Opinion
C. A. 5:21-4183-MGL-KDW
05-08-2023
Ontario Lamar Staley, Plaintiff, v. Sheriff Kristin R. Graziano and Wellpath; Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Ontario Lamar Staley initiated a lawsuit pursuant to 42 U.S.C. § 1983 in the Charleston County Court of Common Pleas against Defendants Sheriff Kristin R. Graziano and Wellpath, alleging they violated his constitutional rights in responding to a slip and fall incident on May 6, 2021 at the detention center where Plaintiff was housed. ECF No. 1-1; 24. Sheriff Graziano is the Sheriff for Charleston County, and Wellpath is the entity with which Charleston County contracts to provide medical services for the Sheriff Al Cannon Detention Center. At all times relevant to the allegations contained within Plaintiff's suit, he was a pretrial detainee at the detention center.
Defendant Graziano removed this case from the Charleston County Court of Common Pleas to federal court on December 29, 2021. ECF No. 1-1. On September 1, 2022, Defendant Graziano filed a Motion for Summary Judgment. ECF No. 52. That same day, Defendant Wellpath filed its own Motion for Summary Judgment. ECF No. 53. Plaintiff initially responded to these Motions on September 22, 2022. ECF Nos. 58; 59. Defendant Graziano filed a Reply on September 29, 2022. ECF No. 60. Defendant Wellpath filed two Replies to the Responses of Plaintiff on September 29, 2022. ECF Nos. 61; 62. On October 13, 2022, Plaintiff filed Amended Responses in Opposition to both Motions for Summary Judgment. ECF Nos. 67; 70.Defendant Wellpath responded on October 20, 2022. ECF Nos. 71; 72; 73. This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) and (e), D.S.C. Because these Motions are dispositive, a Report and Recommendation (“R&R”) is entered for the court's review.
Under Local Rule 7.07, a reply to a motion is allowed, although discouraged. The Local Rules do not provide for Sur-Replies. A party may seek permission from the court to file an additional response or “sur-reply.” Perez v. S.C. Dep't of Labor, Licensing and Regulation, No. 3:17-CV-3187-JFA, 2018 WL 2455093, at *4 n.10 (D.S.C. June 1, 2018). While styled as an “Amended Response,” Plaintiff essentially seeks to file additional replies with additional information. Plaintiff did not seek permission to file a sur-reply in this case; however, the undersigned, in her discretion, has considered any additional arguments made that address any novel arguments made in Defendants' Replies.
I. Factual Background
The facts as set forth in this R&R are derived from Plaintiff's multiple, amended pleadings, and where noted, additional evidence within the record, including a recorded interview with Plaintiff.Plaintiff's troubles began on May 6, 2021, while housed at the Sheriff Al Cannon Detention Center (the “SACDC”). On that day, Plaintiff allegedly slipped and fell in cell 3105, after water accumulated from what Plaintiff believes to have been a leak in the ceiling. ECF No. 24 at 1. In essence, Plaintiff's lawsuit boils down a straightforward slip and fall tort claim and his complaints with the subsequent medical treatment. On May 6, 2021, a detention center deputy, Joseph Dempsey, was advised by one of four occupants in cell 3105 that there was water on the floor of that cell. See Affidavit of Joseph Dempsey, attached as Exhibit D to Defendant Graziano's Motion for Summary Judgment. As a result, the cell occupants began to move their property from cell 3105 to another cell. Dempsey Aff., ¶ 11.; see also Plaintiff's Interview, attached as Exhibit C to Defendant's Motion for Summary Judgment, ECF No. 52-3 at 0:45-52. The location of that water, according to Plaintiff in an interview recorded after the incident, was “right next to the toilet,” and had “formed quickly.” See Plaintiff's Interview at 0:25-38. Plaintiff was housed in that particular cell from the moment he arrived at the detention center in February until he was moved in May, as a result of the water intrusion. See Pl.'s Interview, Exhibit C at 1:40-2:00. Plaintiff initially believed the leak started in the ceiling, but Plaintiff did not indicate why he believed it started in the ceiling. See Pl.'s Interview, Exhibit C at 0:25-0:35. Plaintiff also noticed cracks in the ceiling of this cell. Id. at 2:05-2:25. Plaintiff said the water started leaking the same day as the accident, within an hour of when the accident occurred. Id. 2:40-2:53. Specifically, at the end of Plaintiff's interview, he stated that the puddle formed “within 30 minutes” of the alleged leak. Id. at 33:00-33:17. Plaintiff stated that while he was moving all of his things out, on his “last” trip in there, he slipped on the puddle of water and fell. Id. at 0:52-1:00. Body camera footage from the day of the incident shows several officers respond and come to the location of the cell where Plaintiff was lying face down on the floor. See Body Camera Footage attached as Exhibit G to Defendant Graziano's Motion for Summary Judgment, ECF No. 52-7. The footage also shows several nurses respond to the cell, with one nurse providing a wheelchair for use. Plaintiff stated that when he fell, several officers came to the cell to respond to the call that he had fallen, including some that were high-ranking, and that they noticed the leak from the ceiling. See Pl.'s Interview, Exhibit C at 7:00-7:34. When asked where the water was coming from, Plaintiff said, “my best guess is one of the pipes that had a leak in the ceiling. I'm not sure exactly.” Id. at 14:10-14:25.
By way of a brief explanation, these facts are included in various documents culminating several filings, which the court has construed as Plaintiff's Amended Complaint. See Order, ECF Nos. 23; 24.
