Opinion
C. A. 2:22-cv-00594-JFA-MGB
05-24-2023
Larry Billy Rhinehart, Plaintiff, v. Ms. Ray, Tamiko Gregg-Wright, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Larry Billy Rhinehart (“Plaintiff”) filed this action pro se on February 25, 2022, pursuant to 42 U.S.C. § 1983. As discussed further below, Plaintiff later obtained counsel. (Dkt. No. 52.) This matter is before the Court on Defendants' Motion for Summary Judgment. (Dkt. No. 41.) This case was referred to a United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civil Rule 73.02(B)(2), D.S.C. For the reasons set forth below, the undersigned recommends Defendants' motion be granted.
BACKGROUND
Plaintiff brings this action alleging violations of his Eighth and Fourteenth Amendment rights based on events that occurred while he was a pretrial detainee at Sumter-Lee Regional Detention Center (“Sumter-Lee” or “Detention Center”). More specifically, the Amended Complaint states that on December 23, 2021, Defendant Patricia Ray, the Director at Sumter-Lee, ordered that Plaintiff be placed in lockup (also known as “Bravo Unit” or “B-pod”) without any explanation, write-up, or disciplinary hearing. (Dkt. No. 15 at 6, 17; Dkt. No. 15-2 at 11; Dkt. No. 15-4 at 3; Dkt. No. 41-7 at 1.) Plaintiff also refers to this housing as “solitary confinement.” (Dkt. No. 15-4 at 4.) Plaintiff later filed an internal grievance asking that he be moved to a “normal unit” (Dkt. No. 1 at 11), but Defendant Ray allegedly informed him that he would remain in lockup until released on bond or transferred to a state prison (id. at 7). Plaintiff alleges he remained in lock-up for the rest of his time at Sumter-Lee. (Dkt. No. 15 at 6, 17.) Plaintiff left Sumter-Lee when he was transferred to the South Carolina Department of Corrections (“SCDC”) on August 15, 2022.
Plaintiff claims that during his first week in lockup, Defendant Ray instructed her staff to prohibit him from showering, using the telephone, and participating in recreation. (Dkt. No. 15 at 17; Dkt. No. 15-2 at 3.) Plaintiff alleges that after that first week, his access to the showers, phones, and recreation privileges was sporadic and, sometimes, denied entirely “for months.” Dkt. No. 15-4 at 5.) The Complaint also alleges that the showers were covered in black mold, the ceiling leaked water onto Plaintiff's floor, and the air vents were so dusty that Plaintiff had difficulty breathing. (Dkt. No. 15-2 at 5-12.) Plaintiff alleges that the dirty state of his unit exacerbated his lupus, requiring him to use an oxygen tank on at least one occasion and causing him to throw up his food. (Id.) Plaintiff alleges that he requested medical care for his lupus “several of times,” but was told that he could not receive treatment until Sumter-Lee received his medical records from SCDC. (Dkt. No. 15-4 at 6.)
The Amended Complaint also raises specific concerns regarding Defendant Tamiko Gregg-Wright, a Senior Corporal at Sumter-Lee, alleging that she subjected him to “disrespectful, rude and taunting” behavior. (Id. at 18; Dkt. No. 41-3 at 1.) Plaintiff alleges he witnessed Defendant Gregg-Wright assault another detainee without any consequences. (Dkt. No. 15-4 at 7.) Plaintiff alleges that at times, Defendant Gregg-Wright denied him access to recreation, showers, and visitation, without any “disciplinary papers.” (Dkt. No. 15-4 at 10.) Plaintiff also alleges that Defendant Gregg-Wright cursed at him when he asked her when he would “come out of” lock-up, and she gave him “the wrong dinner tray.” (Dkt. No. 15 at 17; Dkt. No. 15-4 at 5.) Plaintiff alleges Defendant Gregg-Wright allowed a pre-trial detainee in maximum security custody to move “freely everyday with no restraints, handcuffs, or ankle bracelets,” but she did not allow Plaintiff the same unrestricted movement. (Dkt. No. 15 at 18.) Based on the foregoing allegations, Plaintiff brings claims against Defendants Ray and Gregg-Wright for violation of his constitutional rights, alleging a conditions of confinement claim, a procedural due process claim for being placed in administrative segregation without a disciplinary hearing and a claim for alleged inadequate medical treatment in relation to his lupus. (Dkt. No. 15-4.) He brings these claims against these Defendants in their individual capacities only. (Dkt. No. 15 at 3.)
As noted above, Plaintiff filed this action pro se on February 25, 2022. (Dkt. No. 1.) On October 20, 2022, Defendants filed a Motion for Summary Judgment. (Dkt. No. 41.) On October 21, 2022, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 42.) After Plaintiff filed a notice of address change, the Court ordered Defendants to re-serve their Motion on Plaintiff at his new address and issued an amended Roseboro Order. (Dkt. Nos. 44; 46.) On November 21, 2022, Plaintiff moved for an extension of this deadline. (Dkt. No. 49.) The Court granted Plaintiff's Motion and extended Plaintiff's deadline to respond to Defendant's Motion for Summary Judgment to December 30, 2022. (Dkt. No. 50.)
On November 30, 2022, attorney Sarah Norton filed a notice of appearance on behalf of Plaintiff. (Dkt. No. 52.) When Plaintiff still did not file a response brief by the December 30, 2022 deadline, the Court extended Plaintiff's deadline to respond to January 20, 2023. (Dkt. No. 53.) On January 6, 2023, Plaintiff, through counsel, filed a response in opposition to the Motion for Summary Judgment. (Dkt. No. 54.) The response contains three pages of briefing and two exhibits consisting of Plaintiff's request to staff members. (Id.) Because the briefing appears to be missing many pages, the Court issued an Order advising Plaintiff he had until January 20, 2023 to update his response brief. (Dkt. No. 60.) Plaintiff has not submitted any additional briefing, and Defendants did not file a reply brief. This motion is ripe for disposition.
STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). “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.
DISCUSSION
In their motion, Defendants argue, inter alia, that Plaintiff cannot establish any violation of his constitutional rights under § 1983. (Dkt. No. 41-1.) They also argue that this action should be dismissed under 28 U.S.C. § 1915(E) and § 1915A and should count as a strike. (Id.) In response, Plaintiff argues that “the record shows sufficient evidence to create a genuine issue of material fact such that a reasonable jury could find in Plaintiff's favor.” (Dkt. No. 54 at 1.) However, Plaintiff cites no specific evidence in support of this argument. Nor does he more generally discuss the evidence or factual allegations in this case.
