Opinion
8:22-cv-01467-DCN-JDA
07-18-2023
Dantlee A. Smith, Plaintiff, v. Warden Kenneth Nelson; Cpt. Tony Vela; Major Kenneth Greggs; Classification Stacey Richardson; Sgt. Thomas; Cpt. Livingston; A.W. Arthur Fredricks; Cpt. Spikes, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge.
This matter is before the Court on Defendants' motion for summary judgment. [Doc. 41.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
Plaintiff, proceeding pro se, filed this action on May 4, 2002, asserting claims pursuant to 42 U.S.C. § 1983. [Docs. 1; 1-1.] On November 4, 2022, Defendants filed a motion for summary judgment. [Doc. 41.] On November 7, 2022, the Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and the possible consequences if he failed to respond adequately. [Doc. 42.] Plaintiff's response in opposition was entered on the docket on December 1, 2022, and Defendants filed a reply on December 13, 2022. [Docs. 48; 53.] The motion is ripe for review.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on May 4, 2022. [Doc. 1-2 at 1 (envelope marked as received by the prison mailroom on May 4, 2022).]
The facts included in this Background section are taken directly from Plaintiff's Complaint and the attachments to the Complaint. [Docs. 1; 1-1.]
Plaintiff is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”). [Doc. 1 at 2, 5.] At the time he filed the Complaint, Plaintiff was housed at Broad River Correctional Institution (“BRCI”) [id. at 2]; however, Plaintiff has since changed institutions and is currently housed at McCormick Correctional Institution [Doc. 14 (most recent notice of change of address)].
Plaintiff alleges that Defendants Warden Kenneth Nelson, A.W. Arthur Fredericks,and Major Kenneth Greggs “allow corrupt officers to work at” BRCI and that these corrupt officers “allow gangs to extort, rob, beat, lynch[,] and stab inmates with immunity.” [Doc. 1-1 at 2.] The officers also allow gang-affiliated inmates out of cells while non-affiliated inmates are locked in cells, and they leave cell doors unlocked “to allow gang[-]affiliated inmates to perpetrate [the] above[-]stated crimes against other inmates.” [Id.] Fredericks and Greggs also allowed gang-affiliated inmates “access to weapons, metal to make weapons[,] and even contraband master locks.” [Id.]
The Court notes that the spelling of Defendant A.W. Arthur Fredricks is Fredericks in his affidavit. [Doc. 41-3 at 1, 3.] Accordingly, the Court uses that spelling throughout this Report and Recommendation.
Plaintiff alleges that Defendants failed to provide him with a safe environment or protect him despite numerous kiosk requests stating he was in danger from gangs. [Id. at 3; Doc. 1 at 4.] In addition to the kiosk requests, his mother called and spoke to Fredericks, who told her that he would send officers to check on Plaintiff. [Doc. 1-1 at 3.] Because of Defendants' failure to protect him, Plaintiff suffered irreparable broken bone damage to his face after he was assaulted in September 2021. [Doc. 1 at 4.]
Plaintiff contends that Defendant Sgt. Thomas was a wing officer on Defendant Cpt. Livingston's shift who opened Plaintiff's cell door and left it unlocked to allow gang members to enter the cell and assault Plaintiff on either September 19 or 20, 2021. [Doc. 1-1 at 2, 3.] After Plaintiff was assaulted, Thomas locked Plaintiff's cell door while Plaintiff, who was covered in blood on the ground in his cell, informed Thomas that he had been beaten and needed medical attention. [Id.] As Thomas locked Plaintiff's cell door, he said he would let the captain know. [Id.] However, Plaintiff did not receive medical help until three days later when Lieutenant Barr and another officer escorted him to medical. [Id.] When they escorted Plaintiff to medical, Barr and the other officer left all of his property in the cell to be stolen, and no inventory of his property was done. [Id. at 2, 4.] As a result of his lost property, Plaintiff had to pay for new uniforms, sheets, t-shirts, boxer shorts, socks, shoes, hygiene products, and other property. [Id.] He also slept on a mattress with no sheets for weeks until he paid for new sheets. [Id. at 4.]
A surgeon prescribed Plaintiff narcos for pain and Ensure drinks for a liquid diet. [Id.] However, it was weeks before he was given any Ensure drinks and even then he did not always get them. [Id.] He lost weight from the lack of Ensure drinks and his inability to eat solid foods. [Id.] He was never given anything for pain and was in excruciating pain for months. [Id.] He also was not given wax to coat the sharp edges of the wires in his mouth, and his mouth continued to bleed from the wires cutting into his cheeks and lips. [Id.]
The Court notes that in one portion of his Complaint, Plaintiff alleges that he was never given anything for pain [Doc. 1-1 at 4]; however, in another portion of the Complaint, he alleges that he was given liquid Ibuprofen three times [id. at 6].
Additionally, Defendant Cpt. Spikes sprayed chemical munitions in Plaintiff's eyes through the food flap on March 15, 2022. [Id. at 2, 5.] Plaintiff was then escorted to the restricted housing unit by Spikes and other officers in his socks, but the gang member he had had an altercation with was not locked up. [Id.] Additionally, his New Balance shoes were left in a dorm lobby and presumably stolen by other inmates. [Id.]
