Opinion
C. A. 5:21-3624-HMH-KDW
12-21-2022
Bradley Wayne Walker, Plaintiff, v. Wellpath; Dr. Jose J. Chavez; and Nurse Practitioner Beth Rouse, Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE
Bradley Wayne Walker (“Plaintiff”), proceeding pro se and in forma pauperis, brought this action against Defendants alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. On August 19, 2022, Defendants filed a Motion for Summary Judgment. ECF No. 100. Because Plaintiff is proceeding pro se, the court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising him of the importance of such motions and of the need for him to file an adequate response. ECF No. 102. Plaintiff was specifically advised that if he failed to respond adequately, the Defendant's Motion may be granted, thereby ending this case against him. See id. Since the filing of the Roseboro order, Plaintiff has filed several requests for extensions of time to file a response, but he has not filed anything that includes a substantive response to the Motion. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), this Magistrate Judge is authorized to review pretrial matters in cases involving pro se litigants and submit findings and recommendations to the District Court. This Report and Recommendation (“R&R”) is now ready for review. For the reasons that follow, in addition to Plaintiff's failure to file a response to Defendants' Motion, the undersigned recommends granting summary judgment in favor of Defendants.
I. Background
a. Procedural History
Because of the failure by Plaintiff to file a substantive response to Defendants' Motion for Summary Judgment, the undersigned finds it appropriate to set forth the procedural history in this case. Plaintiff initially filed a Complaint against several Defendants, including Lexington County Detention Center, Dr. Jose J. Chavez, and Wellpath, on November 3, 2021. ECF No. 1. On November 29, 2021, he sought to amend his Complaint to add five additional Defendants (Lexington County, Nurse Practitioner Beth Rouse, Correctional Officer V. Bookman, Correctional Officer Novak, and Sergeant O. Thomas), as well as to add additional allegations to his Complaint. ECF No. 15. The court granted this Motion on December 7, 2021. ECF No. 16.
In December of 2021, Plaintiff sent the court three letters and two motions, raising various issues and seeking relief such as requesting “no contact” orders against several of the named Defendants and seeking default judgment against several of the named Defendants at that time. On January 3, 2022, the undersigned issued an order denying the requested relief. ECF No. 25. Thereafter, by order issued January 27, 2022, all but three Defendants were dismissed from this case, and only one claim, his deliberate indifference claim against Wellpath, Nurse Practitioner Beth Rouse, and Dr. Jose J. Chavez, remained. ECF No. 33. On February 24, 2022, a scheduling order was issued, providing among other deadlines, that discovery was due on April 25, 2022. ECF No. 46. Plaintiff filed a Motion for Preliminary Injunction the next day. ECF No. 48. On March 23, 2022, Plaintiff filed a Motion for Extension of Time, requesting an extension of all deadlines in the case. ECF No. 52. Within that Motion, he stated that he intended to retain an attorney or request the court appoint him counsel. ECF No. 52. The court granted Plaintiff's request for extension of the deadlines, extending all deadlines by an additional 30 days. ECF No. 53. Plaintiff sent the court several letters, one dated April 6, 2022, one dated April 13, 2022, and two dated April 18, 2022. ECF Nos. 56, 58, 59 and 60. The contents of these letters included information such as informing the court of when his reply to his previously-filed Motion for Preliminary Injunction would be filed, and a letter requesting additional time to file his reply to his Motion. However, his Reply to his Motion for Preliminary Injunction was filed April 11, 2022. ECF No. 58. Plaintiff also filed a Motion to Appoint Counsel on April 18, 2022, ECF No. 61, but the court denied the Motion. ECF No. 62.
On May 18, 2022, Plaintiff sent another letter to the court, this time informing the court that he sent discovery to Defendants on May 12, 2022, approximately two weeks prior to the discovery deadline. ECF No. 68. Plaintiff's Motion for Preliminary Injunction was denied on June 1, 2022. ECF No. 71. On June 22, 2022, Defendants filed a Motion for Extension of Time seeking the extension of the deadline to file dispositive motions, which the court granted, setting the new deadline for dispositive motions to August 5, 2022. ECF Nos. 78, 79. Plaintiff then filed a Motion for Reconsideration of his Appointment of Counsel, and a Motion to Compel Discovery. ECF Nos. 83, 84. In the Motion to Compel Discovery, Plaintiff argued that Defendants did not provide substantive answers, but instead answered each request stating that because Plaintiff did not mail discovery until 13 days prior to the deadline to respond, the requests were not timely. ECF No. 83. The court denied the Motion to Reconsider, but informed Plaintiff the court would revisit the issue of appointment of counsel should the mater proceed to trial. ECF No. 87. The court also granted Plaintiff's Motion to Compel Discovery, giving Defendants until August 5, 2022 to respond, and also extended the dispositive motions deadline to August 19, 2022. ECF No. 87. Two weeks later, Plaintiff filed another Motion to Compel Discovery, this time related to the interrogatories Plaintiff sent to Defendants. ECF No. 90. In a text order dated July 19, 2022, the court granted this Motion as well, providing the same deadline for these discovery requests, that of August 5, 2022. ECF No. 91.