Defendants have submitted several items of evidence in support of their motion including affidavits from Defendants and several other officers at the Detention Center, along with portions of Plaintiff's medical record and disciplinary record. (Dkt. No. 41-2-41-8.) As noted above, Plaintiff has submitted two request to staff member forms that he submitted in January and February of 2022. (Dkt. No. 54-1; Dkt. No. 54-2.)
Before considering Plaintiff's claims, the undersigned first summarizes the relevant evidence in the record.
A. Evidence
1. Plaintiff's Verified Amended Complaint and Grievances
Plaintiff submitted the Amended Complaint when he was appearing pro se-it is signed by Plaintiff and indicates that the statements within are made “under penalty of perjury.” (Dkt. No. 15 at 1.) Accordingly, the undersigned construes it as a verified complaint and considers it to be an affidavit for summary judgment purposes. See Goodman v. Diggs, 986 F.3d 493, 495 (4th Cir. 2021) (“A complaint is ‘verified' if it is ‘signed, sworn, and submitted under penalty of perjury.'” (quoting James v. Hale, 959 F.3d 307, 314 (7th Cir. 2020))). As discussed above, Plaintiff claims that he was placed in “solitary confinement” by Defendant Ray on December 23, 2021, without any explanation, write-up, or disciplinary hearing. (Dkt. No. 15 at 6, 17; Dkt. No. 15-2 at 11; Dkt. No. 15-4 at 3-4; Dkt. No. 41-7 at 1.) Plaintiff claims that during his first week in lockup, Defendant Ray instructed her staff to prohibit him from showering, using the telephone, and participating in recreation. (Dkt. No. 15 at 17; Dkt. No. 15-2 at 3.) Plaintiff avers that after that first week, his access to the showers, phones, and recreation privileges was sporadic and, sometimes, denied entirely “for months.” Dkt. No. 15-4 at 5.) Plaintiff also avers that the showers were covered in black mold, the ceiling leaked water onto Plaintiff's floor, and the air vents were so dusty that Plaintiff had difficulty breathing. (Dkt. No. 15-2 at 5-12.) He states that “Nunnery Roofing & Remodeling came on February 18, 2022 “to look at the hole in the ceiling in Bravo Unit.” (Dkt. No. 15-2 at 6.)
Plaintiff avers that the dirty state of his unit exacerbated his lupus, requiring him to use an oxygen tank on at least one occasion and causing him to throw up his food. (Id. at 6-7.) More specifically, he alleges that on February 20, 2022, he had a panic attack from the dust coming through the vents. He avers that because there was no one to walk him to medical, an oxygen tank was provided in his cell, with the tubes provided “through the flap in the door.” (Id. at 6.) Plaintiff avers that he requested medical care for his lupus “several of times,” but was told that he could not receive treatment until Sumter-Lee received his medical records from SCDC. (Dkt. No. 15-4 at 6.)
Plaintiff avers that Defendant Gregg-Wright subjected him to “disrespectful, rude and taunting” behavior. (Dkt. No. 15. at 18; Dkt. No. 41-3 at 1.) Plaintiff alleges he witnessed Gregg-Wright assault another detainee without any consequences. (Dkt. No. 15-4 at 7.) Plaintiff alleges that at times, Defendant Gregg-Wright denied him access to recreation, showers, and visitation, without any “disciplinary papers.” (Dkt. No. 15-4 at 10.) Plaintiff also alleges that Defendant Gregg-Wright cursed at him when he asked her when he would “come out of” lock-up, and she gave him “the wrong dinner tray.” (Dkt. No. 15 at 17; Dkt. No. 15-4 at 5.) Plaintiff alleges Gregg-Wright allowed a pre-trial detainee in maximum security custody to move “freely everyday with no restraints, handcuffs, or ankle bracelets,” but she did not allow Plaintiff the same unrestricted movement. (Dkt. No. 15 at 18.) Plaintiff indicates that as a result of Defendants' conduct, he has suffered “emotional strain, anxiety, can't sleep long or rest, mental[] anguish, issue with anger problems and temper ....” (Dkt. No. 15-2 at 12.)
Plaintiff has also submitted a grievance he sent on January 28, 2022, in which he states he has been in the Bravo unit “with no charge” for 32 days. (Dkt. No. 54-1 at 2.) Plaintiff asks “Ms. Ray” to move him to a “normal unit” so he can “have access to the phone and rec.” (Id.) The response is dated February 1, 2022, and states, “No sir this will be where you are housed until you either bond out, go to court for your charge to go home or prison. I am not considering you for an open pod.” (Id.) Plaintiff has also submitted a grievance he sent on February 28, 2022, in which he states, “Ms. Ray I have done no wrong with no write ups . . . but u have let 2 detainees go to open unit with murder and lots of write ups but keep me back here. Can I please go 2 open pod.” (Dkt. No. 54-2 at 2.) The response is dated March 7, 2023 and states, “You are on administrative segregation.” (Id.)
2. Affidavit from Sergeant McCray
Defendants do not provide the first names of any third parties.
Defendants have submitted an affidavit from Sergeant McCray, who avers that as the shift supervisor at Sumter-Lee in December 2021, he authorized that Plaintiff “be moved to B-pod” after Plaintiff made a possible PREA claim in which he “told the officer in his pod that he was not comfortable in that pod based on comments and actions of a possible sexual nature that had been made by other inmates in his current pod.” (Dkt. No. 41-6 at 1-2.) McCray avers that because Plaintiff “was being administratively moved due to concerns about his safety,” there “was no requirement for a hearing” regarding his move. (Id. at 2.) McCray avers that Defendant Ray was not involved in the decision to move Plaintiff to B pod. (Id.) McCray has attached to his affidavits incident reports that substantiate his statements. (Id. at 6-8.)
