Opinion
C. A. 4:20-0244-JD-TER
01-13-2022
Michael E. Wolfe, Plaintiff, v. Nfn. Churray, Officer Kayla Shervey, Nfn. Mocccabello, Nfn. Caldwell, Sgt. Nfn. Perks, Lt. Nfn Lasley, Captain, Nfn Toth, Captain, Jimmy Pacheco, licensed clinical psychiatrist, Kathy Wyant, Human Servs. Coord., Nfn Early, Associate Warden, Donna Ashley-Harouff, nurse, Amy Enloe, field nurse practitioner, Nfn Glen, deputy warden, Nfn Osborne, registered nurse, Thomas Overman, registered nurse, Nfn. McRee, Nfn Welch, transportation sgt., L. Harris, registered nurse, Ashley Grimsley, registered nurse, Katherine Burgess, registered nurse, James Smith, Human Services Coordinator Nfn Palmer, Captain/Unit Manager, Dominic M. Boccabello, Sgt. Charles B. Welchel, Defendants
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
This is a civil action filed pro se by Michael E. Wolfe (“Plaintiff/ Wolfe”) under 42 U.S.C. § 1983 on January 24, 2020, alleging a violation of his constitutional rights. Wolfe filed an amended complaint on July 17, 2020. (ECF No. 110). This matter is before the court on the motion for summary judgment filed by Defendants Ashley-Harouff, Boccabello, Burgess, Caldwell, Churray, Earley, Enloe, Glenn-Evelyn, Harris, Lasley, McRee, Pacheco-Perez, Palmer, Perks, Shervey, Smith, Toth, Welchel, and Wyant (hereinafter “Defendants”). (ECF No. 283). On April 13, 2021, Defendants filed a motion for summary judgment along with a memorandum, exhibits, and an affidavit in support. (Id.). As the Plaintiff is proceeding pro se, the court issued an order on or about April 15, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Wolfe of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. After being given an extension, Wolfe filed a response with supporting documents on June 1, 2021. (ECF No. 300).
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the district judge.
An amended complaint supplants any previous complaints and serves as the sole operative complaint in this action.
Defendants Osborne and Overman filed a motion for summary judgment on April 12, 2021, and Defendant Grimsley filed a motion for summary judgment on April 13, 2021. These motions will be addressed in separate report and recommendations. Defendants Nfn Moccabello and Nfn Welch have been terminated.
DISCUSSION
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with ... affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
ALLEGATIONS
In the amended complaint, Wolfe alleges that Defendants Enloe, Harouff and Harris were deliberately indifferent to his complaints of testicular pain, foot pain, and with the follow-up to the neurologist. (ECF No. 110). Wolfe asserts that Dr. McRee prescribed a medicine he told the medical department he could not take and refused to provide rehabilitation and pain management as recommended by the neurologist. (Id.). As to Defendant Burgess, Wolfe alleges medical indifference due to delaying the scheduling of his neurologist appointments since she does the outside scheduling. (Id.). Mental health professionals Smith and Wyant violated his rights by placing him on crisis intervention several times when not needed. (Id.). Defendant Palmer was part of a rapid response team that removed Wolfe from one area of the prison to another and was involved in a strip search of Wolfe in front of female officers. (Id.). Defendant Churray used excessive force when he slammed his hand in the food flap and denied him medical attention. (Id.). Defendants Toth, Lasley, Boccabello, Perks, Shervey, Caldwell and Palmer removed him from the area where he researching on the law computer requiring him to leave his legal materials and placing him on crisis intervention when it was not warranted. (Id.). Sergeant Welch tricked him into being placed into restraints by telling him he was going to the neurologist and then taken to Gilliam Psychiatric Hospital (GPH) for involuntary commitment without adequate notice of the transfer. (Id.). Medical Defendants Pacheco, McRee, Ashley-Harouff, Harris, Burgess and mental health Defendants Wyant and Smith, did not provide him with adequate and proper medical care. (Id.). Wolfe asserts that Smith, Dr. Pacheco-Perez, Early, Glen, and Welch violated his due process rights by placing him in GPH without a hearing to stagnate his litigation as retaliation. (Id.). Wolfe asserts that “associate Warden Early, Deputy Warden Glen, Cpt. Toth, Cpt. Lasley, Sgt. Perks, Sgt. Caldwell, Officer Boccabello, Officer Shervey, Dr. Pacheco, mental health Ms. Wyant, Mr. Smith (my mental health counselor), Cpt. Palmer (Rapid Response Team), . . . were responsible for my due process (liberty interest) regarding my unconstitutional transfer to GPH on Jan. 3rd 2019 and all conditions stemming from that unjust transfer.” (ECF No. 110 at 28 of 66).
Wolfe alleges that he received scaring and permanent swelling in all four fingers on his right hand, that due to deliberate medical indifference he suffered severe pain from two cysts on his testicles, that he suffered mental and emotional damage due to being publicly stripped naked and stripped of his prosthetic leg brace where he had to “hobble” while completely naked in front of a group of females and inmates, and that he suffered mental and emotional damage due to being forced to GHP with no due process or penelogical justification where “I had to sleep, eat and shower with waste, feces, vomit, and urine scatted and smeared about, ” and “extreme pain for a substantial amount of time due to the deliberate indifference regarding the pain management and punctual follow-ups of my left peroneal neuropathy (nerve injury).” (ECF No. 110 at 41).
