Opinion
C. A. 6:22-cv-01320-DCC-KFM
09-08-2022
Demetrius Glenn, Plaintiff, v. Adam Sinclair Ruffin, Michael Henthorne, Ms. Williams, Ms. Megitt, Ms. Barber, Mrs. Brown, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The plaintiff, a state prisoner proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on April 25, 2022 (doc. 2). On July 27, 2022, the undersigned issued an order informing the plaintiff that his complaint was subject to dismissal as drafted and providing him with time to file an amended complaint to correct the deficiencies noted in the order (doc. 30). The plaintiff was informed that if he failed to file an amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that his claims be dismissed (id. at 15-16). The plaintiff has failed to file an amended complaint within the time provided; accordingly, the undersigned recommends that the instant matter be dismissed.
ALLEGATIONS
The plaintiff, a prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and located at Broad River Correctional Institution (“Broad River”), brings this action seeking damages from the defendants (doc. 2).
The plaintiff alleges violations of his First, Sixth, Eighth, and Fourteenth Amendment rights (id. at 5). The plaintiff contends that Ms. Meggitt is a mailroom staff member who denied the plaintiff access to the court and retaliated against the plaintiff (id. at 4). Specifically, the plaintiff requested copies of documents, but his request was denied (id. at 18). The plaintiff further contends that he requested Ms. Meggitt allow him to deliver his mail to the mailroom instead of having to send it with other inmates or Broad River staff, but his request was denied (id. at 18-19). He contends that Ms. Meggitt also called him a snitch when delivering his mail to him (id. at 19-20). He contends that this denies him access to the courts because he was not able to file suit against Geico before the statute of limitations ran (id. at 24).
He contends that he has also been denied his annual custody review and was retaliated against by an unknown corrections officer because he refused to sign a form delivered to him by an inmate (id. at 4, 20-21). Ms. Williams has subjected the plaintiff to cruel and unusual punishment, has denied him access to medical care, and retaliated against him (id. at 4). Mr. Henthorne forced the plaintiff to settle his suit against a prison (id.). Mr. Ruffin violated the plaintiff's rights by filing a “no merits” brief in the plaintiff's state appellate case, which required the plaintiff to submit a pro se brief showing his actual innocence and prosecutorial misconduct (id. at 21-22). The plaintiff submitted multiple complaints about Mr. Ruffin to the South Carolina Office of Disciplinary Counsel, but they have been improperly denied (id.).
On August 18, 2021, after complaints to Ms. Williams regarding alleged unconstitutional conditions of confinement were ignored, the plaintiff alleges that he requested to speak with a supervisor about his complaints, but Ms. Williams refused to summon someone to his cell or bring him a grievance form (id. at 7, 11-12, 17). The plaintiff alleges that Ms. Williams then cancelled showers for the plaintiff's unit because of the plaintiff's complaints, which made other inmates housed with the plaintiff mad at him (id. at 7-8). Ms. Williams has also never aided the plaintiff with medical complaints (id. at 9).
The plaintiff alleges that inmates in the dorm set fires in their cells to protest the alleged unconstitutional conditions of confinement and notify the corrections officers of a medical emergency with an inmate, which forced the plaintiff to buy an inhaler from another inmate due to the smoke affecting his asthma (id. at 8-9). On August 23, 2021, and August 26, 2021, the plaintiff contends that he requested a legal call, a supervisor, and medical care, but his requests were denied (id. at 10). On September 14, 2021, the plaintiff was let out of his cell after a fire was set and medical care was requested by Lt. Priester and Sgt. Thomas, but medical did not come to see the plaintiff so he had to use another inmate's inhaler again (id.). The plaintiff alleges that Lt. Priester and Sgt. Thomas then cancelled showers for the dorm in order to have the plaintiff attacked by gang member inmates (id. at 11). He also contends that he is scared because Broad River staff are letting other inmates be attacked by “gang enforcers” (id. at 12). The plaintiff contends that due to inmate misbehavior in his unit, Warden Nelson announced that they would not be able to have showers, canteen, or recreation (id. at 12).
