Opinion
C/A No.: 1:20-1981-BHH-SVH
08-10-2020
Michael Bland, individually and as Personal Representative of the Estate of Bryon Joseph Bland, Plaintiff, v. George L. Johnson, J. West, H. Johnson, T. Dewitt, Ofc. Donovan, Jade Pike, Michael Smith, Joseph Elliott, Shakema Young, Lcpl. Crawford, Tyler Wescott, Susan Safford, Caleb Primm, Pete Forney, Kevin Adkins, Joey Johnson, and Wayne Owens, Defendants.
REPORT AND RECOMMENDATION
Michael Bland ("Plaintiff"), individually and as personal representative of the Estate of Bryon Joseph Bland ("Bland"), filed this action pursuant to 42 U.S.C. § 1983, concerning the drug-related death of Bland that occurred on May 30, 2017, while he was a pretrial detainee at the J. Reuben Long Detention Center (the "detention center"), against the above-named defendants consisting of three Myrtle Beach Police Department officers and fourteen Horry County Sheriff's Office ("HCSO") officers (collectively, "Defendants"). [See ECF No. 25 at 2].
This matter comes before the court on the partial motions to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), filed by Te'Mario Dewitt ("Dewitt"), Michael Donovan ("Donovan"), Jade Pike ("Pike"), Michael Smith ("Smith"), Joseph Elliott ("Elliott"), Shakema Young ("Young"), Bruce Crawford ("Crawford"), Tyler Wescott ("Wescott"), Susan Safford ("Safford"), Caleb Primm ("Primm"), Pete Forney ("Forney"), Kevin Adkins ("Adkins"), Joey Johnson ("J. Johnson"), and Wayne Owens ("Owens") (collectively "HCSO Defendants") [ECF No. 25] and J. West ("West") [ECF No. 31]. The motions having been fully briefed [ECF Nos. 43, 47], they are ripe for disposition.
Defendants George L. Johnson ("G. Johnson") and H. Johnson ("H. Johnson") do not join in these motions. [See ECF No. 25, ECF No. 31].
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant the partial motions to dismiss. I. Factual and Procedural Background
Relevant to the resolution of the instant motions, Plaintiff alleges that on or about May 28, 2017, G. Johnson, while conducting a residence sweep, discovered Bland, who was "out of it" and who informed Johnson that he had very recently used heroin. [ECF No. 1 ¶ 12]. G. Johnson arrested Bland and transported him to the Myrtle Beach Police Department Jail ("jail"). Id. A jail medical screen history report performed by H. Johnson indicates Bland used heroin earlier that day and that Bland was placed on a medical alert. Id. Bland informed Pike that he would be going through detox from heroin and alcohol. Id. ¶ 15.
The next day, May 29, 2017, Dewitt and Donovan transferred Bland to the detention center. Id. ¶ 15. Upon arrival, Bland was placed in a holding cell at approximately 10:40 p.m. and was not processed through a complete booking process, including a full and complete medical screening. Id. ¶ 16. From the time of Bland's initial arrest by G. Johnson through the time of Bland's death at 4:04 p.m. on May 30, 2017, at the detention center, id. ¶ 24, Plaintiff alleges Bland had personal contact with the following defendants: G. Johnson, H. Johnson, Pike, Dewitt, Donovan, Smith, Elliott, Young, Crawford, Wescott, Primm, and Safford. See, e.g., id. ¶¶ 12, 15, 19, 20, 22, 23, 24. Plaintiff further alleges that, pursuant to policy, certain defendants were required to perform individual cell checks at least once every 30 minutes, meaning security checks should have occurred roughly 36 times during the relevant time period, although Plaintiff is only aware of 3 such checks occurring. [ECF No. 1 ¶¶ 17, 22, 23, 24, see also ECF No. 43 at 10 ("Plaintiff has alleged there were (or at least should have been) roughly thirty-six interactions with Plaintiff over the eighteen hours he lay violently ill and dying in a holding cell. Plaintiff only has specific factual knowledge of three of these security checks.")].
An autopsy held on May 31, 2017, gives the cause of death as drug-induced cardiac arrhythmia and cardiomyopathy, dilated type. [ECF No. 1 ¶ 25].