For his injuries, Plaintiff alleges that his jaw bones on both sides of his face were severely broken and could not be properly repaired, leaving him permanently disfigured. [Id. at 6; Doc. 1 at 6.] His jaw had to be wired, his chin bone was crushed, he broke five teeth, and he had to have surgery to have a steel plate put in place of his chin bone. [Doc. 1 at 6.] Plaintiff had surgery on September 27, 2021, and five of his permanent teeth had to be pulled out. [Id.] He has constant headaches and dizzy spells following the attack as well as mental and emotional anguish. [Doc. 1-1 at 6.] For his relief, Plaintiff seeks $150,000 in actual damages and $100,000 in punitive damages. [Doc. 1 at 6.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under § 1983
Some of the claims in this action are asserted pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, a civil action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
Section 1983 provides, in relevant part,
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .”42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant “deprived [the plaintiff] of a right secured by the Constitution and laws of the United States” and (2) that the defendant “deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage.” Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
The under-color-of-state-law element, which is equivalent to the “state action” requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.Id. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, “the deed of an ostensibly private organization or individual” may at times be treated “as if a State has caused it to be performed.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Specifically, “state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Id. (internal quotation marks omitted). State action requires both an alleged constitutional deprivation “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible” and that “the party charged with the deprivation [is] a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party's allegedly unconstitutional conduct is fairly attributable to the State requires the court to “begin[ ] by identifying the specific conduct of which the plaintiff complains.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (internal quotation marks omitted).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “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.” Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
DISCUSSION
Liberally construed, Plaintiff's Complaint alleges the following causes of action: failure to protect related to the September 2021 assault; deliberate indifference to medical needs; lost property; excessive force related to the March 2022 use of chemical munitions; and negligence and/or gross negligence related to denial of pain medication, food supplements, and dental wax. [Docs. 1; 1-1.] Defendants argue they are entitled to summary judgment on all of Plaintiff's claims [Docs. 41-1; 53], and the Court agrees.
No Personal Involvement or Supervisory Liability by Certain Defendants
Defendants argue that Defendants Cpt. Tony Vela, Cpt. Livingston, Classification Stacey Richardson, Nelson, Greggs, and Fredericks are entitled to dismissal because the Complaint includes no specific allegations of personal involvement by these Defendants and Plaintiff has not presented evidence of specific conduct or personal participation by these Defendants. [Doc. 41-1 at 9-10.] The Court agrees as to Vela, Livingston, Richardson, Nelson, and Greggs but concludes that the Complaint and record evidence establish personal involvement by Fredericks.
Defendants Vela, Livingston, and Richardson
Plaintiff has not alleged any facts showing how Vela, Livingston, and Richardson were personally involved in any of the alleged unconstitutional actions or circumstances identified in the Complaint. Indeed, other than to name them in the caption of the Complaint and in the section to provide information about each Defendant [Docs. 1 at 1, 3; 1-1 at 1 (indicating that Vela was the shift captain the day Plaintiff went to the hospital and that Richardson works in classification)], Vela and Richardson are not mentioned in the Complaint at all. And Livingston is only mentioned once more as being the captain over Thomas's shift. [Docs. 1 at 1; 1-1 at 1 (indicating that Livingston was the shift captain on the day Plaintiff was assaulted), 2 (alleging that Thomas was “on [Captain] Livingston[']s shift”).] Because the doctrine of respondeat superior does not apply to § 1983 claims, Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691-94 (1978), a defendant is liable in his individual capacity only for his personal wrongdoing or supervisory actions that violated constitutional norms, see Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (setting forth elements necessary to establish supervisory liability under § 1983). A plaintiff must establish three elements to prevail under § 1983 on a theory of supervisory liability:
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to the knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices[ ]”; and (3) that there was an “affirmative causal link” between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.Id. (citations omitted) (footnote added).
Stated differently,
“[A]bsent an allegation that a named defendant has personally subjected the plaintiff to a deprivation of his constitutional rights or has caused the conduct complained of or participated in some manner in the allegedly unlawful actions of his employee or subordinate officer, this Court has held a complaint insufficient to state a claim against defendant under § 1983.”Thompson v. McCoy, 425 F.Supp. 407, 411 (D.S.C. 1976) (quoting Knipp v. Weikle, 405 F.Supp. 782 (N.D. Ohio 1975)). A plaintiff's burden to establish a claim based on supervisory liability is a heavy one; in fact, the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), may have entirely abrogated supervisory liability in Bivens actions. See Iqbal, 556 U.S. at 693 (Souter, J., dissenting) (“Lest there be any mistake, . . . the majority is not narrowing the scope of supervisory liability; it is eliminating Bivens supervisory liability entirely. The nature of a supervisory liability theory is that the supervisor may be liable, under certain conditions, for the wrongdoing of his subordinates, and it is this very principle that the majority rejects.”); see also Jones v. Corr. Care Sols., No. 0:09-cv-269, 2010 WL 2639788, at *2 (D.S.C. June 7, 2010). A Bivens action “is the ‘federal analog to suits brought against state officials under . . . § 1983.'” Id. at 675 (quoting Hartman v. Moore, 547 U.S. 250, 254 (2006)). Therefore, the Supreme Court's reasoning may extend to abrogate supervisory liability in § 1983 actions as well as Bivens actions.