On August 3, 2022, Plaintiff filed a Motion to Appoint Private Investigator and a Motion to Appoint Medical Expert. ECF Nos. 94, 95. The court denied these motions on August 8, 2022. ECF No. 97. On August 10, 2022, Plaintiff filed another letter with the court, wherein he wanted the court to be aware that one interrogatory to one of the Defendants, Nurse Practitioner Beth Rouse, went unanswered.Importantly, this letter clearly shows that on the date Plaintiff sent the court this letter to be filed, August 8, 2022, he had discovery responses from Defendants in his possession. Defendants filed their Motion for Summary Judgment on August 19, 2022, the deadline for filing dispositive motions. ECF No. 100. The court then issued a Roseboro order, advising Plaintiff his response to Defendants' Motion for Summary Judgment was due September 26, 2022. ECF No. 102. Plaintiff filed a Motion for Extension of Time on September 6, 2022. ECF No. 104. In this Motion, Plaintiff inaccurately argued that Defendants' Motion was untimely, and he also argued that Defendants' discovery responses were voluminous and not provided to him until August 12, 2022, thus he needed more time to file a Response. ECF No. 104. Plaintiff sought an additional fourteen day extension; however, the court, in its discretion, not only granted Plaintiff's request for an extension, but also gave Plaintiff an additional 30 days, rather than 14 days, making his response due October 3, 2022. The court wanted to be sure Plaintiff had enough time to review discovery and craft any response. ECF No. 105.
The specific interrogatory noted by Plaintiff was one inquiring whether Defendant Rouse, a nurse, claimed to be a doctor. ECF No. 99-1.
After the court granted this extension, Defendants filed a Response indicating that they did not see reconsideration of the order granting the extension but did want to clarify that they timely served responses on August 5, 2022, and then sent additional, supplemental responses in the form of 13 pages of documents on August 12, 2022. ECF No. 107. As noted previously, it is evident from Plaintiff's own filing dated August 10, 2022 that he had the bulk of the discovery responses in his possession by that date.
On October 11, 2022, Plaintiff filed another Motion for Extension of Time to file a Response, this time indicating he needed an additional 30 days to file a response because he recently found a paralegal who agreed to assist him with his case, and additional time would also allow his responses to be typed up and professional. ECF No. 109. By order dated October 12, 2022, this court again granted the extension, giving Plaintiff an additional 30 days to file a response, but the court noted the extensive filing history of Plaintiff in this case and the number of requests he had made for appointment of attorneys, a private investigator and a medical expert. ECF No. 110. The new deadline for a response was set for November 10, 2022. This deadline afforded Plaintiff more than three months to review discovery and respond to Defendants' Motion.
On November 14, 2022, Plaintiff yet again sought an extension of time to file a Response. ECF No. 112. This time, Plaintiff alleged that because Defendants did not provide electronic copies of all documents (Plaintiff admitted he received them in the mail), and because they were not provided to him in a yearly format, he was delayed in formulating a response. ECF No. 112. Plaintiff also indicated that because he was incarcerated, he was limited in his ability to communicate with the paralegal who was providing him assistance. ECF No. 112. This document, which was handwritten, was signed by Plaintiff, and an additional, unidentified person whose title was listed as, “Paralegal for Plaitiff [sic].” ECF No. 112. The court responded to this request the following day. In this order, the court again noted that since the filing of this case over a year ago, Plaintiff has been able to file numerous letters and motions with the court. ECF No. 113. The court also pointed out that as of the date of the order, Plaintiff had discovery in his possession for several months. ECF No. 113. Finally, the court finally noted that this was the third request for extension that Plaintiff sought for this specific Motion, not including the other requests for extension that Plaintiff had filed. Id. These facts notwithstanding, the court granted the extension and gave Plaintiff until November 29, 2022 to file a response. Id. The court also clearly warned Plaintiff that no further extensions would be granted.