As far as how Plaintiff fell, he indicated that, “I had my mattress, and I was walking to the door and I tried to overstep the puddle . . and I guess I misjudged it . . . but I hit the puddle, and that's when I slipped.” 17:38-18:10. In his Amended Complaint, Plaintiff alleged that the water came from a leaking pipe, and that this was not the first time this problem occurred. ECF No. 24 at 1. According to Shaun Fitch, the Trades Tech Supervisor for the Charleston County Department of Facilities, upon review of the maintenance records for the detention center, there were no prior work orders or work order requests for that cell prior to May 6, 2021. See Affidavit of Shaun Fitch, ¶ 10, attached as Exhibit F to Defendant's Motion for Summary Judgment, ECF No. 52-6 at 4. Mr. Fitch explained that on May 7, 2021, the day after Plaintiff fell, a work order was submitted regarding the toilet in the adjacent cell to cell 3105. Fitch Aff., ¶ 11. Mr. Fitch spoke to the technician assigned to that work order and learned that the toilet in the adjacent cell had been clogged by the cell's occupants intentionally, thereby causing a leak which was believed to have affected cell 3105. Fitch Aff., ¶ 11.Plaintiff alleges that the day-to-day operations of the facility were under the control of Director Abigail S. Duffy. Plaintiff alleges the failure to maintain the upkeep of the plumbing was the cause of the leak. ECF No. 24 at 13.
In his Amended Response, Plaintiff now alleges, without any evidentiary support, that Defendants had knowledge that prison detainees flood their room. ECF No. 70 at 14. However, this bare allegation does not suffice to defeat summary judgment, particularly since Plaintiff indicated in his interview that employees responded promptly to the concern of the leak in Plaintiff's cell.
Plaintiff alleges his injuries included an injury to his right shoulder, back, right hip, and right leg and groin. ECF No. 24 at 1. Plaintiff alleges he did not receive appropriate medical attention,and specifically takes issue with an unnamed doctor basing her medical findings from x-ray results. Id. Conversely, Plaintiff also indicates that physician Jane Doe observed he was in pain and prescribed in pain medication, as well as ordered x-rays. Id. at 1-2. Plaintiff does not agree with physician Jane Doe's medical assessment, as well as her attributing his pain to arthritis. Id. at 2. Plaintiff alleges that prior to the slip and fall, he was previously seen by healthcare workers at SACDC for shoulder, back and leg pains and migraines. ECF No. 24 at 7. Plaintiff argues that he complained over the next several months about his pains, which he alleges were groin and muscle pain, but Plaintiff alleges he was provided the same medical recommendations. Id. at 3. Plaintiff believes the medical treatment provided made his pain worse. Id. Plaintiff also states that two days after he arrived at SACDC, around February 12, 2021, he informed medical staff about his shoulder, back and leg pains. Id. at 7. Plaintiff states that on March 5, 2021, he informed medical staff that Plaintiff suffered from chronic migraine headaches. Id. Plaintiff alleges that on May 4, 2021, after a physical exam, he was told x-rays would be ordered. Id. at 8. Two days later, he slipped and fell in his cell.
Plaintiff states that WellPath is the medical care provider for SACDC. ECF No. 24 at 6. He further states that several doctors employed by Wellpath saw him. Id.
Plaintiff alleges that the observation room he was placed in after his fall only contained a mattress on the floor and a toilet, which he contends constitutes a violation of the Eighth Amendment. Id. at 2. He also argues that the fact that Jane Doe physician had him walk back to his dorm carrying his belongings constitutes the “unnecessary and wanton infliction of pain.” Id. Plaintiff alleges that he was denied the ability to be sent to rehabilitation, was not provided all of the heating pads he was prescribed, and was not provided a bottom bunk, despite having an order to that effect. Id. Plaintiff alleges the injuries he suffered were due to the negligence of Defendants to perform their duties. Id. at 9. The only specific allegation against Defendant Graziano is that Plaintiff wrote her a grievance, but it simply vanished. Id. at 8. Otherwise, Plaintiff generally alleges that all maintenance and upkeep of said detention facility are under the direct supervision of Director Duffy, and ultimately, Sheriff Kristin Graziano. ECF No. 24-2 at 1.
II. Standard of Review
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own argument, affidavit, or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).
Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc.Servs., 901 F.2d 387, 391 (4th Cir. 1990).
III. Analysis
A. Defendant Graziano's Motion for Summary Judgment
Defendant Kristin Graziano raises several arguments in support of her Motion for Summary Judgment. ECF No. 52. As aptly pointed out by Defendant Graziano, Plaintiff does not allege she had any personal involvement in the incidents at issue in this case; rather, Plaintiff appears to name her in her official capacity as the Sheriff in Charleston County. Within her Motion, Defendant Graziano raises the following arguments in favor of summary judgment: (1) Plaintiff's § 1983 claims fail as a matter of law; (2) Plaintiff has failed to establish gross negligence sufficient to support a state law claim, and (3) Plaintiff is unable to bring a punitive damages claim against her as Sheriff. ECF No. 52. The undersigned will address each argument, as well as Plaintiff's arguments in response to Defendant Graziano in turn. The undersigned notes that this case was removed from state court, and as such, includes both federal and state law claims. Defendant Graziano requests this court use its discretion to exercise supplemental jurisdiction over the state law claims and grant summary judgment on those, as well. See 28 U.S.C. § 1367. Because Plaintiff's claims all center around a core set of facts, the slip and fall incident, and the parties have participated in discovery, the undersigned has considered all arguments made by Defendant Graziano, including recommending dismissal of the state law claims.