Here, Plaintiff has failed to state a § 1983 claim against Vela, Livingston, or Richardson based on their personal involvement. Nor has he stated a claim against them based on a theory of supervisory liability because he has failed to allege that they had actual or constructive knowledge of subordinates engaging in pervasive or widespread conduct that posed a risk of injury to inmates like Plaintiff. Moreover, he has not provided any evidence to support their involvement on a personal or supervisory level. Accordingly, Vela, Livingston, and Richardson are entitled to summary judgment.
Additionally, in his response in opposition to the motion for summary judgment, Plaintiff states that “[i]t came to [his] attention Stacey Richardson is not head caseworker at [BRCI] so whoever was head over classification is responsible for deliberate negligence of [his] kiosk request[s] asking for help.” [Doc. 48 at 5.] Accordingly, Plaintiff appears to admit that he named Richardson as a Defendant in error, and this error provides another basis for dismissing Richardson.
Moreover, in his response in opposition to the motion for summary judgment, Plaintiff fails to address Defendants' argument that Vela, Livingston, and Richardson should be dismissed because Plaintiff has not pled or presented evidence of any specific conduct or personal participation by these Defendants. Plaintiff's failure to respond to this argument also justifies dismissal of these Defendants. See Waiters v. Sci. Applications Int'l Corp., No. 2:17-3227-BHH-BM, 2019 WL 5874132, at **8, 10 (D.S.C. May 10, 2019) (concluding that a plaintiff abandoned claims by failing to address in his opposition to a motion to dismiss an argument raised in the motion to dismiss), Report and Recommendation adopted by 2019 WL 4462810 (D.S.C. Sept. 18, 2019); Jones v. Family Health Ctr., Inc., 323 F.Supp.2d 681, 690 (D.S.C. 2003) (noting that a claim not addressed in the plaintiff's opposition memorandum had been abandoned).
Defendants Nelson and Greggs
The only allegations in the Complaint against Nelson and Greggs are that they allow corrupt officers to work at BRCI and that Greggs allows gang-affiliated inmates to have weapons and contraband. [Doc. 1-1 at 2.] Accordingly, Plaintiff appears to base his claims against Nelson and Greggs on a theory of supervisory liability. However, as argued by Defendants [Doc. 41-1 at 10], Plaintiff has presented no evidence to support his allegations against Nelson and Greggs. On the other hand, Fredericks has averred that “there are numerous measures taken to address security issues related to gangs, inmate assaults, and contraband including weapons.” [Doc. 41-3 at 2 ¶ 6.] Fredericks has specified that “BRCI has an intelligence unit tasked with identifying gang members as well as a contraband unit that routinely conducts shakedowns and uncovers contraband including homemade weapons. The security staff takes those issues seriously and are proactive in our attempts to address those and other security-related issues.” [Id. at 2-3 ¶ 6.] Accordingly, Plaintiff has failed to establish his claims against Nelson and Greggs based on a theory of supervisory liability because he has failed to show that they had actual or constructive knowledge of subordinates engaging in pervasive or widespread conduct that posed a risk of injury to inmates like Plaintiff. Therefore, Nelson and Greggs are entitled to summary judgment.
Moreover, in his response in opposition to the motion for summary judgment, Plaintiff fails to address Defendants' argument that Nelson and Greggs are entitled to summary judgment because Plaintiff has not presented evidence to support his allegations against these Defendants. Plaintiff's failure to respond to this argument also justifies dismissal of these Defendants. See Waiters, 2019 WL 5874132, at **8, 10; Jones, 323 F.Supp.2d at 690.
Defendant Fredericks
Although, as Defendants argue [Doc. 41-1 at 10], Plaintiff also has presented no evidence to support his allegations that Fredericks allows inmates to have weapons and contraband, the Complaint includes additional factual allegations against Fredericks [Docs. 1 at 4 (alleging that Plaintiff's mother called and begged Fredericks to send help for Plaintiff but no one came to get him out of his cell); 1-1 at 3 (alleging that Plaintiff's mother spoke with Fredericks personally, and Fredericks told her that he would send officers to check on Plaintiff)]. The record establishes that Fredericks received a call from Plaintiff's mother on September 16, 2021, explaining that Plaintiff was in fear and, as a result of that call, requested that officers check on Plaintiff to determine his status. [Doc. 41-3 at 1-2 ¶ 3, 5.] Accordingly, because Plaintiff has included additional factual allegations of Fredericks' personal involvement with the alleged constitutional violations and the record supports these allegations, Fredericks is not entitled to summary judgment on the basis that he was not personally involved.