According to McCray, Plaintiff has had several incidents since his transfer to B pod where he has not complied with officer orders, including refusing to remove “his arm so the officer can close his food flap.” (Id. at 3.) Plaintiff has been charged with rules violations as a result. (Id.) McCray has submitted disciplinary records documenting these incidents on June 13, 2022, and August 14, 2022. (Id. at 11-18.) McCray avers that he is “not aware of this inmate being denied recreation, except when he has had disciplinary charges, and to my knowledge, he has been treated like all other inmates.” (Id. at 4.) McCray further avers that “based on [Plaintiff's] continual failure to follow the Detention Center rules or officer directives, it was my opinion that his inmate had shown he could not follow the rules to be housed in an open pod.” (Id. at 3.)
Specific to the incident on August 14, 2022, McCray avers that he “was called to assist Officer Howell” because Plaintiff “had wrapped a blanket over his food flap to keep it from closing.” (Id. at 3.) McCray avers that Plaintiff refused to follow orders and “got what appeared to be a broken broom, and he tried to strike both me and Officer Howell. In order to protect us, I deployed my taser.” (Id.) McCray avers that while Plaintiff “would have been charged and had a hearing on the charge,” he “was transferred the day after this incident” to SCDC and “as a result, there was no hearing on this charge.” (Id.) McCray has submitted the incident report and other disciplinary records pertaining to this incident. (Id. at 15-18.)
3. Affidavit from Defendant Gregg-Wright
Defendants have also submitted an affidavit from Defendant Gregg-Wright. Defendant Gregg-Wright avers that during the events at issue, she worked as a pod officer assigned to B-pod, and she only worked during the weekdays. (Dkt. No. 41-3.) Gregg-Wright avers that she was not involved in the decision to move Plaintiff to B-pod and she also does “not have input on what cell or pod assignments inmates have.” (Id. at 2.) She avers that when Plaintiff was transferred to B-pod, “his roommate had already come out for recreation, as it was later in the day, and recreation was over for that day, which was a Thursday. His next turn for recreation, on one of my shifts, was the following Monday, and he was allowed to come out for recreation at that time.” (Id.) Gregg-Wright denies that Plaintiff was placed in solitary confinement, stating that “while there have been times he has been in a cell by himself, depending on the numbers in B pod, he has often times had a cellmate, and is able to go out on recreation with other inmates. He also at times requested to be in a cell by himself.” (Id. at 3.)
With respect to Plaintiff's claims of an unclean cell, Gregg-Wright avers that she “did not notice that [Plaintiff's] cell was dirty, and the inmate did not ask if he could clean before being put in there. Inmates are given cleaning supplies and can clean their cells during their recreation time, if they want to. I have never kept cleaning supplies from any inmate.” (Id. at 2.) She avers that there are no “holes in the ceilings as he claims, as the ceilings are cement, and that would be serious security issue. There have been water problems when inmates try to flood their cells.” (Id. at 6.)
As for Plaintiff's claims about recreation, Gregg-Wright avers that Plaintiff
has been provided the same recreation as all other inmates in B pod, except for when he has been charged with a rules violation and has had recreation taken from him. There are also times where all inmates cannot come out of their cells, such as during feeding times, when DHEC is at the jail providing vaccines, when an incident occurs, or when there is a lock down of the pod due to behavior issues or health issues. However, if there is an interruption in the recreation schedule, when the interruption ends, recreation picks back up.(Id. at 2-3.) Gregg-Wright avers that she managed “the rotations of the inmates out of their cells for recreation, and during this time, they could shower, use the telephone, exercise, use the kiosk or canteen, or socialize. More recently, the Detention Center obtained tablets, which inmates are given daily, and these can be used to file grievances, request medical, or order from the canteen.” (Id. at 3.) Gregg-Wright claims that she “never denied an inmate the right to shower while he was out on recreation, but often times, inmates will use the sink in their cell in B pod to wash so they do not have to take a shower during recreation.” (Id.)
Gregg-Wright avers that she has “been involved in a number of write-ups of this inmate, and this inmate regularly violated Detention Center rules and refused to follow officer's orders.” (Id. at 3.) Gregg-Wright avers that on April 14, 2022, Plaintiff “made threats against” her while she was serving food. (Id. at 4.) A disciplinary record from this incident shows that when Gregg-Wright first gave Plaintiff “his tray, he said, ‘I don't eat Deli meat.'” (Id. at 10.) Gregg-Wright then told Plaintiff, “You don't have deli meat, the kitchen served hot dogs.” (Id.) She also “called the kitchen” and the food service employee confirmed, “The hotdogs are not deli meat and that he can have those.” (Id.) Plaintiff then “became belligerent, took the tray, and started calling me ‘A broke bitch and that he was going to punch me in my face and knock my wig off.' He kept yelling all kinds of threats.” (Id.) Plaintiff was charged with threats against staff and he was found guilty at the subsequent hearing. (Id. at 4, 10-11.) Gregg-Wright avers that following the incident, Plaintiff “was deemed a security threat” and “could not go out for recreation until his hearing on the charges.” (Id. at 4.) At his hearing, Plaintiff “was found guilty but given time served, meaning the recreation he had already missed.” (Id.)
Gregg-Wright avers she charged Plaintiff “numerous times” with refusing to move his arm so she could close his food flap, “which is a security breach.” (Id.) She avers that in such instances, she “informally resolve[s] the charge by taking away recreation or another privilege.” (Id.) Gregg-Wright has submitted disciplinary records documenting one such incident on June 21, 2022. (Id. at 13.) She has also submitted disciplinary records documenting Plaintiff's “continual disrespect of [Gregg-Wright] and all officers,” resulting in charges of “disrespecting an officer.” (Id. at 5, 17-18.) She denies ever calling out Plaintiff's charges to other inmates. (Id. at 5.)
Gregg-Wright denies that she has ever failed to give Plaintiff his food tray, and states that he often “refuses to accept his food tray if he does not like the food.” (Id. at 4.) Gregg-Wright avers that she called medical on July 7, 2022, because Plaintiff said he could not eat what was being offered, “and medical advised they would put him on a vegetarian diet since he did not like the meat provided.” (Id. at 5.) She has submitted disciplinary records documenting this incident. (Id. at 15.) The disciplinary record shows that a nurse told Gregg-Wright “that [Plaintiff] was placed on this diet without a doctor backing the order and she don't see an allergy test to prove that he is allergic to cold cuts. She said she will order the allergy test and until the results come in he is to be placed on a vegetarian diet. The detainee was notified of what the nurse said.” (Id. at 15.)
