Opinion
8:22-cv-03098-BHH-BM
06-03-2024
Michael J. Coffy, Plaintiff, v. Carrie Fabel,[1] Defendant.
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge.
Pending before the Court is Defendant's motion for summary judgment. ECF No. 94. This matter has been referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C.
Plaintiff, proceeding pro se, commenced this action on August 8, 2022, by filing a Complaint pursuant to 42 U.S.C. § 1983 against numerous Defendants. ECF No. 1. By Order dated July 20, 2023, the Court dismissed all Defendants and claims from this action except for Plaintiff's claim against Defendant Fabel for deliberate indifference to medical needs related to Plaintiff's dialysis treatment. ECF No. 70.
Error! Main Document Only.A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Construing the filing date in the light most favorable to Plaintiff, this action was filed on August 8, 2022. ECF Nos. 1 at 16 (signature on the Complaint dated August 8, 2022); 13 at 5 (signature on motion for TRO and preliminary injunction dated August 8, 2022).
On October 31, 2023, Defendant filed a motion for summary judgment. ECF No. 94. That same day, the Court entered an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (the “Roseboro Order”), advising Plaintiff of the importance of the motion and of the need for him to file an adequate response by the deadline. ECF No. 95. Plaintiff was specifically advised that if he failed to respond adequately, Defendants' motion may be granted, thereby ending this case. Id. Plaintiff filed his response in opposition to the motion for summary judgment on December 8, 2023, and filed additional documents on December 19, 2023. ECF Nos. 106; 111. Defendant filed a reply on December 15, 2023. ECF No. 108. Accordingly, the motion is ripe for review.
BACKGROUND
Error! Main Document Only.Plaintiff filed both a complaint on a standard form, ECF No. 1, as well as documents styled “Memorandum of Law and Support of Plaintiff['s] Motion for Temporary Restraining Order and Preliminary Injunction,” ECF No. 13, and “Declaration of Support of Plaintiff['s] Motion for Temporary Restraining Order and Preliminary Injunction,” ECF No. 13-1. To the latter two documents, Plaintiff attached a document further expanding upon his allegations ECF NO. 13-2 at 1-5. As noted supra note 2, these documents are all deemed to have been filed on August 8, 2022. Construing Plaintiff's pro se pleadings liberally, the Court construes all of these documents together as Plaintiff's Complaint. See Crawford v. Ocwen Loan Servicing, LLC, No. 1:17-cv-3830-WSD, 2017 WL 4356886, at *1 (N.D.Ga. 2017) (construing “‘Complaint of [Irreparable] Damage Planned by Defendants'” and “‘Notice and Application for Emergency Preliminary Injunction'” together as the plaintiff's complaint); Wallace v. S.C. Dep't of Corrs., No. 3:07-271-HMH-JRM, 2007 WL 1068236, at *1, 4 (D.S.C. Mar. 29, 2007) (construing pro se motion for TRO liberally as both a complaint and a request for preliminary injunction). The facts in this Background Section are taken directly from those documents. The undersigned notes that Plaintiff's motion for temporary restraining order and preliminary injunction was denied by Order dated July 20, 2023. ECF No. 70.
Plaintiff makes the following allegations in his pro se Complaint. A pretrial detainee, Plaintiff alleges that on June 28, 2021, he arrived at the Al Cannon Detention Center (the “Detention Center”) in Charleston, South Carolina, suffering from Stage 4 renal disease. ECF Nos. 1 at 4, 5; 13 at 1. Plaintiff contends that Wellpath is an entity that provided health care for detainees at the Detention Center, that Dialysis Clinic, Inc., (“DCI”) is a clinic that was under contract with Wellpath to care for and treat detainees who were dialysis patients, and that Nurse Fabel is a registered nurse who was employed by DCI to care for and treat dialysis patients. ECF No. 1 at 3, 7, 8. He asserts that within a few days of arriving at the Detention Center he began dialysis treatment with Nurse Fabel. Id. at 5. He claims the medical care provided for dialysis patients at the Detention Center is “inadequate, unsatisfactory, and less than exempl[]ary.” Id.