Regarding Primm and Safford, Plaintiff alleges only that "[o]n or about May 30, 2017 at approximately 3:30pm, the decedent was found unresponsive in his cell by Defendant Elliott. First responders were called (to include Defendants Wescott, Primm, Stafford) and CPR was initiated." [ECF No. 1 ¶ 24].
Plaintiff alleges that at all times mentioned in the complaint, defendants Owens, J. Johnson, Safford, Adkins, Forney, Primm, and West ("Supervisory Defendants") were "supervisors, administrators, and/or employees . . . who supervised others" at the detention center, or, regarding West, the "City of Myrtle Beach Police Department and/or Jail." [ECF No. 1 ¶¶ 5, 7]. Plaintiff alleges that "[u]pon information and belief, [the Supervisory Defendants] either had direct contact with the decedent, had direct knowledge of his medical condition (including his need for medical care) or supervised others who had direct contact with him." Id. ¶¶ 5, 7. Plaintiff alleges that Supervisory Defendants "entered into a pattern and practice of failing to provide the adequate and/or specific number of properly trained officers at numerous locations throughout each facility." Id. ¶ 13. Plaintiff further alleges "each of the individual Defendants had received training to recognize when a detainee had a serious medical condition which required emergent medical care" and "that required them to ensure that the detainees needing such medical care received it in an emergent fashion," concluding that "Defendants consciously failed to take the actions even though they were trained to provide." Id. ¶ 14.
Plaintiff asserts two causes of actions against Defendants grounded in the Fourth and Eighth Amendments, and two causes of action against Defendants grounded in the Fourteenth Amendment. HCSO Defendants seek dismissal of Plaintiff's causes of actions grounded in the Fourth and Eighth Amendments. [See ECF No. 25]. HCSO Defendants and West seek dismissal of the Supervisory Defendants. [See ECF No. 25, ECF No. 31]. II. Discussion
HCSO Defendants inform the court that this is Plaintiff's third lawsuit regarding Bland's death and that the first two lawsuits remain pending before the Horry County Fifteenth Judicial Circuit. [See ECF No. 25 at 1-2].
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ). The court is "not required to accept as true the legal conclusions set forth in a plaintiff's complaint." Edwards, 178 F.3d at 244. Indeed, "[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion." Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
B. Analysis
Plaintiff's claims are brought pursuant to 42 U.S.C. § 1983. A civil action brought pursuant to 42 U.S.C. § 1983 provides a means to vindicate violations of rights, privileges, or immunities secured by the Constitution and laws of the United States, but the statute is not, itself, a source of substantive rights. Albright v. Oliver, 510 U.S. 266, 271 (1994). "Section 1983 imposes liability on any person who, under the color of state law, deprives another person 'of any rights, privileges, or immunities secured by the Constitution and laws.'" Doe v. Kidd, 501 F.3d 348, 355 (4th Cir. 2007) (citing 42 U.S.C. § 1983). "Under 42 U.S.C. § 1983, a plaintiff must establish three elements to state a cause of action: (1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law." Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997).
1. Fourth, Eighth, and Fourteenth Amendments
Plaintiff alleges deprivation of rights secured by the Fourth, Eighth, and Fourteenth Amendments. However, because all events alleged transpired when Bland was a pretrial detainee following his arrest and before any conviction, Plaintiff's claims are most appropriately governed by the Fourteenth Amendment. See Robles v. Prince George's Cty., Maryland, 302 F.3d 262, 268 (4th Cir. 2002) (citation omitted) ("[T]he Fourth Amendment . . . applies to the initial decision to detain an accused, not to the conditions of confinement after that decision has been made. Once the single act of detaining an individual has been accomplished, the [Fourth] Amendment ceases to apply."); Graham v. Connor, 490 U.S. 386, 398-99 (1989) (citation omitted) ("the less protective Eighth Amendment standard applies 'only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions'"); see also Cooper v. Dyke, 814 F.2d 941, 948 (4th Cir. 1987) ("while the Eighth Amendment is properly invoked on behalf of those convicted of crimes, it is the Due Process Clause of the Fourteenth Amendment that applies to pretrial detainees").