Nonetheless, as the Court will explain, the forecasted evidence is insufficient to create a genuine dispute of material fact concerning whether Fredericks violated Plaintiff's constitutional rights.
Official Capacity Claims
Plaintiff has brought his claims against all Defendants in both their individual and official capacities. [Docs. 1 at 2-3; 1-1 at 1.] Defendants argue that, in their official capacities, they are not “persons” amenable to suit under § 1983 and they are entitled to Eleventh Amendment immunity. [Doc. 41-1 at 18.] The Court agrees.
“Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted). Thus, officials acting in their official capacities are not “persons” under § 1983. Id.
Moreover, the Eleventh Amendment prohibits federal courts from entertaining an action against a state. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam); Hans v. Louisiana, 134 U.S. 1, 10-11 (1890). Further, Eleventh Amendment immunity “extends to ‘arm[s] of the State,' including state agencies and state officers acting in their official capacity.” Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (alteration in original) (internal citations omitted). Therefore, Eleventh Amendment immunity protects state agencies and state officials sued in their official capacities from liability for monetary damages under 42 U.S.C. § 1983. Id. As a result, Plaintiff's claims against Defendants in their official capacities must be dismissed because Defendants are entitled to immunity pursuant to the Eleventh Amendment.
Failure to Protect Claim
Corrections officers have “a duty to protect prisoners from violence at the hands of other prisoners” because “[b]eing violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.” Farmer v. Brennan, 511 U.S. 825, 833, 834 (1994) (alteration and internal quotation marks omitted). Inmates also “have an Eighth Amendment right to be protected from malicious attacks, not just by other inmates, but also from the very officials tasked with ensuring their security.” Thompson v. Virginia, 878 F.3d 89, 109 (4th Cir. 2017). However, “not every injury suffered by a prisoner at the hands of another translates into constitutional liability for prison officials responsible for the victim's safety.” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (internal quotation marks omitted). Instead, for liability to attach, a plaintiff must satisfy a two-part test consisting of both an objective and a subjective inquiry.
First, the plaintiff “must show that he was incarcerated under conditions posing a substantial risk of serious harm.” Id. (internal quotation marks omitted). Second, the plaintiff must show that the prison official had a “sufficiently culpable state of mind,” which, in this context, consists of “deliberate indifference to inmate health or safety.” Farmer, 511 U.S. at 834 (internal quotation marks omitted); see Makdessi, 789 F.3d at 133. The prison official must “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. “[A] factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. In the end, “the test is whether the [prison officials] know the plaintiff inmate faces a serious danger to his safety and they could avert the danger easily yet they fail to do so.” Brown v. N.C. Dep't of Corr., 612 F.3d 720, 723 (4th Cir. 2010) (internal quotation marks omitted).
Here, the Complaint alleges that Plaintiff's Eighth Amendment rights were violated when Fredericks did not move Plaintiff from his cell after his mother called to report that he was in fear and when Thomas left Plaintiff's cell door unlocked to allow gang members to enter the cell and assault Plaintiff. [Docs. 1 at 4, 6; 1-1 at 2-3.] However, after Defendants submitted Thomas's affidavit, in which he avers that he “did not allow for other inmates to gain access to [Plaintiff's] cell to attack him” [Doc. 45 ¶ 4], Plaintiff concedes that he “could be mistaken” in his belief that Thomas was the officer working in his unit on the date he was assaulted [Doc. 48 at 3]. Accordingly, because Plaintiff has failed to establish that Thomas was the officer who left his cell door unlocked on the date he was assaulted, summary judgment should be granted in favor of Thomas on Plaintiff's failure to protect claim.
Summary judgment should also be granted in favor of Fredericks on Plaintiff's failure to protect claim because Plaintiff has not established that Fredericks was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and that Fredericks actually drew that inference. Fredericks has averred as follows:
I do not have specific recollection of receiving a call from [Plaintiff's] mother. In checking my emails, I did locate the attached email that reflects that I did receive a call from [Plaintiff's] mother on September 16, 2021. As a result of that call, I requested by that email for officers to check on the inmate and determine his status, and it is my expectation that that request was complied with. I do not have any further information as to what was determined about that situation. That is the only record of any calls that I received from [Plaintiff's] mother. To the extent that it is alleged that I spoke with his mother on September 19, 2021, that is not correct because I was not working on that date.[Doc. 41-3 at 1-2 ¶ 3.] The email Fredericks referenced states, “[Plaintiff's] mother just called and said he is in fear. She did state he is in Wateree. Can someone please pull this inmate and determine his status? Please let me know the outcome.” [Id. at 5.] In response, Plaintiff has not put forth any evidence that Fredericks knew Plaintiff was at a substantial risk of harm and ignored that risk. Instead, he argues that Fredericks “could have averted the assault” by moving Plaintiff to a different dorm and/or room. [Doc. 48 at 4.] However, as stated, that an inmate attack could have been averted is not enough; Plaintiff must establish that Fredericks knew he faced a serious risk of danger to his safety and disregarded that risk. And, “Plaintiff must do more than allege a generalized concern for his safety and welfare.” Drayton v. Cohen, No. 2:10-3171-TMC, 2012 WL 666839, at *7 (D.S.C. Feb. 29, 2012), aff'd, 474 Fed.Appx. 991 (4th Cir. 2012). Here, the record establishes only that Fredericks knew that Plaintiff had a generalized concern for his safety and nothing in the record shows that Plaintiff made any complaint of a specific threat or anything beyond a generalized fear. Thus, Fredericks is entitled to summary judgment on Plaintiff's failure to protect claim. Accordingly, Defendants' motion for summary judgment should be granted as to Plaintiff's failure to protect claim.
