Opinion
C. A. 9:22-cv-01641-BHH-MHC
03-14-2024
Christopher Allen Dontell, Plaintiff, v. Susan Safford, Adrian Small RN, Sgt. Joni Curcio, Cpl. Gray, Cpl. Atwood, Cpl. Gause, Cpl. Shover, Officer Lewis, Officer Hollywood, Officer Ray, Officer Davis, Officer Dahl, Officer Wortham, Officer Cyr, Officer Browning, Officer Weaver, Officer Squires, Officer Sanders, Officer Laska, Officer Dillon, F. Smalls, Nurse D. Winns, Cpl. Vermeer, Officer Steblinksi, Officer Phillips, Officer Sweet, Jamie Wilson, K. Jones, Cpl. Collier, Officer Powers, and Beth Lawson, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
Plaintiff Christopher Allen Dontell (“Plaintiff”), proceeding pro se, filed this civil action asserting claims for violations of his constitutional rights pursuant to 42 U.S.C. § 1983. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(d) and (e) (D.S.C.).
Before the Court is a Motion for Summary Judgment (“Motion”), ECF No. 96, filed by Defendants Karen Jones (identified by Plaintiff as “K. Jones”), Elizabeth Lawson (identified by Plaintiff as “Beth Lawson”), Adrian Small, Danielle Winns (identified by Plaintiff as “Nurse D. Winns”), and Jamie Wilson (identified by Plaintiff as “Jamie Watson”) (collectively, the “Medical Defendants”). Plaintiff filed a Response in Opposition to the Motion, ECF No. 115, and the Medical Defendants filed a Reply, ECF No. 117. The Motion is ripe for review. For the reasons set forth below, the undersigned recommends that the Motion be granted.
Plaintiff filed a Sur-Reply, ECF No. 149, in which he also sought leave to submit the document as an alternate reply to the Medical Defendants' Motion, ECF No. 149 at 16. The Local Rules make no provision for Sur-Replies. See Stanfield v. Charleston Cnty. Court, No. 2:15-CV-0756-PMD-MGB, 2015 WL 4929186, at *4 n.2 (D.S.C. Aug. 18, 2015) (explaining that “neither the Federal Rules of Civil Procedure nor the Local Civil Rules permit the filing of a sur-reply without leave of the Court”). Nevertheless, the undersigned has considered the Sur-Reply in making this Report and Recommendation, as Plaintiff is pro se.
At the summary judgment stage, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The facts set forth herein come primarily from affidavits submitted with Plaintiff's Response, including the affidavit of Plaintiff, ECF No. 115-2, and of Steven Amear Morgan, ECF No. 115-3; the testimony submitted by Plaintiff with his Second Amended Complaint, specifically Plaintiff's declaration, ECF No. 51 at 38-61, and the affidavits of William Joshua Alston, Emanuel Johnson, and Steven Morgan, ECF No. 51 at 62-69, as well as the affidavit of Jessie Lamont Holmes, ECF No. 99; and uncontroverted facts set forth in the affidavits and medical records submitted by Medical Defendants in their Motion, ECF Nos. 96-2, 96-3, 96-4, 96-5, 96-6, 96-7 and 96-8.
Plaintiff, a pre-trial detainee housed at the J. Reuben Long Detention Center (“Detention Center”) in Horry County, South Carolina, filed this civil rights action on May 24, 2022. ECF No. 1. Plaintiff filed his first Amended Complaint on November 3, 2022, ECF No. 15, and a Second Amended Complaint on April 11, 2023, ECF No. 51.
Plaintiff is currently detained on charges for which he was arrested on November 11, 2020, and booked into the Detention Center. See Horry County Public Index, Case Nos. 2020A2610700958 (criminal conspiracy charge) and 2020A2610700959 (murder charge), available at https://publicindex.sccourts.org/Horry/PublicIndex/PISearch.aspx and by searching the above case numbers (last visited Jan. 19, 2024). On November 20, 2020, Plaintiff posted bond and was released from the Detention Center. Id. On September 9, 2021, Plaintiff's bond was revoked, and he was booked again at the Detention Center, where he currently remains. See https://www.horrycountysc.gov/departments/sheriffsoffice/detention-center/booking-releases/ by searching Plaintiff's last name (last visited Jan. 19, 2024)); ECF No. 115-2 at ¶¶ 2, 26.
His claims against the Medical Defendants are related to (1) his dietary needs at the Detention Center; and (2) a heart issue in 2022, specifically alleged interference with Plaintiff's use of a heart monitor prescribed by an outside cardiologist. ECF Nos. 51 at 16-30, 80 at 1-4. These claims pertain to the time frame from September 9, 2021, to the present. Id.
Plaintiff also alleges that on December 10, 2021, he was assaulted by another inmate. ECF No. 51 at 52-54, 79-80. However, this allegation does not pertain to the Medical Defendants in the Motion before the Court.
A. Medical Defendants
Medical Defendant Elizabeth Lawson, RN (“Lawson”) has been a registered nurse since 1995. ECF No. 96-2 at ¶ 3. Since September 6, 2021, she has served in a mostly administrative position as a Health Services Administrator (“HSA”) for Mediko, Inc., monitoring and evaluating medical services for patients incarcerated at the Detention Center. Id. at ¶ 2. As the HSA, Medical Defendant Lawson collaborates closely with the physicians and nurses who provide care and treatment to inmate patients. Id. During the relevant times, she worked Mondays through Fridays from 7:30 a.m. to 5:30 p.m. Id.
Medical Defendant Karen Jones, LPN (“Jones”) has been employed by Mediko, Inc. to provide nursing care to inmate patients at the Detention Center for the last five years. ECF No. 963 at ¶ 2. During the relevant times, she worked the night shift, 6:00 p.m. to 6:00 a.m. on Sundays, Mondays, and Tuesdays. Id. She has been a licensed practical nurse (“LPN”) for forty years. Id. at ¶ 3.
Medical Defendant Jamie Wilson, LPN (“Wilson”) has been employed by Mediko, Inc. to provide nursing care to inmate patients at the Detention Center since April 2018. ECF No. 96-4 at ¶ 2. During the relevant times, she worked the day shift, from 6:00 am to 6:00 pm. Id. She has been a licensed practical nurse for 18 years. Id. at ¶ 3.
Medical Defendant Danielle Winns, LPN (“Winns”) has been employed by Mediko, Inc. to provide nursing care to inmate patients at the Detention Center since 2018. ECF No. 96-5 at ¶ 2. During the relevant times, she worked the night shift, 6:00 p.m. to 6:00 a.m. on Wednesdays, Thursdays, and Fridays. Id. Medical Defendant Winns has been a licensed practical nurse since 2013. Id. at ¶ 3.
Medical Defendant Adrian Small, RN (“Small”) has been a registered nurse for the past eight years. ECF No. 96-6 at ¶ 2. From 2020 to 2021, she has served in a mostly administrative position as an HSA for Mediko, Inc., monitoring and evaluating medical services for patients at the Detention Center. Id. As the HSA, Medical Defendant Small collaborates closely with the physicians and nurses who provide care and treatment to inmate patients. Id. In 2021, Medical Defendant Small returned to staff nursing and worked alongside the physicians and nurse practitioners to provide care and treatment to the patients. Id. at ¶ 3. During the relevant times, she worked Mondays through Fridays from 7:30 a.m. to 5:30 p.m. Id.
There is no evidence before the Court of any grievance or request by Plaintiff for a special diet during his initial booking between November 11 and 20, 2020.