Plaintiff does not address the above case law, and his sole citation to Martin v. Gentile, 849 F.2d 863 (4th Cir. 1988), does not assist him where, in that case, the Fourth Circuit held that denial of medical claims following arrest did not sound in the Eighth Amendment. See id. at 870 ("Martin's second claim is for denial of medical care following his arrest. Because Martin was a pretrial detainee and not a convicted prisoner at the time of the alleged denial, this claim is governed by the due process clause of the fourteenth amendment rather than the eighth amendment's prohibition against cruel and unusual punishment.").
Accordingly, the undersigned recommends dismissal with prejudice of Plaintiff's first two causes of action asserting violations of the Fourth and Eighth Amendments.
2. Supervisory Liability
To assert a viable § 1983 claim against the Supervisory Defendants, a causal connection or affirmative link must exist between these defendants and the constitutional violation. See Iqbal, 556 U.S. at 676 (providing a plaintiff in a § 1983 action must plead that the defendant, through his own individual actions, violated the Constitution); Rizzo v. Goode, 423 U.S. 362, 371-72 (1976) (finding a § 1983 plaintiff must show he suffered a specific injury as a result of specific conduct of a defendant, and an affirmative link between the injury and that conduct); Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) ("In order for an individual to be liable under § 1983, it must be 'affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights. The doctrine of respondeat superior has no application under this section.'") (quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)); Vinnedge, 550 F.2d at 928 (holding for an individual to be liable under § 1983, it must be affirmatively shown the official charged acted personally in the deprivation of the plaintiff's rights).
The doctrine of supervisory liability is generally inapplicable to § 1983 suits, such that an employer or supervisor is not liable for the acts of his employees, absent certain circumstances. Under Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994), to state a claim for § 1983 supervisory liability, a plaintiff must establish three elements:
(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.Id. (citations omitted).
First, Plaintiff argues he has "alleged that each of these defendants had direct contact with [Bland] as he slowly died," and that Plaintiff's claim of supervisory liability is pled in the alternative. [See ECF No. 43 at 3-4]. In support, Plaintiff directs the court's attention to the following two paragraphs of the complaint:
17. Prior to and during the time period in question, the individual detention officers (included in this Complaint) assigned to the decedent's unit/wing were required to perform individual cell checks (checking on each and every detainee in the unit) at least once every thirty (30) minutes. During these contacts the individual Defendants should easily have been able to recognize that the decedent's overall physical and mental condition had drastically deteriorated and that he required emergent medical care. Their continued conscious failure to provide life-saving medical care during the time period in
question is another example of their conscious and deliberate indifference to the decedent's medical needs.[ECF No. 1 ¶¶ 17, 26 (emphasis added)].
26. All Defendants (including all supervisory staff) had more than sufficient knowledge of the decedent's condition and they all acted in blatant disregard of the health and life. These Defendants had direct contact with the decedent (during the time period in question) or supervised those who had direct contact with him. Further, these Defendants had the opportunity and obligation to secure the appropriate medical treatment and care for the decedent. These Defendants were deliberately indifferent to the emergent medical needs of the decedent by consciously failing to recognize and secure the appropriate medical care and/or treatment which would have included proper assessment, evaluation and medications. Based directly on their actions or inactions, the decedent suffered needlessly (both physically and mentally) and died on May 30, 2017.
These allegations, as well as Plaintiff's additional allegations in the complaint, are insufficient to establish that the Supervisory Defendants had direct contact with Bland. Throughout the complaint, Plaintiff makes specific allegations regarding the direct contact other defendants had with Bland, yet nowhere in the complaint does Plaintiff allege how any of the Supervisory Defendants had direct contact with Bland or obtained direct knowledge of his medical condition, except to assert, without support, that the Supervisory Defendants "supervised those who had direct contact with him." Id. ¶¶ 5, 7, 26. Here, Plaintiff has failed to plead that the Supervisory Defendants, through their individual actions, violated the Constitution. See Iqbal, 556 U.S. at 676.
