Opinion
C. A. 2:22-cv-04703-TLW-MGB
11-20-2023
James L. Ward, PLAINTIFF, v. Lt. Krystal Moton; Nurse Donna Miller; Lt. Greshen; and Lt. Lark, DEFENDANTS.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state detainee appearing pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983, alleging violations of his constitutional rights. (Dkt. No. 1.) Currently before the Court is a Motion for Summary Judgment filed by Defendant Donna Miller (Dkt. No. 23), and a Motion for Summary Judgment filed by Defendants Lt. Krystal Moton, Lt. Greshen, and Lt. Lark (Dkt. No. 30). Pursuant to 28 U.S.C. §636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge. For the reasons set forth herein, the undersigned recommends granting both Motions.
BACKGROUND
A. Factual Background
This civil action arises from a series of incidents that occurred at the Greenwood County Detention Center (“Detention Center”), beginning May 2022.In his unverified Complaint,Plaintiff alleges that on May 22, 2022, he “put in a request to be moved” from his B-unit pod because he was unable to climb onto his assigned top bunk due to poor physical health and he was sleeping on the floor as a result. (Dkt. No. 1 at 2.) Plaintiff alleges Defendant Lt. Lark denied that request. According to Plaintiff, his room was flooded thereafter, and he requested to be moved to the A-unit pod because it “has only bottom bunks.” (Id.) Plaintiff alleges Lt. Lark also denied that request and moved Plaintiff “to the floor” of the B-unit pod. (Id.)
Public record indicates Plaintiff is still housed at the Detention Center.
Goodman v. Diggs, 986 F.3d 493, 495 n.2 (4th Cir. 2021) (“A complaint is ‘verified' if it is ‘signed, sworn, and submitted under penalty of perjury.'” (quoting James v. Hale, 959 F.3d 307, 314 (7th Cir. 2020)).
Plaintiff alleges his new room in the B-unit pod “had bugs on the floor.” (Id.) Plaintiff alleges that he tried to climb on the top bunk to avoid the bugs on June 30, 2022, and he “fell off and fractured [his] ¶ 5 vertebra.” (Id.) Plaintiff alleges that he stayed on the floor for 45 minutes until his cellmate notified prison officials of Plaintiff's condition. (Id. at 3.) According to Plaintiff, third-party prison officials responded and “radioed [Defendants] Head Nurse Donna, Lt. Krystal Moton, and Lt. Greshen.” (Id.) Plaintiff alleges that Lt. Moton told him to get up, and Lt. Greshen “kicked [his] foot.” (Id.) Plaintiff alleges he was moved to the hospital and on his way out of the Detention Center, Lt. Greshen told Lt. Moton to “put [him] in lock-up once [he] return[ed] from the hospital.” (Id.)
Plaintiff alleges that on July 1, 2022, he was moved to a bottom bunk in a higher security unit, and Lt. Lark denied his subsequent request to be moved from that unit. (Id. at 2.) According to Plaintiff, third-party Captain Bollman denied another request to be moved from this unit. (Id. at 3.) Plaintiff alleges that on July 5, 2022, he requested “Tylenol or some sort of pain killer for [his] back and was denied.” (Id. at 2-3.) Plaintiff alleges that he fell while in the A-unit pod on August 8, 2022, and he “laid on the ground for an hour waiting for help.” (Id. at 4.) Plaintiff alleges that during a follow up appointment with the “spine doctor,” he was told “to be put on Quannapind [sic] for back pain, but Head Nurse Donna Miller gave [him] 600 mil. Ibuprofen instead.” (Id.) Plaintiff further alleges that he was “supposed to wear” a back brace for three months after his initial fall, but he “kept it on for 5 months because the jail failed to make [his] doctors appointments.” (Id.)