i. § 1983 Claims
The undersigned will first consider the claims brought against Defendant Graziano pursuant to 42 U.S.C. § 1983. Defendant Graziano argues that any allegations made by Plaintiff to support a § 1983 claim fail as a matter of law. First, Defendant Graziano argues that any claims brought against her in her official capacity are not cognizable because she is not a “person” for purposes of § 1983 and is subject to immunity pursuant to the Eleventh Amendment. In so responding, Plaintiff states that all claims brought against Defendant Graziano in her official capacity are a “matter of law.” Pl.'s Br. at 2, ECF No. 58. Plaintiff otherwise does not argue that Eleventh Amendment Immunity should not apply. The Eleventh Amendment provides: “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” U.S. CONST. amend. XI. The United States Supreme Court has long held that the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001). Eleventh Amendment immunity also extends to “arms of the State” and state employees acting in their official capacity. Doe v. Coastal Carolina Univ., 359 F.Supp.3d 367, 378 (D.S.C. Jan. 9, 2019). Relatedly, the Supreme Court has held that neither a State nor its officials acting in their official capacities are “persons” under § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Moreover, a state cannot, without its consent, be sued in a District Court of the United States by one of its own citizens upon the claim that the case is one that arises under the Constitution and laws of the United States. Edelman, 415 U.S. at 663.
Defendant Graziano argues she is a state official and therefore not a “person” within the meaning of 42 U.S.C. § 1983. A Sheriff and his or her deputies in South Carolina are considered state officials. See, e.g., Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (finding that a sheriff, in his capacity as a state official, is immune from suit under § 1983 for money damages); see also Cone v. Nettles, 417 S.E.2d 523, 525, 308 S.C. 109 (S.C. 1992) (holding that sheriffs and deputies are state officials). The law is therefore clear that in this case, Defendant Graziano is immune from suit in her official capacity. Accordingly, the undersigned recommends finding that Eleventh Amendment immunity applies to Plaintiff's claims against Defendant Graziano, to the extent any claims are brought against her in her official capacity.
Elsewhere in Plaintiff's pleadings, he alleges Defendant Graziano is bound by the actions of her employees, which Defendant Graziano argues is his attempt to bring claims pursuant to § 1983 under a theory of respondeat superior, which is inapplicable for a § 1983 claim. Liability under § 1983 involves a showing that “the official charged acted personally in the deprivation of the plaintiff's rights.” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). The doctrine of respondeat superior is inapplicable in these cases. Id.; see Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (stating that there is no respondeat superior liability under § 1983). However, supervisory officials may be held liable in certain circumstances upon a “recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (quoting Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir. 1984)). To the extent Plaintiff makes a claim against Defendant Graziano under a theory of supervisory liability, such a claim must fail.
To establish supervisory liability under § 1983 one must show: (1) the “supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a ‘pervasive and unreasonable risk' of constitutional injury”; (2) the “supervisor's response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices,'”; and (3) there was an “affirmative causal link between the supervisors inaction and the particular constitutional injury suffered by the plaintiff.” Shaw, 13 F.3d at 799 (internal citation omitted).
Plaintiff has failed to establish any set of facts, or otherwise allege that Defendant Graziano had any knowledge whatsoever of any of the allegations in the Amended Complaint. With respect to the slip and fall incident, Plaintiff does not provide any allegations to suggest that Defendant Graziano's conduct in any way showed deliberate indifference to any offensive practice. Indeed, Plaintiff does not allege any conduct, widespread or otherwise, on the part of Graziano's employees that in any way contributed to his slip and fall accident. Plaintiff alternatively suggests that the settling of the building or some other construction problem may have caused the slip and fall, while also suggesting officers knew that other detainees flood their cells, implying that could have been the cause of the water intrusion. However, Plaintiff provides no evidentiary support for these allegations, and he does not show any causal link between his accident and Defendant Graziano. Similarly, Plaintiff does not allege a link or provide any support to suggest that Defendant Graziano was aware of any of Plaintiff's subsequent medical care, which he alleges was deficient. Plaintiff simply alleges that Defendant Graziano was negligent in allowing these incidents to occur, without any support for this allegation or any evidence to suggest Defendant Graziano was aware of the incident and subsequent medical care at the time of treatment.The record does not contain any information regarding any knowledge on the part of Graziano that any of these events took place.
For her part, Defendant Graziano provided an affidavit averring to the fact that she did not recall any personal contact with Plaintiff or otherwise had any personal knowledge of Plaintiff until receipt of this lawsuit. Affidavit of Kristin Graziano, attached to Defendant's Motion for Summary Judgment as Exhibit J, ECF No. 52-10.
Further, Plaintiff provides no evidence to establish that Defendant Graziano acted with deliberate indifference sufficient to support a § 1983 claim against her on these grounds. First, to the extent that Plaintiff's Response could be read to argue that his grievances were ignored after the incident, a prisoner does not have a constitutionally protected right to “grievance procedures or access to any such procedure voluntarily established by a state.” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Accordingly, Plaintiff has not alleged any set of facts to constitute a violation of his constitutional rights by Defendant Graziano. Second, while Plaintiff may imply that Defendant Graziano was deliberately indifferent to his medical needs, Plaintiff does not provide any factual support, nor does he allege, Defendant Graziano had any knowledge of his injuries or related medical care. The undersigned therefore recommends finding that Plaintiff has failed to establish a § 1983 claim against Defendant Graziano.