Plaintiff did not file a response by the deadline. Instead, several days after the expiration of the deadline, on December 7, 2022, Plaintiff sent in a typed Motion, requesting a fourth continuance. Plaintiff asserts that because he is a pro se litigant, he has not deposed any Defendants in this case and needs to do so in order to oppose Defendants' Motion. ECF No. 115. Plaintiff cited to Federal Rule of Civil Procedure 56(d), stating that when a party demonstrates the need for further discovery, the court may deny a summary judgment motion. ECF No. 115. Plaintiff also indicates that courts must allow opposing party a “full and fair opportunity for discovery.” ECF No. 115. In essence, Plaintiff now alleges, more than four months after receiving discovery, and after filing several requests to extend the time to file a response, that numerous documents are missing, in addition to again stating that discovery is voluminous. ECF No. 115. This document was only signed by Plaintiff and was filed a week after his response was due to the Motion for Summary Judgment.
b. Factual Background
According to Defendants Nurse Practitioner Rouse and Dr. Chavez, at all times relevant to this lawsuit, they work or worked for Defendant Wellpath, an entity that provides medical services pursuant to a contract with Lexington County Detention Center. Defs.' Br. at 2. On November 3, 2021, Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983 against Defendants for allegedly violating the due process clause of the Fourteenth Amendment, as well as his right to adequate medical treatment, and engaging in discriminatory treatment in contravention to his rights under the Constitution. ECF No. 1 at 4. Plaintiff alleges that in April 2020, while a pretrial detainee at Lexington County Detention Center (“LCDC”), Defendants Chavez and Wellpathindicated Plaintiff had two abdominal hernias and/or a stomach defect, but Plaintiff was refused surgery as a treatment option at that time. ECF No. 1 at 5. Plaintiff alleges jail staff have shown a deliberate indifference to his serious medical needs. ECF No. 1 at 5. Plaintiff alleges he suffers from chronic and substantial pain, cramps, nausea, vomiting, diarrhea, and constipation. Id. at 6. Plaintiff alleges he has requested surgery several times, but LCDC continued to refuse his requests. Id. In his Complaint, Plaintiff also sought injunctive relief to order LCDC to transport him to the hospital to undergo surgery and/or to require Wellpath to cover the expenses of surgery, as well as compensatory and punitive damages for the pain and suffering he alleges he has endured. Id. Plaintiff's injunction was denied on June 1, 2022. ECF No. 71. Plaintiff further alleges that he requested to be in a cell alone, rather than with a roommate, because if he got into a fight with anyone, his hernia/stomach defect could erupt, but his request was not honored. ECF No. 1-3. Finally, Plaintiff alleges Defendant Rouse told him she could provide a hernia belt, but that was “all they're going to do for me.” ECF No. 1-3. On February 23, 2022, Defendants filed an Answer generally denying these allegations. ECF No. 44.
Again, Wellpath is an entity with which Lexington County contracted to provide medical services at LCDC. Defs. Br. at 2; see also USM Process Receipt and Return, ECF No. 49, wherein Plaintiff states, “Wellpath is the medical provider that the Lexington County Detention Center (jail) uses.”
On February 25, 2022, Plaintiff filed a Motion for Preliminary Injunction. ECF No. 48. While ultimately this relief was denied, the court notes that Plaintiff filed a Reply on April 11, 2022. ECF No. 57. Within this Reply, Plaintiff argued that he was denied a second opinion from a medical doctor and provided documents indicating that he has sent several requests to jail staff for alternative treatment while incarcerated. ECF No. 57-1, at 2-7. Plaintiff also provided the statement of a fellow inmate to support his contention that his hernias are growing larger in size, as well as medical notes reflecting Plaintiff has a hernia. ECF No. 57-1.
