Opinion
C. A. 1:22-1663-TMC-SVH
11-15-2024
Theodore Roosevelt Harmon, # 57859-60, Plaintiff, v. Warden R.S. Dunbar, Associate Warden M.A. Delafoisse, AHSA Capt. Brown, Clinical Director S. Hoye, NP L. Cdr. Davis, Doctor R. Dominici, and HSA Nolte Defendants.
REPORT AND RECOMMENDATION
SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE
Theodore Roosevelt Harmon (“Plaintiff”), proceeding pro se and in forma pauperis, filed this amended complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against Warden R.S. Dunbar (“Warden Dunbar”), Associate Warden M.A. Delafoisse (“Associate Warden Delafoisse”), Assistant Health Services Administrator Captain Brown (“AHSA Brown”), Clinical Director S. Hoye (“CD Hoye”), Nurse Practitioner Commander Davis (“NP Davis”), Doctor R. Dominici (“Dr. Dominici”), and Health Services Administrator Nolte (“HSA Nolte”) (collectively “Defendants”). [ECF No. 10]. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends the district judge dismiss the amended complaint with prejudice.
I. Factual and Procedural Background
Plaintiff is a federal prisoner incarcerated at Federal Correctional Institution Williamsburg (“FCI Williamsburg”) in Salters, South Carolina. [ECF No. 10 at 2]. On March 22, 2022, Plaintiff filed a petition seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. Harmon v. Dunbar, et al., C/A No. 1:22-962-TMC, ECF No. 1. On May 26, 2022, the court issued an order dismissing the § 2241 action and ordering a proposed amended complaint for a Bivens action be filed as the initial docket entry in a newly-created case. Id. at ECF No. 15. After reviewing the complaint in the newly-created case, the undersigned issued an order and notice on June 13, 2022, in light of Goode v. Cent. Va. Legal Aid Soc'y, 807 F.3d 619, 623 (4th Cir. 2015), and its progeny, advising Plaintiff of deficiencies in his complaint and permitting him until July 5, 2022, to file an amended complaint. [ECF No. 8]. Plaintiff filed an amended complaint on June 30, 2022. [ECF No. 10].
In his amended complaint, Plaintiff alleges that on or about September 7, 2021, a pipe chase in or near his cell filled with water and caused his cell to flood. Id. at 4. He claims he had to vacuum the water from his cell using a wet vacuum. Id. He asserts he was injured when he lifted the wet vacuum to drain the water and felt his back pop. Id. He states he notified “the officer” immediately. Id. Plaintiff maintains he has experienced severe lower back pain and numbness in his lower extremities and has required the use of a walker to ambulate since the injury. Id. He admits he has received two steroid injections, pills, lidocaine patches, and a walker from the medical department, but has not been “evaluated by a neurospecialist,” as he has requested. Id. at 4, 9.
Plaintiff seeks $1,000,000 in punitive damages against each defendant, $1,000,000 in compensatory damages against each defendant, and $1.00 in nominal damages collectively. Id. at 5. He asserts he has filed grievances and has exhausted his administrative remedies. Id. at 7, 9.
II. Discussion
A. Standard of Review
Plaintiff filed his complaint pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
1. Insufficient Allegations as to Individual Defendants
Plaintiff generally alleges Defendants violated his Eighth Amendment rights, claiming they were deliberately indifferent to his serious medical needs by failing to provide appropriate treatment. [ECF No. 10 at 3, 6, 7, 9]. “Because vicarious liability is inapplicable to Bivens . . . suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Plaintiff's amended complaint contains no specific factual allegations against any of the individual defendants. Therefore, he has not made sufficient allegations to support any claim against any named defendant.
2. Allegations Fail to Support an Eighth Amendment Violation
Plaintiff has also failed to allege sufficient facts to support a claim for violation of the Eighth Amendment. To establish an Eighth Amendment violation, Plaintiff must show Defendants exhibited “deliberate indifference” to his “serious medical needs.” Farmer v. Brennan, 511 U.S. 825, 835 (1970). In Scinto v. Stansberry, 841 F.3d 219, 225-26 (4th Cir. 2016), the court explained:
First, Farmers “objective” prong requires plaintiffs to demonstrate that “the deprivation alleged [was], objectively, ‘sufficiently serious.'” Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (quoting Wilson v. Setter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). To be “sufficiently serious,” the deprivation must be “extreme”-meaning that it poses “a serious or significant physical or emotional injury resulting from the challenged conditions,” or “a substantial risk of such serious harm resulting from . . . exposure to the challenged conditions.” DeLonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (internal quotation marks and citation omitted). In medical needs cases, like the case at bar, the Farmer test requires plaintiffs to demonstrate officials' deliberate indifference to a “serious” medical need that has either “been 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.” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008).