According to Plaintiff, he has had a “bodily intolerance to animal proteins since infancy, and [has] never digested meat of any kind.” ECF No. 115-2 at ¶ 3. Plaintiff avers that the condition was diagnosed by Dr. Alfred Rosenstein, when Plaintiff was a child, as an “intolerance of animal proteins.” Id. Plaintiff states that, if he eats meat, his symptoms include nausea, vomiting, excessive perspiration, fatigue and pain. Id. He describes one encounter when he was out to dinner with his wife where he accidently ate meat and began feeling light-headed, began to sweat, had trouble breathing and has a temporary sensation of paralysis in his throat. Id.
At intake on September 9, 2021, Plaintiff measured 5'11” tall and weighed 195 pounds, with a body mass index (“BMI”) of 27.2. ECF Nos. 96-7 at ¶ 5c; 96-8 at 57. Plaintiff notified Katrina Krystanowicz, a Mediko nurse, that he cannot eat meat because of an intolerance to animal proteins, describing the symptoms he experiences when he eats meat. ECF Nos. 115-2 at ¶ 4; 968 at 58. At that time, Nurse Krystanowicz entered a note about Plaintiff's dietary needs as a “medical alert” and told him he would be fed accordingly. Id.; ECF No. 96-8 at 58.
Plaintiff submitted two medical requests on October 6, 2021: the first stated Plaintiff could not “eat meat, poultry or seafood” and the second indicated a need to speak privately with a physician. ECF No. 96-8 at 65-66. Medical Defendant Winns placed Plaintiff on the nursing sick call list for further assessment by the medical staff. Id.; ECF No. 96-5 at ¶ 9. Medical Defendant Winns played no role in scheduling Plaintiff for any specific appointments and does not know of providers with whom Plaintiff was scheduled, as the nurses on the day shift handled those logistics. ECF No. 96-5 at ¶ 10.
In October of 2021, Plaintiff told Medical Defendant Jamie Wilson that he had not been able to eat much because of his dietary needs not being met. ECF No. 115-2 at ¶ 5. According to Plaintiff, Medical Defendant Wilson instructed him to notify Detention Center staff of his concerns, as the dietary needs, as well as weight loss and fatigue he indicated he was experiencing as a result of the dietary needs, were not a medical concern. Id. When Plaintiff did so, unidentified Detention Center officers told Plaintiff “it was a medical concern.” Id.
Plaintiff alleges in his Second Amended Complaint that on October 14, 2021, his meals were corrected, and he received meatless meals for several days after another “medical alert” was placed in his file. ECF No. 51 at ¶ 78. Plaintiff further alleges, however, that the correction only lasted a short time before the medical alert was deleted from his file. Id. According to Plaintiff, Medical Defendant Wilson notified him, via Officer Squires and Jeni Curcio, that Medical Defendant Adrian Small deleted the medical alerts concerning Plaintiff's dietary needs because Medical Defendant Small did not believe Plaintiff cannot eat meat. ECF Nos. 115-2 at ¶ 16; see also 115-3 at ¶ 20.
Though Plaintiff does not identify specific instances in his affidavit, in his Response, he contends that Medical Defendant Small removed medical alerts on September 9, 2021, October of 2021 and January 14, 2022. ECF No. 115 at 16.
On November 23, 2021, Plaintiff submitted a grievance, requesting to see a physician for depression. ECF No. 96-8 at 68.
On November 30, 2021, Plaintiff met with a mental health specialist at the Detention Center, where he discussed his dietary needs, as well as the depression, anxiety and panic he was experiencing. ECF No. 115-2 at ¶ 26; ECF No. 96-8 at 52.
On January 13, 2022, in a meeting with Medical Defendant Lawson, Plaintiff informed her and Cpl. Atwood that he was diagnosed as a child by Dr. Alfred Rosenstein with a bodily intolerance of animal proteins. ECF No. 115-2 at ¶ 24. After this meeting, although Medical Defendant Lawson told Plaintiff a change had been implemented so that Plaintiff would receive tofu in place of animal proteins, Plaintiff continued to receive meat at most meals. Id. at ¶ 25.
On January 14, 2022, Plaintiff saw Nurse Practitioner Schinitra Swinney for his dietary and other concerns, at which time Plaintiff discussed concerns relating to anxiety and fatigue. ECF No. 96-8 at 50. Nurse Practitioner Swinney ordered that Plaintiff receive a snack bag twice per day, discussed sleep hygiene and referred him to mental health to discuss panic and anxiety issues. Id. Medical Defendant Small electronically approved the order for the snack bags and mental health referral. Id.; ECF No. 96-6 at ¶ 14; ECF No. 96-8 at 50. A medical alert was placed in his file for the snack bags. ECF No. 96-8 at 92.
Although Plaintiff understood twice daily snack bags had been ordered as of January 2022, he did not start receiving snack bags until “much later” and never received them twice daily consistently. ECF No. 115-2 at ¶ 27. Soon after, Plaintiff avers that the order was modified to discontinue the snack bags. Id.
Plaintiff was seen on January 14, 2022, by psychiatrist Dr. Pamela Crawford, who ordered fasting bloodwork and a baseline EKG, and prescribed Zoloft and Vistaril. ECF No. 96-8 at 1314.
On January 15, 16 and 17, Plaintiff entered medical requests, noting that he did not receive a special tray or any snack bags. ECF No. 96-8 at 72-74. On January 18, 2022, Plaintiff was seen again by Nurse Practitioner Swinney over his animal protein intolerance and other complaints. Id. at 49-50. Nurse Practitioner Swinney again ordered him to receive a snack bag twice a day. Id. Nurse Practitioner Swinney also set forth items to further assess Plaintiff's other complaints. Id.
On January 19, 2022, Medical Defendant Lawson responded to Plaintiff's three medical requests, noting they were duplicative, and that, while his dietary needs were not a medical issue, “everyone is making an attempt to be accommodating.” Id. at 74. According to Medical Defendant Lawson, she understood the Detention Center was going to be providing Plaintiff tofu in place of animal proteins as of January 13, 2022. ECF No. 96-2 at ¶ 23.
The medical records show that, as of February 10, 2022, Medical Defendant Lawson had entered an alert that tofu was to be substituted in place of meat for each meal for Plaintiff and snack bags were discontinued at that time. ECF No. 96-8 at 91. On February 15, 2022, Plaintiff submitted a grievance that a filling came out while he was eating, requesting to see a dentist. ECF No. 96-8 at 70. There was no reference to any meat in his meals at that time.
Plaintiff contends that Medical Defendant Lawson denied him meatless meals, citing lack of proof of any dietary restrictions. ECF No. 115-2 at ¶ 44. According to Plaintiff, in January of 2022, fully clothed, he weighed 172 pounds. Id. at ¶ 6; ECF No. 115-3 at ¶ 13. He contends that for a six-month period in late 2021 and early 2022 he was almost exclusively dependent on commissary purchases he made for caloric intake. ECF No. 115-2 at ¶ 7.
The medical records for Plaintiff show that on June 6, 2022, Plaintiff weighed 188 pounds (or 85.28 kg) with a BMI of 26. ECF No. 96-8 at 5. On August 23, 2022, Plaintiff weighed 188 pounds (or 85.2 kg) with a BMI of 26, and on June 29, 2023, Plaintiff weighed 186 pounds. ECF Nos. 96-7 at ¶ 5c; 96-8 at 93.