The plaintiff contends that the phones on his unit are broken and that the defendants will not submit a work order to have the phones fixed (id. at 13). On October 13, 2021, the plaintiff was seen by medical, who advised that he needed to start high blood pressure medicine, but the plaintiff refused that prescription, asserting that he only needed diet and exercise to treat his high blood pressure, but an order for “diet and exercise” has been ignored by Broad River staff (id.). During that appointment, the plaintiff was also provided with allergy medication and an inhaler (id.). The plaintiff was able to visit medical at the end of March 2022, and received medicine for his breathing problems (id. at 18).
On November 30, 2021, the plaintiff contends he was ordered to strip down to his boxers to be removed from his cell, and his cell was trashed while he was forced to stand in the dorm in his boxers (id. at 14). On December 22, 2021, several inmates on the plaintiff's dorm began exhibiting COVID-19 symptoms, but he was not provided the appropriate cleaning supplies for his cell (id. at 14-15). The plaintiff then contracted COVID-19, but was not allowed to visit canteen to purchase medicine or given medical care (id. at 15).
Fires continued to be set in the plaintiff's dorm in December, 2021, January, 2022, and February 2022, but when the plaintiff talked to Ms. Williams, she called the plaintiff a snitch and told him to die (id. at 14, 16). The plaintiff was allowed showers at least once or twice a week, but he is in fear for his life during them because Ms. Williams has other inmates yelling threats at the plaintiff (id.). Ofc. T ucker further denied the plaintiff access to the mailroom, recreation, showers, and a legal call on March 16, 2022, calling the plaintiff a snitch, but let other inmates pass out contraband to each other (id.). In March, Ms. Williams likewise facilitated the spread of contraband at Broad River, but would not let the plaintiff make a legal call or access the mail and has not always let the plaintiff shower with the remainder of his dorm (id. at 17-18).
The plaintiff contends that he is allergic to tomatoes, but Ms. Barber still puts them on his tray, so the plaintiff has to buy food from the commissary or other inmates (id. at 23). Because the plaintiff has to buy sugary snacks from other inmates, his teeth are being destroyed (id.). For injuries, the plaintiff alleges high blood pressure, sleep deprivation, weight loss, depression, allergy attacks, and feeling hopeless (id. at 24). For relief, the plaintiff seeks money damages and a declaratory judgment that the actions by the defendants violated his rights (id.).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
This complaint is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). 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).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendants. However, the plaintiff's complaint is subject to summary dismissal.
As an initial matter, it appears that a number of the plaintiff's claims, occurring in March 2022 (less than a month before the instant matter was filed) have not been exhausted. The Prisoner Litigation Reform Act (“PLRA”), codified as amended at 42 U.S.C. § 1997e(a), mandates, among other things, that prisoners must exhaust their administrative remedies prior to filing civil actions concerning prison conditions under § 1983 or any other federal law. See Jones v. Bock, 549 U.S. 199, 211 (2007); Battle v. Ledford, 912 F.3d 708, 711 (4th Cir. 2019). Despite the foregoing, the undersigned has addressed the pleading deficiencies with respect to all of the plaintiff's claims.
Not a State Actor
The plaintiff's claims against defendants Mr. Ruffin, Esquire, and Mr. Henthorne, Esquire, are subject to summary dismissal because they are not state actors. It is well-settled that “[a]nyone whose conduct is ‘fairly attributable to the state' can be sued as a state actor under § 1983.” Filarsky, 566 U.S. 377, 383 (2012). To determine whether state action is present, no single factor is determinative and the “totality of the circumstances” must be evaluated. See Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 341-43 (4th Cir. 2000). However, purely private conduct, no matter how wrongful, is not actionable under 42 U.S.C. § 1983 and the United States Constitution. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982); Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001). The law is well-established that appointed counsel, such as Mr. Ruffin (representing the plaintiff in his postconviction relief action appeal) and Mr. Henthorne (who represented the plaintiff in a prior civil case filed in this court), are not state actors for purposes of § 1983 claims. Polk Cnty. v. Dodson, 454 U.S. 312, 323 n.13 (1981); see Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980) (finding no state action under § 1983, even where the plaintiff's attorney was court-appointed). Because private conduct, no matter how discriminatory or wrongful, is not covered under § 1983, the plaintiff's claims against Mr. Ruffin and Mr. Henthorne are subject to summary dismissal.
