Opinion
Civil Action 2:23-00318-BHH-MGB
03-07-2023
Davanta T. Johnson, Plaintiff, v. Bryan Stirling, Mr. Charles Williams, John Palmer, Amy Enloe, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Davanta T. Johnson (“Plaintiff”), appearing pro se, originally filed this action in the Greenville County Court of Common Pleas, alleging state law claims and violations of his constitutional rights. (Dkt. No. 1-1.) On January 23, 2023, Defendants removed the action to Federal Court. (Dkt. No. 1.) This matter is now before the Court upon Defendants' Motion to Dismiss (Dkt. No. 6). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the undersigned recommends granting the Motion to Dismiss based on Plaintiff's failure to exhaust his administrative remedies. In the alternative, the undersigned recommends granting in part and denying in part the Motion to Dismiss, based on Plaintiff's failure to sufficiently allege certain claims.
BACKGROUND
This civil action arises from events that occurred while Plaintiff was an inmate housed at Perry Correctional Institution. (Dkt. No. 1-1.) Plaintiff alleges that shortly after he arrived at Perry, he moved to D-Dorm on May 21, 2022. According to Plaintiff, he observed that “the desk/sitting/writing area was stripped out the room as well as [the] bed frames and the bed frame was replaced with a 5-inch concrete slab.” (Id. at 7.) Additionally, “the room window was completely covered over by sheet metal and that said sheet metal completely prevented Plaintiff from viewing any of the natural surroundings,” including the sun and sky. (Id.) Plaintiff alleges that he was moved to a different room in the D-Dorm on June 5, 2022, and his new room was in the same condition. (Id. at 8.) The documents attached to the Complaint indicate that the rooms in which Plaintiff was housed were in the Restrictive Housing Unit. (Id. at 13, 15.)
Plaintiff alleges he “sought to address the decor requirements with staff by sending a request to both [Defendants] Warden Charles Williams and Deputy Warden John Palmer.” (Id.) He has attached to the Complaint request to staff member forms directed to these Defendants. (Id. at 13-16, 20.) In the Complaint, Plaintiff alleges his requests to Defendant Williams “noted that the room decor was not within ACA/CAC state or federal mandates or standards.” (Id.) He also “noted that the 5-inch concrete slab that replaced the bed frame was so low to the ground that it caused the Plaintiff to sit in the ‘V' position,” causing Plaintiff severe lower back pain. (Id.) Plaintiff alleges that in his requests to Defendant Palmer, Plaintiff “noted that the roomlights go out at 11:30PM at night and come back on at 4:00AM.” (Id.)
Plaintiff also alleges he sought help from Defendant “Nurse Practitioner Amy Enloe, appraising her of the circumstances and conditions of Plaintiff's severe pain and suffering.” (Id. at 10.) In a request to staff member directed to Defendant Enloe and dated August 18, 2022, Plaintiff noted that he was “still having back problem due to the 5-inch concrete slab.” (Id. at 18.) Plaintiff stated that while “sick care provided [him] with Ibuprofen, he was “still having [a] back problem.” (Id.) The request form includes a response from “K. Burgess, RN” stating “sign up for sick call.” (Id.)
The Complaint alleges Defendants were grossly negligent under South Carolina law and that Defendants violated Plaintiff's Eighth Amendment rights by showing deliberate indifference to a prison condition and deliberate indifference to a serious medical need. (Id. at 9-10.) He asks for a “preliminary and permanent injunction ordering Defendants” Stirling, Palmer, and William to cease the above-complained of conditions and also to “cease denying inmates a means or method to see as well as hear the TVs provided.” (Id. at 11.) Plaintiff asks for compensatory and punitive damages. (Id.)
On January 30, 2023, Defendants filed a Motion to Dismiss. (Dkt. No. 6.) On January 31, 2023, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 7.) Plaintiff filed a response in opposition to the Motion to Dismiss on February 10, 2023, and Defendants filed a reply on February 17, 2023. (Dkt. Nos. 9; 11.) The Motion has been fully briefed and is ripe for review.
STANDARDS
A. Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
B. Rule 12(b)(6) Dismissal Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d).
DISCUSSION
Defendants argue for dismissal of this action because: (1) Plaintiff failed to exhaust his administrative remedies; (2) Plaintiff's Complaint fails to state a claim upon which relief can be granted under § 1983; (3) Plaintiff fails to state a claim for declaratory relief and injunctive relief; and (4) Defendants are immune from Plaintiff's state law claims under the South Carolina Tort Claims Act (“SCTCA”). (Dkt. No. 6-1.)