Defendant Graziano also states she is entitled to qualified immunity, to the extent Plaintiff's Amended Complaint could be construed as being brought in her individual capacity. Plaintiff makes no such allegations. In Harlow v. Fitzgerald, the Supreme Court held that government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known. 457 U.S. 800 (1982). When a qualified immunity defense is raised, the courts apply a two-part test. First, the court must determine whether the facts viewed in the plaintiff's favor make out a violation of one's constitutional rights; and second, whether the violated right was clearly established at that time. Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (citing Pearson v. Callahan, 555 U.S. 233, 231 (2009)). The plaintiff bears the burden of proving the first prong, and the [officer] bears the burden on the second prong. Stanton, 25 F.4th at 233 (citing Henry v. Purnell, 501 F.3d 374, 377-78 & n.4 (4th Cir. 2007)). Here, the undersigned has recommended finding that Plaintiff has not established a violation of his constitutional rights. Thus, alternatively Defendant Graziano would also be entitled to qualified immunity, as Plaintiff has not alleged any conduct on the part of this Defendant that would violate his constitutional rights.
ii. Gross Negligence/Premises Liability Claim
In his Amended Complaint, Plaintiff alleges that “the facility's failure to maintain the upkeep of the plumbing was the cause of the leak which caused Plaintiff's injury.” ECF No. 24 at 13. Plaintiff further alleges that gross negligence with respect to the upkeep of the facility is the responsibility of Director Duffy, and ultimately Defendant Graziano. ECF No. 24-1 at 1. Additionally, Plaintiff alleges that Defendant Graziano is responsible for the building and everything wrong with the building. ECF No. 24-2 at 3. Defendant Graziano construes Plaintiff's allegations concerning his slip and fall at the SACDC, to be a gross negligence claim related to the upkeep of the detention center premises.
The South Carolina Tort Claims Act (the “SCTCA”) governs all tort claims against governmental entities and is the “exclusive and sole remedy for any tort committed by an employee or a governmental entity while acting within the scope of the employee's official duty.” S.C. Code Ann. § 15-78-200. Under the SCTCA, a governmental entity is not liable for a loss resulting from . . . “responsibility or duty including but not limited to supervision, protection, control, confinement or custody of any student, patient, prisoner, inmate or client of any governmental entity, except when the responsibility or duty is exercised in a grossly negligent manner.” S.C. Code Ann. § 15-78-60(25) (emphasis added). Accordingly, Plaintiff must show Sheriff Graziano acted in a grossly negligent manner. To plead the following elements to state a claim for gross negligence, a plaintiff must show: (1) a duty of care owed to the plaintiff by the defendant; (2) a breach that duty by a grossly negligent act or omission; (3) the breach was the actual and proximate cause of injury; and (4) damages proximately resulting from the breach of duty. See Cockrell v. Lexington Cty. Sch. Dist. One, No. 3:11-cv-2042-CMC, 2011 WL 5554811, at *5 (D.S.C. Nov. 15, 2011). Under South Carolina law, one must show the “intentional, conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do.” Hollins v. Richland Cty. Sch. Dist. One, 310 S.C. 486, 490, 427 S.E.2d 654, 656 (1993). Alternatively, it has been described as “the failure to exercise slight care.” Id. The question of what activity constitutes gross negligence is generally a mixed question of law and fact; however, where the evidence supports only one reasonable inference, the question is a matter of law for the court. Etheredge v. Richland Sch. Dist. One, 534 S.E.2d 275, 277, 341 S.C. 307, 310 (2000).
First, Plaintiff has failed to establish that his slip and fall accident was the result of water intrusion caused by the failure to upkeep the building. In his Response to Defendant Graziano's Motion, Plaintiff states that cracks in the ceiling could have been caused by a number of things, including the fact that the building has “begun to settle in the earth.” Pl.'s Br. at 2; ECF No. 58. Additionally, Plaintiff alleges he has since slipped twice at the facility and raises hypothetical questions in response to the evidence provided by Defendant Graziano. However, while Plaintiff alleges the water came from cracks in the ceiling or a leaking pipe in the ceiling, these are, in essence, guesses as to what he believes was the root cause of the puddle. Plaintiff does not raise a genuine issue of material fact to refute the evidence of record which establishes the puddle was likely caused by other inmates intentionally clogging a toilet in a nearby cell. In reviewing the large quantity of documents provided by the parties in this case, the record does not contain any evidence that prior to Plaintiff's fall, there had been any information regarding a leak or water intrusion in that cell. Second, Plaintiff suggests that Defendant Graziano is contributorily negligent for an employee's “inadvertent negligence.” ECF No. 70 at 1. Plaintiff does not otherwise establish a genuine issue of material fact with respect to his claims.
As far as whether the detention center employees responded inadequately, Plaintiff himself states that, he could not “speak ill of how the response was, they responded properly.” Pl. Interview at 30:55-31:10. When asked about the response of the officers after he fell, he responded, “they did follow protocol.” Id. at 31:20-31:40. Indeed, Plaintiff was aware of the puddle, knew where the puddle was located, and “misjudged” stepping around it when leaving his cell for the last time. The evidence before the undersigned establishes that there had been no prior work orders for any leak in that cell, and that the day after this incident, there was a work order to replace an adjacent toilet that had been intentionally clogged and flooded. Thus, not only does Plaintiff not produce any evidence regarding where the water came from, he also has not produced any evidence that Defendant Graziano had any knowledge of or involvement with the failure to remedy a leak in that cell prior to Plaintiff's accident.
At best, Plaintiff argues that Defendant Graziano and/or Director Duffy are responsible for the upkeep of the SACDC; however, even viewing the facts in a light most favorable to Plaintiff, the only evidence in the record is that a leak formed approximately thirty minutes prior to Plaintiff ultimately slipping in the puddle when he was, by his own account, quickly being moved out of the cell and was attempting to navigate around the puddle. Simply put, Plaintiff produces no testimony or other evidence, nor does he allege, that Defendant Graziano knew of a water leak, let alone intentionally disregarded addressing any potential problem in that housing unit. Under this set of facts, as supported by the record, there is no genuine issue of material fact that the responding officers or Defendant Graziano breached any duty owed to Plaintiff or otherwise acted with gross negligence. Accordingly, the undersigned recommends that the district court grant Defendant Graziano's Motion for Summary Judgment as to any gross negligence claim.