Plaintiff alleges that on December 31, 2021, and again on August 29, 2022, Nurse Fabel “infiltrated [Plaintiff's] access/fistula, causing the arm to swell up and become heavily bruised.”ECF No. 13-2 at 2; see ECF No. 1 at 7. These incidents “were reported to nurses and doctors.” ECF No. 13-2 at 2. He also asserts that “on many occa[]sions” during the period spanning July 1, 2021 through April 2022 Nurse Fabel “removed more fluids than the numbers called for” and he “passed out.” ECF No. 1 at 7; 13-2 at 2; see ECF No. 13-1 at 1. He contends that Nurse Fabel's “incompetence of misprogram[m]ing numbers and removing to[o] much fluid[] from patients is very clear and evident” and that she removed too much fluid “intentionally.” ECF No. 1 at 8, 10. He alleges that she “refused to use her protocols to call for help or assistance from other nurses or doctors when there were incidents” and that “she never wr[ote] down in her daily flow-sheets the truth about what happened.” Id. at 7; see ECF No. 13-2 at 2 (“Whenever there is an incident of her malpractice[] she never notes the truth of the incidents.”). He asserts that Nurse Fabel works alone and that there are no cameras in the dialysis clinic. ECF No. 13 at 2; 13-2 at 4.
“A hemodialysis access, or vascular access, is a way to reach the blood for hemodialysis.” Hemodialysis Access, National Kidney Foundation, https://www.kidney.org/atoz/content/ hemoaccess (last visited May 8, 2024). “The access allows blood to travel through soft tubes to the dialysis machine where it is cleaned as it passes through a special filter, called a dialyzer.” Id. A “fistula” is an access made by minor surgery that joins an artery and vein” in the patient's arm. Id. For patients with fistula access, a “nurse or technician will place two needles into the access at the beginning of each treatment.” Id. “These needles are connected to soft tubes that go to the dialysis machine. Id. The patient's “blood goes to the machine through one of the tubes, gets cleaned in the dialyzer, and returns to [the patient] through the other tube.” Id.
Plaintiff alleges there were “major issues of machine maintenance and breakdowns”; that “failed services unprovided to the dialysis patients treatment care plan” did not meet government standards; and that the Detention Center “staff refuse[d] to make necessary changes.” ECF No. 1 at 5; see ECF No. 13 at 1; 13-1 at 1. He contends he has experienced chest pain, heart pain, and shortness of breath since being on dialysis at the Detention Center. ECF No. 1 at 7; 13 at 1; 13-1 at 1. Plaintiff alleges that one machine in particular (“Machine #15”) is problematic. ECF No. 13-2 at 3. Plaintiff alleges that he and another prisoner had complained that that machine “pulls harder than” the other machines, “causing problems such as . . . chest pain, low blood pressure drops, passing out, breathing complications, cramping, and tiredness lasting into the next day.” Id. Plaintiff asserts that the other prisoner refused to use that machine, but Plaintiff has continued to do so as Nurse Fabel has ignored his complaints. Id. Plaintiff alleges that now he is “having bad experiences on th[e] machine.” Id.
Plaintiff contends that the actions he complains of amount to gross negligence, malpractice, malfeasance, and conspiracy, and he alleges violations of his rights to due process and against deliberate indifference and cruel and unusual punishment. ECF No. 1 at 4. Plaintiff's claimed injuries are (1) he has passed out several times during dialysis; (2) his access arm has been infiltrated and swollen; (3) he has had heart and chest pain from the dialysis machines; and (4) he has blurred vision in his left eye. Id. at 9-10. As his relief, he seeks (1) payment “for pain and suffering, actual/punitive damages”; (2) payment “for every day of [his] time spent in incarceration”; (3) payment for “lost wages”; (4) payment for “filing costs/fees” and “attorney fees”; (5) payment in the amount of “$2,400,000”; and (6) his release from detention. Id. at 10.
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under § 1983
The sole claim remaining in this action is asserted pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 “‘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)). Accordingly, a civil action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
Section 1983 provides, in relevant part,
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .”42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant “deprived [the plaintiff] of a right secured by the Constitution and laws of the United States” and (2) that the defendant “deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage.” Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
The under-color-of-state-law element, which is equivalent to the “state action” requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.Id. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, “the deed of an ostensibly private organization or individual” may at times be treated “as if a State has caused it to be performed.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Specifically, “state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Id. (internal quotation marks omitted). State action requires both an alleged constitutional deprivation “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible” and that “the party charged with the deprivation [is] a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party's allegedly unconstitutional conduct is fairly attributable to the State requires the court to “begin[ ] by identifying the specific conduct of which the plaintiff complains.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (internal quotation marks omitted).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the nonmovant, they must produce existence of a factual dispute on every element essential to the action that they bear the burden of adducing at a trial on the merits.