A. Exhaustion
Defendants first argue that Plaintiff failed to exhaust his administrative remedies and his claims should therefore be dismissed. (Dkt. No. 6-1 at 4-7.) Section 1997e(a) of the Prison Litigation Reform Act (“PLRA”) 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). Through the enactment of this statute, “Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741 (2001); see also Porter v. Nussle, 534 U.S. 516 (2002).
The purpose of the exhaustion requirement is twofold. First, it gives an administrative agency “an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court.” Woodford v. Ngo, 548 U.S. 81, 89 (2006) (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). Second, “[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court.” Id. Exhaustion is defined by each prison's grievance procedure, not the PLRA; a prisoner must comply with his prison's grievance procedure to exhaust his administrative remedies. Jones v. Bock, 549 U.S. 199, 218 (2007).
A plaintiff is not required to show he satisfied the PLRA in his complaint. Wilcox v. Brown, 877 F.3d 161, 167 (4th Cir. 2017) (citation omitted). Failure to exhaust under the PLRA is an affirmative defense, and “a district court, at the pleadings stage, may not dismiss a claim based on the plaintiff's failure to affirmatively show exhaustion, even when the court has first allowed the plaintiff to address the issue.” Id. (citing Custis v. Davis, 851 F.3d 358, 361-62 (4th Cir. 2017)). “Nevertheless, despite the fact that failure-to-exhaust is an affirmative defense, a prisoner's complaint may be dismissed for non-exhaustion in the rare case where failure to exhaust is apparent from the face of the complaint.” Id. (citation and quotation omitted).
The SCDC grievance procedure is outlined in SCDC Policy GA-01.12. This court may take judicial notice of this policy. Al-Haqq v. Bryant, No. 2:14-cv-0008-TMC-MGB, 2016 WL 769121, at *2 (D.S.C. Feb. 8, 2016) (citing Malik v. Ward, No. 9:08-cv-01886, 2010 WL 936777, at *2 n.4 (D.S.C. Mar. 16, 2010)). The policy provides in relevant part:
13.2 Inmates must make an effort to informally resolve a grievance by submitting a Request to Staff Member Form to the appropriate supervisor/staff within eight (8) working days of the incident. However, in certain cases, informal resolution may not be appropriate or possible (e.g., when the matter involves allegations of criminal activity). If an informal resolution is not possible, the grievant will complete Form 10-5, Step 1, which is located in common areas . . . and will place the form in a designated grievance box within five (5) working days of the alleged incident.... An Inmate will submit a grievance within the time frames established in the policy. . . . The grievance form must contain information about how, with whom, and when attempts were made to resolve the problem informally within eight (8) working days of the appropriate supervisor's signature date on the SCDC Form 19-11, “Inmate Request to Staff Member” (RTSM)....
13.3 . . . If the [Inmate Grievance Coordinator (“IGC”)] determines the grievance will not be processed, the IGC will note this on the SCDC Form 10-5, Step 1, under “Action Taken by the IGC,” maintain the original for the inmate grievance file, enter “non-grievable” into the automated system, and mail a copy of the SCDC Form 10-5, Step 1, to the inmate in a sealed envelope. Unprocessed grievances may only be appealed by utilizing SCDC Form 19-11, [RTSM], to the Branch Chief within ten (10) days of the grievance being returned to the inmate....GA-01.12 §§ 13.2-3 (available at https://www.doc.sc.gov/policy/GA-01-12.htm.pdf).
In support of their Motion to Dismiss, Defendants have submitted an affidavit from Felicia McKie, Agency Inmate Grievance Coordinator/Branch Chief of the Inmate Grievances Branch of the SCDC Office of General Council, who attests that she has searched SCDC's records “for information relating to grievances submitted by” Plaintiff during his period of incarceration at Perry, that Plaintiff submitted three SCDC Form 10-5s (Step 1 Grievance forms), and that only two of these grievances pertain to Plaintiff's conditions of confinement. (Dkt. No. 6-2 at 1-2.) McKie has attached a copy of these two grievances to her Affidavit as an Exhibit. McKie further attests that Plaintiff did not file a Step 2 grievance or otherwise appeal those Step 1 grievances. (Id. at 2.)