To the extent Plaintiff bases his failure to protect claim on his alleged kiosk requests stating he was in danger, as argued by Defendants [Doc. 53 at 2], he has forecasted no evidence that these kiosk requests were sent to or seen by any of the named Defendants [Docs. 48 at 1, 2; 48-1 at 1 (stating that his kiosk requests were “to classification”).]
Deliberate Indifference to Medical Needs Claim
Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment and states a cause of action under § 1983 because deliberate indifference constitutes “the ‘unnecessary and wanton infliction of pain.'” Estelle, 429 U.S. at 104-05 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)). Deliberate indifference exists when prison officials know of a substantial risk to a prisoner's health or safety and consciously disregard that risk. See Farmer, 511 U.S. at 836; Miltier v. Beorn, 896 F.2d 848, 851-52 (4th Cir. 1990) (“Deliberate indifference may be demonstrated by either actual intent or reckless disregard. A defendant acts recklessly by disregarding a substantial risk of danger that is either known to the defendant or which would be apparent to a reasonable person in the defendant's position.” (internal citation omitted), overruled on other grounds by Fidrych v. Marriott Int'l, Inc., 952 F.3d 124 (4th Cir. 2020)). Within the United States Court of Appeals for the Fourth Circuit, “the treatment must be so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness” to violate a prisoner's Eighth Amendment rights. Miltier, 896 F.2d at 851.
To prevail on an Eighth Amendment claim, the prisoner must demonstrate (1) his medical condition was a sufficiently serious one and (2) subjectively, the prison officials acted with a sufficiently culpable state of mind, which is satisfied by showing deliberate indifference by the prison officials. Goodman v. Wexford Health Sources, Inc., No. 096996, 2011 WL 1594915, at *1 (4th Cir. Apr. 28, 2011). As the United States Supreme Court has explained,
“A medical need is ‘serious' if it 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.” Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990); Hendrix v. Faulkner, 525 F.Supp. 435, 454 (N.D. Ind.1981)).
Since, we said, only the “‘unnecessary and wanton infliction of pain'” implicates the Eighth Amendment, a prisoner advancing such a claim must, at a minimum, allege “deliberate indifference” to his “serious” medical needs. “It is only such indifference” that can violate the Eighth Amendment; allegations of “inadvertent failure to provide adequate medical care,” or of a “negligent . . . diagnos[is],” simply fail to establish the requisite culpable state of mind.Wilson v. Seiter, 501 U.S. 294, 297 (1991) (alteration in original) (citations omitted).
Further, in the context of prisoner medical care, the Constitution requires only that prisoners receive adequate medical care; a prisoner is not guaranteed his choice of treatment. Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988); see Russell v. Sheffer, 528 F.2d 318, 318 (4th Cir. 1975) (“Prisoners are entitled to reasonable medical care.”); see also, e.g., Barton v. Dorriety, No. 9:10-cv-1362, 2011 WL 1049510, at *2 (D.S.C. Mar. 21, 2011).
Here, the Complaint alleges that Plaintiff's Eighth Amendment rights were violated when he remained in his cell for three days after the assault with no medical care. [Docs. 1 at 4; 1-1 at 2-3.] Fredericks has averred that Plaintiff's injuries were observed on September 23, 2021, and he was immediately taken to medical and then transported to Prisma Richland Memorial Hospital (“Prisma”) for further treatment. [Doc. 41-3 at 2 ¶ 4.] Plaintiff appears to agree that he was taken to medical and transported to Prisma on September 23, 2021, but he maintains that the assault occurred three days earlier on September 20, 2021. [Doc. 48 at 3.] However, Plaintiff has produced no evidence to establish the date the assault occurred or that any Defendant knew about his injuries before September 23, 2021. Accordingly, because he has not established that any Defendant knew of his injuries before September 23, when he was immediately taken to medical and transported to Prisma, Defendants' motion for summary judgment should be granted as to Plaintiff's deliberate indifference to medical needs claim.