In the Complaint, Plaintiff indicates he is bringing claims for negligence, excessive force, and “denied medical attention.” (Id. at 7.) Plaintiff alleges that Lt. Lark violated his “duty to protect [Plaintiff's] well-being” by denying his requests to be moved to a “safe environment.” (Id. at 5.) Plaintiff alleges Lt. Greshen “physically kicked” him and then threatened to place him in lock-up upon Plaintiff's return from the hospital in “retaliation.” (Id.) He alleges Lt. Moton “went along with the decision to put [him] in lock-up,” leading “directly to more injuries.” (Id.) Finally, Plaintiff alleges that Nurse Donna Miller “constantly denied [Plaintiff] prescribed medications and failed to keep up with my doctors' appointments.” (Id.) Based on the foregoing alleged conduct, Plaintiff seeks injunctive relief against Defendants Lt. Lark, Lt. Greshen, and Lt. Moton as well as compensatory and punitive damages. (Id. at 6.)
B. Procedural Background
On July 24, 2023, Defendant Donna Miller filed a Motion for Summary Judgment. (Dkt. No 23.) The next day, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 24.) Defendants Lt. Greshen, Lt. Lark, and Krystal Moton filed a separate Motion for Summary Judgment on August 24, 2023. (Dkt. No. 30.) The next day, the Court issued a separate Roseboro Order specific to that Motion. (Dkt. No. 31.)
Plaintiff's response to Defendant Donna Miller's Motion for Summary Judgment was due by August 25, 2023. After Plaintiff failed to respond to the Motion, the Court issued an Order extending Plaintiff's response deadline to September 18, 2023. (Dkt. No. 33.) Plaintiff was specifically advised that if he failed to respond, his claims against Miller could be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Id.) Additionally, Plaintiff's response to the Motion for Summary Judgment filed by Defendants Lt. Greshen, Lt. Lark, and Krystal Moton was due by September 25, 2023.
After Plaintiff failed to respond to either Motion for Summary Judgment, the undersigned issued a Report and Recommendation (“R&R”) on October 19, 2023, finding that Plaintiff's failure to respond to the pending motions indicated he no longer wishes to pursue this action. (Dkt. No. 35.) The undersigned therefore recommended this action be dismissed with prejudice for lack of prosecution and for failure to comply with this Court's orders pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and the factors outlined in Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982). (Id.)
Upon further consideration, the undersigned believes a recommendation on the merits of Plaintiff's claims is more appropriate in this instance. Accordingly, the undersigned VACATES the October 19, 2020 R&R (Dkt. No. 35) and issues an R&R on the pending Motions for Summary Judgment, which are ripe for review.
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). “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.
Because Plaintiff is representing himself, these standards must be applied while liberally construing his filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
DISCUSSION
A. Defendant Donna Miller's Motion for Summary Judgment (Dkt. No. 23)
Based on the allegations in Plaintiff's unverified Complaint, Plaintiff brings a § 1983 claim against Defendant Donna Miller (“Miller” or “Defendant”) for deliberate indifference to a serious medical need as well as a negligence claim under South Carolina law. (Dkt. No. 1 at 2-7.) In her Motion, Miller argues that Plaintiff's claims against her fail as a matter of law. (Dkt. No. 23-1 at 2.) In support, she has submitted affidavit testimony and Plaintiff's medical records. (Dkt. No. 232.)
1. Deliberate Indifference Standard
Because at all relevant times Plaintiff was a pretrial detainee, his claims are evaluated under the Fourteenth Amendment rather than the Eighth Amendment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Gallipeau v. ABL Mgmt., Inc., Case No. 3:09-cv-1382, 2010 WL 3192934, at *4 (D.S.C. July 12, 2010), adopted by, 2010 WL 3192933 (D.S.C. Aug. 10, 2010). As a practical matter, courts do not distinguish between the Eighth and Fourteenth Amendments in the context of a pretrial detainee's § 1983 claim. See Mays v. Sprinkle, 992 F.3d 295, 300 (4th Cir. 2021) (“[E]ven though [plaintiff's] claim arises under the Fourteenth Amendment, we have traditionally looked to Eighth Amendment precedents in considering a Fourteenth Amendment claim of deliberate indifference to serious medical needs.”).