Conditions of Confinement Claims
The Eighth Amendment expressly prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. To succeed on an Eighth Amendment claim for cruel and unusual punishment regarding the conditions of his confinement, a prisoner must prove that he was deprived of a basic human need and that prison officials were deliberately indifferent to that deprivation. See Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993). The first prong of the Strickler analysis requires an objective showing that the deprivation was sufficiently serious, such that significant physical or emotional injury resulted from it, while the second prong is a subjective test requiring evidence that prison officials acted with a sufficiently culpable state of mind. Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
Here, the plaintiff's complaint contains a litany of vague and conclusory allegations about alleged unconstitutional conditions, including being called a snitch; being subjected to fires set by other inmates; having no access to the telephone; and having limited access to recreation, shower, cleaning supplies, and grievance forms (see generally doc. 2). The plaintiff's conclusory allegations, however, fail to plausibly state a claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting that “a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”) (citing Twombly v. Bell Atl. Corp., 550 U.S. 544, 556-57 (2007)). As recognized by the Supreme Court, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. Further, the plausibility standard requires more than “‘an unadorned, the-defendant-unlawfully-harmed-me accusation.'” Griffith v. State Farm Fire and Cas. Co., C/A No. 2:12-cv-00239-DCN, 2012 WL 2048200, at *1 (D.S.C. June 6, 2012) (quoting Iqbal, 556 U.S. at 678).
Further, even if properly alleged, the majority of the complained-of conditions do not rise to the level of a constitutional violation. See Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 461 (1989) (finding no liberty interest in canteen, telephone, or visitation privileges); Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (quoting Wilson, 501 U.S. at 298) (noting that the Constitution does not mandate comfortable prisons, and only deprivations which deny the minimal civilized measure of life's necessities are sufficiently grave to provide the basis of a § 1983 claim); Thompson v. Brown, C/A No. 3:11-cv-318-TMC-JRM, 2011 WL 6012592, at *1-2 (D.S.C. Nov. 8, 2011) (rejecting conditions of confinement claim where the plaintiff claimed “his mattress and blanket were confiscated for six days, he was not allowed to have any toilet tissue for six days, his clothes were taken away from him for six days, his cell was cold, he had no running water in his cell, and he was forced to sleep on a steel cot for six days”), Report and Recommendation adopted by 2011 WL 6012550 (D.S.C. Dec. 2, 2011). Further, the plaintiff's telephone access claims are subject to dismissal because the First Amendment does not establish a per se right to telephone use by a prisoner. See United States v. Alkire, C/A No. 95-7885, 1996 WL 166400, at *1 (4th Cir. 1996) (unpublished) (finding “there is no constitutional or federal statutory right to use of a telephone while in prison.”); see also Thomas v. Drew, 365 Fed.Appx. 485, 488 (4th Cir. 2010) (unpublished per curiam opinion) (finding no constitutional violation when inmate challenged “‘de facto' ban” on telephone privileges). Moreover, there is no federal constitutional right to be free from emotional distress, mental anguish, or psychological stress. See Williams v. Pruitt, C/A No. 8:13-cv-01812-JMC, 2013 WL 4500436, at *2 n.2 (D.S.C. Aug. 19, 2013) (citing Grandstaff v. City of Borger, Tex., 767 F.2d 161 (5th Cir. 1985), cert denied, 480 U.S. 916 (1987); Rodriguez v. Comas, 888 F.2d 899, 903 (1st Cir. 1989)). Additionally, to the extent the plaintiff alleges violations of his rights based on being called a snitch and being told to die, “[m]ere threats or verbal abuse by prison officials, without more, do not state a cognizable claim under § 1983”. Henslee v. Lewis, 153 Fed.Appx. 178, 180 (4th Cir. 2005) (citing Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979)); Morrison v. Martin, 755 F.Supp. 683, 687 (E.C. N.C. 1990), aff'd917 F.2d 1302 (4th Cir. 1990) (noting that “[w]ords by themselves do not state a constitutional claim, without regard to their nature” (internal citation omitted)). The plaintiff is also not constitutionally entitled to access to the grievance process. See Taylor v. Lang, 483 Fed.Appx. 855, 858 (4th Cir. 2012) (unpublished per curiam opinion) (recognizing that an inmate's access to and participation in a prison's grievance process is not constitutionally protected) (citing Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994)).