Plaintiff argues because G. Johnson documented his arrest of Bland in a report that included the name of West as supervisor and because Bland was placed on medical alert, "West was aware of the decedent's need for medical care and the fact that the decedent was taken to the city jail instead of the hospital" and "as a supervisor was aware of what was occurring at the jail." [ECF No. 43 at 7, 8 n.3]. These allegations do not support a conclusion that West had direct contact with Plaintiff, obtained direct knowledge of his medical condition, or that West, through his individual actions, violated the Constitution.
The court therefore turns to supervisory liability under Shaw. Paragraphs 5 and 7 introduce the Supervisory Defendants as supervisors and recite the elements for liability under Shaw. [ECF No. 1 ¶¶ 5, 7]. Paragraph 13 states the Supervisory Defendants engaged in "patterns or practices of failing to provide the adequate and/or specific number of properly trained officers at numerous locations throughout each facility." Id. ¶ 13.
Paragraph 24 alleges that Primm and Safford responded to the emergency in Bland's cell after he was found unresponsive. [ECF No. 1 ¶ 24]. As argued by HCSO Defendants, these allegations, occurring after the events that Plaintiff alleges give rise to liability in this case, cannot be used to assert liability or supervisory liability against Primm and Safford. Plaintiff does not address this issue.
Turning to the first Shaw element, "the conduct engaged in by the supervisor's subordinates must be 'pervasive,' meaning that the 'conduct is widespread, or at least has been used on several different occasions.'" Randall v. Prince George's Cty., Md., 302 F.3d 188, 206 (4th Cir. 2002) (citing Shaw, 13 F.3d at 799). Here, Plaintiff has not alleged any specific prior instances of Constitutional violations, nor anything to suggest "several different occasions" or "widespread" conduct that "poses a pervasive unreasonable risk of constitutional injury to the plaintiff." Shaw, 13 F.3d at 799; see also Miller v. Oliver, C/A No. 6:15-108-TMC-KFM, 2015 WL 5916178, at *5-6 (D.S.C. Oct. 8, 2015) (granting motion to dismiss regarding supervisory liability under Shaw).
Plaintiff also fails to allege any facts that the Supervisory Defendants' "response to that knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices." Shaw, 13 F.3d at 799 (citation omitted). Shaw explained the "heavy burden of proof" a plaintiff bears applicable to this element:
[O]rdinarily, [the plaintiff] cannot satisfy his burden of proof by pointing to a single incident or isolated incidents, for a supervisor cannot be expected to promulgate rules and procedures covering every conceivable occurrence within the area of his responsibilities. Nor can he reasonably be expected to guard against the deliberate criminal acts of his properly trained employees when he has no basis upon which to anticipate the misconduct. A supervisor's continued inaction in the face of documented widespread abuses, however, provides an independent basis for finding he either was deliberately indifferent or acquiesced in the constitutionally offensive conduct of his subordinates.Id. (citation omitted). Plaintiff alleges only, without any factual support, "patterns and practices." [ECF No. 1 ¶ 13]. This is insufficient to meet the standard that any of the Supervisory Defendants displayed "continued inaction in the face of documented widespread abuses." Shaw, 13 F.3d at 799 (citation omitted).
Finally, there are no factual allegations to demonstrate that the Supervisory Defendants were aware of any alleged prior misconduct by the other defendants named in this matter or had any reason to believe these defendants would violate Bland's Constitutional rights. Plaintiff alleges that the Supervisory Defendants were aware of what occurred, but this is insufficient to show "an 'affirmative causal link' between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff." Shaw, 13 F.3d at 799 (citation omitted).
Plaintiff's primary arguments concerning Shaw supervisory liability do not address the Supervisory Defendants, but instead address what other defendants knew and should or should not have done. [See ECF No. 43 at 6-11]. For example, Plaintiff argues that because he alleged one supervisor, Crawford, accompanied a subordinate to check on Plaintiff's condition, "[t]his combined with the sheer passage of time—more than eighteen hours—give rise to a reasonable inference that these supervisors either directly observed Plaintiff or where briefed by their subordinated reporting up the chain of command." [ECF No. 43 at 10-11].