C. Heart Monitor
On January 18, 2022, Plaintiff reported to Nurse Practitioner Swinney that he had been waking up with an increased heart rate, gasping for breath and feeling pressure in his chest. ECF No. 115-2 at ¶ 29. He reported these symptoms began when he started worrying about not being provided adequate food after his incarceration began and became more severe after he was assaulted in December of 2021, and then later witnessed his roommate get beaten by the same inmate who assaulted him. Id. Plaintiff began to experience panic attacks, be anxious, feel fatigued and experience stomach and chest pains. Id. at ¶ 13.
In early 2022, Medical Defendant Jamie Wilson informed Plaintiff that Medical Defendant Small believed Plaintiff has atrial fibrillation. Id. at ¶ 14.
Nurse Practitioner Swinney saw Plaintiff for an abnormal EKG. ECF No. 96-8 at 47-48. The EKG was subsequently repeated, which revealed a normal heartrate. Id. Nurse Practitioner Swinney ordered a cardiology consult, lab work collection and a chest x-ray for further assessment. Id. Over the following months, Plaintiff saw an offsite cardiologist on at least three occasions for Holter monitoring, exercise treadmill testing, another EKG and follow-up visits. Id. at 8-12. No cardiac abnormalities were found.
On January 24, 2022, Plaintiff refused to have his blood drawn. ECF No. 96-8 at 48. According to Plaintiff, when he was approached on January 24, 2022, for his fasting bloodwork, he was told it was for a diabetes test, which he refused because he does not have diabetes and never suspected that he might. ECF No. 115-2. at ¶¶ 28, 46.
On February 23, 2022, Plaintiff refused to have his blood drawn. ECF No. 96-8 at 45. Plaintiff indicates that he refused blood work on February 23, 2022, because he had not been informed about it in advance and the nurse Karen Jones could not provide him with an explanation as to why blood was being drawn. Id. at ¶ 30.
On April 4, 2022, Plaintiff submitted a statement via an inmate correspondence form that his attorney “advised [him] to put on record that we do not want my blood drawn at [the Detention Center] by any employee of [the Detention Center] or by any Mediko employee or agent.” ECF No. 96-8 at 81.
During this time, Plaintiff was prescribed a heart monitor to use for four weeks because of concerns related to his panic attacks. ECF No. 96-8 at 1-7. Plaintiff contends that Medical Defendant Wilson confiscated the chest patches that are a necessary component of the operation of the heart monitor, telling him that Mediko personnel would change them out before the chest batteries died. ECF No. 115-2 at ¶ 17. According to Plaintiff, the Medical Defendants subsequently allowed the chest patches to die for four weeks in a row, only changing them after Plaintiff filed grievances and complained. Id. Plaintiff states that Defendant Wilson never calibrated or tested the heart monitor, and the heart monitor never connected to the chest patches throughout the four weeks the heart monitor was prescribed. Id. at ¶ 19. He avers that no one ensured that the device remained charged, and every chest patch was allowed to completely die prior to being changed. Id. at ¶ 32.
The Detention Center officers in the housing units placed the monitor's data collection machine at the front desk of the housing unit. Id. According to Plaintiff, no one ensured that the device remained charged. Id.
On March 16, 2022, the heart monitor study ended because of an inability to collect data. ECF No. 96-8 at 44. According to Plaintiff, the electronic part of the monitor does not work properly if he is more than 25 to 30 feet away from it, and the Detention Center kept the device 40 to 50 feet away from him at the desk. ECF No. 115-2 at ¶ 36. The heart monitor did not record any data, such that the doctor was not able to compare his symptoms with any corresponding data. Id. at ¶ 39; ECF No. 96-8 at 44.
On March 17, 2022, Medical Defendant Wilson noted that the heart monitor device was calibrated that day at the officer's station, showing it was connected and sending data and that the device had 167 hours left on it. ECF No. 96-8 at 44. On March 31, 2022, Medical Defendant Wilson noted that Plaintiff's heart lead was changed and the monitor picked up activity and is working without difficulty. ECF No. 96-8 at 43. By this time, however, it appears the heart monitor study had ended.
On April 4, 2022, Plaintiff saw an outside cardiologist for a follow-up appointment, at which time the stress test performed on him was “clinically electrically negative” and there was no ECG evidence of stress-induced arrhythmia or stress-induced ischemia. ECF No. 96-8 at 9.
On June 6, 2022, Plaintiff saw an outside cardiologist for a follow-up visit, during which the cardiologist again noted that Plaintiff's stress test was “clinically negative” and there was no evidence of stress-induced arrhythmia or stress-induced ischemia. ECF No. 98-6 at 6. The doctor also noted that the heart rate monitor previously given to Plaintiff in March did not perform because “there was no signal at the jail” and ordered a follow up appointment, noting they would instead look at a Holter monitor for 48 hours. ECF No. 96-8 at 6.
On or about July 6, 2022, Plaintiff was scheduled for a follow-up outside cardiology appointment to get a Holter monitor placed, but Plaintiff asked the appointment to be rescheduled. ECF 98-6 at 40-41. The appointment was rescheduled for August 23, 2022, at which time the cardiologist performed a stress test, noting it was normal. Id. at 3. The cardiologist “reassured [Plaintiff] that his symptoms are unlikely coming from his heart . . . [and] no major abnormality noted on the cardiac testing.” Id. The cardiologist did not prescribe any other follow-up care or treatment. Id.
LEGAL STANDARD
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
DISCUSSION
Plaintiff claims that the Medical Defendants have been deliberately indifferent to his serious medical needs by failing to accommodate his inability to digest animal proteins. ECF No. 51 at 15-21, 27, 30. He also contends he was placed on two heart monitors by a cardiologist that were not properly managed by the Medical Defendants, causing him injury. ECF No. 51 at 17. The Medical Defendants have moved for summary judgment.
To establish liability under 42 U.S.C. § 1983, Plaintiff “must establish three elements: (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.” Campbell v. Florian, 972 F.3d 385, 392, n.5 (4th Cir. 2020), as amended (Aug. 28, 2020). To support a § 1983 claim for failure to provide adequate medical care, Plaintiff must show the Medical Defendants' “acts or omissions [were] sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Plaintiff also alleges that the Medical Defendants departed from professional standards of care in his treatment. ECF No. 51 at 18. However, to the extent Plaintiff is alleging medical negligence, medical negligence is not actionable via a claim under 42 U.S.C. § 1983. See Aten v. Richland Cnty., C/A No. 5:16-cv-03614-PMD-KDW, 2018 WL 4560572, at *6 (D.S.C. July 3, 2018) (“[N]egligent or incorrect medical treatment (medical malpractice) is not actionable under 42 U.S.C. § 1983.”), report and recommendation adopted, 2018 WL 4109608 (D.S.C. Aug. 29, 2018), aff'd sub nom. Aten v. Wiggins, 839 Fed.Appx. 798 (4th Cir. 2021); see also Estelle, 429 U.S. at 106 (“[A] a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.”). Moreover, there is no evidence before the Court regarding the applicable standard of care or that any Medical Defendant breached the standard of case, such that Medical Defendants are entitled to summary judgment on any medical malpractice claim Plaintiff may be asserting. See Dumont v. United Sates, 80 F.Supp.2d 576, 581 (D.S.C. 2000) (citing Green v. Lilliewood, 249 S.E.2d 910 (S.C. 1978)).
To establish a claim for deliberate indifference to a serious medical need, the specific type of deliberate indifference claim at issue in this case, Plaintiff, as a pretrial detainee, must show that (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 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. Short v. Hartman, 87 F.4th 593, 611 (4th Cir. 2023) (citing Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017); Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018); Miranda v. County of Lake, 900 F.3d 335, 352-53 (7th Cir. 2018); Brawner v. Scott County, 14 F.4th 585, 596-97 (6th Cir. 2021)).
