Opinion
C. A. 4:23-06378 MGL-TER
02-14-2024
Eric Stokes #12610, Plaintiff, v. James Hudson, Director Waddel Coe, Kelly Philbrook, Janace Private, Defendants. Report and Recommendation
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
This is a civil action filed by a pretrial detainee, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. § 1915(e).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “fails to state a claim on which relief may be granted,” “is frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327.
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges Defendants violated his Eighth and Fourteenth Amendment rights. (ECF No. 1-2 at 4). Plaintiff initially submitted a letter with no named defendants to commence this action; later, Plaintiff submitted a complaint form naming individual defendants. Liberally construed, Plaintiff's allegations may involve conditions of confinement, failure to protect, and medical deliberate indifference. (ECF Nos. 1, 1-2).
Plaintiff alleges four separate events/claims. Plaintiff alleges he told “them” in September 2023 that he blacks out and he could not be on top bunk. (ECF No. 1-2 at 8). Plaintiff blacked out from top bunk and fell three days after informing “them.” His roommate beat on the door for forty-five minutes for help. (ECF No. 1-2 at 8). The unnamed female who came said there was no medical at night. (ECF No. 1-2 at 8). Later, Janace Private said he did not have a broken bone and she would give him some ibuprofen. (ECF No. 1-2 at 8). However, October x-rays showed Plaintiff had a broken clavicle. (ECF No. 1-2 at 8). Plaintiff alleges Philbrook never told medical about the September fall such that Plaintiff stayed injured without treatment. (ECF No. 1-2 at 9). Plaintiff alleges he was without proper care or proper medication for a broken bone for fourteen days. (ECF No. 1-2 at 14).
Plaintiff alleges in November he fell in the shower. He asked for medical. Jannace came. Nothing was done. Later, he told her about back pain and was given ibuprofen. Plaintiff alleges he received some x-rays later. (ECF No. 1-2 at 10).
Plaintiff alleges he fell on the way to the shower in December and a non-Defendant Manning called medical and no one came. (ECF No. 1-2 at 12). At that time, Plaintiff believed he re-broke his clavicle and hurt his hands and back. Plaintiff alleges there were only x-rays done on his clavicle and none done on his hands. Plaintiff's clavicle was still broken in December from September. (ECF No. 1-2 at 12).
Plaintiff alleges it is in his records from September that he is supposed to be taking Prozac and Elavil due to diagnosis of PTSD, bipolar, and depression, but that his medications have been denied. (ECF No. 1-2 at 13). Plaintiff alleges the blackouts and hallucinations resulting in the falls are from the lack of medication. Plaintiff also requests x-rays on back and hands.
Plaintiff alleges as injuries a broken clavicle without treatment, and injuries to hand and back without treatment. Plaintiff alleges he cannot sleep due to pain. Plaintiff alleges Defendant Private said he might need surgery at this point for his clavicle. (ECF No. 1-2 at 14). Plaintiff requests declaratory, injunctive(hospital treatment for bones and mental health medication), and monetary relief. (ECF No. 1-2 at 16-17).
Plaintiff's allegations liberally construed are sufficient to withstand summary dismissal as to Defendants Philbrook and Private, and this same day service and issuance of summonses as to only these Defendants has been authorized by separate order.
To the extent Plaintiff is attempting to allege supervisory liability as to Defendants Hudson, the sheriff, and Coe, the director of the detention center, such defendants are subject to summary dismissal because no facts are alleged as to personal involvement and supervisory liability. In a § 1983 action, Plaintiff must allege that an individually personally acted in alleged violations. Generally, vicarious liability or respondeat superior is not available to a § 1983 plaintiff as a method to create liability of a state-actor supervisor for the acts of his subordinate. See Monell v. Dep't Soc. Servs., 436 U.S. 658, 694 (1978). There is a limited exception to the prohibition as long as the facts alleged meet the Fourth Circuit Court of Appeal's three-part test for supervisor liability under § 1983:
(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 that 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.Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)(citations omitted); Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984). At most, Plaintiff alleges he faxed his “exhaustion” to Coe and Hudson. (ECF No. 1-2 at 10-11). Plaintiff does not allege any facts about a response but that he was informing them he was taking legal action against them and medical providers. Plaintiff has failed to state a claim upon which relief can be granted as to Defendants Coe and Hudson. See Green v. Beck, 539 Fed.Appx. 78, 80 (4th Cir. 2013)(failure of supervisor to respond to inmate grievance, without additional personal involvement in grieved situation, not sufficient to establish supervisor's liability under § 1983).
RECOMMENDATION
Accordingly, it is recommended that the district court partially dismiss the complaint in this case. Specifically, it is recommended that Defendants Coe and Hudson be summarily dismissed with prejudice and without issuance and service of process. In a separately docketed order, the court has authorized the issuance and service of process on the remaining Defendants Philbrook and Janace Private.
This recommendation is dismissal in part without leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
Notice of Right to File Objections to Report and Recommendation
Plaintiff is advised that he 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 of Court
United States District Court
Post Office Box 2317
Florence, South Carolina 29601
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).