In his response brief, Plaintiff does not acknowledge Defendants' exhaustion argument or otherwise mention this issue. (Dkt. No. 9.) As discussed above, the Complaint references numerous requests to staff member forms and alleges that Plaintiffs' “Step 1 Step 2 [sic] grievance was returned acknowledging that” the 5-inch concrete that replaced the bed frame was causing Plaintiff “pain and suffering.” (Dkt. No. 1-1 at 8.) The Complaint does not otherwise mention any grievances or otherwise reference the administrative grievance process. Plaintiff has attached to the Complaint several request to staff member forms as well as one of the Step 1 grievances also included with Defendants' Motion. (Id. at 17; Dkt. No. 6-5 at 2.)
Here, the undersigned notes that courts in this district have considered similar exhaustion evidence on a motion to dismiss without converting it to a motion for summary judgment. The undersigned finds it appropriate to consider the exhaustion evidence here, where the Complaint discusses the filing of grievances and attaches a grievance, and where Plaintiff has not disputed Defendants' account of his grievance history. See York v. Scott, No. 1:20-cv-718-RMG-SVH, 2020 WL 8455048, at *4 (D.S.C. July 30, 2020) (considering similar exhaustion evidence on a Rule 12(b)(6) motion to dismiss and recommending dismissal based on plaintiff's failure to exhaust his administrative remedies), adopted by, 2021 WL 210851 (D.S.C. Jan. 21, 2021); Dyke v. McCree, No. 6:19-cv-1521-TMC-KFM, 2019 WL 6703910, at *4 (D.S.C. Oct. 29, 2019) (considering similar exhaustion evidence on a Rule 12(b)(6) motion to dismiss and recommending “the moving defendants are entitled to dismissal from the case based upon the plaintiff's failure to exhaust his administrative remedies”), adopted by, 2019 WL 6700240 (D.S.C. Dec. 9, 2019); Strickland v. Creel, No. 9:18-cv-0819-BHH-BM, 2019 WL 2028773, at *2 n.4 (D.S.C. Feb. 19, 2019) (“Although this is a Motion to Dismiss, the undersigned can consider this [exhaustion] evidence in issuing this Report and Recommendation.”) (collecting cases), adopted by, 2019 WL 2026843 (D.S.C. May 8, 2019); see also Custis, 851 F.3d at 362 (“Thus, Moore narrowly addresses-and correctly upholds-courts' ability to dismiss complaints for failure to exhaust administrative remedies when the defendants raise the issue as an affirmative defense and the inmate has had an opportunity to respond to the affirmative defense.”)
The record shows that Plaintiff did not appeal his returned Step 1 grievances, and Plaintiff offers no explanation for this failure. (Dkt. Nos. 1-1 at 17; 6-4; 6-5.) Plaintiff has demonstrated through his filings that he is able to file request to staff member forms and Step 1 grievance forms, and he has not shown that SCDC played any role in his failure to complete the administrative appeals process. For these reasons, the undersigned recommends that this action should be dismissed based upon Plaintiff's failure to exhaust his administrative remedies. In an abundance of caution, should the District Judge disagree with this recommendation, the undersigned considers Defendants' remaining arguments for dismissal.
B. § 1983 Claims
The Complaint alleges claims against Defendants under § 1983 for deliberate indifference to Plaintiff's conditions of confinement and for deliberate indifference to Plaintiff's serious medical needs. (Dkt. No. 1-1.)
In Estelle v. Gamble, the Supreme Court held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment.” 429 U.S. 97, 104 (1976). To prevail on an Eighth Amendment deliberate indifference claim, “a prisoner must 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.” Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998) (internal quotation marks and citations omitted). The first element “is satisfied by a serious medical condition,” while the second element “is satisfied by showing deliberate indifference by prison officials.” Id. Similarly, to state a claim that conditions of confinement violate constitutional requirements, “a plaintiff must show both ‘(1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.'” Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (quoting Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991)).
The subjective prong of a deliberate indifference claim requires the plaintiff to allege facts that indicate a particular defendant actually knew of and disregarded a substantial risk of serious harm to his or her person. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Scinto v. Stansberry, 841 F.3d 219, 226 (4th Cir. 2016) (the plaintiff must show “the official's actual subjective knowledge of both the inmate's serious medical condition and the excessive risk posed by [the official's] action or inaction”) (internal quotation marks and citation omitted). “A plaintiff can meet the subjective knowledge requirement through direct evidence of a prison official's actual knowledge or circumstantial evidence tending to establish such knowledge, including evidence that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Scinto, 841 F.3d at 226 (internal citations and quotations omitted). A prison official's “failure to respond to an inmate's known medical needs raises an inference of deliberate indifference to those needs.” Id. (internal quotations and alterations omitted).