Fourteenth Amendment Deliberate Indifference
The Eighth Amendment is used to evaluate conditions of confinement for those convicted of crimes. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). However, the protections convicted prisoners are afforded under the Eighth Amendment extend to pretrial detainees, such as Plaintiff, through the Due Process Clause of the Fourteenth Amendment. Young v. City of Mt. Ranier, 238 F.3d 567, 575 (4th Cir. 2001). The Constitution's prohibition on “cruel and unusual punishments” imposes certain basic duties on prison officials. Farmer v. Brennan, 511 U.S. 825, 832 (1994). These include maintaining humane conditions of confinement, including the provision of adequate medical care and “adequate food.” Id.
Deliberate indifference to a prisoner's serious medical needs violates the Constitution and states a cause of action under § 1983 because deliberate indifference constitutes “the unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 104-05 (internal quotation marks omitted). Deliberate indifference exists when prison officials know of a substantial risk to a prisoner's health or safety and consciously disregard that risk. See Farmer, 511 U.S. at 836. Within the United States Court of Appeals for the Fourth Circuit, “the treatment must be so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness” to violate a prisoner's constitutional rights. Miltier v. Beorn, 896 F.2d 848, 851-52 (4th Cir. 1990), overruled in part on other grounds by Farmer, 511 U.S. at 837.
Applying Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015), the Fourth Circuit recently noted that the test for a Fourteenth Amendment deliberate indifference claim is an objective standard such that a pretrial detainee must simply show that a defendant's actions or inactions were “objectively unreasonable.” Short v. Hartman, 87 F.4th 593, 606, 611 (4th Cir. 2023) (“[I]t is sufficient that the plaintiff show that the defendant's action or inaction was, in Kingsley's words, ‘objectively unreasonable,' . . . that is, the plaintiff must show that the defendant should have known of that condition and that risk, and acted accordingly.”). Thus, to prevail on a claim for deliberate indifference to a medical need under the Fourteenth Amendment, a pretrial detainee must demonstrate that “(1) they had a medical condition or injury that posed a substantial risk of serious harm; (2) the defendant intentionally, knowingly, or recklessly acted or failed to act to appropriately address the risk that the condition posed; (3) the defendant knew or should have known (a) that the detainee had that condition and (b) that the defendant's action or inaction posed an unjustifiably high risk of harm; and (4) as a result, the detainee was harmed.” Id. at 611. However, “it is still not enough for the plaintiff to allege that the defendant negligently or accidentally failed to do right by the detainee.” Id. at 611-12. “Negligence was not enough before, and it is not enough now.” Id. at 612 (internal citation omitted).
The parties did not have the benefit of the holding and test identified in Short as that decision was issued after Defendant filed the present summary judgment motion. The Court will apply the standard set forth in Short.
Further, in the context of prisoner medical care, the Constitution requires only that prisoners receive adequate medical care; a prisoner is not guaranteed his choice of treatment. De'lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013); see Russell v. Sheffer, 528 F.2d 318, 318 (4th Cir. 1975); see also, e.g., Barton v. Dorriety, No. 9:10-cv-1362, 2011 WL 1049510, at *2 (D.S.C. Mar. 21, 2011). The fact that a prisoner believed he had a more serious injury or that he required better treatment does not establish a constitutional violation. See, e.g., Russell, 528 F.2d at 319.
THE PARTIES' ARGUMENTS
Defendant's Position
As noted, Defendant filed a motion for summary judgment seeking dismissal of Plaintiff's claim against her for deliberate indifference. ECF No. 94. Defendant argues that she is entitled to summary judgment because the “uncontroverted evidence shows that [she] was not deliberately indifferent to any serious medical need of Plaintiff.” ECF No. 94-1 at 6. Defendant contends there is no evidence showing that she knew of a substantial risk to Plaintiff's health or safety nor consciously disregarded any such risk with respect to his dialysis treatments, that Plaintiff's dialysis treatments violated his constitutional rights, that a faulty dialysis machine or treatment caused Plaintiff to have a sufficiently serious medical condition, or that Defendant subjectively acted with a sufficiently culpable state of mind with respect to the dialysis treatments. Id. at 9. In support of her motion, Defendant has filed her own affidavit and attached Plaintiff's relevant medical records. ECF Nos. 94-2; 94-3.