Excessive Force
Wolfe raises a claim of excessive force against Officer Churray. The Eighth Amendment to the United States Constitution expressly prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. To proceed with his claim under the Eighth Amendment, the plaintiff must demonstrate: (1) objectively, the deprivation suffered or injury inflicted was “sufficiently serious, ” and (2) subjectively, the prison officials acted with a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994); Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). “These requirements spring from the text of the amendment itself; absent intentionality, a condition imposed on an inmate cannot properly be called ‘punishment,' and absent severity, such punishment cannot be called ‘cruel and unusual.' ” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citing Wilson v. Seiter, 501 U.S. 294, 298-300 (1991)). “What must be established with regard to each component ‘varies according to the nature of the alleged constitutional violation.' ” Williams, 77 F.3d at 761 (quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992)).
The “core judicial inquiry” in an excessive force claim under the Eighth Amendment is “not whether a certain quantum of injury was sustained, but rather ‘whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.' ” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson, 503 U.S. at 7). “[N]ot ... every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. However, the objective component is “contextual and responsive to ‘contemporary standards of decency.' ” Id. at 8 (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Accordingly, “the extent of injury suffered by an inmate is one factor that may suggest whether the use of force could plausibly have been thought necessary in a particular situation, ” and it may also provide an indication of the amount of force that was applied. Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 7). In an excessive force analysis, “[w]hen prison officials maliciously and sadistically use force to cause harm, ... contemporary standards of decency always are violated ... whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.” Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 9).
When reviewing an excessive force claim, the Court should consider 1) the need for the application of force, 2) the relationship between the need and the amount of force that was used, 3) the threat to the staff and inmates as reasonably perceived by the prison officials on the basis of the facts known to them, 4) the efforts made to temper the severity of a forceful response, and 5) the extent of the injuries suffered by the prisoner. Whitley v. Albers, 475 U.S. 312, 321 (1986); Hill v. Crum, 727 F.3d 312, 327 (4th Cir. 2013); see also Hudson v. McMillian, 503 U.S. 1, 7 (1992) (the core judicial inquiry is whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm); Mann v. Failey, 578 Fed.Appx. 267, 273 (4th Cir. July 17, 2014) (Eighth Amendment excessive force claims contain an objective and a subjective component: in order for the plaintiff to prevail, he must demonstrate that (1) the “deprivation suffered or injury inflicted ... was sufficiently serious, ” and (2) the “prison official acted with a sufficiently culpable state of mind.”), quoting Williams v. Benjamin, 77 F.3 756, 761 (4th Cir. 1996). When analyzing the subjective element of excessive force claims, courts must determine if the defendant showed “wantonness in the infliction of pain.” Whitley v. Albers, 475 U.S. 312, 322 (1986).
Wolfe alleges that on August 7, 2018, Defendant Churray used excessive force when he slammed Wolfe's hand in the food flap and denied him medical attention without provocation. Defendants argue that they are entitled to summary judgment. First, as to the claims of excessive force by Churray, Defendants argue Wolfe was seen in medical on August 9, 2018, with complaints of hand pain. Nurse Ashley-Harouff noted scabbed over abrasions to the middle knuckles of the first three fingers on his right hand but there were no further complaints of his hand or requests for follow-up care in the medical records. Defendants argue that there is no indication that his hand injury was caused by Defendant Churray, other than Wolfe's assertions, because there is no incident report or grievance about the matter.
In response to the motion for summary judgment, Wolfe submitted a declaration from inmate Jerome Cochran stating that on August 7, 2018, Officer “Sheray” who was working in B-Dorm of RHU at PCI was conducting cell cleaning when he arrived at Wolfe's cell, x-wing room #7. (ECF 300-1 at 4 of 73). Cochran declares that he heard Wolfe question the officer as to whether or not he was going to feed him the next morning because the last time Churray came with food trays, Wolfe was asleep due to mental health medication and did not receive his meal. (Id.). Cochran asserts that Defendant Churray replied that he did not care if Wolfe took medication and, if Wolfe was asleep, he would not eat on his shift. (Id.). Two hours later, Cochran declares that Officer “Sheray” brought Wolfe some Tylenol when he heard the food flap bang extremely loud and Wolfe screamed “look at my hand, you broke my hand. It's bleeding.” (Id.). Cochran then heard the officer say don't aggravate me and I won't “flex up on you.” (Id.). Cochran further declares that he heard Wolfe ask for medical attention after the incident but was denied and requested medical attention again on August 8, 2018, but was denied and told to go to sick call. (Id.). Wolfe asserts that he is “predominantly right handed with a trade of construction and I have permanent scaring, swelling and stiffness that notable and effects the normal use of my right hand.”
A review of the medical records Wolfe referred to reveals that when he was seen by medical on August 9, 2018, he complained that his right hand was “smashed in the flap on August 7.” The notes reveal that “I/m noted to have small scabbed over abrasions to the middle knuckles of three first digits on r hand. No. swelling or deformity noted. I/m states that he is unable to move two of his fingers due to pain.” (ECF 282-2 at 151 of 160). However, there was no further mention as to any treatment given for the complaints of hand pain in that medical note, and it does not appear the hand was mentioned in any of the other medical records. Wolfe argues that he requested an x-ray but was refused due to the circumstance of how it happened. Defendants did not submit an affidavit from Officer Churray or any other evidence pertaining to this allegation but simply argue that there is “no indication Wolfe's hand injury was caused by Churray, other than his assertions and conclusions. There is no incident report or grievance about the matter.” (ECF No. 283-1 at 5). In the responses to the interrogatories that Wolfe attached, Defendant Churray responded that he was working Wolfe's wing on that date but stated he could not remember any details with regard to the other interrogatories. Defendants have not submitted an affidavit from Churray or any other officer present on that date. As stated, Defendants simply argue that there is no indication that the hand injury was caused by Defendant Churray and “there is no incident report or grievance about the matter.” However, Wolfe points out that Defendants themselves submitted a copy of two inmate grievance applications dated August 20, 2018, and August 21, 2018. In the Inmate Grievance Application form (ECF No. 283-5 at 22), it states that “I/M stated that Ofc. Churray slammed his hand in the door flap and he stated he was denied medical attention. He wants an x-ray on his hand and to pursue the violation of his constitutional rights.” (Id.). Thus, it appears to be an issue of fact with regard to the allegation of excessive force alleged. Accordingly, it is recommended that summary judgment be denied with regard to Officer Churray on this claim.