Defendant Graziano also states that she had no indication that the subsequent medical care provided to Plaintiff was anything other than appropriate for his needs. Def.'s Br. at 8, footnote 4. Plaintiff does not provide any argument in response to Graziano's Motion suggesting that he meant to bring a gross negligence claim against Defendant Graziano related to the medical care provided by Wellpath. However, the undersigned agrees that even if he alleged such a claim, he has not established any set of facts that would support a gross negligence claim on this ground. To the extent Plaintiff's Amended Complaint could be construed as stating such a claim, the undersigned recommends dismissing any gross negligence claim under that theory as well as there are no facts or allegations to support such a claim. The evidence in the record, as discussed in a later section, reveals Plaintiff was provided medical care related to the slip and fall incident.
iii. Punitive Damages
Defendant Graziano argues that Plaintiff is not entitled to punitive damages in this case because the SCTCA bars awards of punitive damages against governmental entities, and she is named in her role as Sheriff. Plaintiff responds simply that punitive damages are “just and proper.” The SCTCA provides, “[n]o award for damages under this chapter shall include punitive or exemplary damages or interest prior to judgment.” S.C. Code Ann. § 15-78-120. Similarly, punitive damages are not recoverable against a municipality under § 1983. Angell v. Leslie, 832 F.2d 817, 821 (4th Cir. 1987). Even were they recoverable, Plaintiff provides no justification for punitive damages against Defendant Graziano in this case. Defendant Graziano argues that any punitive damages claims against her should be dismissed, as Plaintiff acknowledges he is bringing these claims against her in her official capacity. The undersigned agrees. Accordingly, to the extent Plaintiff seeks punitive damages against Defendant Graziano, the undersigned recommends dismissing this claim.
B. Defendant Wellpath
Defendant Wellpath also requests summary judgment as to the claims brought forth by Plaintiff. Plaintiff's allegations toward Wellpath generally focus on the medical treatment he received following the slip and fall incident and related injuries. Wellpath raises several arguments in favor of summary judgment, including: (1) Wellpath is not amenable to suit under § 1983; (2) Plaintiff has failed to establish Defendant Wellpath was deliberately indifferent to his medical needs; (3) Plaintiff has failed to exhaust his administrative remedies; (4) Plaintiff has failed to adequately plead any alleged medical malpractice claim; and (5) Plaintiff cannot establish the need for the requested injunctive relief. ECF No. 53.
Plaintiff's Response (and Amended Response) boil down to one central argument; that is, Plaintiff disagreed with the medical decisions and diagnoses he received from Wellpath. However, while Plaintiff raises several hypothetical questions or argues that he lacked the resources to respond adequately to Defendant Wellpath's Motion,Plaintiff does not rebut any of the evidence establishing the facts set forth by Defendant Wellpath. Indeed, Plaintiff's greatest issue with Defendant Wellpath is that he disagrees that he complained of issues with his hip, and instead had issues with his groin and thigh muscle. Pl.'s Br. at 2; ECF No. 59. However, simply put, Plaintiff disagreed with the care he received, while implicitly acknowledging he received continual treatment after the incident in question.
Plaintiff argues that he does not have access to a law library. However, Plaintiff's pleadings to the court include voluminous case citations and references to federal law. Further, the undersigned is considering whether Plaintiff provides any facts to establish a genuine dispute as to the receipt of medical care.
Plaintiff argues in both his Response and Amended Response that he received subpar medical attention in subsequent medical emergencies that occurred after the filing of this lawsuit (and indeed occurred after the discovery deadline in this case).
i. Exhaustion of Administrative Remedies
Defendant Wellpath argues that Plaintiff failed to comply with the Prison Litigation Reform Act because he filed suit without exhausting his administrative remedies to the correctional facility. Def.'s Br. at 21. The Prison Litigation Reform Act (the “PRLA”), 42 U.S.C. § 1997e(a), provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” This requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). To satisfy this requirement, a plaintiff must avail himself of all available administrative remedies. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies “need not meet federal standards, nor must they be ‘plain, speedy, and effective.'” Porter, 534 U.S. at 524 (quoting Booth, 532 U.S. at 739). The purpose of the exhaustion requirement is twofold. First, it gives an administrative agency “an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court[.]” Woodford v. Ngo, 548 U.S. 81, 89 (2006) (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). Second, “[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court.” Id. Satisfaction of the exhaustion requirement requires “using all steps that the agency holds out, and doing so properly.” Id. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (emphasis in original)). Thus, “it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). Defendants have the burden of establishing that a plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 681 (4th Cir. 2005).
Defendant Wellpath attached several grievance requests as exhibits to show that Plaintiff failed to exhaust his administrative remedies. Specifically, Defendant Wellpath included a kiosk request from Plaintiff requesting certain information from Director Duffy related to this lawsuit. Exhibit 2 attached to Def.'s Br.; ECF No. 53-2 at 1. Defendant Wellpath also includes a request wherein Plaintiff informed medical that he was having pains in his back and leg, and the subsequent response provides the request is under review, and one day later, “closed.” See Exhibit 3 attached to Def.'s Br.; ECF No. 53-3 at 1, 4, 6. Other requests by Plaintiff appear to be related to the slip and fall and include his allegations of pain and complaints about his treatment. Exhibit 3 attached to Def.'s Br.; ECF No. 53-3 at 3, 5. These requests were closed approximately two weeks later, with the response indicating the request was being forwarded to Directory Duffy. In response, Plaintiff alleges that he missed the “three-day time limit,” without any further information. Pl.'s Br. at 10. Plaintiff also provides his own copies of grievances which suggest that on at least one occasion, he tried to appeal one of his grievances related to the incident in question prior to the filing of the lawsuit. See ECF 67-1 at 5.