At the time the Medical Defendants filed their summary judgment brief, they did not have the benefit of the Fourth Circuit's holding in Short v. Hartman, 87 F.4th 593 (4th Cir. 2023). Instead, they relied on the Fourth Circuit's previous approach to pretrial detainees' Fourteenth Amendment claims, applying the same two-prong test used for prisoners alleging cruel and unusual punishment under the Eighth Amendment. Under the previous approach, a prisoner was required to prove two elements: (1) that objectively the deprivation of a basic human need was sufficiently serious, and (2) that subjectively the prison officials acted with a “sufficiently culpable state of mind.” See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (referencing Wilson v. Seiter, 501 U.S. 294, 29798 (1991)). With respect to the second prong, the subjective “state of mind” is one of “deliberate indifference,” meaning the official knew of and disregarded “an excessive risk to inmate health or safety.” Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). While a “showing of subjective intent can still help a pretrial detainee state a claim for action that amounts to punishment,” this showing is no longer required under Short. See Short, 87 F.4th at 609 (referencing Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015)). “Now, it is sufficient that the plaintiff show that the defendant's action or inaction was, in Kingsley's words, ‘objectively unreasonable,' 576 U.S. at 397[;] that is, the plaintiff must show that the defendant should have known of the medical condition and the risk and acted accordingly.” Short, 87 F.4th at 610. “Or as the Supreme Court put it when describing civil recklessness in Farmer, it is enough that the plaintiff show that the defendant acted or failed to act ‘in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known.'” Id. (quoting Farmer, 511 U.S. at 836).
Differences of opinion between an inmate patient and medical staff over the course of medical treatment are insufficient to state a claim of deliberate indifference. Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (finding inadequate treatment due to negligence, inadvertence, or differences in judgment between an inmate and the medical personnel does not rise to the level of a constitutional violation). “Deliberate indifference is a very high standard - a showing of mere negligence will not meet it.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999); see also Short, 87 F.4th at 611-12 (“[I]t is still not enough for the plaintiff to allege that the defendant negligently or accidentally failed to do right by the detainee.”) (citing Kingsley v. Hendrickson, 576 U.S. 389, 396 (2015); Brawner, 14 F.4th at 596; Gordon, 888 F.3d at 1125; Miranda, 900 F.3d at 353-54)).
A. Food Intolerance
Plaintiff states that he was diagnosed as a child with an intolerance to animal proteins. ECF No. 115-2 at ¶ 3. He does not contend that he had a reaction after consuming animal proteins at the Detention Center. Nor does he assert that any Medical Defendant failed to treat or address any reaction that he had after consuming animal proteins. And, there is no contention that the Medical Defendants were responsible for providing food to Plaintiff or any other inmate at the Detention Center.
Plaintiff has not averred an allergy but, instead, an intolerance to animal proteins. A food allergy affects the immune system, while a food intolerance affects the digestive system and causes less serious symptoms than a food allergy. See Food allergy vs. food intolerance: What's the difference? Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/food-allergy/expert-answers/food-allergy/faq-20058538 (last visited Jan. 23, 2024); Food Allergy v. Intolerance: What's the Difference (healthline.com), https://www.healthline.com/health/allergies/food-allergy-sensitivity-difference (last visited Jan. 23, 2024); Characterizing Food Allergy & Addressing Related Disorders | NIAID: National Institute of Allergy and Infectious Diseases (nih.gov), https://www.niaid.nih.gov/diseases-conditions/food-allergy-characterizing (last visited Jan. 23, 2024).
Instead, Plaintiff contends that he has lost weight because he cannot eat the animal proteins that are being served with his meals at the Detention Center and that he has personally purchased food at the commissary to help keep up his weight. His specific allegations against the Medical Defendants are that they have failed to put or maintain an appropriate alert in his file or otherwise assist in making sure the Detention Center feeds him meatless meals, considering his intolerance to animal proteins. For the reasons that follow, the undersigned finds that Plaintiff has not established a viable claim based on food intolerance against any of the Medical Defendants.
(1) Plaintiff has failed to establish a serious medical condition.
Plaintiff first must establish that he has an objectively serious medical condition that poses a substantial risk of serious harm. Short, 87 F.4th at 611-12. A condition is objectively serious if it is “diagnosed by a physician as mandating treatment” or is “so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Id. at 612 (citing Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)); see also Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008).
The Medical Defendants contend that Plaintiff's intolerance to animal proteins has not been diagnosed by a physician as mandating treatment, nor is it so obvious that a lay person would easily recognize the necessity for a doctor's attention.
Plaintiff counters that his condition was diagnosed by a physician when he was a child, such that it constitutes a serious medical condition. ECF No. 115-2 at ¶ 24. However, Plaintiff's affidavit testimony that he was told as a child by his pediatrician that he had been diagnosed with a food intolerance is inadmissible hearsay. See Edwards v. Graham Cnty. Jail, No. 1:16-CV-315-FDW, 2017 WL 5894496, at *6 (W.D. N.C. Nov. 29, 2017) (finding that plaintiff's “testimony about allegedly being told he had been diagnosed with having had a heart attack is inadmissible hearsay”). Moreover, other than Plaintiff's assertion in his affidavit, he has presented no evidence that he has been diagnosed by a physician with an intolerance to animal proteins that mandates treatment or otherwise has been treated by a physician for the intolerance. See Brockington v. Pressly, No. CV 9:15-1008-DCN-BM, 2015 WL 9450797, at *4 (D.S.C. Sept. 15, 2015) (recommending summary judgment where plaintiff presented no evidence of his alleged tomatobased food allergy other than his own assertions), report and recommendation adopted, No. CV 9:15-01008-JMC, 2015 WL 9459925 (D.S.C. Dec. 23, 2015). Plaintiff has not submitted into evidence any medical records from his personal physicians or any other medical provider to support his allegation that he has an intolerance to animal proteins. There simply is no medical testimony or physician diagnosis before the Court establishing Plaintiff has an intolerance to animal proteins that mandates treatment.
“Hearsay evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment.” Lyons v. City of Alexandria, 35 F.4th 285, 290 n.4 (4th Cir. 2022) (citing Md. Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991)); see Fed.R.Evid. 801, 802. The alleged diagnosis made by Plaintiff's childhood doctor, who is now deceased, is hearsay because it is a statement made by a declarant not testifying in court and offered for the truth of the matter asserted in the statement. See Fed.R.Evid. 801(c). Moreover, the statement is inadmissible because it is not subject to any hearsay exceptions. See Fed.R.Evid. 803, 804.
Because Plaintiff has not provided a doctor's diagnosis mandating treatment of his animal protein intolerance, he must show that his alleged intolerance was a medical need that was “so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Iko, 535 F.3d at 241. Medical Defendants submitted an affidavit from Dr. Garman, the Detention Center's medical director, which establishes that Plaintiff's food intolerance, if it exists, does not rise to the level of a serious medical condition because Plaintiff has never claimed to suffer from anaphylaxis, had intractable vomiting or been prescribed epinephrine, which are related to serious allergies. ECF No. 96-7 at ¶¶ 3-4. Plaintiff disputes the affidavit of Dr. Garman and states that he never told anyone that his condition never caused anaphylaxis, that he never reported he has not had intractable vomiting, and never reported that he has never used or been prescribed epinephrine. ECF No. 115-2 at ¶¶ 41-43. He emphasizes that his symptoms include vomiting, nausea, excessive perspiration, fatigue, and bodily pain. ECF No. 115-2 at ¶ 3. He further states the symptoms have become more intense as he has gotten older, and that, at least on one occasion after eating meat when he was out to dinner with his wife, he began feeling lightheaded, began to sweat, had trouble breathing, and had a temporary sensation of paralysis in his throat. Id.
