472, 486 (1995) (holding that disciplinary segregation did not present the type of atypical, significant deprivation in which a state might create a liberty interest).
Additionally, to the extent Plaintiff challenges the handling of his requests and grievances within the BCDC, he has no constitutional right to any specific grievance procedure. Booker v. S.C. Dep't of Corr., 855 F.3d 533, 541 (4th Cir. 2017) (“An inmate thus cannot bring a § 1983 claim alleging denial of a specific grievance process . . . .”).
Plaintiff also complains that a package he characterized as legal mail was opened outside his presence [see, e.g., ECF No. 38 at 1]; however, the record shows the package at issue was not marked “legal mail, ” was not from Plaintiff's attorney, but from opposing counsel in this case, and did not contain any confidential information. [See ECF No. 42 at 2-3, ECF No. 42-3]; see also, e.g., Matherly v. Andrews, 859 F.3d 264, 269 (4th Cir. 2017) (holding constitutional Bureau of Prisons' policy of inspecting civil detainee's non-legal incoming and outgoing mail).
Accordingly, the undersigned recommends the district judge grant Thomas and Rasar's motion for summary judgment as to Plaintiff's conditions-of-confinement claims.
3. Additional Concerns
Plaintiff asserted Defendants failed to produce evidence of his previously-filed grievances and responses at BCDC in this case, but then he conceded he had been provided the evidence, as confirmed by counsel for Thomas and Rasar. [See ECF No. 28, ECF No. 31, ECF No. 38 (Plaintiff's stating he received “the Inmate Grievance/Request Records - Evidence that [he has] been begging, asking, and demanding from this facility . . . for at least 11 months”), ECF No. 38-1, ECF No. 42 at 2 (“Plaintiff has had access to his grievances and requests, and the responses thereto from detention center officials and nursing professionals, via the electronic kiosk in the detention center. So that Plaintiff would have paper copies of any material this attorney might use from his file in this case, and would also have paper copies of any such material that he wanted to provide to the Court, the undersigned provided him paper copies of all those materials, even though he was not entitled to paper copies in the ordinary course of his detention.”)].
To the extent Plaintiff challenges BCDC's policy of not printing out grievances for detainees when requested to do so, Defendants have put forth evidence that Plaintiff has access to his previously-filed grievances “via the kiosk, ” [ECF No. 32-2 at 2], and Plaintiff has not provided case law, nor is the court aware of any, constitutionally requiring a detention center to pay to print out grievances at a detainee's request.
III. Conclusion
For the foregoing reasons, the undersigned recommends the district judge grant Defendants' motions for summary judgment. [ECF Nos. 32, 35].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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
901 Richland Street
Columbia, South Carolina 29201
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).