In reviewing the arguments and exhibits filed by the parties, it is unclear to the undersigned whether Plaintiff properly exhausted his grievances based on the information before the court. On the one hand, it appears that Plaintiff continually filed grievances that were either forwarded to the director or were closed for an unspecified reason. As far as the record before the undersigned indicates, the grievance procedure at SACDC at the time is not clearly delineated or referenced by either party. “[A]n administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008); see also Stenhouse v. Hughes, No. 9:04-23150, HMH-BHH, 2006 WL 752876, at *2 (D.S.C. Mar. 21, 2006) (“[E]xhaustion may be achieved in situations where prison officials fail to timely advance the inmate's grievance or otherwise prevent him from seeking administrative remedies.”) (quoting Abney v. McGinnis, 380 F.3d 663, 667 (2nd Cir. 2004)). Further, there is some evidence that Plaintiff attempted to appeal at least one of his grievances. Whether that grievance was untimely, was not appealed or was otherwise ultimately resolved is not clear from the record before the court. Viewing the facts presented before the undersigned in a light most favorable to Plaintiff, the undersigned recommends denying summary judgment on this ground because there appears to be a genuine issue of material fact as to whether Plaintiff failed to exhaust any available remedies in this case.
ii. Wellpath is Not a Person Pursuant to § 1983
Defendant Wellpath argues it is not a “person” amenable to suit under § 1983. Plaintiff responds that the court can draw “reasonable inferences” in Plaintiff's favor and that § 1983 claims cover civil violations. Further, Plaintiff cites to general case law to establish the deliberate indifference standard. Under 42 U.S.C. § 1983, relief may be sought when a plaintiff alleges the violation of a right secured by the Constitution by a person acting under color of state law. West v. Askins, 487 U.S. 42, 48 (1988). It is well-settled law that detention centers and medical facilities cannot be sued under § 1983. See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001) (stating “[t]he medical department of a prison may not be sued, because it is not a person within the meaning of § 1983”); Nelson v. Lexington Cty. Det. Ctr., No. 8:10-2988-JMC, 2011 WL 2066551, at * 1 (D.S.C. May 26, 2011) (“Plaintiff has nevertheless failed to establish that Defendant Detention Center, as a building and not a person, is amenable to suit under § 1983”). This court has previously determined that a medical provider “whose medical staff provides health care services to businesses, institutions, and individuals is not a ‘person' subject to suit under 42 U.S.C. § 1983.” Vinson v. Cannon, No. 2:10-3214-HFF-BHH, 2011 WL 1624962, at *6 (D.S.C. Mar. 28, 2011), report and recommendation adopted by 2011 WL 1627953 (D.S.C. Apr. 28, 2011). Therefore, Plaintiff may not bring a claim against Wellpath, as it is not a “person” subject to suit under § 1983.
Relatedly, Defendant Wellpath argues that to the extent Plaintiff attempts to sue Wellpath as employer to individually named medical providers, the doctrines of vicarious liability and respondeat superior are inapplicable in § 1983 actions. To establish liability under § 1983, a plaintiff ordinarily must show that the defendant was personally involved in the violation. In Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978), the Supreme Court held that municipalities can be liable only for their own illegal acts. In other words, the doctrine of vicarious liability does not apply in § 1983 claims. Monell, 436 U.S. 691; See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (stating that there is no respondeat superior liability under § 1983). Other courts have stated that “a corporation under contract with the state cannot be held liable for the acts of its employees and agents under those theories,” referring to the theories of respondeat superior or vicarious liability. Mitchell v. Correct Care Solutions, No. CV 13-248-RGA, 2015 WL 1517399, at *2 (D. Del. Mar. 31, 2015). Instead, as acknowledged by Defendant Wellpath, a plaintiff must provide evidence of a policy or custom on the part of the defendant, and that the policy caused the complained of constitutional violation. Id. Plaintiff does not allege that Defendant Wellpath is liable due to the enforcement or enactment of a policy or custom. Accordingly, the undersigned recommends granting Defendant's Motion for Summary Judgment as to any claims against Defendant Wellpath under § 1983.
iii. Deliberate Indifference under § 1983
Alternatively, Defendant Wellpath argues that even if Defendant was amenable to suit, Plaintiff has not established that Wellpath or its medical providers were deliberately indifferent to his serious medical needs. In order to establish a claim under 42 U.S.C. § 1983, a plaintiff must show: (1) “the violation of a right secured by the Constitution and laws of the United States”; and (2) “the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Deliberate indifference is a very high standard, and a showing of “mere negligence” is insufficient to meet the standard. Young v. City of Mt. Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001) (quoting Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999)).