Defendant makes the following averments in her affidavit. ECF No. 94-2. She has been a registered nurse (“RN”) since July 17, 2006. Id. at 1 ¶ 2. Since March 16, 2015, she has been employed by DCI. Id. at 1 ¶ 4. DCI was contracted by Wellpath to provide dialysis treatment services to detainees at the Detention Center from 2020 to November 2022. Id. at 1 ¶ 5. According to Plaintiff's medical records, Plaintiff “had already been diagnosed with stage-four chronic kidney disease (also known as end-stage renal disease (‘ESRD')), primary pulmonary hypertension (a type of blood pressure that affects the lungs and heart), and diabetes,” when he was detained at the Detention Center beginning on June 28, 2021. Id. at 1-2 ¶ 6. Defendant provided dialysis treatment to Plaintiff during some of his detention and that treatment “occurred three times per week over four-hour sessions, as directed by a physician.” Id. at 2 ¶ 7. Defendant avers that Plaintiff's allegations that he experienced chest pain, heart pain, and shortness of breath since being on dialysis and that the dialysis machine caused chest pain, low blood pressure drops, passing out, breathing complications, cramping, and tiredness are all “symptoms consistent with Plaintiff's diagnoses for ESRD and primary pulmonary hypertension.” Id. at 2 ¶ 8. Defendant further avers that these “symptoms are also side effects of dialysis” and “common complaints of dialysis patients.” Id. According to Defendant, Plaintiff terminated his dialysis treatment on several occasions before the four-hour session concluded or otherwise refused dialysis treatment. Id. at 2 ¶ 9. When Plaintiff refused or prematurely terminated his treatment, he would execute a release acknowledging that he understood that failure to follow his prescribed dialysis treatment may adversely affect his health and was warned of the potential adverse health effects. Id.
Defendant avers that she never used any faulty or malfunctioning dialysis machine on Plaintiff that could have injured him and that, if a machine was faulty or malfunctioning, she would not treat Plaintiff on such a machine or would otherwise stop the treatment so the machine could be assessed. Id. at 3 ¶ 10. She notes that, at some point, Plaintiff stated he would be a good candidate for self-administered peritoneal dialysis; however, Defendant remarked that his diabetes would not make him a good candidate for this type of dialysis. Id. at 3 ¶ 11. After that interaction, Plaintiff disengaged with Defendant and refused to receive any further dialysis treatment from her and continued his treatment with another nurse. Id. at 3 ¶¶ 11-12. Defendant avers that she “never disregarded Plaintiff's medical conditions or acted with deliberate indifference to any of his medical needs or concerns; nor did [she] delay or interfere with his treatment or medical care.” Id. at 3 ¶ 13.
Plaintiff's Position
Plaintiff has filed a response in opposition to the motion for summary judgment in which he makes the following arguments. ECF No. 106. Plaintiff contends Defendant violated his constitutional rights by failing to provide him with proper, adequate medical heath care for dialysis treatments. Id. at 1. Plaintiff notes that he suffers from stage 5 renal disease due to failure of his kidneys. Id. According to Plaintiff, Defendant knowingly and intentionally placed him “on a dialysis machine that she knew was faulty, had issues, and needed to be checked out by bio-meds mechanics.” Id. at 2. Plaintiff's verbose response contains repetitive arguments and summaries of the allegations asserted in his Complaint.
By way of support, Plaintiff offers the following. He has filed a letter dated November 21, 2023, from Dr. Laura L. Mulloy stating that Plaintiff “is not diagnosed as a diabetic.” ECF No. 106-1 at 5. He also provides a document showing a medical encounter with Dr. John A. Pfeiffer on November 6, 2023, indicating as follows:
Asked by patient to review his records to refute diagnosis of DM that appears in his record, saying that he is not now nor has ever been diabetic, and that therefore is not the cause of his CKD or any other medical problems. After reviewing at length 1572 pages from Wellpath, I find that he's right. His BS is consistently normal, he never had an A1c for that reason. I conclude that most likely his CKD was miscoded as 2/2 DM or, possibly, a hemoglobin of 10 was mistakenly thought to be . . . an elevated hemoglobin A1c, probably the former. Either way, he has not been diabetic for the past 2-3 year[s] and almost certainly never was, his CKD is from either 2/2 hypertension or primary.Id. at 4.
Finally, Plaintiff includes a three-page statement in which he makes the following assertions regarding four purported claims. As to “Claim 1,” Plaintiff contends that Defendant repeatedly removed too much fluids from him without contacting the nephrologist at the Dialysis Clinic to gain an understanding of Plaintiff's dry-weight. Id. at 1. Plaintiff contends that from June 29, 2021, to August 2021, Defendant dropped Plaintiff's dry-weight from 109 kilograms to 102 kilograms, causing Plaintiff to experience chest and heart pain. Id. Plaintiff contends in October 2021, he fell into an unconscious state during his dialysis treatment. Id. He contends Defendant gave him saline to bring him back to consciousness, but never logged the incident in her notes or notify the doctor. Id.