Transfers Without Due Process
Wolfe raises numerous allegations against several Defendants with regard to being transferred to crisis intervention and to GPH. Specifically, Wolfe alleges that on October 17, 2018, after giving the law library sergeant a grievance which he asserts was signed off by Associate Warden Earley, Transportation Sgt. Welchel put him in restraints, took his legal materials, and forced him to go to GPH after his medical run. Wolfe argues that this was done solely as retaliation to take his legal materials. Wolfe asserts that Smith was his mental health counselor and Dr. Pacheco-Perez was the psychiatrist at PCI and both made decisions regarding mental health inmates and transfers to GPH. Wolfe asserts that after one-half of a month, the GPH staff stated that he did not need to be there, and he was returned to PCI after enduring atypical conditions.
Wolfe alleges that on January 2, 2019, while at the law computer in the RHU studying case law, Captain Toth attempted to start an argument and when Wolfe would not engage in the argument, she became enraged and called Dr. Pacheco-Perez to come in to create an excuse for Wolfe to have to abandon his law material and place him on suicide watch with no property. Wolfe asserts that subsequently, Deputy Warden Glen, Captain Lasley, Captain Toth, Officer Boccabello and Sergeant Caldwell threatened him with the use of mace if he did not leave the law computer and his legal materials to be handcuffed and placed in a suicide watch cell a/k/a crisis intervention cell, after a humiliating strip search. Wolfe argues that Defendants Glen, Lasley, Toth, Boccabello, and Caldwell let him know that their actions were carried out because he was pursuing claims in the courts against SCDC employees. (ECF No. 300 at 15 of 18). The next day, Plaintiff asserts that counselor Wyant and Associate Warden Earley came to his suicide watch cell and told him he had to go to GPH which he responded that he did not want to go. Wyant told him he had to go while smiling and Earley called Perry's rapid response team (red team) with use of force gear to come move him. Wolfe asserts that Defendant Palmer was part of a rapid response team that removed Wolfe from the crisis intervention cell in handcuffs and placed him on the transport van to be sent to GPH. Wolfe alleges that Defendants “Earley, Glen, Toth, Lasley, Perks, Caldwell, Boccabello, Shervey, Pacheco, Wyant, Smith and Palmer all were responsible for my transfer to GP on January 3, 2019. This transfer was carried out without adequate notice or any of the numerous procedures that must accompany a state prisoner's transfer to a mental hospital.” (ECF No. 300 at 16). Specifically, Wolfe argues that Caldwell and Palmer removed him from where he was researching on the law computer, forced him to leave his legal materials, and placed him on crisis intervention after having Dr. Pacheco-Perez, psychiatrist, talk with him when it was not warranted. Wolfe alleges that Sergeant Welch tricked him into being placed into restraints by telling him he was going to the neurologist and, after he was restrained, that he would be taken to GPH after seeing the neurologist for involuntary commitment without adequate notice of the transfer. Wolfe asserts that Smith, Dr. Pacheco, Early, Glen, and Welch violated his due process rights by placing him in GPH without a hearing to stagnate his litigations as retaliation. Wolfe argues that “associate Warden Early, Deputy Warden Glen, Cpt. Toth, Cpt. Lasley, Sgt. Perks, Sgt. Caldwell, Officer Moccabello, Officer Shervey, Dr. Pacheco, mental health Ms. Wyant, Mr. Smith (my mental health counselor), Cpt. Palmer (Rapid Response Team), . . . were responsible for my due process (liberty interest) regarding my unconstitutional transfer to GPH on Jan. 3rd 2019 and all conditions stemming from that unjust transfer.”
Defendants argue that they are entitled to summary judgment as to the claims that he was taken from conducting legal research at the law computer and placed in crisis intervention for no valid reason without due process. Defendants assert that prisoners have no constitutional or liberty interest in retaining any particular security or custody status and that the Fourth Circuit has held that the restrictive conditions of high security incarceration do not rise to the level of cruel and unusual punishment citing In re Long Term Administrative Segregation of Inmates Designated as Five Percenters, 174 F.3d 464, 471 (4th Cir. 1999). Defendants have not submitted any affidavits from the officers either admitting or denying taking part in the transfers as alleged or evidence of who is responsible for arranging a notice and hearing to comply with due process rights.
The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty or property without due process of law.” U.S. Const. amend. XIV, § 1. “To state a procedural due process violation, a plaintiff must (1) identify a protected liberty interest and (2) demonstrate deprivation of that interest without due process of law.” Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). While prisoners retain rights under the Due Process Clause, they do not have a constitutionally protected interest in avoiding penalties for disciplinary infractions. Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974). When the punishment at issue does not cause the original sentence to be enhanced, protected interests will generally be limited to freedom from restraint that imposes atypical and significant hardships on the inmate relative to ordinary prison life. Sandin v. Connor, 515 U.S. 472, 484 (1995). Since “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, ” temporarily losing privileges as “[d]iscipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law.” Sandin, 515 U.S. at 485.
