Opinion
C. A. 6:20-cv-03366-JD-KFM
12-29-2021
Robert William Wazney, Plaintiff, v. Ken Nelson, Randall Williams, Roseanne Wilson, Lee Medical Doctor Medical Department Lee Correctional, Ms. Singletary, Brian Stirling, Lefford Fate, Defendants.
ORDER AND REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
The plaintiff, a state prisoner proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
PROCEDURAL HISTORY
The plaintiff's complaint was entered on the docket on September 23, 2020 (doc. 1). On January 7, 2021, the undersigned issued an order informing the plaintiff that his complaint was subject to dismissal as drafted and providing him with time to file an amended complaint to correct the deficiencies noted in the order (doc. 19). The plaintiff was informed that if he failed to file an amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that his claims be dismissed (id. at 8-9). Instead of filing an amended complaint, the plaintiff appealed the court's order to the Fourth Circuit Court of Appeals (doc. 25). The appeal was dismissed by the Fourth Circuit (doc. 35), so on October 27, 2021, the plaintiff was provided an additional opportunity to file an 1 amended complaint to cure the deficiencies outlined in the court's January 7, 2021, order (doc. 36). On two occasions, the plaintiff requested additional time to file an amended complaint, and the plaintiff was provided additional time to file an amended complaint (docs. 40; 41; 43; 44). On December 27, 2021, two weeks after the plaintiff's second extension expired, the plaintiff requested an additional 30 days to provide an amended complaint (doc. 46). The plaintiff's request is denied, as the plaintiff has had almost an entire year to provide an amended complaint, and more than 45 days since the entry of the mandate from the Fourth Circuit Court of Appeals, to provide an amended complaint. Despite the additional time provided by this court, the plaintiff has failed to file an amended complaint. Accordingly, the undersigned recommends that the instant matter be dismissed.
ALLEGATIONS
The plaintiff, a state prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and located at Lee Correctional Institution (“Lee”), brings this action regarding alleged unconstitutional conditions of confinement at Lee (doc. 1). The plaintiff contends that he has a serious respiratory disease called sleep apnea for which he was prescribed medication (a CPAP machine) prior to being incarcerated, but he has not been provided one since 2015 (id. at 4, 9, 11, 19). In passing, the plaintiff also alleges that his heart disease, obesity, and sleep apnea put him at high risk for COVID-19 and he has been unable to appropriately engage in social distancing from other inmates (id. at 22). The plaintiff further contends that he had an additional sleep study completed in 2019 that confirmed his need for a CPAP machine, but he has still not received one (id. at 11, 19-20).
The plaintiff also alleges that in January 2020 Ms. Singletary, a nurse in the medical department at Lee, placed the plaintiff on a list to see a doctor, but he has not been to see a doctor (id. at 4-7, 21). The plaintiff filed grievances and an appeal to the Administrative Law Court (“ALC”) regarding his request to see a doctor, but his appeal to the ALC was dismissed because he could not pay the fee (id. at 6, 7, 21). The plaintiff then 2 sought medical care in April 2020, but sick call was cancelled because there was no staff available (id. at 6). The plaintiff's lab work appointment was similarly cancelled in May 2020, and a June sick call appointment was rescheduled due to a lockdown on the plaintiff's dorm (id. at 7, 8). The plaintiff saw Ms. Singletary on July 1, 2020, where the plaintiff complained of leg and back pain and requested a doctor's visit to treat the plaintiff's sleep apnea (id. at 8). An appointment was scheduled, but short staffing caused the visit to be cancelled and a request to Maj. Gregg to see a doctor was not fulfilled (id. at 9).
Additionally, the plaintiff contends that his dorm has been on quarantine since August due to COVID-19 and the plaintiff has a sign on his door requesting to see a doctor, but has not seen a doctor (id.). The plaintiff also told the National Guard who came into Lee to check vitals that he had been denied medical care (id.).
The plaintiff contends that several of the defendants are responsible in supervisory capacities because he put them on notice of their failure to provide him with adequate medical care (id. at 11-17). The plaintiff does not allege specific injuries, although it appears he contends that the lack of a CPAP machine causes him pain and affects his ability to sleep (see generally doc. 1). For relief, the plaintiff seeks a declaration that his rights have been violated, an injunction requiring the defendants to do various things including that they be required to stop violating his rights, and money damages (id. at 23-25).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c)), and “seeks redress from a governmental entity or officer or employee 3 of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
This complaint is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendants. As an initial matter, the plaintiff's motions for extension of time assert that the plaintiff cannot provide an amended complaint because he is unable to read the court's orders (docs. 40 at 1; 43 at 1; 46 at 1). However, the 4 plaintiff's extensive pro se litigation history, including more than 11 cases in the United States District Court for the District of South Carolina as well as more than 14 appellate actions in the Court of Appeals, belie the plaintiff's assertions. Indeed, the plaintiff's own filings in this case indicate comprehension of the court's orders - as he submitted the necessary documents to bring his case into proper form, including completing answers to the court's special interrogatories (see docs. 8; 12). As such, as outlined below, the plaintiff's complaint is subject to summary dismissal.