To recover under § 1983, one thing a plaintiff must show is that the defendants were personally involved in the deprivation of his federal rights. Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977); see also Rizzo v. Goode, 423 U.S. 362, 371-72 (1976) (a § 1983 plaintiff must show that he suffered a specific injury as a result of specific conduct of a defendant, as well as an affirmative link between the injury and that conduct). That is because § 1983 does not create vicarious liability for supervisors based on their subordinates' conduct. Ashcroftv. Iqbal, 556 U.S. 662, 676 (2009).
1. Conditions of Confinement
The majority of Plaintiff's claims contest his conditions of confinement. Namely, Plaintiff alleges that since his arrival at Perry, he has been subject to the following conditions: no “desk/sitting/writing area,” a five-inch concrete slab for a bed, a cell window completely covered by a metal plate that blocks a view of “the natural surroundings,” bright lights that are left on for 20 hours a day, and no TV that Plaintiff is able to hear. (Dkt. No. 1-1 at 7-11.) The South Carolina Department of Corrections (“SCDC”) Inmate Locator website shows that Plaintiff was transferred to Perry on May 13, 2022, briefly moved to Broad River Correctional Institution on July 18, 2022, and moved back to Perry on August 3, 2022, where he remains housed. See SCDC, Inmate Search Detail Report: Davanta Johnson, https://public.doc.state.sc.us/scdc-public/ (last visited March 2, 2022). Plaintiff filed this action on January 23, 2023. Thus, according to the Complaint, these conditions have lasted approximately eight months. (Dkt. No. 1-1 at 11, 14.)
A federal court may take judicial notice of factual information located in postings on governmental websites in the United States. United States v. Garcia, 855 F.3d 615, 621 (4th Cir. 2017) (“This court and numerous others routinely take judicial notice of information contained on state and federal government websites.”); Mitchell v. Newsom, No. 3:11-cv-0869-CMC-PJG, 2011 WL 2162723, at *3 n.1 (D.S.C. May 10, 2011) (collecting cases), adopted by, 2011 WL 2162184 (D.S.C. June 1, 2011).
Upon careful review, the undersigned finds that Plaintiff's allegations against Defendants largely fall short of actionable Eighth Amendment claims. It is well settled that the majority of Plaintiff's allegations-no “desk/sitting/writing area,” a cell window completely covered by a metal plate that blocks a view of “the natural surroundings,” bright lights that are left on for 20 hours a day, and no TV that Plaintiff is able to hear-do not establish an Eighth Amendment violation. See, e.g., 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); Banner v. Anderson, No. 6:21-cv-03738-JD-KFM, 2022 WL 2068866, at *4 (D.S.C. Feb. 15, 2022) (“(Plaintiffs allegations - that his cell window isn't to the outside so he can see the sun . . . fail to rise to the level of a constitutional violation”) adopted by, 2022 WL 1537320 (D.S.C. May 16, 2022); McCoy v. Budz, No. 8:19-cv-01421-TLW-JDA, 2019 WL 8807862, at *4 (D.S.C. June 28, 2019) (claim that “lights are kept on in the rooms 24 hours a day, seven days a week” does not rise to the level of a constitutional violation), adopted by, 2020 WL 2541950 (D.S.C. May 19, 2020); Wright v. Lassiter, No. 1:18-cv-90-FDW, 2018 WL 4186418, at *4 (W.D. N.C. Aug. 30, 2018) (allegations that “Plaintiff is unable to view outside his window due to a metal plate” and “There is no desk or chair to write or draw” are “inadequately severe to deny the minimal civilized measures of life's necessities”); Conn v. Stolle, No. 1:11-cv-758-CMH-TCB, 2011 WL 3321136, at *3 (E.D. Va. July 29, 2011), aff'd, 460 Fed.Appx. 276 (4th Cir. 2012) (“loss of [inmate's] television” while in lockdown status does not “warrant constitutional protection”).