To the extent Plaintiff challenges the medical care he received at Prisma [Doc. 1-1 at 3 (alleging that he “sat in [the] hospital emergency room 24 hours before [a] doctor tended to” him), 4 (alleging that he “sat in [the] hospital E.R. 24 hours before [a] doctor saw [him] to p[re]scribe pain meds and didn't have surgery until [the] fourth day in [the] hospital)], Prisma is not a “person” or state actor within the meaning of § 1983, see Vanzant v. Carolina Ctr. for Occupational Health, No. 8:14-CV-03725-RBH, 2015 WL 5039302, at *3 (D.S.C. Aug. 25, 2015) (“It remains well-settled law in this circuit that . . . medical facilities . . . cannot be sued in a section 1983 lawsuit.”); Jackson v. Palmetto Baptist Hosp., No. 3:05-1901-CMC-BM, 2005 WL 5405815, at *3 (D.S.C. Nov. 17, 2005) (dismissing Palmetto Baptist Hospital as a defendant because it was not a person subject to suit under § 1983), aff'd, 181 Fed.Appx. 391 (4th Cir. 2006).
Lost Property Claim
Because South Carolina has an adequate post-deprivation remedy for an alleged deprivation of property, a plaintiff's constitutional rights are not violated when a correctional officer loses or mishandles his personal property. See Parratt v. Taylor, 451 U.S. 527, 543-44 (1981) (holding negligent deprivations of property do not violate due process rights provided the state makes available a meaningful post-deprivation remedy), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330 (1986); Hudson v. Palmer, 468 U.S. 517, 533 (1984) (applying Parratt to intentional deprivations of property); Bogart v. Chapell, 396 F.3d 548, 561-63 (4th Cir. 2005) (concluding that the intentional destruction of the plaintiff's animals did not violate the due process clause because South Carolina afforded a meaningful post-deprivation remedy for the loss of animals). In particular, the South Carolina Tort Claims Act (“SCTCA”), SC Code §§ 15-78-10, et seq., “provides a remedy encompassing loss of property proximately caused by an employee of the state, a state agency, or a political subdivision of the state while acting in the scope of his or her employment.” Richardson v. Duncan, No. 4:16-835-RBH-TER, 2016 WL 11410304, at *3 (D.S.C. Aug. 25, 2016), Report and Recommendation adopted by 2016 WL 6134241 (D.S.C. Oct. 21, 2016). Accordingly, Defendants' motion for summary judgment should be granted as to Plaintiff's lost property claim.
Moreover, the Complaint alleges that Barr and another unnamed officer left Plaintiff's property to be stolen. [Doc. 1-1 at 2, 4.] However, as Defendants argue [Doc. 41-1 at 15], Barr is not a Defendant named in this action.
Excessive Force Claim
The use of excessive force upon an inmate by correctional officers violates the Eighth Amendment's prohibition against cruel and unusual punishment. Hudson v. McMillian, 503 U.S. 1, 5 (1992). To prove an excessive force claim, an inmate must show (1) that the correctional officers acted with a sufficiently culpable state of mind and (2) that the harm inflicted on the inmate was sufficiently serious. Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). The subjective component requires the inmate to demonstrate the officer applied force not “in a good faith effort to maintain or restore discipline,” but rather applied force “maliciously and sadistically for the very purpose of causing harm.” Hudson, 503 U.S. at 6 (internal quotation marks omitted).
Officers employ force in good faith “not only when they confront immediate risks to physical safety, but also when they attempt to preserve internal order by compelling compliance with prison rules and procedures.” Brooks v. Johnson, 924 F.3d 104, 113 (4th Cir. 2019) (internal quotation marks omitted). In contrast, officers employ force “maliciously and for the very purpose of causing harm when they inflict pain not to induce compliance, but to punish an inmate for intransigence or to retaliate for insubordination.” Id. (alteration and internal quotation marks omitted). Given the difficulty in obtaining direct evidence of motive, in Whitley v. Albers, 475 U.S. 312 (1986), the Supreme Court set out factors from which such a malicious motive may be inferred. See Brooks, 924 F.3d at 116. The Fourth Circuit has identified those factors as:
(1) “the need for the application of force”; (2) “the relationship between the need and the amount of force that was used”; (3) the extent of any reasonably perceived threat that the application of force was intended to quell; and (4) “any efforts made to temper the severity of a forceful response.”Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008) (noting that this list of factors is nonexclusive).
In contrast to the subjective component, the objective component of an excessive force claim is not nearly as demanding to establish because “[w]hen prison officials maliciously and sadistically use force to cause harm, . . . contemporary standards of decency always are violated . . . whether or not significant injury is evident.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (last alteration in original) (internal quotation marks omitted). Nevertheless,
not every malevolent touch by a prison guard gives rise to a federal cause of action. The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind. An inmate who complains of a push or shove that causes no discernible injury almost certainly fails to state a valid excessive force claim.Id. at 37-38 (internal citations and quotation marks omitted).
Still, it is not the case “that the absence of serious injury is irrelevant to the Eighth Amendment inquiry.” Wilkins, 559 U.S. at 37 (internal quotation marks omitted). “[T]he extent of injury suffered by an inmate is one factor that may suggest whether the use of force could plausibly have been thought necessary in a particular situation” and “may also provide some indication of the amount of force applied.” Id. (internal quotation marks omitted) (alteration in original).
