Opinion
C. A. 9:22-cv-00511-MGL-MHC
04-11-2023
Larry James Tyler, Plaintiff, v. James Hudson, Diann Wilks, and Dr. John Trogoon, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Before the Court is a Motion for Summary Judgment filed Plaintiff Larry James Tyler, (“Plaintiff”) and a Cross Motion for Summary Judgment filed by Defendant James Hudson. ECF Nos. 27, 37. Defendant Hudson filed a Response in Opposition to Plaintiff's Motion for Summary Judgment. ECF No. 28. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to Defendant Hudson's Motion, Plaintiff filed documents which the Court has construed collectively as a Response in Opposition. See ECF Nos. 40, 44, 47. One of those documents was titled “Motion to Dismiss Hudson's Summary Judgment Response Filed by Plaintiff, and Summary Judgment,” which the Court has construed as a Motion to Strike Defendant Hudson's Motion for Summary Judgment and Response in Opposition to Plaintiff's Motion for Summary Judgment (ECF Nos. 28, 37). See ECF No. 44. Defendant Hudson has filed a Response in Opposition to this Motion. ECF No. 46. Thus, all of these Motions are ripe for review.
All pretrial proceedings in this case were referred to the undersigned 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 the Motions are dispositive, this Report and Recommendation is entered for review by the District Judge.
I. BACKGROUND
Plaintiff is a pro se non-prisoner involuntarily detained at the Darlington County Detention Center (“DCDC”), awaiting civil commitment proceedings pursuant to the South Carolina Sexually Violent Predator (“SVP”) Act, SC Code. Ann. § 44-48-10, et seq. Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Specifically, he alleges a claim for deliberate indifference to his medical needs.
Plaintiff alleges issues surrounding the issuance of migraine medication, the loss of his fingernails, and his alleged need to be referred to a specialist. He alleges that in December 2021, Defendant Diann Wilks did not give him his migraine pain medication for a couple of days and gave him only half his dosage on a couple of days. ECF No. 1 at 14. Plaintiff further claims that Defendant Wilks deliberately gave him the wrong medication in February 2022, and generally claims that his medications are no longer effective in relieving his migraine headaches. See ECF No. 1 at 16. Plaintiff generally maintains he suffered pain from Defendant Wilks failing to give him medication that could treat his chronic migraines. ECF No. 1 at 14-16. Plaintiff contends that Defendant Wilks violated instructions from a prior doctor who instructed Plaintiff to take medication when a migraine starts because it is not effective later. ECF No. 1 at 15-16. Plaintiff also appears to allege that Defendant Wilks did not treat Plaintiff for a fungus under his fingernails, resulting in all of nails falling off. ECF No. 1 at 15. Plaintiff further alleges Defendant Dr. John Trogoon refused to listen to him, failed to prescribe medication for migraines and sinus congestion, and failed to send him to a specialist. ECF No. 1 at 15.
Plaintiff alleges he sent an informal resolution to Defendant Hudson to see if Defendant Hudson would resolve the allegations of ineffective medical care. ECF No. 1 at 15. He further claims that Defendant Hudson refused to give him some of his stored property that includes medical information needed for his treatment, including records of his fractured skull and chronic migraines. Plaintiff attached a sworn declaration to his Complaint, which generally reiterated all of the allegations in the Complaint. See ECF No. 1-1. Plaintiff has also presented the informal resolution which he sent to Defendant Hudson, in addition to various medical requests to be seen for various ailments while at DCDC. See ECF No. 27-2 at 1-2; see also ECF No. 47.
Defendant Hudson is the only Defendant to make an appearance in this action. He has provided the Court an affidavit and Plaintiff's medical records. See ECF No. 37-2; ECF No. 37-3. Defendant Hudson sets forth in his affidavit that he, as Sheriff, does not participate in the day-today medical treatment of inmates at DCDC. ECF No. 37-2 at 1. Instead, the medical treatment for the inmates is provided by Hartsville Medical Enrichment Services (“HMES”) and its employees. ECF No. 37-2 at 1. Defendant Hudson averred that he entrusts the treatment of the inmates to HMES and his directors and supervisors at DCDC. ECF No. 37-2 at 1. It appears that Defendants Wilks and Trogoon are employed by HMES as third-party providers of medical care. See ECF No. 37-2 at 1, 3; ECF No. 48 at 3.