Gregg-Wright further avers that she has “no involvement in the medical care of inmates, as that is handled by an independent party.” (Id. at 6.) She claims that she does “not control when nurses see inmates.” (Id. at 7.) Gregg-Wright denies Plaintiff's allegations about her interference with and/or failure to respond to grievances, stating she is “not involved in responding to grievances as I do not have access to the kiosk system where inmates place their grievances.” (Id.)
Gregg-Wright avers that she has “always acted professionally in dealing with [Plaintiff],” and she has “also had to make sure he understands that he cannot intimidate [her] or other officers and [she has] had to speak forcefully at times, to get him to comply with an order.” (Id. at 5.) She avers that all inmates in B-pod must wear shackles when they are out of their cell, and that she “treat[s] all inmates the same in this regard.” (Id. at 6.) She denies ever beating any inmates. (Id.) More generally, Gregg-Wright avers that she has “never intentionally or purposefully punished this inmate or treated him differently from other similarly situated inmates.” (Id. at 8.) She further avers the has “never retaliated against this inmate or any other inmate for any reason.” (Id.)
4. Affidavit from Captain Sweat
Defendants have submitted an affidavit from Captain Sweat, who is “responsible for supervising the staff on all shifts and checking to make sure the policies and procedures are followed.” (Dkt. No. 41-8 at 1.) Sweat avers that “inmates who have regular disciplinary charges are not eligible to move to an open pod,” and Plaintiff “did have regular disciplinary charges during his time at the Detention Center.” (Id. at 2.) Sweat denies that Plaintiff was placed in solitary confinement, noting that he had a cellmate at times and that he requested to have a cell to himself in a grievance. (Id. at 2, 9.) Sweat avers that recreation in B-pod “only occurs on day shift and during the week” due to safety and security concerns. (Id. at 2.) He avers that all “inmates in B-pod are treated the same as it relates to recreation, unless they have violated detention center rules and have had privileges taken from them for a period of time.” (Id. at 3.)
In his affidavit, Sweat confirms Gregg-Wright's statements about the treatment of inmates at B-pod concerning cleanliness, the use of shackles, and access to recreation and showers. He addresses Plaintiff's claim that a roofing company came to B-pod, stating “while roofing companies periodically come to review and give estimates for different jobs, the only issues in B-pod are in the pod ceiling, that does have water damages. However, there are no holes in individual inmate cells, as those ceilings are made of cement.” (Id. at 4.)
As for the disciplinary process at Sumter-Lee, Sweat avers,
Officers at the Detention Center will either charge an inmate with a minor charge and resolve it informally by taking away a privilege, or if it is more serious, or a repeat violation, they can charge an inmate and forward the charge for a hearing. The Hearing staff will then review the record, allow the inmate to respond, and then issue a ruling. If an inmate is found guilty at the hearing, he receives some type of
restriction, both to maintain the safety of the institution, staff and other inmates, but also to encourage following the procedures.(Id.) Sweat avers that he responded to grievances Plaintiff submitted relating to his claims in this matter, and he has included those grievances in the record. (Id. at 5, 11-21.) For example, he has submitted a grievance from Plaintiff dated February 16, 2022, wherein Plaintiff asks why staff has not cleaned his cell and Sweat responded, “Whenever you exit your cell for recreation, request the cleaning gear from staff. It is your responsibility to ask for and clean your cell.” (Id. at 13.) In his affidavit, Sweat discusses his investigation of the claims made in the grievances and states he “found none of this inmate's grievances to be accurate.” (Id. at 6.)
5. Affidavit from Officer Bowen
Defendants have also submitted an affidavit from Officer Bowen, a Senior Corporal assigned to the B-pod at Sumter-Lee during the events at issue. (Dkt. No. 41-2.) Bowen avers that he has “never seen or heard about [Gregg-Wright] not acting professionally toward inmates or staff or using profanity towards inmates or staff.” (Id. at 1.) In his affidavit, Bowen confirms Gregg-Wright's statements about the treatment of inmates at B-pod concerning cleanliness and access to recreation. (Id. at 2-4.) He also denies that Plaintiff was placed in solitary confinement, noting that he had a cellmate at times and that he often requested to have a cell to himself. (Id. at 2.) Bowen avers Plaintiff has “constantly complained about the food at the Detention Center and will regularly refuse his meal tray.” (Id. at 2.) Bowen denies that he or Gregg-Wright ever failed to give Plaintiff his food tray. (Id.)
In support, Bowen has submitted an incident report dated February 28, 2022, wherein Bowen stated that Plaintiff
refused to take his dinner tray and informed Cpl. Behuniak that he could not eat processed meat. Cpl. Behuniak informed me, . . . of the issue and the tray was disposed of and I went to speak with medical to see if what Rhinehart said was true.
HSA Steele said that there was no reason that he could not take a regular tray. I went to the kitchen and booking to see i[f] there were any leftover trays and the only one I was able to find was from lunch. I brought the tray to Rhinehart and he again refused to eat, LT. Shirah was informed.(Id. at 7.) Bowen also has submitted Plaintiff's grievance about this incident in which Plaintiff states that “Bowen and Behuniak did not feed me dinner” and he asks that they be written up. (Id. at 9.) The response is from Captain Sweat and states,
This issue has been resolved, you received a dinner tray. The[re] was a mix up with your diet and medical. I was advised by Lieutenant Shirah that Senior Corporal Bowen attempted to give you your tray on 3 different occasions and you refused. The oncoming shift made sure that you received a tray.(Id.)
Bowen avers that there was also an incident on March 15, 2022 wherein Plaintiff claimed he needed to see medical for a nosebleed. (Id. at 3.) Bowen avers, “Even though I saw no blood, I still contacted medical to advise them. This inmate then claimed he was throwing up blood and I again notified medical. When medical came to check on him, he refused to accept his medication and became disrespectful towards the nurse. The nurse advised my supervisor that she never saw anything resembling blood.” (Id.) According to Bowen, Plaintiff's grievance related to this incident is “not correct.” (Id.) Bowen denies threatening Plaintiff, as alleged in the grievance. Bowen has submitted the incident report and grievance related to this incident. (Id. at 11-13.) Relevant here, Captain Sweat avers that he investigated Plaintiff's grievance about this incident and “none of this inmate's allegations could be verified.” (Dkt. No. 41-8 at 5, 19.)