In this case, Wolfe raises allegations of constitutional violation when he was placed in a crisis intervention cell allegedly due to his mental health and being involuntarily committed to GPH without due process. There is no liberty interest in custodial classifications. Meachum v. Fano, 427 U.S. 215, 225 (1976). However, the involuntary transfer of an inmate to a mental hospital implicates a liberty interest protected by the Fourteenth Amendment's Due Process Clause. See Perry v. Davis, No. CV 1:18-2349-BHH-SVH, 2019 WL 8755123, at *4 (D.S.C. June 17, 2019), report and recommendation adopted, No. CV 1:18-2349-BHH, 2020 WL 1270671 (D.S.C. Mar. 17, 2020), appeal dismissed, 827 Fed.Appx. 337 (4th Cir. 2020) (citing Vitek v. Jones, 445 U.S. 480, 494-96 (1980)). In the case of an involuntary transfer, the inmate is entitled to notice and a commitment hearing conducted by an independent decision maker with an opportunity to confront and cross-examine witnesses. Id. at 496. Wolfe asserts through his own affidavits and verified complaint that the psychiatrist Dr. Pacheco, mental counselors Smith and Wyant, and Associate Warden Early personally participated in having him transferred to GPH without due process. Based on the record, Defendants have not contested that Wolfe's commitment to GPH was involuntary and presents no argument with regard due process with an involuntary transfer to GPH. Even though Wolfe has listed twelve Defendants as participating in his transfer to the suicide cell and/or to GPH, he fails to present evidence of personal allegations except as to Defendants Early, Wyatt, Smith, and Pacheco to withstand summary judgment. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (for an individual to be liable under § 1983, the Plaintiff must show that the defendant named acted personally in the deprivation of the plaintiff's rights). Plaintiff must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed. App'x 212, 215 (4th Cir.2001) (affirming dismissal of the plaintiff's claim against five defendants when the plaintiff did not allege any of the defendants were personally involved in the alleged deprivation of his civil rights). Therefore, it is recommended that Defendants' motion for summary judgment is denied as to Defendants Early, Smith, Wyant and Pacheco with regard to the involuntary transfer to GPH without due process and granted as to the remaining Defendants.
Strip Search
Wolfe alleges a constitutional violation due to being strip searched in front of three female officers, Toth, Shervey, and Caldwell and three male officers, Lasley, Perks, and Boccabello while standing in the shower area. Wolfe asserts that he was humiliated when he was standing completely naked without his prosthetic leg brace resulting in trouble balancing and that he had to “lift my scrotum, turn around and squat and cough in front of 3 women and 3 men and the inmates on the wing.” (ECF No. 110 at 22 of 66). Wolfe alleges that female officer Sgt. Caldwell was recording the strip search even though male officers were present which Defendants have not provided evidence and/or arguments to the contrary. Wolfe argues there was no penelogical justification for three women being present during a humiliating strip search when three men were present. Further, Wolfe argues that there was no reasoning to use a lead chain to cuff one hand and use it to force the other hand away so that he could not use at least one hand to cover himself. Wolfe asserts that he filed a grievance and Captain Toth “lied” in response when she said that females were not present when all three female officers were right in front of the shower and one of them using a camera to record the entire strip search.
In response to the motion for summary judgment, Wolfe submitted the declaration of inmate Roger Dyke. Dyke stated that he left PCI in 2016 but can attest to the fact that PCI officers strip search the inmates with a single handcuff attached to the inmate's wrist which is then attached to a steel link chain, that the strip search is done in the shower area with completely open bar doors, and that PCI officers punish inmates by performing a strip search in front of female SCDC employees while using the lead chain to snatch the inmate's hand away to prevent him from covering himself. Dyke states that he has personally witnessed Captain Toth and Sergeant Caldwell, both female officers a female, strip search male inmates when male officers are present and that Captain Lasley, a male officer, has strip searched inmates in front of female employees using the lead chain to snatch the hand away. (ECF No. 300-2 at 41).
In the motion for summary judgment, Defendants do not deny that Wolfe was stripped searched in front of females. Defendants argue that “[t]here is no particularized right to have a security strip search conducted by a male officer only.” (ECF No. 283-1 at 7). Significantly, none of these Defendants provided an affidavit to the contrary or have denied either that he/she was present at the time of the alleged strip search or did not participate in the strip search. On this record, then, Wolfe's claim must proceed.
“It is undisputed that inmates retain certain rights of privacy under the Constitution which include the right not to be viewed naked by a member of the opposite sex when not reasonably necessary.” Ashann-Ra v. Virginia, 112 F.Supp.2d 559, 565 (W.D. Va. 2000) (citing Lee v. Downs, 641 F.2d 1117, 1120 (4th Cir. 1981)) (actionable privacy claim where female guards were stationed in positions to observe male inmates while undressed or using toilets). Under the Fourth Amendment, a search is reasonable if the need for the search outweighs the invasion of personal rights that the search entails. Bell v. Wolfish, 441 U.S. 520, 559 (1979). The court must balance these factors to determine whether a search violated constitutional protections: the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Id. Addressing invasion of privacy claims by prisoners, the Fourth Circuit held:
Persons in prison must surrender many rights of privacy which most people may claim in their private homes. Much of the life in prison is communal, and many prisoners must be housed in cells with openings through which they may be seen by guards. Most people, however, have a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating. When not reasonably necessary, that sort of degradation is not to be visited upon those confined in our prisons.Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir.1981). “In determining whether a certain act violated a prisoner's right to privacy, the court must determine if there was reasonable necessity for the act.... [R]easonable necessity is intertwined with penological interest: if an inmate's privacy can be maintained without compromising prison operations, then that privacy should be respected.” Pelzer v. McCall, No. 8:10-cv-914-RMG-JDA, 2011 WL 3021193, at *9 (D.S.C. July 22, 2011) (internal citations omitted). Further, an inmate's Fourth Amendment “right to privacy [is] not violated by the occasional, inadvertent encounter with female guards.” Thomas v. Shields, 981 F.2d 1252 (4th Cir.1992) (table opinion). In this case, Wolfe has named the officers that were present, pointed out that there was no need for the three female officers to be present with three male officers standing there, and for the search to be conducted in a public area so that other inmates could view. Wolfe argues that there was no penological interest for the strip search to be performed in front of three female officers and in view of other inmates. Defendants have not denied these allegations in their motion. Significantly, none of these named Defendants provided an affidavit to the contrary or denied either that he/she was present at the time of the alleged strip search or that he/she participated and has not described or provided pictures of the shower where the strip search took place which Plaintiff alleges was open for other inmates to view. On this record, then, there is a genuine issue of material fact as to whether the search was reasonable and Wolfe's claim must proceed with regard to the strip search. Therefore, it is recommended that Defendants' motion with regard to the strip search and privacy claim be denied on Fourth Amendment grounds as to Defendants Toth, Shervey, Caldwell, Lasley, Perks, and Boccabello.