Defendant Hudson also acknowledged that, on or around February 7, 2022, he received an informal resolution from Plaintiff. ECF No. 37-2 at 2. He requested a response from the medical professionals providing services to inmates at DCDC and was provided one by Defendant Wilks. ECF No. 37-2 at 2. Defendant Wilks provided a response to Defendant Hudson and outlined how the medical professionals at DCDC were treating Plaintiff's ailments. ECF No. 37-2 at 3. After reviewing the response from Defendant Wilks, Defendant Hudson testified that he believed her response was appropriate. ECF No. 37-2 at 2. He did not have any other interaction with Defendant Wilks or Plaintiff regarding the raised issues. ECF No. 37-2 at 2.
Plaintiff filed his Motion for Summary Judgment on October 31, 2022. ECF No. 27. Defendant Hudson timely filed his Response in Opposition to that Motion on November 14, 2022. ECF No. 28. Defendant Hudson, pursuant to this Court's Scheduling Order (ECF No. 23), then filed his own Motion for Summary Judgment on December 22, 2022. ECF No. 37. Plaintiff timely filed his Response in Opposition to that Motion on January 5, 2023. ECF No. 40. On January 17, 2023, Defendant Hudson filed a Reply to Plaintiff's Response in Opposition. ECF No. 43.
Plaintiff subsequently filed two additional filings that the Court is also construing as Responses in Opposition to Defendant Hudson's Motion for Summary Judgment. See ECF Nos. 44, 47.
II. LEGAL STANDARD
Both parties move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF Nos. 27, 37. Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, 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, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
III. DISCUSSION
For the reasons that follow, the undersigned recommends that Defendant Hudson's Motion for Summary Judgment be granted, and Plaintiff's Motion for Summary Judgment and Motion to Strike be denied.
A. Plaintiff's Motion to Strike
Plaintiff asks the Court to dismiss Defendant Hudson's Response in Opposition to Plaintiff's Motion for Summary Judgment, as well as Defendant Hudson's own Motion for Summary Judgment, “due to violation of Rule 902(4)” of the Federal Rules of Evidence. ECF No. 44 at 1. Specifically, Plaintiff complains that the “Sheriffs Office does not even have a ‘certified copy' stamp to stamp copies with,” and Plaintiff asserts that he needs certified stamped copies of documents for summary judgment, or else the documents “will not be accepted by the Court and his case dismissed.” Id. at 1-2. Defendant Hudson opposes the motion, noting that there is no evidence that the Court is declining to accept Plaintiff's filings in this case, as every filing by Plaintiff submitted to this Court has been filed, and Defendant Hudson has responded to Plaintiff's filings. ECF No. 46 at 3. Defendant Hudson also argues that a motion for summary judgment and a response in opposition to a motion for summary judgment are not pleadings that can be struck pursuant to a motion to strike. Id. (citing Fed.R.Civ.P. 7).
Rule 902(4) of the Federal Rules of Civil Procedure provides that a copy of an official record or a copy of a document that was recorded or filed in a public office as authorized by law is selfauthenticating if the copy is certified correct by “(A) the custodian or another person authorized to make the certification; or (B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.” Fed.R.Evid. 902(4).
Plaintiff appears to be concerned that evidence submitted to the Court in support or opposition to summary judgment will not be considered by the Court unless the evidence has been certified as authentic. Plaintiff is mistaken.
Under the Federal Rules of Civil Procedure, “exhibits need not be in admissible form to be considered at summary judgment, provided they could be put in admissible form” at trial. Sanchez Carrera v. EMD Sales, Inc., 402 F.Supp.3d 128, 139 (D. Md. 2019) (emphasis added). Pursuant to Rule 56, which governs motions for summary judgment, a “party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2) (emphasis added).
Here, no Defendant has objected that any of the materials Plaintiff has cited to support or oppose summary judgment could not be presented in a form that would be admissible in evidence, and the undersigned has indeed considered all materials submitted by Plaintiff in evaluating the motions for summary judgment. Moreover, Plaintiff does not suggest that any of the materials relied upon by Defendant Hudson could not be presented in an admissible form at trial. Finally, even if Plaintiff did have an objection to the admissibility of a particular piece of evidence submitted by Defendant Hudson, a request to dismiss or strike Defendant Hudson's entire motion or response in opposition is not the proper way to challenge such evidence. See Fed.R.Civ.P. 56(c)(2) (permitting a party to “object” to inadmissible material); see also Fed.R.Civ.P. 12(f) (permitting the court to “strike from a pleading” certain material); Fed.R.Civ.P. 7 (distinguishing “pleadings” (i.e., complaints and third-party complaints; answers to complaints, counterclaims, crossclaims, and third-party complaints; and replies to answers) from “motions and other papers”). Accordingly, the undersigned recommends that Plaintiff's Motion to Dismiss or Strike (ECF No. 44) be denied.
