Opinion
C. A. 9:22-02023-TMC-MHC
08-17-2023
Robert Lee Foster, Plaintiff, v. Bryan P. Stirling, Director of SCDC; Medical Branch; Larry W. Powell, Director of Spartanburg County Jail, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
This a civil action filed by a state prisoner. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
By Order dated July 6, 2023, Plaintiff was given an opportunity to provide the necessary information and paperwork to bring his case into proper form for evaluation and possible service of process. Plaintiff was also notified of pleading deficiencies and given the opportunity to amend his Complaint. See ECF No. 13. The time for Plaintiff to bring his case into proper form has passed, and Plaintiff has failed to bring his case into proper form and has not filed an amended complaint.
I. BACKGROUND
Plaintiff is an inmate at the Livesay Correctional Institution of the South Carolina Department of Corrections (SCDC). He appears to bring a claim under 42 U.S.C. § 1983 (§ 1983) for an alleged violation of his Eighth Amendment rights. See ECF No. 1 at 3-4. Defendants are SCDC Director Bryan P. Stirling (Stirling), former Spartanburg County Detention Center Director Larry Powell (Powell), and Medical Branch (which appears to be an entity of SCDC).
Records from the Spartanburg County Circuit Court and the SCDC indicate that Plaintiff is serving a sentence of twenty-years' imprisonment for his conviction on the charge of manufacturing/distributing crack - 3rd offense. The Spartanburg County records provide that Plaintiff was arrested on this charge on October 3, 2007; indicted (indictment number 2008-GS-42-02261) on May 15, 2008; and found guilty at trial on May 20, 2008. SCDC records indicate that Plaintiff's sentence started on October 3, 2007, and he has a projected release date of September 28, 2024. See Spartanburg County Seventh Judicial Circuit Public Index, https://publicindex.sccourts.org/spartanburg/publicindex/ [Search indictment number 2008GS4202261] (last visited Aug. 16, 2023); SCDC Inmate Report, http://public.doc.state.sc.us/scdc-public/ [Search inmate “Robert Foster”] (last visited Aug. 16, 2023).
This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, No. 0:09-1009-HFF-PJG, 2009 WL 1491409, at *1 n. 1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. 2009); In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2008 WL 4185869, at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records).
Plaintiff states he is suing Defendant Powell and the Medical Staff because, after being incarcerated for over fourteen years, he was recently informed by the Department of Health and Environmental Control (DHEC) that he has Hepatitis C. Complaint, ECF No. 1 at 4. He asserts he is bringing a claim pursuant to 42 U.S.C. § 1983 because “[i]t clear an Eighth Amendment violation has occur as I have learn through a telecomforter on June 9, 2022, after wrongful convicted and sentence May 22, 2008, serving 20 yrs 85%.” Id. (errors in original). Plaintiff discusses his treatment for Hepatitis C and may also be attempting to challenge his 2007 arrest and 2008 criminal conviction. Id. at 4-7. In the “Relief” section of his Complaint, Plaintiff appears to be requesting that he receive monetary damages. Id. at 7.
Plaintiff requests that he “[b]e confiscate for [his] Eighth Amendment violation of Deliberate Indifference, and lack of training of each (SCDC) employee's[.]” ECF No. 1 at 7 (errors in original). Liberally construed, Plaintiff appears to be asking that he be compensated (not confiscated) for an alleged violation of his Eighth Amendment rights.
II. STANDARD OF REVIEW
A pro se Complaint is reviewed pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). However, the requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
It is recommended that this action be summarily dismissed for the reasons discussed below.
A. Failure to State a Claim
Although Plaintiff lists the names of Defendants in the caption of his Complaint, his pleadings fail to provide any specific facts to support a claim that these Defendants violated his federal constitutional or statutory rights. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (requiring, in order to avoid dismissal, “‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests'” (quoting Fed.R.Civ.P. 8(a)(2))). Although the “liberal pleading requirements” of Rule 8(a) only require a “short and plain” statement of the claim, a plaintiff must “offer more detail ... than the bald statement that he has a valid claim of some type against the defendant.” Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (internal citations omitted); see also White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (district court did not abuse discretion by dismissing plaintiff's complaint which “failed to contain any factual allegations tending to support his bare assertion”).