As to “Claim 2,” Plaintiff contends that, on March 17, 2022, he fell into a state of unconsciousness again in the present of another inmate, Willie Simmons. Id. at 1. He contends that Defendant “ran over” and “flipped his chair inverted an[d] gave [him] saline.” Id. Plaintiff claims that after he regained consciousness, Simmons asked if he was ok, explained what had happened, and wrote a statement. Again, Defendant did not document the incident in her notes, nor did she notify the doctor. Id.
Plaintiff has not provided any statement by Simmons to the Court in support of his opposition to Defendant's summary judgment motion.
As to “Claim 3,” Plaintiff contends that, on December 31, 2021, Defendant infiltrated his access fistula. Id. at 2. After inserting the arterial needle at the bottom and the venous needle at the top, Defendant turned on the dialysis machine to start treatment. Id. Plaintiff felt a sharp pain in his upper let arm at the venous site. Id. Plaintiff complained about the pain and Defendant made some adjustments and turned the machine back on. Id. However, the pain was worse. Id. Defendant “became very irritated and frustrated.” Id. She turned the machine off, withdrew the venous needle and placed a needle in a different location. Id. Plaintiff's upper arm became swollen with blood, bruised, and felt painful. Id. Defendant did not log the incident, other than noting that she had to replace the venous needle and did not report the incident to the doctor. Id.
As to “Claim 4,” Plaintiff contends that, during his dialysis treatment on August 29, 2022, Defendant placed both needles in his arm to begin treatment. Id. at 2. However, the arterial needle was not placed correctly so Defendant tried to make some adjustments by moving the needle around. Id. When Plaintiff felt pain, he noticed a knot on his arm, which was bruised and swollen. Id. Defendant, however, was continuing to push the needle harder and further into his arm. Id. Plaintiff then said “hey, don't you see this big knot here.” Id. Plaintiff contends that “only then did [Defendant] realize she had went all the way through [his] fistula and into the flesh of [his] arm.” Id. Plaintiff contends that Sargent Reynolds reported the injury to Dr. Drago and wrote up an incident report on August 30, 2022. Id.
DISCUSSION
Applicable Law
Under 42 U.S.C. § 1983, relief may be sought when a plaintiff alleges the violation of a right secured by the Constitution by a person acting under color of state law. West v. Askins, 487 U.S. 42, 48 (1988). As previously explained, a pretrial detainee's deliberate indifference to a medical need claim must be evaluated under an objective standard under the Fourteenth Amendment. Short, 87 F.4th at 611. This standard requires a plaintiff to show: (1) he had a medical condition or injury that posed a substantial risk of serious harm; (2) the defendant intentionally, knowingly, or recklessly acted or failed to act to appropriately address the risk that the condition posed; (3) the defendant knew or should have known (a) that the detainee had the condition and (b) that the defendant's action or inaction posed an unjustifiably high risk of harm; and (4) as a result, the detainee was harmed. Id. Under this standard, a plaintiff need not show “that the defendant had actual knowledge of the detainee's serious medical condition and consciously disregarded the risk that their action or failure to act would result in harm.” Id. Instead, it is sufficient to show that the defendant's action or inaction was “objectively unreasonable.” Id. (citing Kingsley, 576 U.S. at 397).
Plaintiff's Medical History
Defendant has attached to her motion documents from Plaintiff's medical records. ECF No. 94-3. These records reflect that Plaintiff was prescribed numerous medications for his health complaints while at the Detention Center. Id. at 2. Within those records are seven “Release of Responsibility for Early Termination from Hemodialysis” documents signed by Plaintiff and dated August 19, 2021, September 2, 2021, January 31, 2022, April 26, 2022, May 21, 2022, June 18, 2022, and June 28, 2022. Id. at 7, 10-13, 15-16. Each Release contained a statement by Plaintiff that he was requesting that his dialysis treatment be discontinued before the prescribed time and that he acknowledged the potential adverse health effects that were listed on the Release. The Release dated June 18, 2022, noted that Plaintiff was given the “option to run on spare Machine #15 [but he] refused.” Id. at 10. Plaintiff wrote a notation next to his signature explaining “I have complained about these faulty machines since Nov[ember] 2021,” and that he refused treatment on Machine #15 “because he filed a Grievance against Machine #15.” Id.