Although the claim in Conn was presented as a due process challenge rather than one under the Eighth Amendment, if conditions are not so atypical or burdensome as to trigger due process protections, such conditions could not be so inhumane as to violate the Eighth Amendment.
However, the undersigned recommends Plaintiff's allegations regarding his concrete bed and the resulting injuries state a plausible conditions of confinement claim under § 1983. When construed in the light most favorable to Plaintiff, the Complaint suggests that Plaintiff has had a five-inch concrete slab for a bed for approximately eight months, causing Plaintiff “severe pain [and] suffering,” including a “pinched nerve in his lower back.” (Dkt. No. 1-1 at 8-9.) Plaintiff has attached to the Complaint his request to staff member forms and grievances complaining of his bed and the resulting injuries to his back in June, August, and September of 2022.(Id. at 1519.) These complaints are directed to, inter alia, Defendant Warden Williams (id. at 16), Defendant Deputy Warden Palmer (id. at 15), and Defendant Nurse Practitioner Amy Enloe (id. at 18).
Because these documents are attached as exhibits to the Complaint, they can be considered here. See Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159 (4th Cir. 2016) (finding that when a court evaluates a motion to dismiss, it considers documents that are explicitly incorporated into the complaint by reference and those attached to the complaint as exhibits) (citing Fed.R.Civ.P. 10(c)).
Defendants argue that that Plaintiff's claims “concerning the type and placement of the bed in his cell” do not amount to a constitutional violation under relevant case law. (Dkt. No. 6-1 at 12.) In support, Defendants cite cases that are not directly applicable. (Id. at 11-12.) In Bowers v. Nix, the court recommended dismissal of the inmate's conditions of confinement claims because, inter alia, the amended complaint “does not contain any factual allegations of constitutional wrongdoing or discriminatory actions attributable to Defendants.” No. 1:19-cv-1516-TMC-SVH, 2019 WL 9341414, at *2 (D.S.C. July 9, 2019), adopted by, 2020 WL 1545627 (D.S.C. Apr. 1, 2020). As discussed further below, Plaintiff has sufficiently alleged the personal involvement of some of the Defendants in this action. In Smalls v. Myers, the court considered whether a conditions of confinement claim based on “being forced to sleep on the floor or on an uncomfortable mattress,” survived summary judgment. No. 9:05-cv-2995-GRA-GCK, 2006 WL 1454779, at *7 (D.S.C. May 24, 2006). The court dismissed this claim, noting that “Plaintiff has presented no proof that he has actually suffered any physical injury (as opposed to discomfort).” Id. The court also noted here that “Defendant states by Affidavit that he was not aware of any complaint or grievance by Plaintiff regarding his bedding or sleeping arrangements.” Id.
This case, unlike in Smalls, is still in the early stages of this proceeding. Plaintiff need only satisfy pleading standards under Federal Rule of Civil Procedure 8(a)(2) for this claim to survive. See Fed.R.Civ.P. 8(a)(2) (“A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”). Further, Plaintiff's allegations of severe lower back pain leading to a pinched nerve, coupled with his numerous complaints to SCDC officials about this pain, establish that Plaintiff's medical needs were sufficiently serious to satisfy the Eighth Amendment pleadings standards. See Brown v. Walton, No. 3:17-cv-338, 2018 WL 3946534, at *4 (E.D. Va. Aug. 16, 2018) (consideration allegations of “sustained injuries to [plaintiff's] head, neck, shoulder, and back, including a pinched nerve, which required a ‘C-collar for [his] neck,' a sling for his arm and shoulder, and two pain medications”; finding “[a]t this juncture, the Court assumes that [plaintiff's] injuries were sufficiently serious to satisfy the Eighth Amendment pleading standards”); Gutierrez v. Peters, 111 F.3d 1364, 1370-71 (7th Cir. 1997) (recognizing that the Supreme Court in Estelle “never questioned that the inmate's allegations of severe pain from his back injury were sufficiently serious to support his Eighth Amendment claim”)).
Defendants further argue here that any conditions of confinement claims against Defendants Enloe and Stirling should be dismissed because Plaintiff has failed to allege their personal involvement relating to the conditions of Plaintiff's cell. (Dkt. No. 6-1 at 10.) Additionally, Defendants allege Plaintiff “has failed to allege any personal involvement pertaining to the installation or placement of the concrete bunks in the cells of the RHU.” (Id. at 11.)