Plaintiff appears to be attempting to assert a claim for medical deliberate indifference, but fails to state a claim against any of the named Defendants. To state a claim for deliberate indifference to a serious medical need, a plaintiff must allege that he had a serious medical need and that the defendant(s) acted with deliberate indifference to that need. See Heyer v. United States Bureau of Prisons, 849 F.3d 202, 209-210 (4th Cir. 2017) (citing Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)); see also King v. Rubenstein, 825 F.3d 206, 218-20 (4th Cir. 2016); Estelle v. Gamble, 429 U.S. 97, 104 (1976). A “serious medical need” is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Iko, 535 F.3d at 241 (internal quotation marks omitted). To constitute deliberate indifference to a serious medical need, “the treatment [a prisoner receives] must be so grossly incompetent, inadequate, or excessive to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled on other grounds by Farmer v. Brennan, 511 U.S. 825, 837 (1994). Unless medical needs were serious or life threatening, and the defendants were deliberately indifferent to those needs of which he was aware at the time, a plaintiff may not prevail. Estelle v. Gamble, 429 U.S. at 105; Farmer v. Brennan, 511 U.S. at 837 Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986). Here, Plaintiff has alleged no facts to indicate that the named Defendants were deliberately indifferent to any of his serious medical needs.
To the extent Plaintiff's claim is merely a disagreement as to the proper treatment to be received, such an allegation does not in and of itself state a constitutional violation. See Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016). Further, “[t]he fact that medical professionals may differ on a recommended course of treatment does not establish deliberate indifference.” Hendrick v. Booth, No. TDC-14-cv-4021, 2015 WL 8055172, at *8 (D. Md. Dec. 3, 2015), aff'd, 654 Fed.Appx. 136 (4th Cir. 2016); see also Chamberlain v. Clarke, No. 7:14-cv-00013, 2014 WL 2154183, at *2 (W.D. Va. May 22, 2014) (“That an inmate simply disagrees with the course of treatment or the treatment is unsuccessful will not raise a deliberate indifference claim.”).
Additionally, to the extent that Plaintiff may be attempting to bring claims against Defendants Stirling and/or Powell based on a theory of supervisory liability, such claims are subject to summary dismissal as the doctrines of vicarious liability and respondeat superior generally are not applicable in § 1983 actions. See Iqbal, 556 U.S. at 676-77; Monell v. Dep't Soc. Servs., 436 U.S. 658, 694 (1978). To state a § 1983 claim for supervisory liability, a plaintiff must allege:
(1) that the supervisor had actual or constructive knowledge that [his or her] 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.Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)). Here, Plaintiff has not alleged any facts to establish supervisory liability as to Defendant Stirling and/or Defendant Powell.
B. Defendant Medical Branch
Defendant Medical Branch appears to refer to a branch or department of SCDC or a group of people employed by SCDC. It should be summarily dismissed because it is not a personamenable to suit under § 1983. See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001) (finding that the medical department of a prison is not a person pursuant to § 1983); Dalton v. South Carolina Dep't of Corr., C/A No. 8:09-260-CMC-BHH, 2009 WL 823931, at *2 (D.S.C. March 26, 2009) (dismissing the medical staff of SCDC and Prison Health Services as defendants because they were not persons); Barnes v. Baskerville Corr. Cen. Med. Staff, No. 3:07CV195, 2008 WL 2564779 (E.D. Va. June 25, 2008) (“Plaintiff's allegations that unspecified prison personnel violated his rights does not adequately state a § 1983 claim.”).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
C. Failure to Exhaust Administrative Remedies
This action is also subject to summary dismissal for Plaintiff's failure to exhaust his available administrative remedies. In the “Exhaustion of Administrative Remedies Administrative Procedures” section of his Complaint, Plaintiff admits he has not filed a grievance at SCDC concerning his claims. Instead, he appears to assert that he did not exhaust his administrative remedies because he found out from DHEC that he had hepatitis on June 9, 2022. ECF No. 1 at 79. He appears to argue that he may bypass the grievance process based on his own belief that SCDC “will do everything to delay this Deliberate Indifference Civil Action.” Id. at 9.