However, that Crawford accompanied a subordinate to check on Plaintiff and that 18 hours passed does not support a reasonable inference that the Supervisory Defendants, of which Crawford is not named as one, had actual or even constructive knowledge about what occurred in the detention center during the relevant time period. Additionally, even if Plaintiff had sufficiently alleged such knowledge based on the above, as stated, there is no allegation of any prior instances of a Constitutional violation. See Randall, 302 F.3d at 206 (finding "no merit" in plaintiffs' argument that multiple unconstitutional acts over a two-day period arising during the same general incident satisfied the "widespread and pervasive" requirement of Shaw).
Crawford is not the subject of the HCSO Defendants' motion to dismiss because, according to the HCSO Defendants, "Plaintiff at least alleges that Defendant Crawford had some contact with Bland." [ECF No. 25 at 5 n.3].
Plaintiff correctly points out that "defendants' argument focuses exclusively on whether Plaintiff can establish the elements of supervisory liability as explained in Shaw," further arguing HCSO Defendants and West have not addressed that "a supervisor's failure to train his employees can subject him to liability where the failure to train reflects a 'deliberate indifference' to the rights of citizens." [ECF No. 43 at 4-5].
As stated by this court:
To impose supervisory liability under § 1983 for failure to train subordinates, a plaintiff must plead and prove that: (1) the subordinates actually violated the plaintiff's constitutional or statutory rights; (2) the supervisor failed to train properly the subordinates thus illustrating a "deliberate indifference" to the
rights of the persons with whom the subordinates come into contact; and (3) the failure to train actually caused the subordinates to violate the plaintiff's rights.Hubbard v. Byars, C/A No. 8:14-33-BHH, 2015 WL 337642, at *12 (D.S.C. Jan. 26, 2015) (citation omitted) (granting motion for summary judgment as to failure to train claims against "Sergeant Tyler, Warden Anderson, and Director Byars").
Plaintiff has alleged that "each of the individual Defendants" received training and "Defendants consciously failed to take the actions even though they were trained to provide." Id. ¶ 14. In addition, Plaintiff's complaint contains the sole allegation that the Supervisory Defendants failed to provide properly trained officers in the jail and detention center. [ECF No. ¶ 13]. This allegation, without more, is insufficient to state a claim for supervisory liability based on failure to train, particularly where Plaintiff also alleges that all defendants were trained. Thus, HCSO Defendants were not under any obligation to address a failure to train claim.
Given the above recommendation, it is unnecessary to address HCSO Defendants' argument that because Plaintiff relies on a line of cases originating with City of Canton v. Harris, 489 U.S. 378, 388-89 (1989), concerning municipality liability for failure to train, Plaintiff's claims based on a failure to train should be dismissed, as Harris and its progeny are inapplicable to this case and the Supervisory Defendants' individual liability. [ECF No. 47 at 6].
Accordingly, the undersigned recommends dismissal of the Supervisory Defendants without prejudice. III. Conclusion and Recommendation
Although requested by the HCSO Defendants, the undersigned declines to recommend dismissal of the Supervisory Defendants with prejudice, [see ECF No. 25 at 9], where Plaintiff could amend the complaint to cure the grounds for dismissal of these defendants and where Plaintiff has requested leave to file an amended complaint in the event that the court finds Plaintiff's complaint is insufficiently pled. [ECF No. 43 at 11]. Regarding Plaintiff's request to amend, Plaintiff may file a motion to amend consistent with Fed. R. Civ. P. 15, as warranted. See Fed. R. Civ. Pro 15; see also, e.g., Al-Haqq v. Stirling, C/A No. 2:14-098-TMC, 2014 WL 6749096, at *10 (D.S.C. Dec. 1, 2014) ("Al-Haqq did not filed a copy of his proposed complaint as required, and that alone is sufficient to deny the motion. The court and the Defendants are left to guess exactly what the Plaintiff is proposing . . . .").
For the foregoing reasons, the undersigned recommends the district judge grant HCSO Defendants' and West's motions to dismiss and dismiss Plaintiff's first two causes of actions grounded in the Fourth and Eighth Amendments with prejudice and dismiss the following Supervisory Defendants without prejudice: Owens, J. Johnson, Safford, Adkins, Forney, Primm, and West. [ECF No. 25, ECF No. 31].
IT IS SO RECOMMENDED. August 10, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
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).