However, the issue here is whether Plaintiff's food intolerance is “so obvious that a lay person would easily recognize the necessity for a doctor's attention.” Iko, 535 F.3d at 241. In this instance, none of the symptoms Plaintiff has indicated he suffers as a result of his food intolerance have occurred at the Detention Center, such that none of the Medical Defendants, or anyone else at the Detention Center, has seen any of the symptoms. Therefore, Plaintiff has failed to create a genuine issue of material fact as to whether his food intolerance constituted “a medical condition or injury that posed a substantial risk of serious harm.” See Short, 87 F.4th at 611.
To the extent Plaintiff points to weight loss as evidence of his serious medical condition, the undersigned likewise finds he has not presented evidence establishing a doctor's diagnosis mandating treatment of his weight loss or that his weight loss was “so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” See Iko, 535 F.3d at 241.
Plaintiff avers in his affidavit that in early 2022, he weighed himself at the detention housing unit and the scale showed 172 pounds. ECF No. 115-2 at ¶ 6. At intake on September 9, 2021, Plaintiff measured 5'11” tall and weighed 195 pounds, with a BMI of 27.2. ECF Nos. 96-7 at ¶ 5c; 96-8 at 57. He avers that by early 2022, he had lost 23 pounds, ECF No. 115-2 at ¶ 6, which is an average weight loss of less than five pounds per month during his first five months of confinement. The medical records for Plaintiff show that on June 6, 2022, Plaintiff weighed 188 pounds (or 85.28 kg) with a BMI of 26. ECF No. 96-8 at 5. Thus, it appears that he gained 16 pounds between January and June 2022, for an average weight gain of approximately 3 pounds per month during the second five months of confinement. Plaintiff's weight since then has remained relatively constant: on August 23, 2022, Plaintiff weighed 188 pounds (or 85.2 kg) with a BMI of 26, and on June 29, 2023, Plaintiff weighed 186 pounds. ECF Nos. 96-7 at ¶ 5c; 96-8 at 93. Dr. Garman, the medical director of the Detention Center, opined to a reasonable degree of medical certainty that Plaintiff's BMI qualifies him as overweight and that aside from self-reports of fatigue and depression, Plaintiff has never presented with symptoms of malnutrition. ECF No. 96-7 at ¶ 6e-f (noting that signs of malnutrition include a BMI of less than 18.5, as well as reduced appetite, frequent illnesses, slow-healing wounds and feeling weak, tired and cold all the time).
Shortly after Plaintiff's admission to the Detention Center, he submitted a medical request for depression and anxiety. ECF No. 96-8 at 52, 68. He underwent a psychiatric evaluation and was seen regularly for follow up by a mental health care professional, who prescribed medication for Plaintiff's depression. ECF No. 96-8 at 13-37.
Plaintiff has not presented any evidence that the initial weight loss constituted a serious medical condition or that it was even medically significant. See Kemp v. Drago, No. CA 1:12-1481-JFA-SVH, 2013 WL 4874972, at *5 (D.S.C. Sept. 11, 2013) (noting that the evidence showed fluctuation in plaintiff's weight and his seventeen-pound weight loss was not medically significant), aff'd, 558 Fed.Appx. 328 (4th Cir. 2014); see also Taskonas v. Cicchi, 308 Fed.Appx. 628, 631-32 (3d Cir. 2009) (finding that twenty-four pound weight loss in two months, along with a list of other medical conditions, did not constitute “serious medical needs”). He has not presented any evidence that he is underweight for his age and height, and the evidence in the record establishes that he is overweight. See Wilson v. Dragvoich, No. 96-2635, 1997 WL 799431, at *4 (E.D. Pa. Dec.31, 1997) (holding that weight loss does not amount to a constitutional violation when prisoner is within normal weight range for his age and height). On this record, Plaintiff has not established that his initial weight loss constituted or is evidence of a serious medical condition, such that it is insufficient to support his claim for deliberate indifference. See Kemp, 2013 WL 4874972, at *9 (granting summary judgment against plaintiff inmate with a peanut and corn allergy and finding that plaintiff's “allegation of a seventeen-pound weight loss does not state a cognizable claim” for deliberate indifference).
For the foregoing reasons, the undersigned finds that Plaintiff has failed to establish a genuine question of material fact as to this first element of his deliberate indifference to food intolerance claim, such that summary judgment is appropriate for all Medical Defendants on this basis alone. See Benjamin v. S.C. Dep't of Corr., CA No. 9:20-cv-01673-TLW-MHC, 2021 WL 3023693, at *3 (D.S.C. May 28, 2021) (recommending summary judgment on § 1983 diet claim because plaintiff “has not established a serious medical need for a specialized diet” where plaintiff's medical records showed “he has no immediate or serious medical condition requiring a special modification to his diet, and Plaintiff has not provided any evidence otherwise”), report and recommendation adopted, No. 9:20-CV-01673-TLW, 2021 WL 3022629 (D.S.C. July 16, 2021), aff'd, No. 21-7155, 2021 WL 6067306 (4th Cir. Dec. 20, 2021); McKenny v. Moore, C. A. No. 4:08-03705-RBH, 2009 WL 152652, at *2 (D.S.C. Jan. 22, 2009) (dismissing § 1983 deliberate indifference claim based upon alleged allergy to certain foods because “Plaintiff provides no factual information to indicate that his food allergies constitute a serious medical condition”).
(2) Plaintiff has failed to establish the remaining elements as to each individual Medical Defendant.
Even if Plaintiff could establish that his food intolerance constituted a serious medical condition, to survive summary judgment on his deliberate indifference claim based on food intolerance, Plaintiff must create a genuine issue of fact as to all three of the remaining elements of his claim: (2) that the specific Medical Defendant intentionally, knowingly, or recklessly acted or failed to act to appropriately address the risk that the food intolerance posed; (3) the specific Medical Defendant knew or should have known (a) that Plaintiff had the food intolerance and (b) that the Medical's Defendant own action or inaction posed an unjustifiably high risk of harm; and (4) as a result, Plaintiff was harmed. See Short, 87 F.4th at 611.
As an initial matter, the evidence before the Court establishes that the Medical Defendants entered notes and alerts between September of 2021 and January of 2022 regarding Plaintiff's dietary restrictions. ECF No. 96-8 at 49, 50, 58. Moreover, at least as of February 10, 2022, Medical Defendant Lawson had entered an alert that tofu was to be substituted in place of meat for each meal for Plaintiff and snack bags were discontinued at that time. ECF No. 96-8 at 91. While Plaintiff argues the earlier medical alerts were deleted, there is no evidence before the Court that the alert that existed as of February 10, 2022 was deleted or changed by any Medical Defendant. To the extent Plaintiff alleges there continued to be problems with the food provided to him at the Detention Center as of February of 2022, there is no evidence before the Court that any Medical Defendant was involved with or responsible for the provision of food to Plaintiff.
For the reasons that follow, Plaintiff has failed to establish all of the remaining elements of a deliberate indifference claim as against each of the Medical Defendants, such that summary judgment is appropriate.