Conditions of Confinement Claims
The Eighth Amendment expressly prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. To succeed on an Eighth Amendment claim for cruel and unusual punishment regarding the conditions of his confinement, a prisoner must prove that he was deprived of a basic human need and that prison officials were deliberately indifferent to that deprivation. See Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993). The first prong of the Strickler analysis requires an objective showing that the deprivation was sufficiently serious, such that significant physical or emotional injury resulted from it, while the second prong is a subjective test requiring evidence that prison officials acted with a sufficiently culpable state of mind. Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
Here, the plaintiff's vague and conclusory allegations regarding possible exposure to COVID-19, his inability to engage in social distancing, and his vulnerability to COVID-19 - as well as that his related grievances are not being properly handled - do not rise to the level of a constitutional violation. See Adams v. Rice, 40 F.3d 72, 74 (4th Cir.1994) (noting that the Constitution “creates no entitlement to grievance procedures” or any other procedures voluntarily established by a state); see also Thompson v. Brown, C/A No. 3: 11-cv-318-TMC-JRM, 2011 WL 6012592, at *1-2 (D.S.C. Nov. 8, 2011) (rejecting conditions of confinement claim where the plaintiff claimed “his mattress and blanket were 5 confiscated for six days, he was not allowed to have any toilet tissue for six days, his clothes were taken away from him for six days, his cell was cold, he had no running water in his cell, and he was forced to sleep on a steel cot for six days”), Report and Recommendation adopted by 2011 WL 6012550 (D.S.C. Dec. 2, 2011). Indeed, other courts in this circuit have found that the inability to practice social distancing does not in and of itself demonstrate a constitutional violation. See Waldrup v. Wilde, C/A 1: 20-cv-00393-MR, 2021 WL 5023146, at *2 (W.D. N.C. Oct. 28, 2021) (citing Duvall v. Hogan, C/A No. ELH-94-2541, 2020 WL 3402301, at *13-14 (D. Md. June 19, 2020); Swain v. Junior, 961 F.3d 1276, 1287 (11th Cir. 2020) (“Failing to do the ‘impossible' doesn't evince indifference, let alone deliberate indifference.”)). Moreover, the plaintiff's complaint fails to allege facts showing that the defendants are personally involved in the purported deprivations. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“[A] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the constitution.”); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1997) (holding that an official must be personally involved in the alleged deprivation before liability may be imposed); Griffith v. State Farm Fire and Cas. Co., C/A No. 2:12-cv-00239-DCN, 2012 WL 2048200, at *1 (D.S.C. June 6, 2012) (quoting Iqbal, 556 U.S. at 678) (noting that the plausibility standard requires more than “‘an unadorned, the-defendant-unlawfully-harmed-me accusation.'”).
Additionally, to the extent the plaintiff seeks to hold the defendants liable in some sort of supervisory capacity over SCDC, the plaintiff's claims are subject to summary dismissal because the doctrines of vicarious liability and respondeat superior are generally not applicable to § 1983 suits. Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (noting that “Section 1983 will not support a 6 claim based on a respondeat superior theory of liability” (emphasis in original)). Indeed, to allege a plausible claim requires a showing that the supervisor (1) had actual or constructive knowledge that his/her subordinates engaged in conduct posing a pervasive or unreasonable risk of constitutional injury; (2) the supervisor's response to the knowledge was “so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices;” and (3) an affirmative causal link between the inaction by the supervisor and the particular constitutional injury suffered by the plaintiff. Green v. Beck, 539 Fed.Appx. 78, 80 (4th Cir. 2013). The plaintiff has not alleged how each of the above defendants are personally involved with the plaintiff's alleged constitutional deprivations, and his vague and conclusory allegations do not plausibly allege a challenge to an institutional policy. As such, these claims are not cognizable against these defendants in their supervisory capacities under § 1983. See Ford v. Stirling, C/A No. 2: 17-02390-MGL, 2017 WL 4803648, at *2 (D.S.C. Oct. 25, 2017); London v. Maier, C/A No. 0: 10-00434-RBH, 2010 WL 1428832, at *2 (D.S.C. Apr. 7, 2010). Thus, the plaintiff's conditions of confinement claims are subject to summary dismissal.