Upon review, the Complaint makes no factual allegations whatsoever concerning Stirling's involvement, or knowledge of, any aspect of the events in this action. Further, the documents attached to the Complaint do not involve Stirling. Similarly, the Complaint does not explain how Enloe was personally involved with the issues regarding his cell, and the request to staff member form addressed to her focuses on Plaintiff's medical treatment. As Enloe is a Nurse Practitioner, Plaintiff's § 1983 claims against her are more appropriately alleged with respect to his claim for deliberate indifference to a serious medical need.
As for Defendants Warden Williams and Deputy Warden Palmer, however, the Complaint alleges they did nothing in response to Plaintiff's complaints about the conditions of his cell and it includes certain forms addressed to these Defendants. (Dkt. No. 1-1 at 9, 15, 16.) Such allegations are sufficient to plausibly allege their personal involvement in Plaintiff's surviving conditions of confinement claim. See Halcomb v. Ocean, No. 8:19-cv-01095-JMC-JDA, 2020 WL 2813750, at *9 n.13 (D.S.C. Jan. 31, 2020) (plaintiff sufficiently alleged defendant's personal involvement where the complaint alleges “that he submitted grievances to [defendant] about the inhumane conditions of confinement but that [defendant] failed to respond or to remedy the conditions”), adopted by, 2020 WL 1080444 (D.S.C. Mar. 6, 2020).
Based on the foregoing, the undersigned recommends Defendants' Motion to Dismiss be denied as to a § 1983 conditions of confinement claim against Defendants Williams and Palmer based on Plaintiff's concrete bed. However, any other § 1983 conditions of confinement claims should be dismissed, including those brought against Stirling and Enloe. See Johnson v. Myers, No. 0:19-cv-756-HMH-PJG, 2019 WL 1517105, at *4 (D.S.C. Apr. 8, 2019) (“Because Plaintiff does not explain how the named defendants were involved in the purported violation of Plaintiff's rights, Plaintiff fails to meet the federal pleading standards.”).
2. Deliberate Indifference to Serious Medical Need
In addition to his conditions of confinement claims, Plaintiff alleges that Defendants Stirling, Williams, Palmer and Enloe demonstrated deliberate indifference to Plaintiff's serious medical needs when they “refused to acknowledge that the five-inch concrete slab caused [Plaintiff] severe pain and suffering, as well as injury.” (Dkt. No. 1-1 at 9-10.) Plaintiff also alleges that he sent “several request[s] to Nurse Practitioner Amy Enloe appraising her of . . . Plaintiff's severe pain and suffering, as well as the source of Plaintiff's pain and suffering, and all went ignored.” (Id. at 10.) He continues, “Plaintiff was given ibuprofen 200, which Plaintiff let Nurse Practitioner Amy Enloe know did absolutely nothing for Plaintiff's severe pain and suffering.” (Id.)
As an initial matter, Plaintiff's allegations of severe lower back pain leading to a pinched nerve, coupled with his numerous complaints to SCDC officials about this pain, plausibly allege a serious medical condition. Adams v. Sw. Virginia Reg'l Jail Auth., 524 Fed.Appx. 899, 901 (4th Cir. 2013) (records showing plaintiff “suffered from arthritis and degenerative disc disease and that he had chronic pain in his back, leg, pelvis and hip . . . raise a plausible claim that he had a serious medical condition) (citing Scott v. Ambani, 577 F.3d 642, 648 (6th Cir. 2009) (noting that failure to treat severe back and leg pain might lead trier of fact to conclude that prison officials were deliberately indifferent); Brown, 2018 WL 3946534, at *4.
Further, the allegations in the Complaint and the attached exhibits, taken as true and read in the light most favorable to Plaintiff, plausibly allege that Defendants Enloe, Palmer, and Williams failed to respond to Plaintiff's known medical needs. See Scinto, 841 F.3d at 226 (a prison official's “failure to respond to an inmate's known medical needs raises an inference of deliberate indifference to those needs”). A June 28, 2022 request to staff member form addressed to Palmer states that the concrete bed is causing “back problems, pain and injuries.” (Dkt. No. 1-1 at 15.) An August 18, 2022 request to staff member form addressed to Enloe complains of Plaintiff's “back problem” and claims that the ibuprofen he has been “provided . . . at work,” is not helping. (Id. at 18.) The response to this request states, “sign up for sick call.” (Id.) A September 8, 2022 request to staff member form addressed to Williams states that the concrete bed is causing “lower back pain and can lead to injury.” (Id. at 16.) The response to this request states, “If I were in an uncomfortable position, I would change positions.” (Id.)