B. Defendant Hudson's Motion for Summary Judgment
Defendant Hudson argues that Plaintiff has failed to show a constitutional violation. Specifically, he argues that (1) Plaintiff has failed to show a deliberate indifference claim for denial of medical care; (2) Plaintiff has not shown Defendant Hudson is liable for any of the claims contained in the Complaint; and (3) he is entitled to qualified immunity. The Court agrees.
Defendant Hudson also argues that, to the extent the various allegations could be construed as state law claims, the Court should decline to exercise supplemental jurisdiction over such claims. The Court does not construe Plaintiff's Complaint as raising any state law claims.
1. Deliberate indifference to medical care
Plaintiff's claim, that prison officials failed to provide him adequate medical care, is an allegation that his Eighth Amendment rights were violated. Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (“[T]he Eighth Amendment imposes a duty on prison officials to ‘provide humane conditions of confinement . . . [and] ensure that inmates receive adequate food, clothing, shelter, and medical care.'” (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994))). To sustain his constitutional claim under 42 U.S.C. § 1983, Plaintiff must make (1) a subjective showing that Defendants were deliberately indifferent to his medical needs and (2) an objective showing that those needs were serious. Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (noting a “plaintiff must demonstrate that the officers acted with ‘deliberate indifference' (subjective) to the inmate's ‘serious medical needs' (objective)”); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (to state an Eighth Amendment claim, “a prisoner must allege acts or omissions sufficiently harmful to evidence [1] deliberate indifference to [2] serious medical needs” (emphasis added)).
The subjective prong of deliberate indifference is a “very high standard” and merely negligent behaviors do not meet the subjective mens rea requirement. Young v. City of Mount Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001). The Fourth Circuit has recognized two different aspects of an official's state of mind that must be shown to satisfy the subjective prong in this context: “First, actual knowledge of the risk of harm to the inmate is required” and, second, “the officer must also have recognized that his actions were insufficient to mitigate the risk of harm to the inmate arising from his medical needs.” Iko, 535 F.3d at 241 (emphasis in original) (internal quotation marks and citations omitted); see also Farmer, 511 U.S. at 837 (“[A] prison official cannot be found liable . . . for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both 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.”).
As to the objective prong, a “serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Heyer v. United States Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (internal quotation marks omitted) (quoting Iko, 535 F.3d at 241).
Defendant Hudson is a non-medical professional. “Non-medical prison employees can be found to have acted with deliberate indifference by ‘intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.'” Krug v. Loranth, No. 1:13-CV-01409-DCN, 2014 WL 4955365, at *7 (D.S.C. Sept. 29, 2014) (quoting Estelle, 429 U.S. at 104-05), aff'd, 599 Fed.Appx. 512 (4th Cir. 2015). “To bring a constitutional claim against non-medical prison personnel, an inmate must show that such officials were personally involved with a denial of treatment, deliberately interfered with a prison doctor's treatment, or tacitly authorized or were indifferent to the prison physician's misconduct.” Id. Furthermore, non-medical professionals are generally entitled to rely on the medical expertise of medical providers. See Iko, 535 F.3d at 241 (“If a prisoner is under the care of medical experts . . ., a nonmedical prison official will generally be justified in believing that the prisoner is in capable hands.” (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004))).
Here, Plaintiff's claim fails for two reasons. First, as a general matter, Plaintiff has not shown that Defendant Hudson acted personally to deny medical care or interfered with any treatment. See Williamson, 912 F.3d at 171 (noting a plaintiff must show that the official acted personally in violating the plaintiff's constitutional rights); Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017) (noting liability will only lie in § 1983 actions where it is “affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs' rights” (internal quotation marks and citation omitted)). To the contrary, Defendant Hudson averred that, as Sheriff, he does not participate in the day-to-day medical treatment of inmates at DCDC. ECF No. 37-2 at 1. Rather, medical treatment for the inmates is provided by HMES and its employees. ECF No. 37-2 at 1. Defendant Hudson entrusts the treatment of the inmates to HMES and his directors and supervisors at DCDC. ECF No. 37-2 at 1. Plaintiff has not shown, or argued, otherwise. Thus, Defendant Hudson had no personal involvement in the alleged refusal of medical care.