6. Affidavit from Officer Howell
Defendants have also submitted an affidavit from Officer Howell, a Senior Corporal at Sumter-Lee who worked in the B-pod during the events at issue. (Dkt. No. 41-4.) Howell states that part of his job “was to manage the rotations of the inmates out of their cells for recreation,” and that Plaintiff “has been on the regular recreation schedule, except for when he has had rules violations.” (Id. at 4.) Howell avers that he has “never seen or heard about [Gregg-Wright] not acting professionally toward inmates or staff or using profanity towards inmates or staff.” (Id. at 1.)
In his affidavit, Howell confirms Gregg-Wright's statements about the treatment of inmates at B-pod concerning cleanliness and access to recreation and showers. (Id. at 2-4.) Howell states that while Plaintiff “claims I had to go get a nurse when Officer Gregg-Wright refused to allow him to see the nurse, that never happened. The nurses are in and out of B-pod throughout the day, and if an inmate wants to talk to a nurse,, he can speak to her at that time.” (Id. at 4.) Howell avers that “based on [Plaintiff's] continual failure to follow the Detention Center rules or officer directives, it was my opinion that [t]his inmate had shown he could not follow the rules to be allowed to be housed in an open pod.” (Id. at 4.) He has submitted disciplinary records documenting Plaintiff's failure to follow Detention Center rules or officer directives. (Id. at 7-17.)
7. Affidavit from Sergeant Jenkins
Defendants have also submitted an affidavit from Sergeant Jenkins, the classification officer at Sumter-Lee during the events at issue. (Dkt. No. 41-5.) Jenkins avers that as classification officer, he “reviewed every inmate in B-pod approximately every 45-60 days, to determine if their housing was appropriate, and if they were eligible to be moved to an open pod.” (Id. at 1.) Jenkins confirms Officer McCray's account of why Plaintiff was initially moved to B-pod, and that the administrative move did not require a hearing. (Id. at 2.) Jenkins avers that once Plaintiff was moved to B-pod, he was not eligible to be moved until the investigation regarding his possible PREA claim was resolved. Jenkins said that after that investigation was completed, which “took several months to finish,” he “started reviewing his housing to determine if it was appropriate for him to stay in B-pod.” (Id.)
Jenkins avers that every time he reviewed Plaintiff's housing status and whether he should be moved to an open pod, he denied the move because of repeated incidents of Plaintiff's disrespectful behavior. (Id. at 3-4.) He has submitted disciplinary records pertaining to these incidents. (Id. at 12-31.) Jenkins avers that Plaintiff's “continued placement in B-pod was appropriate” because “he has continually displayed behavior incompatible with general population rules and regulations” and he “was regularly assessed and determined to be a security threat to other inmates and staff at the Detention Center.” (Id. at 4.) Jenkins avers that the reason for Plaintiff's continued placement in B-pod “was not to punish this inmate, but to maintain the safety and security of the institution, staff, and other inmates.” (Id.)
8. Affidavit from Defendant Ray
Finally, Defendants have submitted an affidavit from Defendant Patricia Ray, the Director at Sumter-Lee, who is “responsible for all administrative functions at the Detention Center” and is “also the ranking officer conducting on site supervision of all jail personnel at the Detention Center.” (Dkt. No. 41-7.) Defendant Ray avers that she “was not involved in the decision to move this inmate.” (Id. at 2.) She further avers she has not had any “personal interaction with this inmate.” (Id. at 1.) According to Ray, the records confirm McCray's account of Plaintiff's movement to B-pod and that the move was prompted by a possible PREA violation. (Id. at 2.) Ray agrees with Jenkins' reasoning that Plaintiff “was not eligible for placement in an open pod, due to his regular violations of Detention Center procedures and his failure to follow officer directives.” (Id.)
Ray avers that she was “involved in reviewing the incident on April 14, 2022, when this inmate was charged with threatening staff.” (Id. at 3.) She explains,
This is a serious charge, and I always review those charges. After reviewing the report, I consulted with my senior staff, and it was decided to advise all officers not to allow this inmate out for recreation until his hearing on the charges. It is my understanding that he was found guilty of the charge, and sentenced to time served, since he had missed several days of recreation before the hearing. Therefore, while he claims he was punished for refusing a food tray, and was subjected to double jeopardy, neither of those claims are accurate.(Id.)
In her affidavit, Ray discusses Plaintiff's medical records and the treatment he received for his lupus and other medical needs. She first notes that “officers are not involved in the medical care of inmates, as that is handled by an independent company. If an inmate requests medical care, he is told to complete a medical form, or he can make the request on the tablet he receives in his cell on a daily basis.” (Id. at 3.) She further states that “nurses come into B-pod several times a day, and inmates will often ask the nurse a question while they are in the pod.” (Id.) According to Ray, “medical makes all decisions related to when an inmate is seen and what treatment is needed. Officers do not have access to the medical request system, as medical handles that.” (Id. at 4.) Ray further avers that “officers are not involved in medications, as that is also handled by medical.” (Id.) She claims that any allegations of Plaintiff missing his medications “would have nothing to do with the corrections staff.” (Id.)
Ray references a note in the medical records on February 18, 2022, where Plaintiff “was seen for alleged problems with throwing up, but there was no indication of any such symptoms. This is also around the time this inmate claims that he was told he could not go to medical because the Detention Center was too short staffed, and there was no one to escort him.” (Id. at 4.) According to Ray, “medical often sees the inmates in B-pod, and if it was an emergency, a nurse could come to B-pod.” (Id.) Ray also references “several notes in incident reports where officers had a nurse check on Plaintiff for alleged throwing up/bleeding problems, and no evidence was ever found to support this claim.” (Id. at 5.) She denies that oxygen was provided to Plaintiff through “his food flap” because “there would be a note if that happened.” (Id.) In support of these statements, Ray has submitted portions of Plaintiff's medical records. (Id. at 16-27.) More generally, Ray avers that she has “not found any evidence to support any of the claims made by this inmate against Officer Gregg-Wright or any other officer.” (Id. at 3.)