Another court in this circuit recently held that a court could “infer deliberate indifference on a motion to dismiss from the allegations that [the defendant] knew of the extent of [the plaintiff's] pain, knew that the prescribed course of pain medication was “largely ineffective,” and “declined to do anything more” except to prescribe additional pain medication. Sams v. Armor Corr. Health Servs., Inc., No. 3:19-cv-639, 2020 WL 5835310, at *23 (E.D. Va. Sept. 30, 2020). (citing McElligott v. Foley, 182 F.3d 1248, 1258 (11th Cir. 1999)). Applying this reasoning, the court in Sams found the plaintiff plausibly alleged a deliberate indifference claim where a nurse, inter alia, “failed to make to make a ‘determination as to the cause of . . . [plaintiff's] ongoing serious condition,' . . . and only prescribed her pain medication that had ‘not previously effectively resolved . . . [plaintiff's] serious and worsening condition.'” Id.
Plaintiff's allegations, coupled with his referenced request to staff member forms, plausibly allege that Enloe knew of Plaintiff's worsening back pain, knew the prescribed course of pain medication was not helping, and declined to do anything more. Under these circumstances, the undersigned finds Plaintiff's allegations state a plausible claim of deliberate indifference to a serious medical need against Enloe. See Sams, 2020 WL 5835310, at *23.
Likewise, with respect to the non-medical Defendants, Plaintiff's own allegations and exhibits plausibly allege that Defendants Palmer and Williams failed to respond to Plaintiff's known medical needs by refusing to change Plaintiff's sleeping arrangements. See Scinto, 841 F.3d at 226 (a prison official's “failure to respond to an inmate's known medical needs raises an inference of deliberate indifference to those needs”). However, as discussed above, Plaintiff does make any factual allegations concerning Stirling's involvement, or knowledge of, any aspect of the events in this action, and the documents attached to the Complaint do not involve Stirling. Accordingly, any § 1983 claim against Stirling for deliberate indifference to a serious medical need should be dismissed. See Johnson, 2019 WL 1517105, at *4 (“Because Plaintiff does not explain how the named defendants were involved in the purported violation of Plaintiff's rights, Plaintiff fails to meet the federal pleading standards.”).
Based on the foregoing, given the liberal construction afforded to pro se complaints and the favorable light in which they are reviewed under Rule 12(b)(6), the undersigned recommends Defendants' Motion to Dismiss be denied as to a § 1983 claims for deliberate indifference to a serious medical need against Defendants Williams, Palmer, and Enloe. However, any such § 1983 claims against Defendant Stirling should be dismissed.
2. Claims for Declaratory and Injunctive Relief
Defendants next argue that Plaintiff's claims for declaratory relief and a preliminary and permanent injunction should be dismissed as a matter of law. (Dkt. No. 6-1 at 17-19.) Notably, Plaintiff has not moved for declaratory relief or injunctive relief at this time. Rather, these are merely prayers for relief articulated in the Complaint. (Dkt. No. 1-1 at 11.) The undersigned will not entertain Defendants' arguments here because their “challenge to the form of relief sought is outside the bounds of a motion to dismiss.” McCarter v. Univ. of N. Carolina at Chapel Hill, No. 1:20-cv-1050, 2022 WL 4484365, at *6 (M.D. N.C. Sept. 27, 2022) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2022) (“[I]t need not appear that the plaintiff can obtain the particular relief prayed for in the complaint, as long as the district judge can ascertain from what has been alleged that some relief may be granted by the court.”); AG Spectrum Co. v. Elder, 181 F.Supp.3d 615, 617 (S.D. Iowa 2016) (noting that a 12(b)(6) motion was not the proper vehicle to challenge a particular prayer for relief, as it only challenges the sufficiency of a claim); Lada v. Wilkie, 250 F.2d 211, 215 (8th Cir. 1957) (noting that although part of the relief demanded by plaintiffs could not possibly be granted, the complaint should not have been dismissed, since the question was not whether all of the relief asked for could be granted, but whether the plaintiffs could be accorded any relief)).