Second, under Farmers “subjective” prong, plaintiffs must show that prison officials acted with a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (internal quotation marks omitted) (quoting Wilson, 501 U.S. at 297, 111 S.Ct. 2321). In conditions of confinement cases, the requisite state of mind is deliberate indifference. Id. To prove deliberate indifference,
plaintiffs must show that “the official kn[ew] of and disregarded] an excessive risk to inmate health or safety.” Id. at 837, 114 S.Ct. 1970. Put differently, the plaintiff must show that the official was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and ... dr[ew] th[at] inference.” Id. (emphasis added). Deliberate indifference is “more than mere negligence,” but “less than acts or omissions [done] for the very purpose of causing harm or with knowledge that harm will result.” Id. at 835, 114 S.Ct. 1970. It “lies somewhere between negligence and purpose or knowledge: namely, recklessness of the subjective type used in criminal law.” Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995) (citing Farmer, 511 U.S. at 835, 114 S.Ct. 1970). Under this standard, mere “[disagreements between an inmate and a physician over the inmate's proper medical care” are not actionable absent exceptional circumstances. Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (citing Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970)).
Plaintiff admits he has received treatment for his back injury and related pain in the form of medications, steroid injections, lidocaine patches, and a walker, ECF No. 10 at 4, 9, and appears to base this action on a disagreement with medical staff over the exact treatment he should be receiving. Despite the court's identification of deficiencies in pleading an Eighth Amendment violation in the original complaint and its provision of an opportunity to cure it, Plaintiff's amended complaint neither alleges a sufficiently serious deprivation nor that any of the defendants had the requisite state of mind of deliberate indifference. Thus, Plaintiff has failed to support his claim for violation of the Eighth Amendment.
3. No Supervisory Liability
Plaintiff has also failed to allege facts that would implicate the liability of non-medical, supervisory personnel. Although Plaintiff claims he has filed grievances at FCI Williamsburg, “[r]eceipt of or response to a grievance is not sufficient personal involvement in the grieved circumstances to impose . . . liability on a supervisory official.” Washington v. Federal Bureau of Prisons, C/A No. 5:16-3913, BHH-KDW, 2019 WL 2125246, at *12 (D.S.C. Jan. 3, 2019) (citing Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985); Green v. Beck, 539 Fed.Appx. 78, 80 (4th Cir. 2013); Miles v. Aramark Corr. Serv., 236 F. App'x. 746, 751 (3d Cir. 2007); Rogers v. United States, 696 F.Supp.2d 472, 488 (W.D. Pa. 2010)), adopted by 2019 WL 1349516 (Mar. 26, 2019). To establish a claim for deliberate indifference to a serious medical need against non-medical supervisory prison personnel, Plaintiff must prove: (1) the supervisory defendants failed promptly to provide the inmate with needed medical care; (2) the supervisory defendants deliberately interfered with the prison medical providers' performance; or (3) the supervisory defendants tacitly authorized or were indifferent to the prison medical providers' constitutional violations. Cunningham v. S. Health Partners, C/A No. 6:18-1381-JMC-KFM, 2019 WL 1748610, at *3 (D.S.C. Mar. 19, 2019) (citing Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990)), adopted by 2019 WL 1746628 (Apr. 17, 2019). Because Plaintiff's amended complaint lacks specific allegations as to any defendant and because he has not cited facts to support one of the three elements required for non-medical, supervisory personnel to be liable for deliberate indifference to a serious medical need, his amended complaint is insufficient.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge dismiss the amended complaint with prejudice.
In Bing v. Brivo Systems, LLC, 959 F.3d 605, 610 (4th Cir. 2020), the court noted that dismissal “without prejudice . . . raise[d] questions about the finality of the dismissal order.” It noted “[d]ismissals without prejudice naturally leave open the possibility of further litigation in some form.” Id. (quoting Go Computer, Inc. v. Microsoft Corp., 508 F.3d 170, 176 (4th Cir. 2017)). Plaintiff has failed to cure the defects in his complaint, despite the court's prior warning. The undersigned recommends dismissal with prejudice in order that the court's order may be interpreted as final.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).