To establish a cognizable Eighth Amendment claim for denial of medical care, a plaintiff must put forth facts sufficient to demonstrate that an official was deliberately indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 105 (1976); Pfaller v. Amonette, 55 F.4th 436, 445 (4th Cir. 2022). A deliberate indifference claim has both an objective and subjective component. Gordon v. Schilling, 937 F.3d 348, 356 (4th Cir. 2019). “That is, the plaintiff must demonstrate that the defendant prison official acted with ‘deliberate indifference' (the subjective component) to the plaintiff's ‘serious medical needs' (the objective component).” Id. (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
A medical condition is serious enough to satisfy the objective component if it has “been 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.” Id. (citing Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)). The subjective component has two subparts: “a plaintiff must show the prison official (1) had actual knowledge of the risk of harm to the inmate and (2) recognized that his actions were insufficient to mitigate the risk of harm to the inmate arising from his medical needs.” Pfaller, 55 F.4th at 445 (citing Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)) (internal quotation marks omitted).
While mere negligence is not enough, id. (citing De'lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003)), evidence of an official's “actual purposive intent” is not required, id. (citing De'lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013)). “Instead, deliberate indifference is most akin to criminal-law recklessness.” Id. “[S]o long as the official who knew of a substantial risk to inmate health or safety ‘responded reasonably to the risk,' they cannot be found liable under the Eighth Amendment, ‘even if the harm ultimately was not averted.'” Id. (citing Farmer v. Brennan, 511 U.S. 825, 844 (1994)). Indeed, an inmate's mere disagreement with medical providers about the proper course of treatment does not support an Eighth Amendment cause of action. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985).
2. Negligence/Gross Negligence Standard
To sustain a negligence action under South Carolina law, a plaintiff must plead facts plausibly suggesting that: (1) the defendant owes a duty of care to the plaintiff; (2) the defendant breached the duty by a negligent act or omission; (3) defendant's breach was the actual and proximate cause of the plaintiff's injury; and (4) that the plaintiff suffered an injury or damage. Andrade v. Johnson, 588 S.E.2d 588, 592 (S.C. 2003). Gross negligence-“the failure to exercise slight care”-“is a relative term, and means the absence of care that is necessary under the circumstances.” Doe v. Greenville Cnty. Sch. Dist., 651 S.E.2d 305, 309 (S.C. 2007) (citations omitted). It is synonymously defined as “the intentional, conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do.” Id. (citation omitted).
3. Analysis
In support of her Motion for Summary Judgment, Miller has submitted over one hundred pages of Plaintiff's medical records, as well as her affidavit testimony describing the medical care provided to Plaintiff while at the Detention Center. (Dkt. No. 23-2.) Miller, a licensed practical nurse, explains that she is the Medical Team Administrator at the Detention Center. In this role, she “provide[s] nursing care to detainees/patients and coordinate[s] the medical staff and patient appointments with outside medical providers.” (Id. at 2.) According to Miller, Dr. Robert Williams, M.D. is the Medical Director, and he oversees the care provided by Miller and the other nurses on staff. (Id.)
Upon careful review, the evidence submitted by Miller demonstrates that Plaintiff has received responsive medical treatment throughout the time period at issue. More specifically, after Plaintiff fell on June 30, 2022, Miller responded to Plaintiff's unit and he was transferred to the hospital to be evaluated. (Dkt. No. 23-2 at 3, 84.) At the hospital, Plaintiff was diagnosed with a “closed compression fracture of L5 lumbar vertebra” and various lab tests, imaging, and monitoring was performed. (Id. at 16, 50-76.) Plaintiff was referred for a neurological follow-up regarding the lumbar compression fracture, and he was discharged with a back brace but no prescription medications. (Id. at 15, 61.) The medical record indicates Plaintiff had no complaints or concerns when he returned to the Detention Center on July 1, 2022. (Id. at 84.) Dr. Williams ordered Tylenol for Plaintiff's pain management, which was administered by the nursing staff, including Miller, as ordered. (Id. at 6, 101.) On July 1, 2022, Miller put in a transport request for Plaintiff's follow-up appointment with a neurologist. (Id. at 80.)