Attached to Defendants' Motion for Summary Judgment is the affidavit of Dr. Jose J. Chavez, himself a Defendant in this case. Affidavit of Jose J. Chavez, attached to Defs.' Br.; ECF No. 100-1. His affidavit provides additional information bearing upon Plaintiff's medical treatment. According to Defendant Chavez, Plaintiff was admitted to Doctors Hospital of Augusta Joseph M. Still Burn Center in 2018 after having sustained second-degree burns to over 40% of his body and third-degree burns to over 35% of his body due to a fire or self-inflicted burn injuries. See Chavez Aff., ¶ 11(d). Plaintiff remained there for two months before being transported to LCDC. See Chavez Aff., ¶ 11(d). Defendant Chavez avers that for the remainder of 2018, Plaintiff was repeatedly seen by Wellpath medical staff for follow-up evaluations and procedures. See Chavez Aff., ¶ 11(e). Defendant Chavez further avers that sometime in 2019 or 2020, during one of Plaintiff's medical visits, Plaintiff was noted as developing an abdominal hernia. See Chavez Aff., ¶ 11. Plaintiff continued to be treated for his various medical issues, including treatment for his abdominal hernia. See Chavez Aff., ¶ 11. For his part, Plaintiff does not appear to refute the contention that he has received treatment in the form of a hernia belt. ECF No. 1-3, at 1. Further, in Plaintiff's Request for Extension of Time, he attached medical records, at least one of which notes that he suffered burns. ECF No. 115-1 at 3. Still, Defendants summarize the issue raised by Plaintiff succinctly: Plaintiff does not agree with Defendants' assessment that he is not a candidate for hernia surgery because of the condition of his abdominal muscle wall and associated scar tissue (related the fire that occurred just prior to his arrest in 2018), and that Plaintiff believes the hernia belt provided to support his hernia(s) is inadequate medical care. Defs.' Br. at 2.
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. Discussion
a. Dismissal Pursuant to Rule 41(b)
The undersigned entered a Roseboro order on August 24, 2022, setting the response time to Defendants' Motion for Summary Judgment as September 26, 2022. Since the filing of the Roseboro order, the undersigned has granted three requests for extension to file a response filed by Plaintiff. After the third request for extension of time, the undersigned advised Plaintiff that “no further extensions will be granted.” ECF No. 113. However, despite this warning, and despite the undersigned providing Plaintiff three extensions of time to file a Response, Plaintiff failed to file a timely response to the Motion for Summary Judgment. Instead, Plaintiff filed an additional request for extension of time on December 7, 2022, even though the court made it clear in the previous extension that no further extensions would be granted. In his latest request for extension, ECF No. 115, Plaintiff argues, approximately four months after Defendants filed their Motion, that Plaintiff needs to depose Defendants and has not been given a fair opportunity to conduct discovery. In a former request for extension, Plaintiff acknowledged that he was provided more than 1,000 documents in discovery and has previously acknowledged he received interrogatory responses. ECF Nos. 109; 99. The discovery deadline ended August 5, 2022. Plaintiff did not seek to extend discovery after that time. Further, Plaintiff did not seek to depose Defendants during the discovery period, or at any point in time during the last four months when he knew the substance of Defendants' arguments in the Motion for Summary Judgment.
First, Plaintiff sought an extension of time to file a response a week after his response was due. Where a party seeks an extension of time after the Rule 6(b) deadline has passed, courts must find excusable neglect. Fed.R.Civ.P. 6(b). However, even in considering Plaintiff's incarcerated status and assuming the more lenient “good cause” standard should apply, Plaintiff has wholly failed to present any legitimate reason for his failure to comply with the court's order that no further extension would be granted, after having been given three previous extensions of time. Because Plaintiff failed to comply with the order advising him that he would not be offered any additional time to file a response, Plaintiff's Motion for Extension of Time, ECF No. 115, is denied. Second, due to the failure of Plaintiff to file a response for four months and failed to comply with court order advising him to file a response and that no further extensions would be granted, the undersigned recommends finding that Plaintiff's case should be dismissed for failure to prosecute. See Fed.R.Civ.P. 41(b); Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (noting that a court deciding whether to dismiss a case under Fed.R.Civ.P. 41(b) must balance the policy of deciding cases on their merits against “sound judicial administration.” In so doing, the court must weigh: 1) plaintiff's responsibility for failure to prosecute, 2) prejudice to defendant from delay, 3) history of delay, and 4) effectiveness of lesser sanctions.); see also Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (noting and applying Davis factors in dismissing case under Fed.R.Civ.P. 41(b)); Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (same).