(a) Medical Defendant Karen Jones, LPN
Although Plaintiff alleges in his Second Amended Complaint that Medical Defendant Jones had some involvement in his dietary complaints and requests (ECF No. 51 at 27), there is no evidence before the Court to support the allegation. In his affidavit, Plaintiff disputes several items in Medical Defendant Jones's affidavit; however, he does not provide testimony or point to other evidence establishing that she acted or failed to act to appropriately address his food intolerance. ECF No. 115-2 at 11-15. Conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002).
The records regarding Plaintiff's dietary complaints and requests contain no references to Medical Defendant Jones. See generally ECF No. 96-8; see also ECF No. 96-3 at ¶ 9. All medical requests to which Medical Defendant Jones responded were unrelated to his diet. ECF No. 96-3 at ¶¶ 9-15. The medical records show that Medical Defendant Jones had limited involvement with Plaintiff, seeing him primarily during evening medication passes. Id. at ¶ 18. The only note Medical Defendant Jones authored in the records, aside from notations in his medication administration record, was on February 23, 2023, when Plaintiff refused to sign a refusal form for a blood draw. ECF Nos. 96-8 at 45; 96-3 at ¶ 19. Thus, even assuming that Medical Defendant Jones knew or should have known Plaintiff had an intolerance to animal proteins and that the intolerance was a serious medical condition, Plaintiff has failed to create a genuine dispute of material fact as to whether Medical Defendant Jones intentionally, knowingly, or recklessly acted or failed to act to appropriately address the risk posed by Plaintiff's food intolerance (element two), that she knew or should have known that her action or inaction posed an unjustifiably high risk of harm (element three), or that her actions or inactions in that regard actually caused Plaintiff harm (element four). Accordingly, summary judgment in favor of Medical Defendant Jones on this claim is warranted for these additional reasons.
(b) Medical Defendant Danielle Winns, LPN
Although Plaintiff alleges in his Second Amended Complaint that Medical Defendant Winns had some substantive involvement in his dietary complaints and requests (ECF No. 51 at 27), there is no evidence before the Court to support the allegation. The records regarding Plaintiff's dietary complaints and requests contain no references to Medical Defendant Winns. See generally ECF No. 96-8; see also ECF No. 96-5 at ¶ 17. Aside from entries in Plaintiff's medication administration records, Medical Defendant Winns's name does not appear anywhere in the medical records. ECF Nos. 96-8; ECF No. 96-5 at ¶ 16.
Plaintiff alleges that he submitted his first written medical request on October 6, 2021, requesting to speak with a physician about his inability to eat meat, poultry, or seafood; his dietary needs not being met; and the weight loss and fatigue. ECF No. 51 at 74. In fact, Plaintiff submitted two requests on October 6, 2021. ECF No. 96-8 at 65-66. In response to Plaintiff's requests, Medical Defendant Winns placed him on the nursing sick call list. Id. Medical Defendant Winns played no role in scheduling Plaintiff for any specific appointments, as she worked the night shift and only the day shift nurses handled those logistical details. ECF No. 96-5 at ¶ 10. Although Plaintiff disputes several items in Medical Defendant Winns's affidavit, he does not provide testimony or point to other evidence establishing that she acted or failed to act to appropriately address his food intolerance, and such conclusory denials are insufficient to overcome summary judgment. ECF No. 115-2 at 11-15; see Thompson, 312 F.3d at 649.
Plaintiff has not set forth or otherwise pointed to any evidence that Medical Defendant Winns intentionally, knowingly or recklessly acted or failed to act to appropriately address any risk Plaintiff's animal protein intolerance posed (element two), that she knew or should have known that her action or inaction posed an unjustifiably high risk of harm (element three), or that any such action or inaction in fact harmed Plaintiff (element four). Accordingly, Medical Defendant Winns is entitled to summary judgment for these additional reasons.
(c) Medical Defendant Jamie Wilson, LPN
Plaintiff alleges that Medical Defendant Wilson acknowledged his complaints of chronic fatigue and weight loss and that she dismissed those complaints in writing as “not medical concerns.” ECF No. 51 at 20. In his affidavit, Plaintiff states that, in October of 2021, he told Medical Defendant Wilson that he had not been able to eat much because of his dietary needs not being met. ECF No. 115-2 at ¶ 5. According to Plaintiff, Medical Defendant Wilson instructed him to notify Detention Center staff of his concerns, as the dietary needs, as well as weight loss and fatigue he indicated he was experiencing as a result of the dietary needs, were not a medical concern. Id. When Plaintiff did so, unidentified Detention Center officers told Plaintiff “it was a medical concern.” Id.
Taking Plaintiff's testimony as true, this statement is not sufficient to show Medical Defendant Wilson intentionally, knowingly or recklessly acted or failed to act to appropriately address any risk Plaintiff's animal protein intolerance posed. Instead, the statement suggests Medical Defendant Wilson undertook an effort to direct Plaintiff to the appropriate people to address his dietary needs. Moreover, during this same timeframe, Plaintiff alleges that, in fact, on October 14, 2021, his meals were corrected, and he received meatless meals for several days after another “medical alert” was placed in his file. ECF No. 51 at ¶ 78. Again, this allegation suggests that Medical Defendant Wilson's instructions to Plaintiff resulted in a correction to his meals.
Plaintiff further alleges, however, that the correction only lasted a short time before the medical alert was deleted from his file. Id. According to Plaintiff, Defendant Wilson notified him, via Officer Squires and Joni Curcio, that Medical Defendant Adrian Small deleted the medical alerts concerning Plaintiff's dietary needs because Medical Defendant Small did not believe Plaintiff cannot eat meat. ECF No. 115-2 at ¶ 16; see also ECF No. 115-3 at ¶ 21 (affidavit of Steven Morgan stating the same, in a different setting). Assuming arguendo that this hearsay statement is admissible in the case against Medical Defendant Wilson, it is not sufficient to show Medical Defendant Wilson intentionally, knowingly or recklessly acted or failed to act to appropriately address any risk Plaintiff's animal protein intolerance posed.
This statement contains hearsay within hearsay within hearsay, to the extent Officer Squires and Joni Curcio told Plaintiff that Defendant Wilson said Medical Defendant Small deleted medical alerts, as this is being offered for the truth of the matter asserted. See Fed.R.Evid. 801(c). Similarly, Mr. Morgan's statement constitutes hearsay. Id. “Hearsay evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment.” Lyons, 35 F.4th at 290 n.4; see Fed.R.Evid. 801, 802.
Plaintiff does not state when this conversation with Defendant Wilson took place, though it follows the references in Plaintiff's affidavit to his interaction with Medical Defendant Wilson in October of 2021 and to the early 2022 period. See ECF No. 115-2 at ¶¶ 5, 14, 16. Even if Medical Defendant Wilson knew in October or early 2022 that Medical Defendant Small had deleted some medical alerts, as set forth above, Plaintiff's medical records establish that in January of 2022, Nurse Practitioner Swinney ordered that Plaintiff receive a snack bag twice per day, Medical Defendant Small electronically approved the order for the snack bags, and a medical alert was placed in Plaintiff's file for snack bags. ECF No. 96-8 at 50, 92. Moreover, as of January 13, 2022, Medical Defendant Lawson understood from meeting with Plaintiff and the Detention Center that Plaintiff would be provided tofu in place of animal proteins, and, at least by February 10, 2022, the snack bags alert was removed and replaced with instructions to serve Plaintiff tofu at meals. ECF No. 96-8 at 91. There is no evidence before the Court that anyone deleted or removed that alert, such that Plaintiff's food intolerance was appropriately addressed.