With respect to the plaintiff's allegations that he has been exposed to fires set by other inmates - assuming, arguendo, that being exposed to the fires constitutes the deprivation of a basic human need, the plaintiff's vague and conclusory allegations do not allege how the individual defendants were deliberately indifferent to the deprivation (see doc. 2). Indeed, the plaintiff's allegations appear to suggest that SCDC employees responded to the fires once they realized there were fires and put them out (id.). Thus, the plaintiff's conditions of confinement claims are subject to summary dismissal.
Food Claim
The plaintiff's food claim - that Ms. Barber sends him a food tray with tomatoes on it even though he can't eat them, which forces him to buy sugary foods from other inmates that have rotted his teeth - is also subject to summary dismissal. The Supreme Court has found that the Eighth Amendment imposes a duty on prison officials to provide inmates with “adequate food.” Farmer, 511 U.S. at 832. However, as recognized by the Fourth Circuit, only “an ‘extreme deprivation' is actionable under the Eighth Amendment.” Scinto v. Stansberry, 841 F.3d 219, 234 (4th Cir. 2016) (internal citations omitted). Here, the plaintiff has not plausibly alleged that there was no combination of foods in each meal that would have provided him with adequate sustenance without adverse medical consequences. Moreover, Ms. Barber is not responsible for the plaintiff's choice to buy sugary foods from other inmates or the canteen that have had an adverse impact on his dental health. In light of the foregoing, the plaintiff's food claim is subject to summary dismissal.
Property Claim
The plaintiff's claim that his rights were violated when his cell was searched and his property destroyed in November 2021, are also subject to dismissal. The United States Supreme Court has explicitly recognized that deprivations of an inmate's personal property do not rise to the level of a constitutional violation so long as there are postdeprivation remedies. See Daniels v. Williams, 474 U.S. 327 (1986); Mora v. City of Gaithersburg, 519 F.3d 216, 230-31 (4th Cir. 2008) (holding that deprivations of personal property by corrections officials are not constitutional violations so long as there are postdeprivation remedies). South Carolina has such remedial procedures in place. See S.C. Code Ann. § 15-78-10 et seq. As such, the plaintiff cannot pursue his property claim in this court.
Custody Review
The plaintiff's claim that his rights have been violated because his custody status has not changed and a review has not been completed this year is subject to dismissal because prisoners generally do not have a constitutionally recognized liberty interest in a particular security classification or prison placement. Hewitt, 459 U.S. at 468 (finding no constitutional right under the due process clause to a particular security classification or prison placement). As such, the plaintiff cannot seek damages based upon his custody classification or missed annual reviews in this action.
Interference with Mail Claims
The plaintiff also alleges that his Constitutional rights have been violated because Ms. Meggitt and Ms. Williams have denied him access to the mail - including that Ms. Meggitt will not provide unlimited copies or let him personally deliver his mail to the mailroom (see doc. 2 at 18-20). The plaintiff alleges that the interference with his mail prevented him from filing suit against Geico before the statute of limitations expired (id. at 24). Inmates enjoy a First Amendment right to send and receive mail. Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). As such, interference with an inmate's mail may state a cognizable claim under § 1983. Id.; see Corey v. Reich, C/A No. 0:02-2801-12, 2004 WL 3090234, at *10 (D.S.C. Mar. 9, 2004) (internal citation omitted). Nevertheless, the Supreme Court has recognized that prisoners only retain First Amendment rights not “inconsistent with [their] status as . . . prisoners] or with the legitimate penological objectives of the corrections system.” Hudson v. Palmer, 468 U.S. 517, 523 (1984) (internal citation omitted) (alteration in original).
Here, the plaintiff's claim fails because he was not denied access to the mail - he was just prevented from personally submitting his mail to the mailroom or from obtaining unlimited copies (see doc. 2). Moreover, an occasional, negligent delay or interference with personal (or legal) mail, without more, does not impose a deprivation of Constitutional proportions. See Pink v. Lester, 52 F.3d 73, 75 (4th Cir. 1995); Pearson v. Simms, 345 F.Supp.2d 515, 519 (D. Md. 2003), aff'd 88 Fed.Appx. 639 (4th Cir. 2004).