Retaliation
Wolfe alleges that he was removed from the law computer where he was conducting research, placed in the crisis intervention cell, and later taken to GPH as a form of retaliation or punishment for filing grievances and claims against the employees at PCI. “Retaliation by a public official for the exercise of a constitutional right is actionable under 42 U.S.C. § 1983, even if the act, when taken for different reasons, would have been proper.” American Civil Liberties Union, Inc. v. Wicomico Cnty., 999 F.2d 780, 785 (4th Cir. 1993). However, the Fourth Circuit has mandated that claims of retaliation be regarded with skepticism, Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996), stating:
[W]e believe that in forma pauperis plaintiffs who claim that their constitutional rights have been violated by official retaliation must present more than naked allegations of reprisal to survive § 1915(d). To hold otherwise would be to bring virtually every unpopular decision by state actors within the scope of a cause of action for retaliation.Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994).
Thus, to state a claim of retaliation under § 1983, “a plaintiff ‘must allege that (1) he engaged in protected First Amendment activity, (2) the defendant took some action that adversely affected [his] First Amendment rights, and (3) there was a causal relationship between [his] protected activity and the defendant['s] conduct.' ” Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)). An inmate must present more than conclusory accusations of retaliation, Adams, 40 F.3d at 74, and must provide facts that show the exercise of his constitutional right was a substantial factor motivating the retaliation, see, e.g., Cochran, 73 F.3d at 1318.
Wolfe brings retaliation claims against Defendants Smith, Pacheco-Perez, Early, Glen, Welch, and Toth. Defendants have not addressed Wolfe's retaliation claims in their motion for summary judgment. Therefore, the undersigned is constrained to recommend denial of summary judgment with regard to the retaliation claims as to Smith, Pacheco-Perez, Early, Glen, Welch, and Toth.
The only affidavit the Defendants submitted with their motion was the affidavit of Dr. Pacheco-Perez to substantiate the medical indifference argument but there was no mention of retaliation in their motion.
Medical Indifference
As set forth above, Wolfe has raised allegations of medical indifference with regard to his medical and mental health stating that he did not receive adequate care by Defendants Pacheco-Perez, Dr. McRee, Ashley-Harouff, Enloe, Harris, Burgess, Wyant and Smith. Specifically, Wolfe alleges that Nurse Practitioner Enloe and nurses Harris and Harouff all physically examined Wolfe and were aware that he had a mass on his testicle, that he had abdominal pain, blood in his urine, severe pain in his testicles, and burning upon urination. Wolfe argues that the nurses did not treat his condition. However, from the medical evidence presented, the nurses saw Wolfe and referred him to the nurse practitioner for examination and treatment. Nurse Practitioner Enloe ordered an antibiotic, Cipro, for Wolfe but the notes indicate that Wolfe subsequently told medical that the antibiotic was not helping. Wolfe alleges that it took five months of being in pain to have a “picture taken” of his testicles which verified what the PCI staff already knew, that he had a testicular mass. Wolfe points to the medical record from November 5, 2018, wherein it states that at the time of the x-ray, there was a testicular cyst on both testicles and that it was causing “chronic intermittent pain” for which Defendants were aware and did nothing to treat the issue. Wolfe argues that even after he finished the antibiotic that did not help with the pain, it took five months for Defendant Enloe to send him to have an x-ray. Wolfe argues that Enloe knew he had not improved and continued to have problems and suffering with pain. Wolfe argues that the delay in treatment caused him significant pain which the medical records verify that he complained of pain.
Allegations as to Overman, Osborne, and Grimsley will be addressed in other reports and recommendations based on their separate motions for summary judgment.
In their motion, Defendants argue that Wolfe received medical care but simply disagrees with the medical care he received which does not state a constitutional claim. Defendants submitted the affidavit of Dr. Jimmy Pacheco Perez (Pacheco-Perez) who attests that he has been a Psychiatrist for thirty-two years specializing in Neurology and Psychiatry and sees and treats inmates for the SCDC. (ECF No. 283-4). Dr. Pacheco-Perez attests that he is provided with a list of names at each Institution and sees those patients, takes notes and assesses their condition. (Id.). On January 2, 2019, Dr. Pacheco-Perez was seeing patients at PCI and was not scheduled to see Wolfe but heard him screaming and acting out so he stopped to ask if Wolfe was okay. (Id.). Dr. Pacheco-Perez had previously treated Wolfe but he was not the “Michael” that he remembered on this day as he was acting bazaar. (Id.). Dr. Pacheco-Perez makes it his practice to err on the side of caution for the patient's protection. (Id.). If all of a sudden a patient exhibits psychotic symptoms, he can be a danger to himself and others. (Id.). Therefore, Dr. Pacheco-Perez sent Wolfe to GPH for further evaluation. (Id.). The doctors at GPH assess the inmate and determine if commitment is warranted. (Id.). Dr. Pacheco-Perez attests that he never ignored Wolfe's mental health needs. (Id.). On January 2, 2019, Wolfe stated that the correction officers were feeding him pellets, “the program, ” poisoning him and using the pellets to hear his thoughts and to speak to him in his head. (Id.). Dr. Pacheco-Perez documented all of this in the medical notes. (Id.). Dr. Pacheco-Perez states that he knows that Wolfe sometimes skips his medications and magnifies his symptoms to manipulate his conditions of confinement but always takes his complaints serious, while treating him under the applicable psychiatric standard of care. (Id.).