Here, Plaintiff clearly knew of the discovery deadlines and had Defendants' Motion for Summary Judgment in hand for months, but he never sought to depose anyone. It is through Plaintiff's own neglect that he has consistently failed to file a Response to Defendant's Motion. Indeed, the court advised him after his third request for extension of time, that it would not consider a fourth request for extension of time, thereby hoping to avoid a failure on the part of Plaintiff to file a response. At the same time, Defendants timely filed their Motion, and attached the affidavit of Defendant Chavez in support of their Motion. By Plaintiff's own admission, Defendants have produced extensive discovery documents and provided interrogatory responses to Plaintiff, all of which Plaintiff could have used to support a response to Defendants' Motion. Defendants are thereby prejudiced by the continued failure and consistent delay of Plaintiff in refusing to address the merits of Defendants' arguments, instead inaccurately claiming that he hasn't been afforded the time or necessary documents to adequately respond. For these reasons, the undersigned denies Plaintiff's fourth request to extend the time to respond to Defendants' Motion, as Plaintiff has failed to present good cause for doing so. Based upon the above, and taking into account the factors in Davis, Ballard, and Chandler, the undersigned recommends this action be dismissed with prejudice for failure to prosecute pursuant to Fed.R.Civ.P. 41(b).
b. Merits of Defendants' Motion
Alternatively, the undersigned has considered the merits of Defendants' Motion for Summary Judgment. Plaintiff filed suit against Defendants pursuant to § 1983 for violations relating to the alleged lack of proper medical care associated with hernias and/or stomach problems he has endured while at LCDC. Defendants raise several reasons that summary judgment should be granted in this case: (1) Wellpath is not amenable to suit under § 1983; (2) Plaintiff failed to comply with the Prison Litigation Reform Act by exhausting his administrative remedies; (3) Plaintiff has failed to show that Defendants were deliberately indifferent to a serious medical need; (4) any medical malpractice claims should be dismissed for failure to comply with state law; and (5) Defendants are entitled to qualified immunity. ECF No. 100. Defendants also request this should be deemed a strike pursuant to the Prison Litigation Reform Act. ECF No. 100 at 25. In addressing the merits of Defendants' arguments, the undersigned has considered the fact that most of the arguments raised by Defendants do not require the deposition testimony of either Defendant to provide a response, despite Plaintiff's contention to the contrary.
i. Wellpath is not a Person Pursuant to § 1983
Defendants argue that Defendant Wellpath should be dismissed as a matter of law because Wellpath is not a “person” amenable to suit under § 1983. 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”). Specifically, in a previous case in this district, the court 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.
Defendant Wellpath also asserts that summary judgment is appropriate, even if Plaintiff were to sue Wellpath as employer to individually named medical providers, because 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, 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 Defendants' Motion for Summary Judgment as to any claims against Defendant Wellpath.
ii. Exhaustion of Administrative Remedies
Defendants next argue that Plaintiff failed to comply with the Prison Litigation Reform Act because he filed suit before exhausting his administrative remedies. Specifically, Defendants argue he did not appeal his grievance to the LCDC prior to filing suit. ECF No. 100 at 10. 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).
Defendants cite to Plaintiff's grievance records to demonstrate that he did not appeal his grievance to LCDC regarding his hernia surgery until November 4, 2021, one day after he filed his Complaint. See Lexington County Grievance Form, attached to Defs.' Br., ECF No. 100-2 at 1. The grievance form appears to have been submitted by Plaintiff on October 23, 2021. ECF No. 100-2 at 1. On the second page, it appears that “Appeal by the Inmate” occurred on November 4, 2021, wherein Plaintiff seeks a second opinion. ECF No. 100-2 at 2. Plaintiff's Complaint corroborates these dates. He notes in his Complaint a grievance date of October 23, 2021. ECF No. 1 at 6. Plaintiff also indicates that LCDC has a grievance procedure, but he indicated that he did not know if the grievance procedure covered some or all of his claims. ECF No. 1 at 7. He further indicates that he filed a grievance for the refusal to get surgery, but he left blank the section asking for the result, as well as whether he took any steps to appeal. ECF No. 1 at 8. Finally, he indicates that he informed the medical staff via several “medical” requests on the following dates: April 12, 2020; April 29, 2021; June 4, 2021; June 7, 2021; and June 10, 2021, and that he filed a grievance on October 23, 2021. ECF No. 1 at 9. However, based on the grievance form filed by Defendants, it appears that prior to allowing LCDC to respond to the grievance, which they did within twelve days, Plaintiff filed this lawsuit. Indeed, LCDC staff responded that they would see him for a follow-up visit regarding his concerns. ECF No. 110-2 at 2. Therefore, by the time Plaintiff sough a second opinion, he had already filed this Complaint in federal court. Accordingly, Defendants have met the burden of showing that Plaintiff did not properly avail himself of the administrative remedy process by exhausting his claims prior to filing suit. Accordingly, the undersigned recommends finding that Plaintiff's claims should be dismissed for failure to exhaust his administrative remedies.