B. Conditions of Confinement
Plaintiff alleges he was moved to the administrative segregation unit as a pretrial detainee at Sumter-Lee on December 23, 2021, and he remained there until he was transferred to SCDC in August of 2022. He alleges his constitutional rights were violated during his approximately eight months in the B-pod of Sumter Lee based on restrictions in recreation as well as because, at times, his cell was unclean, he was denied his food preferences, and he was denied the ability to pursue his administrative remedies.
The Fourteenth Amendment allows pretrial detainees like Plaintiff to raise substantive due process challenges to their conditions of confinement where they are so disproportionate or arbitrary that they are not related to legitimate penological objectives and amount to punishment. See Williamson v. Stirling, 912 F.3d 154, 174-76 (4th Cir. 2018). These protections are at least as robust as those of the Eighth Amendment because “[i]f it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed-who may not be punished at all-in unsafe conditions.” Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982). “Not every disability imposed during pretrial detention amounts to punishment in the constitutional sense .... Once the Government has exercised its conceded authority to detain a person pending trial, it obviously is entitled to employ devices that are calculated to effectuate this detention. Bell v. Wolfish, 441 U.S. 520, 537 (1979). While “pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights . . . enjoyed by convicted prisoners,” this does not mean that these rights are not “subject to restrictions and limitations.” Id. at 545. A condition or restriction of detention would constitute unconstitutional punishment only if there was an “expressed intent to punish” or the absence of a “legitimate nonpunitive governmental objective.” Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992).
Additionally, there is no federally protected liberty interest in any particular housing or classification unless it exceeds the scope of his original sentence and imposes an atypical and significant hardship in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515 U.S. 472 (1995). “[C]hanges in a prisoner's location, variations of daily routine, changes in conditions of confinement (including administrative segregation) and the denial of privileges . . . are necessarily functions of prison management that must be left to the broad discretion of prison administrators to enable them to manage prisons safely and efficiently.” Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991).
Upon careful review, Plaintiff has failed to establish that any of his conditions of confinement rise to the level of a constitutional violation. Here, Plaintiff does not allege that he was completely deprived of opportunities to exercise during his eight months in the B-pod, and he does not allege any significant injury due to the lack of exercise. Thus, though it is well-settled that “[d]epriving inmates the opportunity to exercise can violate the Eighth Amendment's protection against cruel and unusual punishment,” Rucker v. Stirling, No. 1:19-cv-310-MGL-SVH, 2020 WL 5984435, at *5 (D.S.C. Mar. 6, 2020), adopted, 2020 WL 4381975 (D.S.C. July 31, 2020) (citing Rivera v. Mathena, No. 18-6615, 2019 WL 6133727, at *3 (4th Cir. Nov. 19, 2019)), the record reflects that this is not an instance in which Plaintiff suffered a deprivation so significant as to constitute a constitutional violation. See Lyles v. Stirling, 844 Fed.Appx. 651, 654 (4th Cir. 2021) (finding a genuine issue of fact where plaintiff was denied out-of-cell exercise for more than ten months); Rivera v. Mathena, 795 Fed.Appx. 169, 175 (4th Cir. 2019) (referencing Sweet v. S.C. Dep't of Corr., 529 F.2d 854, 866 (4th Cir. 1975)) (explaining that a restriction to two exercise periods per week may not violate the Eighth Amendment if confined to a short period but may violate the Eighth Amendment if extended over a period of years); Doe v. DeWees, No. TDC-18-cv-2014, 2020 WL 1331902, at *16 (D. Md. Mar. 23, 2020) (dismissing conditions of confinement claim based on lack of recreation; “Although Doe is a pretrial detainee, the Court notes that she has not alleged a prolonged period without recreational opportunities or significant injury due to the lack of exercise.”).
As for Plaintiff's allegations of uncleanliness and sporadic access to showers, such allegations also do not amount to a constitutional violation. See, e.g., Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988) (observing that “[n]ot every inconvenience encountered during pretrial detention amounts to punishment in the constitutional sense”); Whitmore v. W. Reg'l Jail, No. 3:18-cv-01483, 2019 WL 3756396, at *8-9 (S.D. W.Va. July 19, 2019) (finding plaintiff's claims that he was placed in administrative segregation where “he received no recreation or gym time, insufficient laundry services, cold and undercooked meals, was placed in a cell which contained mold and iron stains, and was adjacent to inmates who would constantly urinate on the floors and smear their own feces on the walls” did not rise to the level of an Eight Amendment violation and collecting cases with the same finding), adopted by, 2019 WL 3759806 (S.D. W.Va. Aug. 7, 2019); Polley v. Wright, No. 4:18-cv-3464-JMC-TER, 2019 WL 2127065, at *3 (D.S.C. Feb. 6, 2019), adopted, 2019 WL 1306079 (D.S.C. Mar. 22, 2019) (“The law is clear that bathing opportunities may be severely reduced or curtailed without violating [] Eighth Amendment rights.”); Blackburn v. South Carolina, No. 0:06-cv-2011-PMD-BM, 2009 WL 632542, at *17 (D.S.C. Mar. 10, 2009), aff'd, 404 Fed.Appx. 810 (4th Cir. 2010) (finding ten days without a shower and, after that, an average of one shower per week was not a constitutional deprivation).
Likewise, the record does not support finding that Plaintiff was denied access to nutritional meals or that he was limited to a certain diet for medical reasons. When Plaintiff was offered a vegetarian diet to appease his alleged allergies to “cold cuts,” Plaintiff apparently refused. (Dkt. No. 41-3 at 10.) Thus, any meal that Plaintiff missed resulted from his own choices. Further, he does not allege any significant injury due to any missed meals. See Love v. Walker, 936 F.2d 567 (4th Cir. 1991) (finding that absent injury, “the occasional lapse in [inmate's] diet does not create a violation of his eighth amendment rights”); Mahaffey v. Brock, No. 3:07-cv-806-SB-JRM, 2009 WL 2866339, at *4 (D.S.C. Sept. 2, 2009) (“Assuming a diet's nutritional adequacy, prison officials have the discretion to control its contents.”). And, to the extent Plaintiff alleges any interference with his access to the grievance system, such allegations do not support a cognizable claim under § 1983. See, e.g., Townsend v. Blandshaw, No. 0:04-cv-2554-RBH, 2006 WL 3077258, at *6 (D.S.C. Oct. 27, 2006) (“[T]o the extent Plaintiff has intended to complain about the access he has been given to the prison grievance system itself, this is not a claim cognizable under 42 U.S.C. § 1983, as there is no constitutional right to access to a prison grievance procedure.”) (collecting cases).