A Provider Progress Notes form dated December 1, 2021, noted that Plaintiff was seen in the clinic post dialysis because he had reported
feeling dizzy and weak after his treatments las week but today reports he feels better and has no complaints about his treatments. He is concerned about his heart [and] states “every now and then I feel my heart race and fluttering last time was about 2 weeks ago” with feeling like a hot flash and then it goes away[. He] denies chest pain sob cough congestion[. He] reports not taking his metoprolol on HDD “because it lowers [his blood pressure] too much.”Id. at 14. That form also noted Plaintiff had no distress in his lungs and his heart rate was normal. Id. Further, the form noted that Plaintiff had been seen by Dr. Dalsania that same day who suggested a cardiology consult and noted that Plaintiff's symptoms might be the result of “not taking metoprolol as ordered however [he] is unwilling to take on HDD.” Id. Finally, the form noted that Plaintiff made “no complaints post treatment today” and he was ordered to continue current therapy and report further complaints. Id.
A DCI Hospital Services Flowsheet form dated June 18, 2022, noted that Plaintiff had signed a release that day terminating his dialysis treatment and that Plaintiff had refused back up Machine #15. Id. at 8. A notation indicated that the nephrologist and bio med team were notified and Plaintiff was “advised to eat lo K diet and drink very little” Id. Similarly, a DCI Hospital Services Flowsheet form dated June 28, 2022, noted Plaintiff terminated his dialysis and declined another machine. Id. at 6.
A Provider Progress Note dated September 12, 2022, noted that Plaintiff asked to discuss his dialysis and “stated he will not take it today [because] of this particular nurse ‘doesn't do it right.'” Id. at 5. Plaintiff stated he had “a grievance in concerning this.” Id. Plaintiff signed an “AMA” and stated he once went two weeks without treatment. Id. Plaintiff was warned of the dangers of refusing treatment, including death or brain damage. Id. The document noted Plaintiff “wants another nurse to perform his dialysis.” Id.
A Provider Progress Note dated September 20, 2022, noted that Plaintiff refused visit that day and was seen the prior day “in HD by nephrology.” Id. at 4. A Provider Progress Note dated November 28, 2022, noted that Plaintiff refused dialysis, claiming “DCI is trying to kill me [because I] am suing them.” Id.
A Chronic Care Periodic Exam or Follow Up Visit form dated November 23, 2022, noted Plaintiff had the following “Patient Problems” observed on June 28, 2021: primary pulmonary hypertension, diabetes due to underlying condition with diabetic chronic kidney disease, and stage 4 chronic kidney disease. Id. at 2. That document also listed Plaintiff's prescribed medications. Id.
Analysis
It is undisputed that treatment of Plaintiff's renal disease is a serious medical condition. See, e.g., Adkins v. Walker, No. 08-cv-0815, 2010 WL 2232137, at *5 (N.D. Ill. June 1, 2010) (“The treatment of Plaintiff's end-stage renal disease constitutes a serious medical need.”). Nevertheless, Plaintiff has failed to demonstrate that Defendant acted with deliberate indifference to Plaintiff's medical care as to his medical treatment. Critically, Plaintiff has failed to demonstrate that Defendant's conduct was “objectively unreasonable” because he has not produced evidence showing that Defendant “intentionally, knowingly, or recklessly acted or failed to act to appropriately address the risk that the condition posed.” Short, 87 F.4th at 611.
As an initial matter, Defendant contends that, to the extent Plaintiff is asserting a claim of medical malpractice, any such claim is without merit as the Court previously dismissed all such claims. ECF No. 108 at 4. The Court agrees. Many of Plaintiff's allegations and arguments concerning the nuances of the specific medical care he received, or did not receive, are nothing more than allegations supporting a negligence or medical malpractice claim. However, such claims do not rise to the level of a deliberate indifference claim under the Fourteenth Amendment, and the Court has already dismissed such claims from this action. See ECF No. 70 at 5 (Order finding that “to the extent Plaintiff's claim is based on medical negligence, such a claim is not actionable under § 1983”); see also Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (“Negligence or malpractice in the provision of medical services does not constitute a claim under § 1983.”).
Plaintiff filed a supplement to his response in opposition to the motion for summary judgment, which was filed on December 19, 2023. ECF No. 111. Plaintiff's supplement appears to argue in cursory fashion that Defendant's conduct constitutes intentional infliction of emotional distress. Id.; see also ECF No. 106-1 at 3 (making similar allegations concerning intentional infliction of emotional distress). To the extent Plaintiff is attempting to present new issues or assert a new claim (such as a claim for intentional infliction of emotional distress) in his response in opposition to the motion for summary judgment, such issues and claims are not properly before the Court. See White v. Roche Biomedical Labs., Inc., 807 F.Supp. 1212, 1216 (D.S.C.1992) (noting that “a party is generally not permitted to raise a new claim in response to a motion for summary judgment”); Bryant v. Spartanburg Cnty. Det. Ctr., No. 5:22-cv-3965-MGL, 2023 WL 8750689, at *2 (D.S.C. Dec. 19, 2023) (same).