Here, the Complaint alleges that Plaintiff's Eighth Amendment rights were violated when Spikes sprayed chemical munitions in Plaintiff's eyes through the food flap on March 15, 2022. [Doc. 1-1 at 2, 5.] Defendants argue that Spikes is entitled to summary judgment because his response to the security breach “was objectively reasonable and the force used was appropriate as a matter of law under the circumstances presented.” [Doc. 41-1 at 4.] The Court agrees.
In support of the motion for summary judgment, Defendants have submitted an affidavit by Spikes in which he avers that he
was advised on March 15, 2022, by Lt. Shuler that [Plaintiff] had assaulted [another inmate]. Lt. Shuler broke up the fight between the inmates and gave [Plaintiff] a direct order to return to his cell. [Plaintiff] initially refused but ultimately was secured in his cell. At that time, Lt. Shuler noticed that [Plaintiff] had a
homemade weapon or shank in his hand. The inmate was given a direct order to give up the shank, which he refused.[Doc. 41-2 at 2 ¶ 3; see also id. at 6 (Shuler's incident report, stating that he noticed that Plaintiff had a shank in his right hand and that Plaintiff refused a direct order to give the shank to Shuler), 10 (Spikes's incident report), 12-15 (use of force report).] Spikes then “directed Lt. Shuler to notify medical and mental health personnel,” and Spikes notified two qualified mental health professionals who went to Plaintiff's unit to attempt to retrieve the weapon. [Id. at 2 ¶ 4; see also id. at 8 (qualified mental health professional/medical contact form, noting that Spikes had called to request an assessment prior to use of force), 10, 12-15; Doc. 41-5 at 8 (medical record).] However, the mental health personnel's efforts in retrieving the weapon from Plaintiff were unsuccessful. [Doc. 41-2 at 2 ¶ 4; see also Id. at 10, 12-15; Doc. 41-5 at 8.] Spikes also went to Plaintiff's unit and gave him “several direct orders to throw the weapon out of the flap in the cell door and to cooperate in removing him from the cell.” [Doc. 41-2 at 2 ¶ 5; see also id. at 10, 12-15.] However, Plaintiff refused these orders, and Spikes “administered one short burst of chemical munitions (6 grams of MK4 Sabre Red #47) into the cell toward the inmate's facial area.” [Id. at 2 ¶ 5; see also id. at 10, 12-15.] He also gave another order for Plaintiff to throw the weapon out, and Plaintiff stated that the weapon had been flushed down the toilet but he kicked out a pen that had been filed down into a weapon. [Id. at 2 ¶ 5; see also id. at 10, 12-15.] Plaintiff then complied with a directive to come to the cell door to be restrained. [Id. at 2 ¶ 5; see also id. at 10, 12-15.] Once he was restrained, Plaintiff was immediately escorted to medical, where he was seen by a nurse, given a shower to decontaminate, and placed in a different clean cell. [Id. at 3 ¶ 6; see also id. at 10, 12-15; Doc. 41-5 at 2-7 (medical records).]
Plaintiff appears to challenge Spikes's incident report, asserting that it was not a part of the original incident report and that there is nothing on Shuler's incident report about the use of force. [Doc. 48 at 8.] However, particularly given the consistency among Spikes's affidavit and all the exhibits attached to it, the Court finds no basis to believe the incident report is not a true and accurate copy of the report Spikes completed. Indeed, Shuler's report was completed at 10:26 a.m. on March 15, 2022-before the chemical munitions were sprayed-and ends by stating that Plaintiff remained “locked in his room waiting for [Spikes] to take [him] to [l]ock up.” [Doc. at 6; see id. at 10 (noting that the chemical munitions were sprayed at 12:50 p.m.), 12 (same).]
Spikes avers that “it was necessary to remove [Plaintiff] from the cell and to retrieve the weapon from him.” [Doc. 41-2 at 3 ¶ 8.] Spikes “did not want to utilize the force cell extraction team because [Plaintiff] was armed” and “[t]hat would pose substantial risk of injury to both the officers and the inmate.” [Id.] Thus, “[t]he safest and best course of action was to obtain [Plaintiff's] compliance by the use of chemical munitions.” [Id.] Spikes followed SCDC policy by providing mental health counseling and verbal warnings of the intent to use chemical munitions if Plaintiff did not comply with orders. [Id. at 3 ¶¶ 8-9.] Because Plaintiff refused to comply, chemical munitions were used, and Plaintiff cooperated after one administration of chemical munitions. [Id.]
Considering the first and third Whitley factors-the need for the application of force and the extent of any reasonably perceived threat that the application of force was intended to quell-Defendants have forecasted evidence that Plaintiff had just assaulted another inmate, initially refused orders to return to his cell, and continued to refuse to turn over a homemade weapon that Shuler had seen in Plaintiff's hand. [Id. at 2 ¶¶ 3-5; Id. at 6, 10, 12-15; Doc. 41-5 at 8.] Although Plaintiff argues that he did not have a knife or a filed-down pen [Doc. 48 at 6-7], he has not forecasted any evidence to support that assertion. Nor has he forecasted any evidence that would tend to show that the officers, including Spikes, did not believe he had a weapon in his cell. Accordingly, Defendants have established a need to apply force and that they reasonably perceived a significant threat.