Here, it is worth noting that “[t]here is no federal constitutional right to be free from emotional distress, psychological stress, or mental anguish; hence, there is no liability for compensatory or punitive damages under § 1983 regarding such claims.” Khan v. Stirling, No. 9:18-cv-3130-BHH-BM, 2019 WL 3976626, at *5 (D.S.C. July 24, 2019), adopted, 2019 WL 3973708 (D.S.C. Aug. 22, 2019). Indeed, the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996), expressly prohibits the filing of civil actions by prisoners “for mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). Plaintiff alleges no physical injury from any alleged constitutional violations, and summary judgment should also be granted for this reason.
C Inadequate Medical Treatment
Plaintiff also alleges that he received inadequate medical treatment in relation to his lupus. Although the Fourteenth Amendment governs Plaintiff's claims as a pretrial detainee, the standard of review is essentially the same as that for convicted prisoners under the Eighth Amendment- deliberate indifference to a serious medical need. See Moss v. Harwood, 19 F.4th 614, 624 (4th Cir. 2021); Young v. City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001). Specifically, the plaintiff must show that, objectively, he had a serious medical need and that, subjectively, the defendant acted with deliberate indifference to those needs. As to the first prong, a “serious medical need” is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). As to the second prong, a claim of deliberate indifference requires a showing that the official knew of and disregarded an excessive risk to the inmate's health. Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). “That is a higher standard for culpability than mere negligence or even civil recklessness....” See id. (referencing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
To bring a denial of medical treatment claim against non-medical prison personnel, an inmate must show that such officials were personally involved with a denial of treatment, deliberately interfered with prison doctors' treatment, or tacitly authorized or were indifferent to the prison physicians' misconduct. Miltier v. Beorn, 896 F.2d 848. 854 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837, (1994). “Mere knowledge is not sufficient to establish personal participation.” Coleman v. Stevenson, No. 0:09-cv-872-HMH, 2010 WL 2990737, at *4 (D.S.C. June 22, 2010), adopted by, 2010 WL 2990740 (D.S.C. July 26, 2010), aff'd, 407 Fed.Appx. 709 (4th Cir. 2011). Here, Ray and Gregg-Wright are non-medical personnel at Sumter-Lee. There is no evidence that Ray was personally involved in any aspect of Plaintiff's medical care, and the record refutes Plaintiff's allegation that Gregg-Wright in any way impeded Plaintiff's access to medical care. Regardless, to the extent Plaintiff alleges that Gregg-Wright delayed sending him for medical treatment, there is no evidence that such delay caused Plaintiff substantial harm.
Accordingly, Defendants Ray and Gregg-Wright are entitled to summary judgment as to any deliberate indifference claims. See Estelle, 429 U.S. at 104-05 (noting that deliberate indifference can be “manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.”); Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (to be liable under § 1983, official must have acted personally in the deprivation of plaintiff's rights); Mallett v. Johnson, No. 8:08-cv-863-PMD, 2008 WL 5351618, at *7 (D.S.C. Dec. 22, 2008) (“A medical indifference claim is not appropriate against a superintendent/supervisor absent an allegation that he was personally connected to the treatment received.”); Wynn v. Mundo, 367 F.Supp.2d 832, 838 (M.D. N.C. 2005) (delay in receipt of medical care only constitutes deliberate indifference where plaintiff can show that the delay caused substantial harm).
D. Procedural Due Process
Plaintiff also alleges that his procedural due process rights were violated when he was placed in B-pod and kept there until his transfer to SCDC custody. A pretrial detainee may assert a procedural due process violation based on the conditions of his pretrial confinement. Williamson, 912 F.3d at 174-76. “[J]ail officials are entitled to discipline pretrial detainees for infractions committed in custody and to impose restrictions for administrative purposes without running afoul of Bell.” Id. at 175 (citation omitted). Nevertheless, “administrative and disciplinary measures also implicate a pretrial detainee's liberty interest in remaining free from punishment,” such that “proportional restrictions imposed on a pretrial detainee for a permissible purpose can trigger due process protections, pursuant to Bell and the Due Process Clause.” Id. (citations omitted).
The level of procedural due process to which a detainee is entitled is contextual, varying “according to whether the restriction was imposed for disciplinary or administrative purposes.” Id. Where the restriction is a disciplinary measure, the detainee is entitled to notice of the alleged misconduct, a hearing, and a written explanation of the of the disciplinary action taken. Id. (citing Dilworth v. Adams, 841 F.3d 246, 250-52 (4th Cir. 2016)). By contrast, where the restriction is imposed for administrative reasons, to include managerial and security needs, the requisite level of process is diminished. Id. In some instances, however, individualized restrictions, whether disciplinary or administrative, “can be so disproportionate, gratuitous, or arbitrary that it becomes a categorically prohibited punishment that will sustain a substantive due process claim.” Id. (citations omitted).
Here, there is no evidence that Plaintiff received a hearing at any time related to his initial and continued placement in administrative segregation. The record indicates that Plaintiff's initial placement in B-pod was due to concerns for his own safety after he complained about a possible PREA violation. Thereafter, he was periodically evaluated and found to present a safety and security concern to other inmates and staff. (Dkt. No. 41-5 at 4.) Because the evidence indicates Plaintiff's housing placement was based on a legitimate government interest in protecting his and the other inmates' well-being, rather than for any expressly punitive reason, there is no basis to find a procedural due process violation. See, e.g., Contreras v. Kinkaid, No. 1:21-cv-368 (AJT/WEF), 2023 WL 3165116, at *11 (E.D. Va. Apr. 28, 2023) (finding no due process violation where “the security risk that Plaintiff presented was a legitimate concern that justified his placement in administrative segregation.”); Riddick v. Willett, No. 3:15-cv-361, 2016 WL 3282213, at *5 (E.D. Va. June 10, 2016) (finding pretrial detainee's placement in administrative segregation was not a due process violation where detainee had a “documented dangerous history and score through the classification system” and “[t]he decision to place Riddick in administrative segregation was rationally related to the legitimate objective of maintaining security and order at MRRJ”); Phomphackdi v. Spartanburg Cnty., No. 905-cv-3084-DCN-GCK, 2007 WL 858736, at *5 (D.S.C. Mar. 20, 2007) (finding plaintiff's eight-month stay in administrative segregation “was not a violation of his due process rights” because he “was segregated pursuant to a legitimate government interest protecting his and the other inmates' well-being”).