Additionally, as to Plaintiff's constitutional claim, he has failed to demonstrate that Defendant was deliberately indifferent to his serious medical need. In support of her motion for summary judgment, Defendant has provided her sworn affidavit and documents from Plaintiff's medical records to support her contention that her medical care for Plaintiff was not objectively unreasonable. Based on a review of that record evidence, the Court cannot find that Defendant was deliberately indifferent. On the other hand, Plaintiff has not offered any evidence to support his claims other than relying on the allegations in his Complaint, as reiterated in his opposition to the summary judgment motion. However, the law is clear:
Like any nonmoving party, [Plaintiff] may not rest upon the mere allegations of [his] Complaint. Instead, to survive summary judgment, [he] must set forth specific facts showing that there is a genuine issue for trial.BM v. Chesterfield Cnty. Sch. Dist., No. 3:09-cv-727, 2010 WL 1445661, at *3 (E.D. Va. Apr. 9, 2010) (citing Anderson, 477 U.S. at 248). Plaintiff “could do that by citing affidavits or by relying on other evidence,” but he has failed to do so here. Id. Rather than supporting his claims with evidence, Plaintiff's response is nothing more than a recitation of the allegations from his Complaint and conclusory arguments that Defendant violated his rights. However, that is legally insufficient.
The undersigned will briefly address the various arguments or “claims” Plaintiff asserts in his response. First, Plaintiff's key contention appears to be that Defendant placed him on faulty dialysis machines. For example, Plaintiff contends that, from January 2022 to March 2022, Defendant placed Plaintiff on a “dialysis machine she knew was faulty, had issues, and needed to be checked out by bio-meds mechanics.” Id. at 2. Plaintiff was informed by a fellow inmate and dialysis patient, Willie Simmons, that he refused to run on Machine #15 because it was hurting him. Id. Defendant placed Plaintiff on Machine #15 for treatment at his next session. Id. During his treatment, Plaintiff began feeling pressure as Machine #15 “pulled unusually hard on [his] chest and heart.” Id. In March Plaintiff was placed on Machine #15 again, but Plaintiff asked Defendant to take him off the machine because something was wrong with it and his chest and heart was hurting. Id. Plaintiff signed a release “to cut [his] treatment short” and asked to be checked out by a doctor. Id. Plaintiff makes numerous other similar allegations regarding his problems with Machine #15.
Plaintiff's contentions and allegations fail to support his claim for deliberate indifference. First, Plaintiff has offered no evidence to support his assertion that Machine #15 was faulty. Plaintiff appears to rely on the statement of fellow inmate Simmons to support this contention. However, Plaintiff has not provided an affidavit from Simmons, despite claiming that he wrote a statement. ECF No. 106-1 at 1. Additionally, there is simply no evidence showing that Plaintiff was forced to use Machine #15. Instead, the record shows that Plaintiff refused to use Machine #15 numerous times. Finally, even assuming that Plaintiff could show that Machine #15 was faulty, he has offered no evidentiary support showing that Defendant was aware that Machine #15 was faulty (other than his own assertion that he and Simmons advised Defendant it was faulty) or that she required Plaintiff to use that machine knowing of any attendant risk that it posed. To the contrary, the record evidence shows that, when Plaintiff wished to terminate his treatment or refused treatment on Machine #15, Defendant permitted him to do so, advised him of the risks, and had him sign a release. Likewise, the record evidence shows that, when Plaintiff made complaints regarding Machine #15, Defendant documented those complaints and advised the bio med technicians. ECF No. 94-3 at 8.
In his Complaint and response to the motion for summary judgment, Plaintiff appears to base his belief that the dialysis machines were faulty on the fact that he experienced chest pain and heart issues. See, e.g., ECF No. 1 (Complaint noting that Plaintiff experience “having chest/heart pain from machines after every treatment”); 106 at 2 (opposition to summary judgment asserting that Plaintiff experienced chest pain and heart issues from the faulty machines). Again, Plaintiff offers no evidentiary support to show that faulty dialysis machines caused him to experience chest pain and heart issues. On the other hand, Plaintiff's medical records reveal that medical staff (including Nurse Practitioner Scuderi and Dr. Dalsania) believed that his symptoms might be the result of Plaintiff refusing to take metoprolol. ECF No. 94-3 at 14.