Regarding the second and fourth Whitley factors-the relationship between the need and the amount of force that was used and any efforts made to temper the severity of a forceful response-the Court of Appeals for the Fourth Circuit has recognized that a “limited application of mace may be much more humane and effective than a flesh to flesh confrontation with an inmate” and that “prompt washing . . . will usually provide immediate relief from pain.” Williams, 77 F.3d at 763 (internal quotation marks omitted). Additionally, “because a limited use of mace constitutes a relatively ‘mild' response compared to other forms of force, the initial application of mace indicates a ‘tempered' response by the prison officials.” Id. The record reflects that Spikes administered one short burst of six grams of chemical munitions [Doc. 41-2 at 2 ¶ 5; Id. at 10, 12-15], which is a reasonable use of minimal force to compel compliance with officers' directives, see Watkins v. Cross, No. 0:17-135-MGL-PJG, 2019 WL 1472887, at *4 (D.S.C. Mar. 8, 2019) (concluding that a relatively short burst of chemical munitions “weigh[ed] in favor of the efforts of [the officer] to temper the severity of the force applied and the commensurate relationship between the need for force and the amount used” and that “the single burst unequivocally indicate[d] that it was rendered to restore order and institutional security”), Report and Recommendation adopted by 2019 WL 1470248 (D.S.C. Apr. 3, 2019), aff'd sub nom. Watkins v. Jones, 771 Fed.Appx. 332 (4th Cir. 2019); Brown v. West, No. 4:14-cv-04732-TLW, 2015 WL 4162457, at **6, 8 (D.S.C. July 9, 2015) (concluding that a short burst of 15 grams of chemical munitions was not unreasonable). Moreover, the record reflects that Spikes made efforts to temper the use of force, including attempts to diffuse the situation by speaking with Plaintiff and calling in qualified mental health professionals to speak with Plaintiff. And, after Spikes administered chemical munitions, Plaintiff was immediately taken to medical where he was seen by a nurse, allowed to decontaminate, and then taken to a clean cell. Accordingly, Defendants have established that efforts were made to temper the use of force and that the amount of force used was reasonable.
Given the need for force and lack of any indication that Spikes used more force than was necessary, Plaintiff has not forecasted evidence on which a jury applying the Whitley factors could infer that Spikes acted maliciously rather than out of a good-faith effort to gain control of the situation and to retrieve a weapon from Plaintiff. Accordingly, Defendants' motion for summary judgment should be granted as to the excessive force claim.
In his response in opposition to the motion for summary judgment, Plaintiff contends that Spikes “smiled and sprayed” him. [Doc. 48 at 7.] However, he does not cite any evidence in the record to support his assertion.
Negligence/Gross Negligence Claim
Plaintiff's claim for negligence and/or gross negligence for failure to provide him narcos, Ensure drinks, and wax does not rise to the level of a constitutional violation. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (“Negligence or malpractice in the provision of medical services does not constitute a claim under § 1983. The standard for § 1983 liability is deliberate indifference to serious medical needs.”). To the extent Plaintiff is bringing state-law claims, such claims would be subject to the SCTCA. Under the SCTCA, an employee of a governmental entity who commits a tort while acting within the scope of his official duty is generally not liable, and the plaintiff must sue the governmental entity itself. See S.C. Code § 15-78-70(a). Here, Plaintiff has not specifically named the governmental entity as a defendant. Accordingly, Defendants' motion for summary judgment should be granted as to Plaintiff's negligence/gross negligence claim.
Plaintiff refers to his claim as both a negligence claim and a gross negligence claim throughout the Complaint. [Docs. 1 at 4 (listing his claim as negligence); 1-1 at 4 (listing his claim as negligence-gross); see also Doc. 48 at 4 (response in opposition, listing separately a negligence claim and a gross negligence claim).]
Even if Plaintiff were attempting to assert his claim regarding denial of narcos, Ensure drinks, and wax as one of deliberate indifference to medical needs, he has failed to forecast any evidence to support this claim, including any evidence that a named Defendant refused to provide him with narcos, Ensure drinks, and wax. Moreover, in his response in opposition to the motion for summary judgment, Plaintiff fails to address Defendants' arguments regarding his gross negligence claim. Plaintiff's failure to respond to this argument also justifies dismissal of this claim. See Waiters, 2019 WL 5874132, at ** 8, 10; Jones, 323 F.Supp.2d at 690. Additionally, because Plaintiff has failed to demonstrate that any Defendant violated Plaintiff's constitutional rights, Defendants are also entitled to qualified immunity from liability for damages. See Tolan v. Cotton, 572 U.S. 650, 655-66 (2014) (stating that for qualified immunity to attach to a defendant, either the facts viewed in the light most favorable to the plaintiff fail to demonstrate the violation of a constitutional right and/or the right was not clearly established at the time of the violation).
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendants' motion for summary judgment [Doc. 41] be GRANTED.
IT IS SO RECOMMENDED.