When Plaintiff complained that his back was hurting on July 9, 2023, he was seen by medical staff and Dr. Williams ordered ibuprofen for three nights. (Id. at 81-83.) Miller and other nursing staff administered this medication. (Id. at 101.) Plaintiff was transported for the neurologist evaluation on July 19, 2022. (Id. at 37-38 105-08.) He was not prescribed any medications, but the neurologist noted follow-up was needed in one month. (Id.) Following this appointment, Miller put in a transport request for Plaintiff's follow-up appointment with the neurologist. (Id. at 7.)
Medical was called to Plaintiff's room on August 8, 2022, where Plaintiff was found lying face down “with back pain and right leg numbness.” (Id. at 78.) Plaintiff was transported to the hospital, where he was diagnosed with low back pain and a compression fracture of L5 vertebra “with routine healing, subsequent encounter.” (Id. at 12-14.) Plaintiff was not prescribed any medications. (Id. at 12.) Plaintiff was transported for his follow-up neurology appointment on August 17, 2022. (Id. at 8-11.) At this visit, he was prescribed gabapentin. (Id. at 9.) Notes from this visit state, “We will likely wean out of the brace at that time however we may need to decide on an epidural steroid injection depending on how the gabapentin helps.” (Id.)
In her affidavit, Miller avers that “Gabapentin is prohibited in the Detention Center.” (Id. at 3.) For this reason, she “called the neurologist's office, and the neurologist changed the prescription to ibuprofen instead. Dr. Williams ordered the ibuprofen, and the nursing staff, including [Miller], administered it per the orders.” (Id. at 3, 78, 102, 118-119.) Additionally, Miller put in a transport request for Plaintiff's follow-up appointment with the neurologist, scheduled for September 29, 2023. (Id. at 116.) In her affidavit, Miller avers that the transport did not occur in September “for reasons outside of [her] control as medical staff.” (Id. at 3.) Miller then coordinated with the neurologist's office to reschedule Plaintiff's appointment. (Id.) Plaintiff was transported to the rescheduled appointment on November 10, 2022. (Id. at 117.) At this appointment, the neurologist noted that the “fracture is healed' and “discontinued his brace.” (Id. at 114.) No further medications were prescribed and no follow-up referrals were made at this appointment. (Id.) Miller avers that Plaintiff has not made any complaints regarding his back since this appointment. (Id. at 3.)
Notably, Plaintiff has not responded to Miller's Motion for Summary Judgment and he has not disputed the foregoing evidence. His claims in this action are based entirely on the unverified allegations in his Complaint. Upon careful review, the evidence shows Plaintiff was administered all medical treatment and medications deemed medically necessary by his physicians, including his specialists. There is no evidence indicating Miller was deliberately indifferent to Plaintiff's serious medical needs in violation of his constitutional rights. Further, the evidence does not support finding Miller was grossly negligent. Accordingly, the undersigned recommends Miller be granted summary judgment as to all claims.
B. Motion for Summary Judgment by Defendants Lt. Greshen, Lt. Lark, and Lt. Moton (Dkt. No. 23)
Liberally construed, Plaintiff's unverified Complaint alleges claims for negligence, excessive force, and deliberate indifference arising from events involving Defendants Lt. Greshen, Lt. Lark, and Lt. Moton (“Defendants”). In their Motion for Summary Judgment, Defendants argue that Plaintiff's claims against them fail as a matter of law. (Dkt. No. 30-1 at 7.) In support, they have submitted affidavit testimony and certain records from Plaintiff's detention history. (Dkt. Nos. 30-2-30-9.) They also rely on the medical records submitted by Defendant Miller. (Dkt. No. 23-2.) The undersigned considers Plaintiff's claims in turn.