Second, assuming Plaintiff's migraines, sinus congestion, and nail fungus satisfy the objective prong as serious medical conditions, Plaintiff has failed to show Defendant Hudson was deliberately indifferent to those needs. That is, Plaintiff has failed to satisfy the subjective prong of a deliberate indifference claim.
Plaintiff presented an informal resolution to the Court (ECF No. 27-1 at 6-8), and Plaintiff testified that he notified Defendant Hudson of the denial of medical treatment via this informal resolution. See ECF No. 27-2 at 1-2; see also ECF No. 27-1 at 4-5; ECF No. 1 at 15. Defendant Hudson does not contest this, averring that he received an informal resolution from Plaintiff related to his medical treatment. ECF No. 37-2 at 2. Defendant Hudson further averred that he presented the informal resolution to Defendant Wilks and requested a response from her as to the issues Plaintiff outlined in his informal resolution. ECF No. 37-2 at 2. Defendant Wilks provided a response to Defendant Hudson and outlined how the medical professionals at DCDC were treating Plaintiff's ailments. ECF No. 37-2 at 3. After reviewing the response from Defendant Wilks, Defendant Hudson testified that he believed her response was appropriate. ECF No. 37-2 at 2. He did not have any other interaction with Defendant Wilks or Plaintiff regarding the raised issues. ECF No. 37-2 at 2.
None of the above evidence suggests that Defendant Hudson interfered with Plaintiff's medical care, denied him access to medical care, or was deliberately indifferent to that care. To the contrary, upon receiving the informal resolution from Plaintiff about his medical care, Defendant Hudson contacted medical staff to inquire as to what was being done to address the issues Plaintiff raised. Defendant Hudson-who is not a medical doctor-was entitled to generally rely on the response given by Defendant Wilks. See Iko, 535 F.3d at 241; Williams v. Dillon Cnty., No. 6:16-CV-1236-RMG, 2017 WL 4217109, at *5 (D.S.C. Sept. 20, 2017) (“Because most prison officials are not trained medical personnel, they are entitled to rely on the opinions, judgment, and expertise of medical personnel concerning the course of treatment which the medical personnel deemed necessary and appropriate for the prisoner.”). Thus, even assuming Plaintiff suffered from a serious medical need, Plaintiff has nevertheless failed to show how Defendant Hudson was deliberately indifferent to that need. Because Plaintiff has failed to produce evidence showing that Defendant Hudson was subjectively aware that his actions were insufficient to mitigate an excessive risk to Plaintiff's safety-and because Defendant Hudson was entitled to generally rely on medical staff-summary judgment is proper. See Iko, 535 F.3d at 241; Williams, No. 6:16-CV-1236-RMG, 2017 WL 4217109, at *5 (determining that non-medical personnel were entitled to rely on the judgment of nurse, where the non-medical personnel “did not have the authority to dispense additional medication or the expertise to independently determine-based on Plaintiff's own statements-that Plaintiff was not receiving the correct dose”).
2. Plaintiff has failed to show how Defendant Hudson is otherwise liable under § 1983.
As noted above, Defendant Hudson averred that, as Sheriff, he does not participate in the day-to-day medical treatment of inmates at DCDC. ECF No. 37-2 at 1. Rather, Defendant Hudson entrusts the treatment of the inmates to HMES and his directors and supervisors at DCDC. ECF No. 37-2 at 1.
To the extent Plaintiff may be alleging that Defendant Hudson is vicariously liable by virtue of the actions of his subordinates, that claim fails. Pure supervisory liability will not lie in § 1983 actions. Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (“The doctrine of respondeat superior has no application under this section.” (quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977))). Rather, to hold a supervisor liable for a constitutional injury inflicted by a subordinate under § 1983, Plaintiff must show facts establishing the following elements: (1) the supervisor had actual or constructive knowledge that a subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to people like the plaintiff; (2) the supervisor's response was so inadequate as to constitute deliberate indifference or tacit authorization of the subordinate's conduct; and (3) there is an “affirmative causal link” between the supervisor's inaction and the plaintiff's constitutional injury. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). Plaintiff has failed to produce evidence showing any of these required elements. Accordingly, summary judgment in favor of Defendant Hudson is appropriate.