The government is "obligat[ed] to provide medical care for those whom it is punishing by incarceration." Estelle v. Gamble, 429 U.S. 97, 102 (1976). This obligation arises from an inmate's complete dependence upon prison medical staff to provide essential medical service. Id. The duty to attend to prisoners' medical needs, however, does not presuppose "that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment." Id. at 105. Instead, it is only when prison officials have exhibited "deliberate indifference" to a prisoner's "serious Deliberate indifference is a very high standard. In Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), the Fourth Circuit Court of Appeals noted that treatment "must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness, medical needs" that the Eighth Amendment is offended. Id. at 104.
Deliberate indifference is a very high standard. In Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), the Fourth Circuit Court of Appeals noted that treatment "must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness, nevertheless, mere negligence or malpractice does not violate the Eighth Amendment." Unless medical needs were serious or life threatening, and the defendant was deliberately and intentionally indifferent to those needs of which he was aware at the time, the plaintiff may not prevail. Estelle, 429 U.S. 104; Farmer v. Brennan, 511 U.S. 825 (1994); Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986). "A medical need is ‘serious' if it is ‘one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention' or if denial of or a delay in treatment causes the inmate ‘to suffer a life-long handicap or permanent loss.'" Coppage v. Mann, 906 F.Supp. 1025, 1037 (E.D.Va. 1995) (internal citations omitted).
Further, incorrect medical treatment, such as an incorrect diagnosis, is not actionable under 42 U.S.C. § 1983. Estelle v. Gamble, supra. Negligence, in general, is not actionable under 42 U.S.C. § 1983. See Daniels v. Williams, 474 U.S. 327, 328-36 & n. 3 (1986); Davidson v. Cannon, 474 U.S. 344, 345-48 (1986); Ruefly v. Landon, 825 F.2d 792, 793-94 (4th Cir.1987); and Pink v. Lester, 52 F.3d 73, 78 (4th Cir. 1995) (applying Daniels vs. Williams and Ruefly v. Landon: “The district court properly held that Daniels bars an action under § 1983 for negligent conduct.”). Secondly, 42 U.S.C. § 1983 does not impose liability for violations of duties of care arising under state law. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 200-03 (1989). Similarly, medical malpractice is not actionable under 42 U.S.C. § 1983. Estelle v. Gamble, supra, at 106 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”) See also Brooks v. Celeste, F.3d 125 (6th Cir. 1994) (Although several courts prior to the Supreme Court's decision in Farmer v. Brennan, supra, held that “repeated acts of negligence could by themselves constitute deliberate indifference, Farmer teaches otherwise.”); Sellers v. Henman, 41 F.3d 1100, 1103 (7th Cir. 1994) (“If act A committed by the X prison shows negligence but not deliberate indifference, and B the same, and likewise C, the prison is not guilty of deliberate indifference.”); White v. Napoleon, 897 F.2d 103, 108-109 (3rd Cir. 1990); and Smart v. Villar, 547 F.2d 114 (10th Cir. 1976) (affirming summary dismissal).
Although the Constitution does require that prisoners be provided with a certain minimum level of medical treatment, it does not guarantee to a prisoner the treatment of his choice.” Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988). Although the provision of medical care by prison officials is not discretionary, the type and amount of medical care is discretionary. See Brown v. Thompson, 868 F.Supp. 326 (S.D.Ga. 1994). Further, a disagreement as to the proper treatment to be received does not in and of itself state a constitutional violation. See Smart v. Villar, 547 F.2d 112 (10th Cir. 1976); Lamb v. Maschner, 633 F.Supp. 351, 353 (D.Kan. 1986). Mistakes of medical judgment are not subject to judicial review in a § 1983 action. Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975).
With regard to his testicular pain, the evidence reveals that Wolfe complained of pain in his testicles, blood in his urine, abdominal pain, and pain upon urination to which the nurse practitioner ordered an antibiotic. However, upon being informed by Wolfe that the antibiotic was not helping, Nurse Practitioner Enloe ordered an x-ray which took five months to receive and then did not order any further treatment. Even though Wolfe has not alleged what permanent injury he may have sustained from the delay, he has alleged the extreme pain he was in which Defendant Enloe had knowledge. As to the nurses, Wolfe has not provided any evidence of what care they could have provided or should have provided with the limits on their ability to order tests and/or prescribe medication. They did examine Wolfe and referred him to Nurse Practitioner Enloe. Thus, it is recommended that summary judgment be granted with respect to Defendants Harris and Harouff with regard to medical indifference claims. Also, the undersigned recommends granting summary judgment as to Dr. Pacheco-Perez as Wolfe has failed to show a genuine issue of material fact with regard to how he was indifferent to his mental health needs. However, Defendants have not addressed Wolfe's specific allegations with regard to the delay in treatment of the testicular cysts causing increased pain. Thus, it is recommended that summary judgment be denied with respect to Nurse Practitioner Enloe regarding a genuine issue of material fact as to delay in treatment.