A pretrial detainee's claim related to inadequate medical care falls under the Fourteenth Amendment. Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992). While the scope of the obligation to provide medical care to a pretrial detainee is unclear, the due process rights of a pretrial detainee are as great as the protections afforded under the Eighth Amendment to convicted prisoners. Id. at 991. Therefore, in order to establish deliberate indifference on the part of Defendant, Plaintiff must show Defendant “actually knew of and disregarded a substantial risk of serious injury to the detainee or that [it] actually knew of and ignored a detainee's serious need for medical care.” Young, 238 F.3d at 576. Stated another way, deliberate indifference is met by showing a defendant actually knew of and ignored a detainee's serious need for medical care. Parrish ex. Rel. Lee v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004). Plaintiff must therefore establish he suffered a serious medical condition; that is, one that is either “diagnosed by a physician as mandating treatment” or is “so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Mays v. Sprinkle, 992 F.3d 295, 300 (4th Cir. 2021) (quoting Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)). Second, Plaintiff must establish that the prison official acted with “deliberate indifference to inmate health or safety,” which requires that the official have “had actual subjective knowledge of both the inmate's serious medical condition and the excessive risk posed by the official's action or inaction.” Mays, 992 F.3d at 300 (citations omitted). Deliberate indifference to a serious medical need requires proof that each defendant knew of and disregarded the risk posed by the plaintiff's objectively serious medical needs. Farmer, 511 U.S. at 846.After reviewing the record in this case, it is clear that Plaintiff fails to establish a deliberate indifference claim against Defendant Wellpath.
The Fourth Circuit has held that in 42 U.S.C. § 1983 actions the deliberate indifference standard is the same for inmates as it is for pretrial detainees. Patten v. Nichols, 274 F.3d 829, 834-35 (4th Cir. 2001).
Defendant Wellpath argues that the heart of Plaintiff's Amended Complaint is that he does not agree with the medical care he received, or that he believes the care he received was inadequate. Prisoners are to be afforded reasonable medical care. See Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975) (“[q]uestions of medical judgment are not subject to judicial review.”). The evidence before the court very clearly establishes that Plaintiff was provided medical care, almost from the inception of his slip and fall accident. In the body camera video attached to Defendant Graziano's Motion for Summary Judgment several nurses report to Plaintiff's cell upon learning that he fell. See Exhibit G attached to Defendant Graziano's Motion for Summary Judgment, ECF No. 52-7. One nurse provides a wheelchair that can be seen just outside of Plaintiff's cell. Id. The affidavit of Dr. Dalsania, attached as Exhibit 1 to Defendant Wellpath's Motion for Summary Judgment, also clearly establishes that Plaintiff was provided consistent, medical care. See Dalsania Aff., ¶ 9. Dr. Dalsania avers that in reviewing the 275 pages of medical records belonging to Plaintiff from his time at SACDC, he was seen several times prior to his slip and fall. See Dalsania Aff., ¶ 9. These visits range from treatment for back, shoulder and leg pain, as well as headaches and chest pain. See Dalsania Aff., ¶ 9(a)-(f). Plaintiff was also seen four days prior to the slip and fall incident for right hip and thigh pain. See Dalsania Aff., ¶ 9(j). Plaintiff was seen five times in May after his injury, where he underwent several x-rays, as well as was provided Tylenol and Motrin. See Dalsania Aff., ¶ 9(k). In June of 2021, he was seen by medical staff and was counseled on food choices and physical activity. See Dalsania Aff., ¶ 9(q). Wellpath also ordered that he remain housed on a bottom bunk and be provided hot packs. See Dalsania Aff., ¶ 9(q), (r).This treatment continued into the following year. Dr. Dalsania further states that Plaintiff has continued to receive care and treatment for osteoarthritis and pain associated with this condition. See Dalsania Aff., ¶ 9(aa).
Plaintiff argues in his pleadings that although he had this order, he was still placed on the top bunk by unnamed detention officials. Plaintiff does not allege any additional facts to support a finding that anyone associated with Defendant Wellpath was aware that he was not in a bottom bunk.
Plaintiff acknowledges that he was seen by medical staff. For example, in his filings he states that the medical providers insist on relying on their own medical findings, and states that he has been provided pain medication for his pain. Pl.'s Br. at 2, ECF No. 67. However, Plaintiff summarily argues that Wellpath's providers overlooked or failed to treat what he terms to be muscle pain associated with his groin, upper thigh, and lower back. Pl.'s Br. at 1, ECF No. 67. He argues that Wellpath providers did not appropriately consider whether he was being provided the correct nutrition and should have rectified that, as well as makes a generalized allegation regarding his white blood cell count during one of his visits. Pl.'s Br at 1, 2, 10. However, this is a simple disagreement with the medical care that was clearly provided to Plaintiff. Moreover, Dr. Dalsania avers that Plaintiff's nutrition was discussed during at least one visit.
Even were this court to consider whether the failure to change Plaintiff's diet was negligent or lacking in medical care, the Fourth Circuit has held that a negligent medical diagnosis or treatment, without more, does not meet the standard for deliberate indifference. Webb v. Hamidullah, 281 Fed.Appx. 159, 166 (4th Cir. 2008); see also Gamble, 429 U.S. at 105 (“a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment”). Defendant Wellpath provided medical care to Plaintiff, and further, performed diagnostic testing in the form of at least one x-ray, as well as provided him a prescribed course of treatment, in the form of pain medication to treat the issues associated with his pain. Further, the evidence establishes that there was a consistent timeline of treatment, albeit not the treatment that Plaintiff felt he should receive. See Jackson v. Fair, 846 F.2d 811, 817 (4th Cir. 1988) (explaining that while prisoners are to be provided a minimum level of medical treatment, the Constitution does not guarantee a prisoner the treatment of his choice). The evidence before the court reveals that Plaintiff was seen on a consistent basis when Plaintiff had a medical issue and Dr. Dalsania avers that Wellpath providers prescribed Tylenol and Motrin to treat Plaintiff's muscle pains. Therefore, in reviewing the evidence in the record and viewing all facts in a light favorable to Plaintiff, the undersigned recommends finding that Defendant Wellpath is entitled to summary judgment.