3. Qualified Immunity
Finally, Defendant Hudson is also entitled to qualified immunity from Plaintiff's claims. The doctrine of qualified immunity offers some protection to a government employee being sued in his or her individual capacity, as is the case with Defendant Hudson here. The Supreme Court has held that “[g]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Renn by and Through Renn v. Garrison, 100 F.3d 344, 349 (4th Cir. 1996).
“The threshold inquiry a court must undertake in a qualified immunity analysis is whether a plaintiff's allegations, if true, establish a clear constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). If a violation of a constitutional right in fact exists, qualified immunity nonetheless shields a prison official from liability, unless the violation was of a “clearly established right of which a reasonable person would have known.” Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (citation and internal quotation marks omitted).
As set forth in detail above, Plaintiff has failed to establish a genuine issue of material fact on any of his allegations of constitutional violations. Because Defendant Hudson did not violate Plaintiff's constitutional rights, he is also shielded from liability by qualified immunity.
Defendant Hudson also argues he is entitled to Eleventh Amendment Immunity in his official capacity as Sheriff. ECF No. 37-1 at 14-15. Plaintiff did not indicate in his Complaint that he was suing Defendant Hudson in his official capacity. See ECF No. 1 at 2. Nevertheless, to the extent Plaintiff's filings, liberally construed, could be viewed as doing so, the Court agrees with Defendant Hudson that he is entitled to Eleventh Amendment immunity in his official capacity. See Cash v. Thomas, No. CIV.A. 6:12-1278-MGL, 2013 WL 3804375, at *7 (D.S.C. July 19, 2013) (“It is well settled, . . . that a Sheriff in South Carolina is an arm of the State and . . .is entitled to Eleventh Amendment Immunity in his or her official capacity from suit in Federal Court.”); McIlweine v. Harris, C/A No. 4:07-1117 CMC-TER, 2008 WL 2909358, at * 12 (D.S.C. July 22, 2008) (noting South Carolina Sheriffs and their employees are state agents who are not amenable to suit in federal court by virtue of the Eleventh Amendment).
C. Plaintiff's Motion for Summary Judgment
Plaintiff's Motion for Summary Judgment asserts reasons why Plaintiff contends that he is entitled to judgment as a matter of law on his claims and argues that he has demonstrated a genuine issue of material fact on the claims against Defendants. See ECF No. 27-1. In addition, Plaintiff appears to assert facts in his Motion for Summary Judgment that are not alleged or detailed in his Complaint. Compare ECF No. 27-1 with ECF No. 1. Specifically, in his Motion for Summary Judgment, Plaintiff alleges that he is seeking damages, among other relief, based on the deliberate indifference to his dental needs related to a tooth extraction. ECF No. 27-1 at 1-2. In contrast, the allegations in Plaintiff's Complaint appear to focus on medical needs related to migraines and fingernail pain. Plaintiff does not make a single allegation in his Complaint related to his dental needs. For the reasons that follow, the undersigned recommends denying Plaintiff's Motion for Summary Judgment as to all Defendants.
1. Defendant Hudson
As an initial matter, although the Court must liberally construe Plaintiff's filings, Plaintiff may not raise completely new claims without amending his Complaint after discovery has begun. See U.S. ex rel. Owens v. First Kuwaiti Gen. Trading & Contracting Co., 612 F.3d 724, 731 (4th Cir. 2010) (“[I]t is well established that a plaintiff may not raise new claims after discovery has begun without amending his complaint.”). Thus, Plaintiff may not now raise additional deliberate indifference claims pertaining to his dental needs for the first time in his Motion for Summary Judgment. See Barclay White Skanska, Inc. v. Battelle Mem'l Inst., 262 Fed.Appx. 556, 563 (4th Cir. 2008) (“[N]otice pleading is designed to provide defendants with fair notice of the plaintiffs' claims and the grounds upon which those claims rest. Thus, [Plaintiff]'s complaint cannot be construed so liberally so as to deprive [Defendant] of notice. Additionally, despite the liberal pleading rules outlined by the Supreme Court, plaintiffs may not raise new claims without amending their complaints after discovery has begun.” (internal citations omitted)); Owens v. Baltimore City State's Att'ys Off., No. CV GLR-11-3295, 2016 WL 5452944, at *7 (D. Md. Sept. 29, 2016) (noting, in an § 1983 case, that “[Plaintiff] cannot seek to avoid summary judgment by relying on a claim he did not allege in his Second Amended Complaint”).