Wolfe also alleges medical indifference with regard to his left peroneal neuropathy which has caused permanent nerve injury to his left leg from the foot up to the knee. (ECF No. 110 at 18 of 66). Wolfe admits that he was referred to an outside neurologist for his neuropathy but argues that he was supposed to go to the neurologist every ninety-days after being ordered a method of treatment and giving it ninety-days to work before returning to the neurologist. However, Wolfe argues that every method of treatment that the neurologist at USC Neurology ordered was refused by Dr. McRee at PCI. Wolfe alleges that Nurse Burgess was in charge of scheduling outside appointments and delayed his ninety-day follow-up for eight months resulting in nerve damage. Wolf contends that the various forms of neurological treatment ordered by the neurologist including nerve medications, nerve cream and pain management specialist, physical rehabilitation and therapy to exercise the nerve injury were denied and he never received any of the ordered treatment. As a result, Wolfe asserts that he sustained additional injuries due to trying to exercise on his own in his cell. Wolfe submitted a document initiated by Burgess in which the neurologist completed the middle portion stating that Wolfe needed a follow-up in ninety-days. (ECF No. 110 at 33). Wolfe submitted a document generated by Defendant Burgess revealing Wolfe's next appointment to the neurologist was scheduled on October 17, 2018, eight months later. (ECF No. 110 at 30, 32, 33). Wolfe also submitted an Exhibit showing that the neurologist ordered Lidoderm cream but Enloe and Harris indicated that they did not think it was available, and he did not receive the cream or a substitute. (ECF 110 at 29 of 66). Wolfe submitted Exhibits revealing that the neurologist informed the Defendants that Wolfe did improve and needed to be referred to pain management for lower back pain and neuropathy pain. However, Wolfe asserts that Dr. McRee stated that a pain specialist was not available which Wolfe alleges was not correct. (ECF No. 300-1 at 60 of 73; ECF No. 110 at 31 of 66). Wolfe provided supplemental discovery responses in which Dr. McRee admitted that he ordered an evaluation at the orthopaedic clinic and physical therapy/rehabilitation for inmates in the past but did not order pain management for Plaintiff even though Neurologist Jhunjunwala said it was the next step in Wolfe's treatment. (ECF No. 300-1 at 32 of 73).
Defendants have not specifically addressed Wolfe's allegations that he did not receive pain management, treatment or rehabilitation as ordered by the Neurologist when it was available at PCI or had been ordered for other inmates. In their motion, Defendants make only conclusory statements that Wolfe's arguments are a mere disagreement with the opinions, diagnosis, or treatment by the medical professionals.Defendants submitted only the affidavit of Psychiatrist Pacheco-Perez regarding the incident when Wolfe was removed from conducting legal research and subsequently placed in a crisis intervention cell to be transported to GPH.
It is noted that Defendants submitted 160 pages of records but did not cite to any specific document to support their position in their motion for summary judgment. Rule 56(c) “provides that a party asserting that a fact is genuinely disputed must support the assertion 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.' ” Williams v. Horry-Georgetown Tech. Coll., 26 F.Supp.3d 519, 540 n.8 (D.S.C. 2014) (quoting Fed.R.Civ.P. 56(c)). Accordingly, “[i]t is not the Court's responsibility to comb the record either for supporting evidence or to craft arguments for a party.” Pauling v. Greenville Transit Auth., No. 6:05-1372-HMH-BHH, 2006 WL 3354512, at *8 (D.S.C. Nov. 16, 2006).
As to Defendant Burgess, Defendants submitted the medical encounter note #462 dated April 5, 2018, which stated “Attempted to schedule 3 month F/U (May) with USC Dept. Of Neurology. Per Jeannie at USC Dept. of Neurology; First available appointment date 08/15/18. I/M scheduled for this date.” (ECF No. 183-3 at 1 of 5). Defendants attached another Nurse Protocol noted dated July 9, 2018, which stated that “T/C received form Lori at USC Dept of Neurology staetd MD not in the office on 08/15/18 as previously scheduled for F/U. Lori states appt has been rescheduled for 10/17/18. “ (ECF No. 283-3 at 2 of 5). Therefore, it appears from the evidence of record that Defendant Burgess attempted to schedule the three month follow-up for May but could not get an appointment until later in August. Then the August appointment was rescheduled until October by the neurologist's office not Burgess. Plaintiff has not shown any intentional delay on the part of Defendant Burgess with regard to scheduling.
However, Wolfe has provided evidence of delay in treatment or no treatment as ordered by the neurologist with regard to his neuropathy which he alleges exacerbated his nerve injury. As stated, these allegations have not been directly addressed by the Defendants. However, Wolfe has not provided sufficient evidence of direct personal involvement for medical indifference with regard to mental health Defendants Wyant and Smith as he alleges only that they placed him in crisis intervention when not warranted. Therefore, it is recommended that summary judgment be denied with respect to the claim of medical indifference as to Defendants Enloe and McRee and granted as to Defendants Harouff, Harris, Pacheco-Perez, Burgess, Wyant and Smith.
Respondeat Superior
Defendants argue that Earley and Glen are entitled to summary judgment pursuant to respondeat superior asserting that Plaintiff has not alleged any personal involvement by them.