There is no evidence before the Court that Plaintiff had any interaction with Medical Defendant Wilson regarding his diet after his conversation with her, or that Medical Defendant Wilson had any involvement in Plaintiff's medical alerts or provision of food. Indeed, Medical Defendant Wilson had limited involvement with Plaintiff at all. See generally ECF No. 96-8; see also ECF No. 96-4 at ¶ 17.
Here, Plaintiff has not set forth sufficient evidence to show that Medical Defendant Wilson intentionally, knowingly or recklessly acted or failed to act to appropriately address any risk Plaintiff's animal protein intolerance posed (element two), that her action or inaction posed an unjustifiably high risk of harm (element three), or that her action or inaction in fact harmed Plaintiff (element four). Accordingly, Medical Defendant Wilson is entitled to summary judgment.
(d) Medical Defendant Adrian Small, RN
The only evidence Plaintiff has submitted regarding Medical Defendant Small is Plaintiff's testimony that he was told Medical Defendant Small deleted medical alerts concerning his dietary needs. ECF No. 115-2 at ¶ 16; see also ECF No. 115-3 at ¶ 21 (affidavit of Steven Morgan stating that same, in a different setting). However, the statements about Medical Defendant Small are inadmissible at trial and, thus, cannot be considered on a motion for summary judgment. See footnote 10, supra.
Assuming arguendo Plaintiff's testimony is not inadmissible, it shows that Medical Defendant Small deleted some medical alerts from his file in the fall of 2021. However, because Plaintiff has not shown he has a serious medical condition, he cannot establish that Medical Defendant Small knew or should have known that her action posed an unjustifiably high risk of harm to him (element three) or that she was otherwise deliberately indifference to a serious medical condition.
The medical records before the Court show that Medical Defendant Small approved Nurse Practitioner Schinitra's order for snack bags to be issued to Plaintiff on January 14, 2022, along with a mental health referral. ECF Nos. 96-8 at 50; 96-6 at ¶ 14. Indeed, Plaintiff acknowledges that twice daily snack bags had been ordered as of January 2022, though he insists he did not start receiving snack bags until “much later” and never received them twice daily consistently. ECF No. 115-2 at ¶ 27. There is no evidence in the record that Medical Defendant Small was otherwise involved with providing Plaintiff with snack bags.
Plaintiff also states that the order was modified to discontinue the snack bags. Id. However, there is no evidence that Medical Defendant Small was involved in the discontinuation of snack bags. In fact, the medical records show that, as of February 10, 2022, Medical Defendant Lawson was the individual who discontinued the snack bags for Plaintiff when she entered an alert that tofu was to be substituted in place of meat for each meal for Plaintiff. ECF No. 96-8 at 91.
Notably, there is no evidence that Plaintiff ever discussed with Medical Defendant Small any complaints related to his diet, and Medical Defendant Small never played a formal role in the decision to implement accommodations for his diet. ECF No. 96-6 at ¶ 21.
On the admissible record currently before the Court, Plaintiff has failed to show any genuine issue for trial that Medical Defendant Small was deliberately indifferent to any serious medical need, such that she is entitled to summary judgment.
(e) Elizabeth Lawson, RN
Plaintiff alleges Medical Defendant Lawson intentionally chose not to coordinate any physician appointments or examinations for his dietary concerns. ECF No. 51 at 19. Plaintiff also alleges that Medical Defendant Lawson later denied him meatless meals, citing lack of proof of any dietary restrictions, despite her alleged knowledge that Plaintiff had requested to see the physician often for these concerns. Id.
It is uncontroverted that Medical Defendant Lawson met with Plaintiff and at least one other Detention Center officer to discuss Plaintiff's dietary concerns on or around January 13, 2022. ECF Nos. 115-2 at ¶ 5; 96-2 at ¶ 23. At the Detention Center, an inmate's diet typically can be changed only for religious purposes or in response to a formally diagnosed food allergy, as the Detention Center cannot accommodate the dietary preferences of every inmate. ECF No. 96-2 at ¶ 24. Although the Detention Center did not have any formal diagnosis for Plaintiff's intolerance to animal proteins, during the January meeting, they decided to provide Plaintiff tofu in place of animal proteins at all meals. Id. The change was implemented that same day and, as far as Medical Defendant Lawson was aware, the issue was resolved. Id. Indeed, in a response to Plaintiff's repeated request for accommodations, on January 19, 2022, Medical Defendant Lawson responded, “This issue has been discussed with dietary as you are aware. There is no medical documentation for your issues; however everyone is making an attempt to be accommodating.” Id.
Plaintiff does not dispute that the meeting occurred, only Medical Defendant Lawson's statement that Susan Stafford was present during the meeting. ECF No. 115-2 at ¶ 23.
Plaintiff contends, however, that the change was not implemented, as he continued to receive meat at “most meals.” ECF No. 115-2 at ¶ 25. Notwithstanding the suggestion that Plaintiff at least received tofu at some meals, there is no evidence before the Court that Plaintiff notified Medical Defendant Lawson that the change was not implemented after their communications in January of 2022. After the January 2022 conversation, follow-up communication and medical alert entry as of February 10, 2022, Medical Defendant Lawson played no role in Plaintiff's dietary needs. ECF No. 96-2 at ¶ 25.
Under these circumstances, Plaintiff has failed to establish that Medical Defendant Lawson intentionally, knowingly or recklessly acted or failed to act to appropriately address any risk Plaintiff's animal protein intolerance posed (element two), that she knew or should have known that her action or inaction posed an unjustifiably high risk of harm (element three), or that her actions in fact harmed Plaintiff (element four). Accordingly, Medical Defendant Lawson is entitled to summary judgment on Plaintiff's claim for deliberate indifference to a serious medical need regarding his dietary needs.
B. Heart Monitor
While Plaintiff does not allege a specific “serious medical condition” regarding his heart, he argues that Medical Defendants “interfered with the diagnosis of Plaintiff's heart condition.” ECF No. 115 at 39. He states that Medical Defendant Wilson told him in early 2022 that Medical Defendant Small believed Plaintiff has “atrial fibrillation (a serious heart condition).” ECF No. 115-2 at ¶ 14. Moreover, Plaintiff states that he suffered from fatigue, anxiety, panic, an increased heart rate, stomach and chest pain, and pressure in his chest. Id. at ¶¶ 13, 26, 29. Plaintiff alleges that he was placed on two heart monitors that were not managed properly by the Medical Defendants. ECF No. 51 at 17.
This statement contains hearsay, to the extent Plaintiff offers this testimony to establish he has atrial fibrillation. See Fed.R.Evid. 801(c). As set forth above, “[h]earsay evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment.” Lyons, 35 F.4th at 290 n.4; see Edwards, 2017 WL 5894496, at *6 There is no evidence before the Court showing that Plaintiff has a serious medical condition regarding his heart. See Short, 87 F.4th at 612 (“A condition is objectively serious if it is diagnosed by a physician as mandating treatment or is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.”) (citation and internal quotation marks omitted).
Not only has Plaintiff failed to establish he has a serious medical condition related to his heart, he has failed to show that any Medical Defendant (1) intentionally, knowingly, or recklessly acted or failed to act to appropriately address the risk that the condition posed; (2) 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 (3) as a result, he was harmed. See Short, 87 F.4th at 611 (citations omitted).