As another example, Plaintiff contends that in October 2021 and on March 17, 2022, he fell into a state of unconsciousness during his dialysis treatment. ECF No. 106-1 at 1. Plaintiff has not, however, produced any evidence showing that his loss of consciousness was the result of any deliberate indifference on the part of Defendant. Indeed, Plaintiff's own allegations show that, when Plaintiff lost consciousness, Defendant took immediate steps to treat Plaintiff with saline. Id. Plaintiff appears to rest his assertions on a conversation he had with inmate Simmons who, according to Plaintiff, witnessed what happened and “told [him] what happened to him.” Id. However, as noted, this cursory assertion is not evidence supporting deliberate indifference, and Plaintiff has failed to produce any evidence in the form of an affidavit from Simmons, or anyone else, corroborating his assertions.
Loss of consciousness appears to be a possible side affect of dialysis treatment. See, e.g., Hatfield v. Bio-Med. Life Applications of Louisiana, LLC, No. 16-cv-1307, 2017 WL 4976801, at *1 n.1 (W.D. La. Oct. 31, 2017) (“Side effects [of dialysis treatment] include low blood pressure, cramping, anemia, and loss of consciousness.”).
Plaintiff also presents various allegations concerning Defendant's allegedly improper placement of needles during his dialysis treatment. See, e.g., ECF No. 106-1 at 2-3 (asserting that Defendant infiltrated his access fistula and that Defendant did not properly place the arterial needle, causing him to feel discomfort, bruising, and swelling). Plaintiff's allegations are insufficient to demonstrate deliberate indifference. First, Plaintiff concedes that when he complained to Defendant, she made adjustments to correct the placement of the needles. Id. And, courts have found that such circumstances do not constitute deliberate indifference, even if such conditions were negligent or medical malpractice. See, e.g., Jones v. Perry, No. 9:21-cv-01822-MGL-MHC, 2022 WL 16952240, at *6 (D.S.C. Oct. 27, 2022) (finding that the plaintiff's allegations that a nurse incorrectly inserted a needle to draw blood injuring his veins did not rise to the high level of deliberate indifference), Report and Recommendation adopted by 2022 WL 16951990 (D.S.C. Nov. 15, 2022); Capps v. Kelly, No. 4:21-cv-90-SRC, 2021 WL 533737, at *3 (E.D. Mo. Feb. 12, 2021) (finding the plaintiff failed to demonstrate deliberate indifference where the nurse “was negligent in her inability to find his vein on her first attempt” causing him “pain, bruising, and a knot”); Sutton v. Crippen, No. 02-cv-0364(SR), 2008 WL 4853027 (W.D.N.Y. Nov. 6, 2008) (finding an inmate failed to demonstrate deliberate indifference where he alleged the nurse treating him intentionally infiltrated his access sites during dialysis, causing him extreme pain).
Plaintiff also appears to argue that he was misdiagnosed as diabetic, and he has included documents showing that he is not diabetic. To the extent Plaintiff contends that any misdiagnosis as diabetic demonstrates deliberate indifference, such a contention is without merit as Plaintiff has not shown that it was Defendant who diagnosed him as diabetic. Further, Plaintiff has not provided any evidence showing that the misdiagnosis was the result of deliberate indifference rather than negligence or that a correct diagnosis as to this comorbidity would have had any impact on the dialysis treatment he received.
In sum, Plaintiff has failed to produce any evidence showing a dispute of any material fact to survive summary judgment. Plaintiff's assertions at most demonstrate negligence, which are not cognizable under § 1983. As one court has noted, “[e]ven assuming, arguendo, that Plaintiff's dialysis treatment was somehow deficient or differed from the treatment plans other caregivers would have pursued, or that Plaintiff would have preferred, these assertions alone are insufficient to generate a dispute of material fact regarding Plaintiff's claims of deliberate indifference.” Christopher v. Brock, No. 1:06-cv-133, 2008 WL 649233, at *10 (S.D. Ga. Mar. 10, 2008). The evidence in the record before the Court shows that Plaintiff continued to receive regular dialysis treatments, received his medications, and was able to see medical professionals when needed and/or requested. The evidence in the record further shows that Plaintiff was permitted to discontinue treatment when he was uncomfortable with it and that he routinely terminated his dialysis treatment and refused to take prescribed medication.
CONCLUSION AND RECOMMENDATION
Based upon the foregoing, IT IS RECOMMENDED that Defendant's motion for summary judgment be GRANTED.