Plaintiff's Complaint is dated and signed on October 28, 2021 and mailed on November 1, 2021. It therefore appears Plaintiff waited approximately a week after filing a grievance before filing his lawsuit.
iii. Deliberate Indifference Claim
Defendants argue that Plaintiff has not established that they 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)).
Plaintiff alleges in his Complaint that Defendants, who provided him medical care while he has been detained at LCDC, were deliberately indifferent to a “serious medical need” he had, namely a hernia or hernias, by failing to recommend surgery, and they therefore violated his constitutional rights. 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). 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.
In order to establish deliberate indifference on the part of Defendants, Plaintiff must show Defendants “actually knew of and disregarded a substantial risk of serious injury to the detainee or that they 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). Thus, Plaintiff needs to 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)). The Fourth Circuit Court of Appeals defines a serious medical need as “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Iko v. Shreye, 535 F.3d 225, 241 (4th Cir. 2008) (internal citation omitted). 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.
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).
Plaintiff argues that hernias are serious medical conditions, and that by failing to schedule surgery as the prescribed course of treatment, Defendants have been “deliberately indifferent” to his medical needs. He argues that his hernias have continued to grow larger since the last time he was evaluated, and that Defendants will not provide him any additional treatment even though he is still suffering from “chronic and substantial pain.” ECF No. 1-3 at 2. He argues Defendants have ignored obvious conditions, failed to investigate his condition enough to make an “informed judgment,” and that the judgments they have made fall below professional medical standards. ECF No. 1-1 at 1. Plaintiff wants Defendants to take him to the hospital so he can have surgeries done to “remove” his two abdominal hernias and cover the expenses. ECF No. 1 at 6.
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 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”).
Plaintiff argues that his abdominal hernias qualify as a serious medical need. Defendants acknowledge that a hernia can qualify as an objectively serious medical need; however, Defendants suggest that in this case, Plaintiff's “medical need” is defined as the appropriate management of his hernia. Defs.' Br. at 17. In other words, Defendants suggest that Plaintiff can only establish a serious medical need if he shows that his hernia is one that requires surgical repair. Id. At the same time, Defendants readily admit that Plaintiff's medical complications related to injuries sustained in a fire are at least a part, if not the entire, reason he is not a candidate for surgery. Prior to considering whether Defendants' treatment decisions constitute deliberate indifference, the undersigned acknowledges hernias can be considered an objectively serious medical problem. Webb v. Driver, 313 Fed. App'x 591, 593 (4th Cir. 2008) (citing Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir. 2006)). In this case, even assuming that Plaintiff's hernia is indeed a serious medical need, Plaintiff has failed to make a showing that Defendants were deliberately indifferent in providing him treatment for his hernia which did not include surgical repair.
Indeed, Defendants stated that hernia repair surgery is nearer to a “medical impossibility” because two medical professionals have indicated that his near total lack of an abdominal muscle wall makes traditional hernia repair with a mesh screen infeasible. Defs.' Br. at 17.
Defendants have provided medical care to Plaintiff, and further, have provided him a hernia belt as the prescribed course of treatment. Specifically, Defendant Chavez, a physician with 52 years of experience, provides affidavit testimony regarding the treatment he provided Plaintiff. Dr. Chavez personally reviewed Plaintiff's medical records. Chavez Aff., ¶ 8. In his affidavit, Defendant Chavez indicates that the Wellpath medical staff endeavored to follow the treatment recommendations of the Doctors Hospital of Augusta Joseph M. Still Burn Center, a facility where Plaintiff was repeatedly sent for inpatient and outpatient treatment. Chavez Aff., ¶ 11(c). Defendant Chavez indicates that Plaintiff is not a candidate for surgery because a hernia repair involves inserting a mesh screen behind the abdominal wall, and Plaintiff's abdominal wall is weakened and destroyed from injuries sustained by Plaintiff during a fire. Chavez Aff., ¶ 12(a). Defendant Chavez further states that due to Plaintiff's excessive scar tissue and skin grafts, a surgery would be particularly hard for Plaintiff to recover from and could be dangerous due to the risk of infection. Chavez Aff., ¶ 12(b).