Defendant Wellpath also argues that mild osteoarthritis is not a serious medical need. The undersigned has not considered whether the degree of injury or muscle pain Plaintiff suffered is considered a serious medical need because the record is clear that Plaintiff was provided immediate and consistent treatment, whether or not Plaintiff's muscle pain was considered a serious medical need under the deliberate indifference standard.
iv. Medical Malpractice Claim
Defendant Wellpath argues that to the extent Plaintiff's Amended Complaint and subsequent filings seek to allege medical malpractice on the part of Wellpath or its medical providers, this claim should be dismissed for Plaintiff's failure to comply with South Carolina Code Ann. § 15-79-125, et seq., which is part of the 2005 Tort Reform Act. Defs.' Br. at 23-24. First, Defendant Wellpath alleges Plaintiff failed to comply with South Carolina law for bringing a medical malpractice claim under § 15-79-110 et seq. in that Plaintiff did not file the required Notice of Intent to Sue or provide an affidavit from a qualified expert setting forth the applicable standard of care, how it was violated, and how Plaintiff was damaged by such violation. S.C. Code Ann. § 15-79-125(a) provides that, “prior to filing or initiating a civil action alleging injury or death as a result of medical malpractice, the plaintiff shall contemporaneously file a Notice of Intent to File Suit and an affidavit of an expert witness.” Defendant argues that Plaintiff failed to accomplish this prerequisite to filing suit. The undersigned agrees. Further, Defendant Wellpath argues Plaintiff did not engage in mediation, which is also required. Plaintiff argues that he was unable to comply with a requirement to get an expert affidavit because he is incarcerated, though Plaintiff also states that his claims of medical malpractice support his other claims. To the extent Plaintiff seeks to bring any state law tort malpractice claims, the undersigned agrees with Defendant that Plaintiff did not comply with South Carolina law for bringing a medical malpractice claim under § 15-79-110 et seq., and therefore recommends that any asserted as a medical malpractice claim should be dismissed.
v. Claim for Injunctive Relief
Defendant Wellpath argues that Plaintiff has failed to establish any claim for injunctive relief, to which Plaintiff does not reply. In his Complaint, Plaintiff simply asked for “injunctive relief.” ECF No. 24 at 1. To establish the need for a preliminary injunction, the party seeking the injunction must show: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). A preliminary injunction is never awarded as of right. Id. at 24. The primary purpose of injunctive relief is to preserve the status quo pending a resolution on the merits of a case. See Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980) (quoting Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94, 97 (4th Cir. 1960)). Plaintiff filed suit against Defendant Wellpath pursuant to § 1983 for violations relating to the alleged lack of proper medical care or treatment. Defendant argues that Plaintiff has failed to show the likelihood of suffering irreparable injury. Plaintiff argues Defendant Wellpath was deliberately indifferent to a “serious medical need” he had, that of pain associated with a slip and fall, and therefore violated his constitutional rights.Plaintiff otherwise does not delineate what type of injunctive relief he seeks in this case. Defendant Wellpath provided medical care to Plaintiff, despite the fact that Plaintiff may disagree with the course of treatment. Plaintiff has also failed to make a clear showing of irreparable harm, or otherwise allege the harm that injunctive relief would alleviate. Plaintiff does not provide any evidence, beyond his own assertion, to suggest that he has ongoing muscle pain affecting his daily living. Defendant, however, provided the affidavit of a physician who avers Plaintiff received the appropriate level of care. The undersigned has considered the arguments made by Defendant Wellpath, as well as considered Plaintiff's Amended Complaint. The undersigned recommends finding that Plaintiff has not made the proper showing for injunctive relief.
Farmer v. Brennan, 511 U.S. 825, 832-35 (1994) (explaining that a prison official's “deliberate indifference” to a substantial risk of serious harm violates the Eighth Amendment); see generally Wilson v. Seiter, 501 U.S. 294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). An assertion of mere negligence or malpractice is not enough to state a constitutional violation; plaintiff must allege and demonstrate “[deliberate indifference] . . . by either actual intent or reckless disregard.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled in part on other grounds by Farmer, 511 U.S. at 837.
IV. Recommendation
Based on the foregoing, it is recommended that Defendant Graziano's Motion for Summary Judgment, ECF No. 52, be granted, and the allegations in Plaintiff's Amended Complaint against her be dismissed in their entirety. It is further recommended that Defendant Wellpath's Motion for Summary Judgment, ECF No. 53, be granted, and the allegations in Plaintiff's Amended Complaint against it be dismissed in their entirety. Finally, Defendant Wellpath argues that pursuant to § 1915(e) and § 1915A, this case should be dismissed and should count as a strike against Plaintiff pursuant to the Prison Litigation Reform Act. Defendant Wellpath argues that Plaintiff's claims are frivolous in that they lacked legal merit, that Plaintiff knew they were false, and that he has no evidence to support them. Defs.' Br. at 25. Specifically, Defendant Wellpath argues that Plaintiff brought claims without any legal theory to bring such, and that his Amended Complaint brings allegations of the denial of medical treatment while also admitting to being treated by Wellpath providers. Def.'s Br. at 25. Further, Wellpath argues Plaintiff provided no basis for his constitutional claims. Defs.' Br. at 21. The undersigned has considered these arguments, and after reviewing all pleadings in this case, does not find Plaintiff's Amended Complaint to have been filed frivolously. Therefore, the undersigned recommends that the district court deny the request to consider this action as a strike under the Prison Litigation Reform Act.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
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).