Before a prisoner can proceed with a lawsuit in federal court, he must first exhaust his administrative remedies as required by the PLRA, which provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Moreover, exhaustion is required even when a prisoner seeks remedies, such as money damages, that are not available in the administrative proceedings. See Booth v. Churner, 532 U.S. 731, 740-41 (2001). To satisfy this requirement, a plaintiff must avail himself of every level of available administrative review, which means ‘“using all steps that the agency holds out, and doing so properly.'” Woodford v. Ngo, 548 U.S. 81 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Thus, “it is the prison's requirements, and not the [Prison Litigation Reform Act], that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007).
While a plaintiff's failure to exhaust administrative remedies is considered an affirmative defense, and not a jurisdictional infirmity, see Jones v. Bock, 549 U.S. at 216, if the lack of exhaustion is apparent on the face of the prisoner's complaint, sua sponte dismissal prior to service of the complaint is appropriate. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005). The Fourth Circuit has stated that exceptions to the rule (that an inmate need not demonstrate exhaustion of administrative remedies in his complaint and that failure-to-exhaust is an affirmative defense that the defendant must raise) which allow a court to sua sponte dismiss a complaint for failure to exhaust administrative remedies are rare. Custis v. Davis, 851 F.3d 358, 361-362 (4th Cir. 2017). Here, however, it is clear from the face of the Complaint that Plaintiff did not exhaust his available administrative remedies before filing this action such that his claims may be dismissed. See Custis, 851 F.3d at 361 (“A court may sua sponte dismiss a complaint when the alleged facts in the complaint, taken as true, prove that the inmate failed to exhaust his administrative remedies.”).
D. Heck v. Humphrey
In his Complaint, Plaintiff may also be attempting to allege claims concerning his conviction and his detention at the SCDC. To the extent Plaintiff is requesting this Court to order that his conviction be overturned or that he be released from prison, these are not remedies available in a civil rights action under § 1983. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (stating that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983”); Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (attacking the length or duration of confinement is within the core of habeas corpus); Grayson v. Gowdy, No. CA 0:08-3477-CMC-PJG, 2008 WL 5280337, at *2 (D.S.C. Dec. 18, 2008) (noting that a request that pending charges be expunged and dismissed is a type of relief that that may only be obtained in a habeas action).
Additionally, to the extent Plaintiff is attempting to bring claims for monetary damages as to his criminal conviction, his claims are barred because Plaintiff has not alleged that his criminal conviction has been overturned or otherwise found to be invalid. In Heck, the Supreme Court established the following test to determine whether a prisoner's claim for violation of due process in the context of a criminal proceeding is cognizable under 42 U.S.C. § 1983:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.Heck, 512 U.S. at 487.
E. Failure to Bring Case into Proper Form
Additionally, Plaintiff has failed to bring this case into proper form as outlined in the Court's Order by completing a summons form listing every Defendant named in this matter and completing and signing a Form USM-285 for Defendant Larry W. Powell and a Form USM-285 for Defendant Medical Branch. See ECF No. 13. Plaintiff was warned that failure to provide the necessary items within the timetable set forth in the Order would subject the case to dismissal. See id.
Plaintiff submitted an incomplete summons form that only listed Defendant Stirling, and he only submitted a Form USM-285 for Defendant Stirling. See ECF No. 3.
The time to bring this case into proper form has now lapsed, and Plaintiff has failed to provide the required items to bring his case into proper form. Thus, in the alternative, it is recommended that this action be dismissed in accordance with Fed.R.Civ.P. 41(b). See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss this action, without prejudice, without leave to amend, and without issuance and service of process.
See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (noting that “[w]hen a district court dismisses a complaint or all claims without granting leave to amend, its order is final and appealable”).
Plaintiff's attention is directed to the important notice on the following page.
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).