As far as the timeline of treatment, the evidence presented reveals that Plaintiff has been consistently seen by medical staff. Dr. Chavez notes that around March 26, 2019, the doctors at Doctors Hospital noted his abdomen was “soft, nontender, and nondistended.” Chavez Aff., ¶ 11(g). On February 17, 2020, Plaintiff's record indicates the potential development of an abdominal hernia while he was at a chronic care visit. Chavez Aff., ¶ 11(k). Since that time, Plaintiff's treatment for the hernia has included a compression shirt, as well as a hernia belt provided by Defendant Rouse, and Motrin and Tylenol. Chavez Aff., ¶ 11(1); 11(o); 11(r); 11(s). When Plaintiff asked about undergoing surgery for the hernia, his records indicate an LPN and a PA apparently agreed he was not a surgical candidate. Chavez Aff., ¶ 11(n). When Dr. Chavez examined Plaintiff, Dr. Chavez noted that Plaintiff's abdominal wall was thin and weak due to his extensive burns. Chavez Aff., ¶ 11(p). Dr. Chavez has also ordered x-rays of Plaintiff's stomach, which were within normal limits. Chavez Aff., ¶ 11(t). When Plaintiff requested a second opinion regarding the infeasibility of hernia surgery, Defendant Rouse examined Plaintiff and agreed with Dr. Chavez's assessment that he was not a candidate for surgery. Chavez Aff., ¶ 11(y).Dr. Chavez further states that during this visit, Defendant Rouse noted that Plaintiff was not wearing his hernia belt, and she advised him to wear the belt as much as possible. Chavez Aff., ¶ 11(z). Plaintiff references in his Complaint that he was provided a hernia belt, and there is no evidence in the record to refute Defendant Chavez's explanation that Plaintiff suffered extensive burns rendering hernia surgery a nonviable option for Plaintiff.
The undersigned notes that Plaintiff appears to have sought a second opinion regarding a hernia surgery very near the time that he subsequently filed this lawsuit. According to the affidavit testimony of Defendant Chavez, Plaintiff was seen by Defendant Rouse on November 12, 2021, after he had already filed this lawsuit.
In Webb v. Hamidullah, 281 Fed. App'x 159 (4th Cir. 2008), the Fourth Circuit considered a case where a plaintiff, who was an inmate, sought to bring a deliberate indifference claim where a physician classified the plaintiff's need for hernia surgery as “elective,” and could be performed in a six-month time frame, despite the inmate feeling the surgery was imminent. The Fourth Circuit concluded the plaintiff in that case failed to prove any deliberate indifference on the part of the physician. Id. at 166. In so finding, the court considered the fact that the doctor sought and obtained a supporting medical opinion, as well as examined the plaintiff. Id. The court further stated that even if the physician somehow misdiagnosed the need for hernia surgery, the physician's “extensive efforts” to diagnose, monitor, and control the plaintiff's hernia symptoms supported a finding that he did not disregard a risk of harm. Id. In Johnson v. Doughty, 433 F.3d 1001 (7th Cir. 2006), the Seventh Circuit Court of Appeals upheld a district court's finding that based on the facts of that case, the denial of a requested hernia surgery does not constitute deliberate indifference where there was no evidence that the plaintiff's hernia required surgery.
Similarly, Plaintiff has failed to make a showing that Defendants were deliberately indifferent in the care they provided to Plaintiff. Defendants unquestionably provided treatment to Plaintiff. Indeed, Plaintiff admits in his Complaint that he was provided a hernia belt; however, he disagrees with the course of treatment provided by Defendants. Plaintiff does not provide evidence or otherwise refute Defendants' assertions that he was consistently provided medical treatment; he simply disagrees with Defendants that he is not a candidate for surgery. However, Plaintiff provides no evidence that Defendants have intentionally delayed or denied him treatment. Nor has Plaintiff shown that the care provided him was not reasonable under the circumstances. Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (noting that prisoners are entitled to reasonable medical care). Aside from Plaintiff's own contentions, and in the face of Defendant Chavez's explanation as to why Plaintiff is not a candidate for surgery, Plaintiff has not made a showing that Defendants' decision to treat Plaintiff's hernia with a hernia belt, rather than surgery, violates the Eighth or the Fourteenth Amendment. While Plaintiff may disagree that this is the best course of treatment, he has not shown that the decision to provide a hernia belt to treat his stomach issues, rather than surgery, amounts to a showing of deliberate indifference. 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). For these reasons, the undersigned recommends finding that Defendants are entitled to summary judgment.