1. Excessive Force
Plaintiff's excessive force claim arises from the allegation that Defendant Lt. Greshen kicked him while he was lying on the floor after he fell in his room on June 30, 2022. (Dkt. No. 1 at 2-3.) More specifically, Plaintiff alleges that when Lt. Moton and Lt. Greshen responded to the call that Plaintiff had fallen, Lt. Moton told him to get up, and Lt. Greshen “kicked [his] foot.” (Id. at 3.) Plaintiff does not allege any physical injury from this kick.
a. Standard
The Due Process Clause of the Fourteenth Amendment “protects a pretrial detainee from the use of excessive force that amounts to punishment.” Kingsley v. Hendrickson, 576 U.S. 389, 405 (2015) (quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). “[T]he appropriate standard for a pretrial detainee's excessive force claim is solely an objective one,” and “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable,” regardless of the officer's state of mind. Id. at 397. In determining whether the force was objectively unreasonable, the court must consider the evidence “from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Id. (citing Graham, 490 U.S. at 396). “A court must also account for the legitimate interests that stem from the government's need to manage the facility in which the individual is detained, appropriately deferring to policies and practices that in the judgment of jail officials are needed to preserve internal order and discipline and to maintain institutional security.” Id. (citing Bell v. Wolfish, 441 U.S. 520, 540 (1979)) (internal quotation marks and alterations omitted).
Importantly, objective reasonableness turns on the “‘facts and circumstances of each particular case,'” including many considerations that may bear on the reasonableness or unreasonableness of the force used, such as “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” Id. (quoting Graham, 490 U.S. at 396).
b. Analysis
Upon careful review, the undersigned finds summary judgment should be granted on Plaintiff's excessive force claim. Plaintiff's allegations about the underlying incident can only be found in his unverified Complaint, which cannot be considered as evidentiary support for his claims. See, e.g., Aten v. Richland Cnty., No. 5:16-cv-03614-PMD-KDW, 2018 WL 4560572, at *8 (D.S.C. July 3, 2018) (“While Plaintiff makes numerous unverified allegations, those types of assertions are not sufficient to establish that genuine issues of material fact exist” to preclude granting summary judgment on a § 1983 claim), adopted by, 2018 WL 4109608 (D.S.C. Aug. 29, 2018), aff'd sub nom. Aten v. Wiggins, 839 Fed.Appx. 798 (4th Cir. 2021).
Indeed, the only evidence in the record indicates that no force was used on Plaintiff. Specifically, in their separate affidavits, Defendants Lt. Moton and Lt. Greshen deny that Lt. Greshen kicked Plaintiff while he was lying on the ground. (Dkt. No. 30-3 at 4; Dkt. No. 30-4 at 4.) Further, case law in this circuit indicates that the allegations here would not support a constitutional violation. See Strickland v. Turner, No. 9:15-cv-275-PMD-BM, 2017 WL 5589575, at *2 (D.S.C. Nov. 21, 2017) (“Plaintiff only alleges that Flowers forcefully pinched him on one occasion as he was being removed from a restraint chair. He does not allege that the pinch resulted in any physical injury. . . . The Court finds that a single deliberate pinch is not an objectively unreasonable use of force.”).
Based on the foregoing, the undersigned recommends summary judgment be granted on Plaintiff's § 1983 excessive force claim.
2. Deliberate Indifference and Negligence
Plaintiff's claims for deliberate indifference and negligence arise from the allegation that Defendant Lt. Lark denied Plaintiff's requests to be moved to a different unit and Defendants Lt. Greshen and Lt. Moton failed to ensure Plaintiff received adequate medical care.
a. Deliberate Indifference Standard
The undersigned does not repeat the standard for a negligence/gross negligence claim. See supra Discussion, section A.2.
To prevail on an Eighth Amendment deliberate indifference claim, “a prisoner must prove two elements: (1) that objectively the deprivation of a basic human need was sufficiently serious, and (2) that subjectively the prison officials acted with a sufficiently culpable state of mind.” Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir.1998) (internal quotation marks and citations omitted). The first element “is satisfied by a serious medical condition,” while the second element “is satisfied by showing deliberate indifference by prison officials.” Id. Similarly, to state a claim that conditions of confinement violate constitutional requirements, “a plaintiff must show both ‘(1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.'” Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (quoting Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991)).