The plaintiff cannot save his interference with mail claim by alleging that the mail interference denied him access to the courts because he was prevented from filing a claim against Geico before the statute of limitations. A claim for denial of access to the courts must be pled with specificity. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996). Further, in order to state a constitutional claim for denial of access to the courts, a prisoner must show actual injury. Id.; see Lewis v. Casey, 518 U.S. 343, 349 (1996). The actual injury requirement can be satisfied by demonstrating that a non-frivolous legal claim was frustrated or impeded by some actual deprivation of access to the court. Lewis, 518 U.S. at 352-53. Here, the plaintiff's conclusory allegation that the mail interference prevented him from filing suit against Geico, even liberally construed, fails to “demonstrate” actual injury or state a claim for relief. For example, the plaintiff's complaint contains no allegations to support that he had a non-frivolous claim against Geico. Moreover, the plaintiff's filings in this court- although the plaintiff has missed deadlines in this matter - and in the South Carolina State Court during the relevant period belie the plaintiff's claim that he lacks access to the court. See Glenn v. Ruffin, et al., C/A No. 6:22-cv-01320-DCC-KFM (D.S.C.); Glenn v. Jackson, et al., C/A No. 6:18-cv-03179-DCC (D.S.C.); see also Lexington County Public Index, https://publicindex.sccourts.org/Lexington/PublicIndex/PISearch.aspx (enter the plaintiff's name and 2016-CP-32-02577) (last visited September 7, 2022); Glenn v. State of S.C., C/A No. 2020-001032 (S.C. Ct. App.). As such, the plaintiff's claim regarding mail interference and denial of access to the courts is subject to summary dismissal.
Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of matters of public record.”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘[t]he most frequent use of judicial notice . . . is in noticing the content of court records.'”).
Deliberate Indifference to Medical Needs Claim
Liberally construed, the plaintiff claims that the defendants have denied him medical treatment (doc. 2). Not “every claim by a prisoner [alleging] that he has not received adequate medical treatment states a violation of the [Constitution].” Estelle v. Gamble, 429 U.S. 97, 105 (1976). The government is required to provide medical care for incarcerated individuals. Id. at 103. However, to establish deliberate indifference, the treatment “must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851-52 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837 (1994).
In order to state a claim, a plaintiff must show a serious medical need as well as that the defendant “knowingly disregarded that need and the substantial risk it posed.” DePaola v. Clarke, 884 F.3d 481,486 (4th Cir. 2018) (citing King v. Rubenstein, 825 F.3d 206, 218-20 (4th Cir. 2016); Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209-11 (4th Cir. 2017)). A “serious medical need” is a condition “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.” Heyer, 849 F.3d at 210 (citation omitted). “Deliberate indifference may be demonstrated by either actual intent or reckless disregard. A defendant acts recklessly by disregarding a substantial risk of danger that is either known to the defendant or which would be apparent to a reasonable person in the defendant's position.” Miltier, 896 F.2d at 851-52 (citation omitted). “It is only such indifference that can offend ‘evolving standards of decency' in violation of the Eighth Amendment.” Estelle, 429 U.S. at 106. Mere negligence or malpractice does not violate the Eighth Amendment. Id. Moreover, disagreements between an inmate and a physician over the inmate's proper medical care do not state a Section 1983 claim unless exceptional circumstances are alleged. Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985).
Here, the plaintiff has failed to state a claim for deliberate indifference to medical needs. First, his vague and conclusory allegations that he asked for unspecified medical care, had to buy an inhaler from another inmate for his asthma, and that he was not provided medical care when he contracted COVID-19, fail to plausibly allege actions by the defendants in denying treatment required for a serious medical need. The plaintiff has not alleged that he experienced severe symptoms that required medical treatment or an inhaler during the relevant period or when he suffered from COVID-19 (see doc. 2). Further, the plaintiff was provided medical treatment and medication for his high blood pressure, but he preferred trying diet and exercise instead of medicine (doc. 2 at 10, 13, 15, 18). As such, it appears that the plaintiff preferred different “treatment” than received, but the plaintiff is not constitutionally entitled to the treatment of his choice. See Sharpe v. S.C. Dep't of Corrs., 621 Fed.Appx. 732, 733 (4th Cir. 2015) (unpublished per curiam opinion) (noting that “mere disagreement between an inmate and medical staff regarding the proper course of treatment provides no basis for relief” under § 1983 (citing Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975))). As such, the plaintiff's medical indifference claim also fails to state a claim for relief and should be dismissed.