Generally, vicarious liability or respondeat superior is not available to a § 1983 plaintiff as a method to create liability of a state-actor supervisor for the acts of his subordinate. See Monell v. Dep't Soc. Servs., 436 U.S. 658, 694 (1978). There is a limited exception to the prohibition as long as the facts alleged meet the Fourth Circuit Court of Appeal's three-part test for supervisor liability under § 1983:
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff;
(2) that the supervisor's response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices, ”; and
(3) that there was an “affirmative causal link” between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)(citations omitted); Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984). In order to assert a plausible § 1983 claim against any particular state actor, a “causal connection” must exist between the conduct alleged by the plaintiff and the particular defendant named in the suit. See Kentucky v. Graham, 473 U.S. 159, 166 (1985); Rizzo v. Good, 423 U.S. 362, 371-72 (1976) (a § 1983 plaintiff must show that he suffered a specific injury resulting from a specific defendant's specific conduct and must show an affirmative link between the injury and that conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (for an individual to be liable under § 1983, the Plaintiff must show that the defendant named acted personally in the deprivation of the plaintiff's rights). Plaintiff here must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed.Appx. 212, 215 (4th Cir. 2001) (affirming dismissal of the plaintiff's claim against five defendants when the plaintiff did not allege any of the defendants were personally involved in the alleged deprivation of his civil rights). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. Defendants will not know how to respond to conclusory allegations, especially when “the pleadings mentioned no specific time, place, or person involved.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 565 n. 10. (2007). Complaints should contain facts in regard to who did what to whom and when. Id.
Here, as to Plaintiff's claims of medical indifference with regard to his testicular cysts and left neuropathy, Wolfe does not allege that either Defendant Earley or Glen had any personal involvement in his medical treatment to support an allegation of a constitutional violation. Likewise, Plaintiff has not alleged that either Defendant Earley or Glen had any personal involvement with regard to the strip search claims. Therefore, Earley and Glen are entitled to summary judgment for the claims of strip search and medical indifference in their roles as supervisors.
However, as set forth above, Defendants have not addressed Plaintiff's allegations of denial of due process before being transferred to GPH, and Wolfe has alleged that Warden Early came to his cell, notified him that he was being transferred to GPH, and called the rapid response team to move Wolfe from the cell to the transfer van without due process. Thus, Plaintiff has alleged personal involvement with regard to due process. Plaintiff has raised claims of retaliation as to both Defendants which has not been addressed by the Defendants in their motion. Therefore, Defendants are not entitled to summary judgment based on respondeat superior with regard to the claims of violation of due process and retaliation against Early and Glen.
Qualified Immunity
Defendants argue that they are entitled to qualified immunity. For the reasons set forth above, there is a recommendation that the motion for summary judgment be denied as to some of the Defendants as they have failed to demonstrate that they are entitled to summary judgment as to Wolfe's claims of retaliation, due process, and medical indifference for a delay in treatment. To the extent the Defendants subject to these claims argue generally that they are entitled to qualified immunity as to these incidents, they have failed to offer any specific support for this argument.
Eleventh Amendment Immunity
The Defendants contend that Wolfe's §1983 claims against them for money damages in their official capacity are barred pursuant to Eleventh Amendment Immunity. Additionally, Defendants argue that the action against them should be dismissed as a matter of law to the extent that they are sued in their official capacity because while acting in their official capacity as an employee of the SCDC they are not a “person” under 42 U.S.C. §1983 and, therefore, not subject to suit. The undersigned agrees.
When a defendant is sued in his or her official capacity, the suit is frequently intended as one against the state, the real party in interest. If review of the pleadings indicates that the state is, in fact, the party being sued, then a judgment awarding damages is precluded by the Eleventh Amendment of the United States Constitution. Although declaratory and/or injunctive relief may be granted, damages may not be awarded against the state.
In the case of Will v. Michigan Department of State Police, 491 U.S. 58 (1989), the Supreme Court analyzed the interplay between § 1983 and the Eleventh Amendment of the Constitution and stated:
Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity (cites omitted) or unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity.
The Eleventh Amendment immunity granted to the states “applies only to States or governmental entities that are considered ‘arms of the State' for Eleventh Amendment purposes, ” but the court found that state agencies, divisions, departments and officials are entitled to the Eleventh Amendment immunity. Will, supra at 70. In reaching this conclusion, the court held that a suit against state officials acting in their official capacities is actually against the office itself, and therefore, against the state. State officials may only be sued in their individual capacities.
There is no dispute that Defendants were employees of the SCDC at the time of the allegations in the complaint. Thus, they are entitled to Eleventh Amendment immunity from monetary damages in their official capacity.
CONCLUSION
For the reasoning set forth above, it is recommended that the motion for summary judgment filed by Defendants Ashley-Harouff, Boccabello, Burgess, Caldwell, Churray, Earley, Enloe, Glenn-Evelyn, Harris, Lasley, McRee, Pacheco-Perez, Palmer, Perks, Shervey, Smith, Toth, Welchel, and Wyant be granted in part and denied in part. (ECF No. 283). Specifically, 1. It is recommended that summary judgment be granted for all Defendants pursuant to Eleventh Amendment immunity for monetary damages in their official capacity.
2. As to the allegations of excessive force by Defendant Churray, it is recommended that summary judgment be denied with regard to Officer Churray on this claim.
3. As to the allegations of retaliation, it is recommended that summary judgment be denied as to Defendants Smith, Pacheco-Perez, Early, Glen, Welch and Toth and summary judgment be granted on the issue of retaliation as to the remaining Defendants.
4. As to the allegations of a violation for being involuntarily transferred to GPH without due process, it is recommended that the motion for summary judgment be denied as to Defendants Early, Wyant, Smith, and Pacheco and granted to the remaining Defendants.
5. As to the allegations of violations for the strip search and privacy claim on Fourth Amendment grounds, it is recommended that summary judgment be denied as to Defendants Toth, Shervey, Caldwell, Lasley, Parks, and Boccabello and summary judgment granted as to the remaining Defendants.
6. As to the allegations of medical indifference, it is recommended that summary judgment be denied as to Defendants Enloe and McRee and granted as to the remaining Defendants.