iv. Medical Malpractice Claim
Defendants next argue that, to the extent Plaintiff's Complaint is construed to contain claims of medical malpractice against Defendants, these claims 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 25. Defendants argue that, to the extent Plaintiff brings any claims of medical malpractice, Plaintiff failed to comply with South Carolina law for bringing a medical malpractice claim under § 15-79-110 et seq. Defendants argue 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.” Defendants argue that Plaintiff failed to accomplish this prerequisite to filing suit. The undersigned agrees. Therefore, to the extent Plaintiff seeks to bring any state law tort malpractice claims, the undersigned agrees with Defendants 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 claims attempted to be asserted as a medical malpractice claim should be dismissed.
v. Qualified Immunity
Defendants alternatively argue that they are entitled to qualified immunity. ECF No. 100. Defendants acknowledge that as professionals working for a company who contracts to provide medical services to the inmates at LCDC, they are private parties. Defs.' Br. at 2; 18. Nevertheless, Defendants assert they should be afforded the protections of qualified immunity. 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). In evaluating whether qualified immunity applies, the court must determine: (1) whether the facts alleged, taken in the light most favorable to Plaintiff show that Defendants' conduct violated a constitutional right; and (2) whether the right was clearly established at the time of the complained of misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009).
Defendants Chavez and Rouse are not necessarily government officials; instead, they provide medical services to inmates as part of a contract between Wellpath and LCDC. In Richardson v. McKnight, the Supreme Court explained that while § 1983 seeks to deter certain actions conducted by state actors, there are times where § 1983 can impose liability upon a private individual. 521 U.S. 399, 403 (1997) (emphasis in original). When answering the question of whether a private person may invoke the defense of qualified immunity, courts must look to history and the purposes underlying government employee immunity to determine the answer. Richardson, 521 U.S. at 404. In Filarsky v. Delia, the Supreme Court held that private individuals may assert that the doctrine of qualified immunity applies if they are “retained by the [government] to assist [in a task for which] government employees performing such work are entitled to seek the protection of qualified immunity.” 566 U.S. 377, 393-94 (2012).
Circuits are divided on the question of whether privately employed doctors providing services at prisons or public hospitals pursuant to state contract are entitled to qualified immunity. See generally Hoskins v. Wexford Health Sources, Inc., DKC-17-3823, 2019 WL 1167815, at *10 (D. Md. March 13, 2019) (collecting cases).While Defendants argue that jail nurses and jail doctors are typical cases of a private actor working “on behalf of and under the direct supervision of” the government, it is unclear the exact relationship between the entities. Indeed, Defendant Chavez states in an attached affidavit that he is a physician with Wellpath and provides medical services as the medical director for LCDC in Lexington, South Carolina.” Chavez Aff., ¶ ¶ 4-5. Further, Defendants state that in looking to the history and purposes underlying the doctrine of qualified immunity, doctors working for the government are historically a protected class, citing to Richardson to support that assertion. Richardson states that the law provided “a kind of immunity for certain private defendants,” including doctors or lawyers, there is no general immunity that applied to private individuals working for profit. 521 U.S. at 407. The court need not decide whether Defendants have established that their work pursuant to a state contract with LCDC entitles them to assert qualified immunity because the undersigned recommends finding that Defendants are entitled to summary judgment on Plaintiff's claims.
However, the Fourth Circuit (as well as other federal circuits) have held that “[a] private corporation is liable under 1983 . . . when an official policy or custom causes the alleged deprivation of federal rights.” Austin v. Paramount Parks, Inc., 195 F.3d 715, 727 (4th Cir. 1999).
vi. Request for a Strike under the PLRA
Finally, Defendants argue that because Plaintiff's claims are frivolous in that they lacked legal merit, that Plaintiff knew were false, and that he has no evidence to support. Defs.' Br. at 26. The undersigned does not find Plaintiff's Complaint to have been filed frivolously. Therefore, the undersigned recommends that the district court deny the request to consider this action as a strike pursuant to 28 U.S.C. § 1915(g).
IV. Conclusion and Recommendation
Plaintiff's Motion for Extension of Time, ECF No. 115, is denied. For the reasons stated above, the undersigned recommends that Defendants' Motion for Summary Judgment, ECF No. 100, be granted.
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).