Retaliation Claim
To the extent the plaintiff alleges that the defendants have retaliated against him for requesting to speak to a supervisor, the plaintiff's claim is subject to summary dismissal as presented. Where a plaintiff alleges that an act was taken in response to the exercise of a constitutionally protected right, the plaintiff must allege that (1) he engaged in “protected First Amendment activity, (2) [the defendant] took some action that adversely affected [his] First Amendment rights, and (3) there was a causal relationship between [his] protected activity and [the defendant's] conduct.” Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)). Because conduct that “tends to chill the exercise of constitutional rights might not itself deprive such rights,” a plaintiff can plausibly allege a retaliation claim without alleging an actual deprivation of his First Amendment rights. Constantine, 411 F.3d at 500. With respect to causation, a plaintiff must plausibly allege knowledge by the defendant of a plaintiff's protected activity as well as that the retaliation took place within some “temporal proximity” of that activity. Id. at 501; see Germain v. Bishop, C/A No. TDC-15-1421, 2018 WL 1453336, at *14 (D. Md. Mar. 23, 2018). A prisoner must present more than conclusory accusations of retaliation, and must provide facts that show the exercise of his constitutional right was a substantial factor motivating the retaliation. See e.g., Adams, 40 F.3d at 74-75; Cochran v. Morris, 73 F.3d 1310, 1318 (4th Cir. 1996).
Here, it is unclear what protected activity the plaintiff alleges he engaged in. Indeed, the plaintiff's request to speak to a supervisor, absent more, may not qualify as protected activity. However, even if requesting a supervisor were protected activity, the plaintiff has not plausibly alleged the other elements necessary to bring a retaliation claim. For example, the plaintiff alleges that in retaliation for requesting a supervisor showers were closed for his dorm and he was denied recreation and telephone use (doc. 2 at 7, 11-12, 17). However, the plaintiff's vague, conclusory allegations regarding causation fail to show that the exercise of his constitutional rights was a substantial factor motivating the purported retaliation. As such, the plaintiff's retaliation claim is also subject to dismissal.
Rule 41
In addition to the foregoing, the plaintiff's complaint is also subject to dismissal pursuant to Rule 41 of the Federal Rules of Civil Procedure. It is well established that a court has the authority to dismiss a case pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (emphasis added). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed.R.Civ.P. 41(b). Id. at 630. In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978).
Here, the factors weigh in favor of dismissal. With respect to factors (1) and (3), the plaintiff is proceeding pro se, so he is responsible for his failure to respond to court orders and has missed several deadlines or submitted tardy filings. The plaintiff has been warned on several occasions that failure to keep his address updated with the Court or to comply with orders of this court may result in dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure (docs. 8 at 1; 10 at 1; 20 at 2; 30 at 15-16). Per the South Carolina Department of Corrections (“SCDC”) Incarcerated Inmate Search, the plaintiff has not been transferred from Broad River. See South Carolina Department of Corrections Incarcerated Inmate Search, https://public.doc.state.sc.us/scdc-public/ (enter the plaintiff's first and last name) (last visited September 7, 2022). As such, it appears that the plaintiff has not been transferred by SCDC authorities to another facility - meaning that the circumstances in Gibbs v. S.C. Dep't of Corrs. do not apply here. See Gibbs v. S.C. Dep't of Corrs., C/A No. 20-7510, 2022 WL 1467707 (4th Cir. 2022) (unpublished) (finding that the Rule 41 factors favored the plaintiff where he was “not personally responsible for his transfer to a different prison” that caused him not to receive the court's order). Accordingly, as the plaintiff has failed to comply with this court's July 27, 2022, order, the undersigned recommends that the instant action be dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to comply with an order of the court.
RECOMMENDATION
By order issued July 27, 2022, the undersigned provided the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to timely file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment (doc. 30). The plaintiff failed to file an amended complaint within the time provided and a prior order of this Court has been returned as undeliverable mail. As such, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, in light of the plaintiff's failure to respond to this court's order regarding amendment, the undersigned recommends that the district court dismiss this action without prejudice, without further leave to amend, and without issuance and service of process. See Britt v. DeJoy, C/A No. 20-1620 (4th Cir. Aug. 17, 2022) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). The attention of the parties is directed to the important notice on the following page.
IT IS SO RECOMMENDED.
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 committees 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 250 East North Street, Room 2300 Greenville, South Carolina 29601
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).