While at the Detention Center, Plaintiff was referred to an outside cardiologist, who ordered a heart monitor for Plaintiff. See ECF No. 96-8 at 47-48. Although Plaintiff generally states that he made verbal complaints to “Medical Defendants” about his heart monitor device and chest patches not being properly charged and maintained, ECF No. 115-2 at ¶ 32, his specific complaints regarding his heart monitor primarily pertain to Medical Defendants Wilson and Lawson. See generally ECF No.115-2.
Plaintiff contends that Medical Defendant Wilson confiscated the chest patches that are a necessary component of the operation of the heart monitor he was prescribed, telling him that Mediko personnel would change them out before the chest batteries died. ECF No. 115-2 at ¶ 17. According to Plaintiff, the Medical Defendants subsequently allowed the chest patches to die for four weeks in a row, only changing them after Plaintiff filed grievances and complained. Id. Specifically, Plaintiff states that Defendant Wilson never calibrated or tested the heart monitor, and the heart monitor never connected to the chest patches throughout the four weeks the heart monitor was prescribed. Id. at ¶ 19. He avers that no one ensured that the device remained charged, and every chest patch was allowed to completely die prior to being changed. Id. at ¶ 32. Plaintiff states that Medical Defendants Lawson and Wilson were aware of his complaints about the battery and failed to intervene. Id. at ¶ 38. He also states that the monitor device was kept over 30 feet away, rending it incapable of recording data, and his access to the device was restricted, thereby preventing him from reporting symptoms or maintaining the device. Id.
It is undisputed that, on March 16, 2022, the heart monitor study ended because of an inability to record or collect data. ECF No. 96-8 at 44. The cardiologist noted that the heart rate monitor previously given to Plaintiff in March did not perform and ordered a follow-up appointment for Plaintiff, noting they would instead look at a Holter monitor for 48 hours. ECF No. 96-8 at 6.
On April 4, 2022, Plaintiff saw an outside cardiologist for a follow-up appointment, at which time the stress test performed on him was “clinically electrically negative” and there was no ECG evidence of stress-induced arrhythmia or stress-induced ischemia. ECF No. 96-8 at 9.
On June 6, 2022, Plaintiff saw an outside cardiologist for a follow up visit, during which the cardiologist again noted that Plaintiff's stress test was “clinically negative” and there was no evidence of stress-induced arrhythmia or stress-induced ischemia. ECF No. 98-6 at 6.
On or about July 6, 2022, Plaintiff was scheduled for a follow-up outside cardiology appointment to get the Holter monitor placed, but Plaintiff asked the appointment to be rescheduled. ECF 98-6 at 40-41. The appointment was rescheduled, and Plaintiff was placed on a Holter monitor. Plaintiff saw the cardiologist on August 23, 2022, at which time the cardiologist “reviewed the results of the Holter monitor” with Plaintiff. ECF No. 98-6 at 2. The cardiologist also performed a stress test, noting it was normal. Id. at 3. The cardiologist “reassured [Plaintiff] that his symptoms are unlikely coming from his heart . . . [and] no major abnormality noted on the cardiac testing.” Id. The cardiologist did not prescribe any medication nor other follow-up care or treatment. Id.
The evidence shows that Plaintiff does not have a heart condition; the Medical Defendants at the Detention Center referred Plaintiff to an outside cardiologist for his complaints of shortness of breath and dizziness, whom Plaintiff saw on at least three occasions; and the cardiologist performed a full cardiac workup and released Plaintiff from care. Under these circumstances, there is no question of material fact regarding Plaintiff's medical care. Plaintiff has failed to show any genuine issue of fact that any Medical Defendant's action or inaction regarding Plaintiff's heart issues was objectively unreasonable or that he was harmed as a result of any such action or inaction. The Medical Defendants thus are entitled to summary judgment on Plaintiff's claim for deliberate indifference to a serious medical need regarding his heart issues.
C. Supervisory Liability
Plaintiff also asserts that Medical Defendant Lawson is liable under the theory of supervisory liability. ECF No. 115 at 48. Under 28 U.S.C. § 1983, “[t]the principle is firmly entrenched that supervisory officials may be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (citations omitted). However, to establish a claim for “supervisory liability” under § 1983, a plaintiff must show the following 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. at 799.
Here, Plaintiff argues that Medical Defendant Lawson, who is the Health Services Administrator and supervisor of all the other Medical Defendants, “knew of, acquiesced, and defended” all the Medical Defendants' behavior, including reliance upon the “unofficial rule” at the Detention Center to avoid ensuring Plaintiff received meatless meals and failure to maintain his heart monitor properly. ECF No. 115 at 48-52.
As set forth above, however, Plaintiff has not established that any Medical Defendant engaged in conduct that constituted a constitutional injury to Plaintiff. Moreover, the evidence before the Court does not show that Medical Defendant Lawson's responses or actions in this matter were inadequate or a tacit authorization of the alleged offensive behavior, nor does it show Plaintiff suffered a constitutional injury. Accordingly, Medical Defendant Lawson is entitled to summary judgment on Plaintiff's claim for supervisory liability.
D. Equal Protection Claim
In his Response in Opposition to the Medical Defendants' Motion for Summary Judgment, Plaintiff argues that the Medical Defendants violated his equal protection rights under the Fourteenth Amendment. ECF No. 115 at 54-55. Specifically, Plaintiff claims that other inmates who preferred particular diets but did not have a medical diagnosis were provided food to accommodate their requests while Plaintiff was not, identifying two other inmates housed in the Detention Center. ECF No. 115 at 54-55; see also ECF No. 99. However, Plaintiff did not allege an equal protection claim in his Second Amended Complaint. See ECF No. 51 at 18, 31. Because “[a] plaintiff cannot use a response to a motion for summary judgment to amend or correct a complaint challenged by the motion for summary judgment,” Kershner v. Wright, No. 7:16-CV-00063, 2016 WL 7131584, at *1 (W.D. Va. Dec. 5, 2016) (citing Cloaninger v. McDevitt, 555 F.3d 324, 336 (4th Cir. 2009)), this newly asserted equal protection is not properly before the Court.
Even if Plaintiff had asserted an equal protection claim in the operative Second Amended Complaint, the undersigned would nonetheless find that Plaintiff has failed to establish such a claim. The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Clause “is essentially a direction that all persons similarly situated should be treated alike.” Fisher v. King, 232 F.3d 391, 399 (4th Cir. 2000) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). In the prison context, “[t]he heart of an equal protection claim is that similarly situated classes of inmates are treated differently, and that this difference in treatment bears no rational relation to any legitimate penal interest.” Burke v. Glass, No. 4:14-CV-2107 RLW, 2017 WL 4042989, at *10 (E.D. Mo. Sept. 12, 2017) (quoting Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998)).
Plaintiff does not claim that the Medical Defendants treated him differently because of any suspect or protected classification, such as race or gender. Moreover, Plaintiff has not sufficiently established that the two inmates to whom he refers were similarly situated in that neither of these inmates requested a different type of food but, instead, either requested unseasoned (bland) food or soft food. ECF No. 115 at 55. Further, and, perhaps, more importantly, the evidence shows that the Medical Defendants ultimately placed an alert in Plaintiff's file in February of 2022 that he receive tofu at his meals. To the extent Plaintiff is not receiving the food as noted by the Medical Defendants, there is no evidence before the Court that any Medical Defendant is responsible for providing food to Plaintiff.
Accordingly, even if Plaintiff had asserted an equal protection claim in his Second Amended Complaint, the Medical Defendants would be entitled to summary judgment on that claim.
RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that the Medical Defendants' Motion for Summary Judgment, ECF No. 96, be GRANTED.
The parties are directed to the next page for their rights to file objections to this 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
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).