3. State Law Claims
Finally, Defendants argue that they are immune to Plaintiff's claims against them under the South Carolina Tort Claims Act (“SCTCA”). (Dkt. No. 6-1 at 19-20.) The SCTCA is the exclusive remedy for individuals suing government employees acting within the scope of their employment. S.C. Code Ann. § 15-78-70(a). The SCTCA specifies that “[i]n the event that the employee is individually named, the agency or political subdivision for which the employee was acting must be substituted as a party defendant.” S.C. Code Ann. § 15-78-70(c). The statute covers employee conduct insofar as it is not “outside the scope of his official duties or which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.” S.C. Code Ann. § 15-78-60; see also S.C. Code § 15-78-70(b); Smith v. Ozmint, 394 F.Supp.2d 787, 792 (D.S.C. 2005) (holding “a state employee can, in these limited circumstances, be held personally liable by a federal court for some intentional torts committed within the scope of his employment”); Roberts v. City of Forest Acres, 902 F.Supp. 662, 671 (D.S.C. 1995) (noting that an employee of a government entity is personally liable for a tort, only when the employee's conduct falls within the exceptions listed in § 15-78-70(b)).
Here, the Complaint alleges Defendants acted “in a grossly negligent manner . . . outside the scope of their official duty.” (Dkt. No. 1-1 at 7.) While there are no express allegations of actual malice or intent to harm, the undersigned finds that the allegations of deliberate indifference, discussed above, coupled with the request to staff member forms attached to the Complaint, plausibly allege Defendants Enloe, Williams, and Palmer acted with actual malice or intent to harm. Accepting Plaintiff's allegations as true, the undersigned recommends that Plaintiff has sufficiently alleged conduct by Enloe, Palmer, and Williams such that the protections of the SCTCA are inapplicable to Plaintiff's state law claims against them. See, e.g., Poloschan v. Simon, No. 9:13-cv-1937-SB, 2014 WL 1713562, at *14 (D.S.C. Apr. 29, 2014) (finding that “for purposes of Defendant's motion to dismiss under the standards of Rule 12,” the plaintiff sufficiently alleged “that the Defendant acted with an intent to harm sufficient to fall outside of the official capacity restrictions of the [SCTCA]”). However, as discussed above, there are no viable constitutional claims against Stirling, and there is otherwise no basis to find Plaintiff has plausibly alleged actual malice or intent to harm by Stirling. Accordingly, any state law claims brought against Stirling should be dismissed under S.C. Code § 15-78-70.
Here, the undersigned notes that while any negligence claims brought against Defendants Enloe, Palmer, and Williams may proceed under state law, “gross negligence is not actionable under § 1983.” Pelzer v. McCall, No. 8:10-cv-1694-MBS-JDA, 2012 WL 762507, at *8 (D.S.C. Feb. 15, 2012) (“Negligence is a cause of action under state law, and § 1983 does not impose liability for violations of duties of care arising under state law.”), adopted by, 2012 WL 762505 (D.S.C. Mar. 7, 2012). Accordingly, to the extent Plaintiff asserts any negligence claims against Defendants under § 1983, those claims should be dismissed.
In their Motion to Dismiss, Defendants assert that the “Eleventh Amendment bars Plaintiff's claims against Defendants in their official capacity.” (Dkt. No. 6 at 1.) However, their supporting memorandum makes no mention of this argument. (Dkt. No. 6-1.) Accordingly, the undersigned does not consider this argument here. Defendants may brief the issue of Eleventh Amendment immunity at summary judgment, should the District Judge adopt this alternative ruling.
CONCLUSION
For the foregoing reasons, the undersigned RECOMMENDS the Court GRANT Defendants' Motion to Dismiss (Dkt. No. 6) due to Plaintiff's failure to exhaust his administrative remedies.
ALTERNATIVELY, should the Court disagree, the undersigned RECOMMENDS the Court GRANT IN PART AND DENY IN PART Defendants' Motion to Dismiss (Dkt. No. 6). Plaintiff's claims against Defendant Stirling under § 1983 and state law should be dismissed as well as his § 1983 claim against Defendant Enloe for deliberate indifference to his conditions of confinement. Plaintiff's § 1983 claims for deliberate indifference to a serious medical need and deliberate indifference to conditions of confinement should remain pending against Defendants Palmer and Williams, as well as his claims against these defendants under South Carolina law. The surviving § 1983 conditions of confinement claim should be limited to those allegations based on Plaintiff's concrete bed and his resulting injuries.
AND 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 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).