As to the claims properly before the Court, the undersigned has already considered all of the arguments set forth in Plaintiff's Motion for Summary Judgment in analyzing, reviewing, and setting forth reasons why Defendant Hudson is entitled to summary judgment. For the reasons set forth above in part B., Plaintiff is not entitled to judgment as a matter of law, and the undersigned recommends denying Plaintiff's Motion for Summary Judgment.
2. Defendant Trogoon
On August 30, 2022, the undersigned advised Plaintiff that he is responsible for providing information sufficient to effect service on Defendant Trogoon, and that this Defendant may be dismissed as a party if he is not served with process. ECF No. 22; see also Fed.R.Civ.P. 4(m). Plaintiff was given until September 23, 2022, to file a fully completed and signed Form USM-285 for Defendant Trogoon, providing any additional identification or location information he may have. ECF No. 22. Plaintiff never filed anything with the Court, and instead filed his Motion for Summary Judgment on October 31, 2022. The undersigned has issued a Report and Recommendation recommending that Defendant Trogoon be dismissed, without prejudice, pursuant to Rule 4(m). See ECF No. 55. Because Defendant Trogoon has not been served with process in this case, Plaintiff is not entitled to summary judgment against this Defendant.
3. Defendant Wilks
Defendant Wilks has not made an appearance in this action, and an entry of Default was entered by the Clerk upon Plaintiff's request on December 2, 2022. ECF No. 34. However, as noted above, Plaintiff filed his Motion for Summary Judgment on October 31, 2022-before the entry of default against Defendant Wilks. See ECF Nos. 27, 33, 34.
The undersigned therefore recommends Plaintiff's Motion for Summary Judgment be denied as to Defendant Wilks. Defendant Wilks remains as the only Defendant in this action, and Plaintiff may file a Motion for Default Judgment against Defendant Wilks.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendant Hudson's Motion for Summary Judgment (ECF No. 37) be GRANTED, that Plaintiff's Motion for Summary Judgment (ECF No. 27) and Plaintiff's Motion to Strike (ECF No. 44) be DENIED, and that Defendant Hudson be DISMISSED with prejudice from this action.
Defendant Hudson argues that Plaintiff's action should be dismissed as “frivolous” pursuant to 28 U.S.C. § 1915(e)(2) and that the dismissal should count as a strike against him under the PLRA's three-strike rule. See generally Neitzke v. Williams, 490 U.S. 319, 325-27 (1989) (noting a complaint is frivolous if it “lacks an arguable basis either in law or in fact” and holding federal courts have the power to dismiss a claim based on “an indisputably meritless legal theory” or claims “whose factual contentions are clearly baseless”). Although summary judgment is proper, Plaintiff's claims are not frivolous because they have arguable basis in law and fact. See McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (“Examples of frivolous claims include those whose factual allegations are ‘so nutty,' ‘delusional,' or ‘wholly fanciful' as to be simply ‘unbelievable.'”), abrogated on other grounds by Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 207 L.Ed.2d 132 (2020). Moreover, it appears that Plaintiff is a non-prisoner awaiting civil commitment proceedings pursuant to the SVPA, SC Code. Ann. § 44-48-10, et seq. See Tyler v. Bogle, No. CV 4:19-2318-MGL, 2021 WL 4145824, at *2 (D.S.C. Sept. 13, 2021) (detailing Plaintiff's history and SVPA proceedings). Under the SVPA, a person convicted of a sexually violent offense may continue to be held following release from a prison sentence if he or she is classified as an SVP. S.C. Code §§ 44-48-60 to -80. The SVPA “creates a system of civil, not criminal, detention.” Michau v. Charleston Cnty., S.C., 434 F.3d 725, 727 (4th Cir. 2006). As a civilly committed person, Plaintiff is not a “prisoner” as that term is defined in the PLRA. See id.; 42 U.S.C. § 1997e(h) (defining “prisoner” as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violatio
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).