Deliberate Indifference to Medical Needs Claim
The plaintiff contends that the defendants have denied the plaintiff medical treatment because he has not been able to see a doctor, he has not been provided a CPAP machine, and that he has not received treatment for leg/back pain (doc. 1). Not “every claim by a prisoner [alleging] that he has not received adequate medical treatment states a violation of the [Constitution].” Estelle v. Gamble, 429 U.S. 97, 105 (1976). The government is required to provide medical care for incarcerated individuals. Id. at 103. However, to establish deliberate indifference, the treatment “must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851-52 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837 (1994). 7
In order to state a claim, a plaintiff must show a serious medical need as well as that the defendant “knowingly disregarded that need and the substantial risk it posed.” DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018) (citing King v. Rubenstein, 825 F.3d 206, 218-20 (4th Cir. 2016); Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209-11 (4th Cir. 2017)). A “serious medical need” is a condition “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, 849 F.3d at 210 (citation omitted). “Deliberate indifference may be demonstrated by either actual intent or reckless disregard. A defendant acts recklessly by disregarding a substantial risk of danger that is either known to the defendant or which would be apparent to a reasonable person in the defendant's position.” Miltier, 896 F.2d at 851-52 (citation omitted). “It is only such indifference that can offend ‘evolving standards of decency' in violation of the Eighth Amendment.” Estelle, 429 U.S. at 106. Mere negligence or malpractice does not violate the Eighth Amendment. Id. Moreover, disagreements between an inmate and a physician over the inmate's proper medical care do not state a Section 1983 claim unless exceptional circumstances are alleged. Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985).
Here, the plaintiff has failed to state a claim for deliberate indifference to medical needs. First, the plaintiff, in passing, alleges that he is vulnerable to COVID-19 due to pre-existing conditions; however, the plaintiff has not alleged that he has suffered serious symptoms relating to COVID-19 which required medical care. Additionally, the plaintiff's medical indifference claims regarding seeing a doctor, receiving a CPAP machine, and the treatment of his leg/back pain rely on the plaintiff's preference for different medical attention than he received, to which the plaintiff is not constitutionally entitled. See Sharpe v. S.C. Dep't of Corrs., 621 Fed.Appx. 732, 733 (4th Cir. 2015) (unpublished per curiam opinion) (noting that “mere disagreement between an inmate and medical staff regarding the proper course of treatment provides no basis for relief” under § 1983 (citing Russell v. Sheffer, 8 528 F.2d 318, 319 (4th Cir. 1975))). Indeed, the plaintiff's own allegations make it clear that he has regularly received medical care via sick call visits, had lab work completed, and had appointments with Ms. Singletary (see doc. 1). As such, the plaintiff's claims do not allege a plausible medical indifference claim.
Moreover, the plaintiff has not plausibly alleged how the defendants (except as addressed above with respect to Ms. Singletary) were responsible for the plaintiff's alleged lack of medical care. See Vinnedge, 550 F.2d at 928 (“Having failed to allege any personal connection between [the defendants] and any denial of [the plaintiff's] constitutional rights, the action against him must fail.”). As outlined above, the plaintiff has not plausibly alleged a supervisory liability claim against these defendants. As such, the plaintiff's medical indifference claim is subject to summary dismissal.
Medical Department Lee Correctional
The plaintiff's complaint names the Medical Department Lee Correctional as a defendant. However, such defendant is subject to summary dismissal because it is not a party amenable to suit pursuant to § 1983. The Medical Department Lee Correctional is not a “person” as defined by § 1983, thus, it is entitled to summary dismissal. It is well settled that only “persons” may act under color of state law; thus, a defendant in a § 1983 action must qualify as a “person.” As noted, this defendants is not a person; hence, it is not subject to suit under 42 U.S.C. § 1983. See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that “neither a state nor its officials acting in their official capacities are ‘persons' under § 1983.”). Accordingly, it is entitled to summary dismissal. 9
CONCLUSION AND RECOMMENDATION
Now, therefore, based upon the foregoing, IT IS HEREBY ORDERED that the plaintiff's motion for a third extension in which to file an amended complaint (doc. 46) is denied;
IT IS HEREBY RECOMMENDED that the district court dismiss this action with prejudice and without issuance and service of process. By order issued January 7, 2021, the undersigned provided the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to timely file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment (doc. 19). Despite several deadline extensions (docs. 36; 41; 44), the plaintiff failed to file an amended complaint within the time provided. Accordingly, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, the undersigned recommends that the district court dismiss this action with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, 724 Fed.Appx. 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, directing the district court on remand to “in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with 10 prejudice, thereby rendering the dismissal order a final, appealable order”) (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020). It is further recommended that this action be designated as a “strike” pursuant to 28 U.S.C. § 1915(g).
The attention of the parties is directed to the important notice on the following page. 11
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 committees 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
250 East North Street, Room 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). 12