Likewise, for the same reasons, to the extent Plaintiff alleges a substantive due process violation based on his placement in administrative segregation, there is no basis to infer the restriction amounted to punishment. See Bell, 441 U.S. at 538-40 (To establish that a condition or restriction of confinement is constitutionally impermissible “punishment,” a pretrial detainee must show “either that it was (1) imposed with an expressed intent to punish or (2) not reasonably related to a legitimate nonpunitive governmental objective, in which case an intent to punish may be inferred”).
Regardless, to the extent the evidence could support finding Plaintiff was entitled to more due process than he received during his time in administrative segregation, Plaintiff has failed to demonstrate that Defendants Ray and Gregg-Wright were personally responsible for the alleged deprivations of his due process rights. More specifically, there is no evidence Defendants Ray and Gregg-White were personally involved in deciding where Plaintiff should be housed at any time during the events at issue. Gregg-Wright has averred that as a “pod officer,” she “was not involved in the decision to move this inmate to B-pod, and also do[es] not have input on what cell or pod assignments inmates have.” (Dkt. No. 41-3 at 2.) She denies having “any control” over whether Plaintiff “should . . . have been in B-pod.” (Id.) As for Defendant Ray, she avers that Sergeant McCray directed Plaintiff's placement in B-pod and, thereafter, Sergeant Jenkins, the classification officer, “regularly reviewed” Plaintiff's file “to decide if he was eligible for being in an open pod.” (Dkt. No. 41-7 at 2.)
In their affidavits, McCray and Jenkins confirm that they were responsible for Plaintiff's initial and continued placement in administrative segregation, respectively. Ray acknowledges that she reviewed the charges Plaintiff received for threatening staff after an incident on April 14, 2022, wherein Plaintiff received a hearing on the charges and lost recreation privileges for a period of time. (Dkt. No. 41-7 at 3.) This charge did not result in any housing decisions at Ray's direction, however. Additionally, Plaintiff has submitted two grievances addressed to Ray in which he complains of being placed in administrative segregation. (Dkt. Nos. 54-1; 54-2.) There is no evidence that the responses to these grievances are from Ray. Regardless, even if Ray authored the grievance responses indicating Plaintiff would stay in administrative segregation, this alone does not demonstrate personal involvement in the deprivation of Plaintiff's due process rights. See Barnes v. Ingram, No. 5:20-CT-03164-M, 2023 WL 2706243, at *7 (E.D. N.C. Mar. 28, 2023) (granting summary judgment based on defendants' “lack of personal involvement in the alleged deprivation of plaintiff's due process rights”; noting “plaintiff fails to demonstrate either that defendants were personally involved in the imposition of restrictions, without a hearing, due to plaintiff's Jail rule violations” even where “the record reflects that defendants responded to plaintiff's grievances” about these issues); see also Lamb v. Tibbs, No. 5:22-CV-217, 2023 WL 3190433, at *9 (N.D. W.Va. Mar. 29, 2023) (dismissing pretrial detainee's procedural due process claim against defendant superintendent because Plaintiff “has not alleged how defendant . . . was involved in these alleged deprivations”; noting “mere knowledge of such a deprivation does not suffice” (quoting Williamson, 912 F.3d at 171)).
Based on the foregoing, Defendants Ray and Gregg-Wright are entitled to summary judgment on Plaintiff's procedural due process claims.
E. Equal Protection Claim
It also appears Plaintiff may be alleging an equal protection claim when he asserts that Defendant Gregg-Wright treated him differently from other inmates. (Dkt. No. 15 at 18.) The Equal Protection Clause provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. It “does not take from the States all power of classification, but keeps governmental decision makers from treating differently persons who are in all relevant respects alike.” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002). The clause requires that similarly-situated individuals be treated alike. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)). “To succeed on an equal protection claim, a plaintiff must first demonstrate that [s]he has been treated differently from others with whom [s]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). “Once this showing is made, the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.” Id.
Here, Plaintiff has offered no evidence that he and the other inmates at issue were similarly situated in all relevant respects for purposes of an equal protection analysis. Nor is there any evidence that Plaintiff's treatment was the result of intentional or purposeful discrimination. Accordingly, summary judgment should be granted on any equal protection claims. See Lipscomb v. Whitley, No. 7:20-cv-00411, 2022 WL 2680614, at *7 (W.D. Va. July 12, 2022) (granting summary judgment on pretrial detainee's equal protection claim because “he has not demonstrated that he and these other inmates were similarly situated in all relevant respects for purposes of an equal protection analysis”).
Having resolved Plaintiff's claims on the above grounds, the undersigned does not address Defendants' remaining arguments for summary judgment.
F. Strike Designation Under 28 U.S.C. § 1915(g)
Finally, Defendants ask that the Court designate this action as a “strike” pursuant to 28 U.S.C. § 1915(g). (Dkt. No. 41-1 at 27-28.) The Prison Litigation Reform Act (“PLRA”) provides in relevant part that:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g).
The Fourth Circuit Court of Appeals has instructed that an order of summary judgment may count as a strike for purposes of the PLRA's three-strikes provision, so long as the case is being dismissed for enumerated reasons of the three-strike provision, i.e. the case is “frivolous, malicious, or fails to state a claim.” Blakely v. Wards, 738 F.3d 607, 609 (4th Cir. 2013) (en banc), as amended (Oct. 22, 2013); see also Miller v. Hooks, 2015 WL 2452927, *2 n.4 (S.D. Ga. 2015) (citing Blakely and observing that “the Fourth Circuit's position in this regard is persuasive”). While the undersigned recommends summary judgment be granted, dismissal is not recommended under one of the three enumerated reasons of the PLRA. Accordingly, this action should not be designated as a strike under 28 U.S.C. § 1915(g).
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Defendants' Motion for Summary Judgment (Dkt. No. 41) be GRANTED and this action be dismissed in its entirety. The undersigned RECOMMENDS that the District Court decline to deem the complaint a “strike” pursuant to § 1915(e)(2)(B)(i).
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402
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).