While Plaintiff's claims arise under the Fourteenth Amendment, case law interpreting the standard of “deliberate indifference” under the Eighth Amendment is instructive. See Mays v. Sprinkle, 992 F.3d 295, 300 (4th Cir. 2021) (“[E]ven though [the plaintiff's] claim arises under the Fourteenth Amendment, we have traditionally looked to Eighth Amendment precedents in considering a Fourteenth Amendment claim of deliberate indifference ”).
A non-medical prison official generally cannot be held liable for a failure to provide an inmate medical treatment where that inmate is under the care of medical personnel. Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990) (holding that non-medical personnel are entitled to rely on the professional judgment of medical practitioners to determine appropriate treatment for a patient); see also Iko, 535 F.3d at 242 (holding “ ‘[i]f 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)). To establish a claim of deliberate indifference against non-medical prison staff, a plaintiff must show that the nonmedical personnel (1) were personally involved in the treatment or denial of treatment, (2) deliberately interfered with treatment, or (3) tacitly authorized or were indifferent to the medical provider's conduct. Howell v. Walrath, No. 1:20-cv-1193, 2021 WL 5881803, at *5 (E.D. Va. Dec. 10, 2021); see Coleman v. Stevenson, No. 0:09-cv-872-HMH, 2010 WL 2990737, at *4 (D.S.C. June 22, 2010) (“Mere knowledge is not sufficient to establish personal participation.”) adopted by, 2010 WL 2990740 (D.S.C. July 26, 2010), aff'd, 407 Fed.Appx. 709 (4th Cir. 2011).
b. Analysis
Upon careful review, the undersigned finds Plaintiff has failed to demonstrate a genuine issue of material fact that any Defendants were deliberately indifferent under § 1983 or grossly negligent under South Carolina law. Again, Plaintiff's claims depend entirely on his unverified allegations, which cannot be considered as evidentiary support. See, e.g., Aten, 2018 WL 4560572, at *8 (“While Plaintiff makes numerous unverified allegations, those types of assertions are not sufficient to establish that genuine issues of material fact exist” to preclude granting summary judgment on a § 1983 claim).
Relevant here, Lt. Lark has provided affidavit testimony establishing that Plaintiff was assigned to specific housing within the Detention Center for medical and safety reasons. (Dkt. No. 30-2 at 2-5.) According to Lt. Lark, “[e]very time this inmate was moved to a different unit it was due to the Detention Center's classification policies and not a punishment against this inmate in any manner.” (Id. at 4.) Plaintiff has not submitted any evidence to dispute this testimony.
With respect to any claims of medical deliberate indifference specific to these non-medical personnel Defendants, there is no evidence that Defendants were personally connected to any medical treatment Plaintiff received after he was transported to the hospital on June 30, 2022. Mallett v. Johnson, No. 8:08-cv-863-PMD, 2008 WL 5351618, at *7 (D.S.C. Dec. 22, 2008) (“A medical indifference claim is not appropriate against a superintendent/supervisor absent an allegation that he was personally connected to the treatment received.”) (citing Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)). Defendants Lt. Lark, Lt. Greshen, and Lt. Moton have submitted separate affidavits, averring that they did not take any actions regarding Plaintiff “as a means to punish him or retaliate against him for requesting medical treatment.” (Dkt. No. 30-2 at 4; Dkt. No. 30-3 at 5; Dkt. No. 30-4 at 5.) Further, as discussed above, Plaintiff's medical record does not support finding that Plaintiff received inadequate medical treatment from medical staff. Plaintiff has offered no compelling explanation as to how Defendants Lt. Greshen, Lt. Moton, and Lt. Lark breached any duty of care to Plaintiff, and the evidence does not support finding these Defendants were grossly negligent here.
Based on the foregoing, the undersigned recommends summary judgment be granted as to any claims brought against Defendants Lt. Lark, Lt. Greshen, and Lt. Moton.
CONCLUSION
For the foregoing reasons, the undersigned RECOMMENDS the Motion for Summary Judgment (Dkt. No. 23) filed by Defendant Donna Miller and the Motion for Summary Judgment (Dkt. No. 30) filed by Defendants Lt. Greshen, Lt. Lark, and Lt. Moton be GRANTED, and this action be dismissed with prejudice.
IT IS SO RECOMMENDED.
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).