Opinion
Civil Action No. 0:05-2009-DCN-BM.
February 27, 2006
REPORT AND RECOMMENDATION
This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. § 1983. The named Defendants are all employees of the South Carolina Department of Corrections, assigned to the Allendale Correctional Institution (ACI), where Plaintiff is housed. Plaintiff alleges violations of his constitutional rights.
The Defendants filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on November 9, 2005. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on November 10, 2005, advising Plaintiff of the importance of a motion for summary judgment and of the necessity for him to file an adequate response. Plaintiff was specifically advised that if he failed to respond adequately, the Defendants' motion may be granted, thereby ending his case. In subsequent orders filed November 23, 2005, and December 1, 2005, Plaintiff was given additional time to file his response. Plaintiff thereafter filed response memoranda on December 6, 2005 and December 16, 2005. Defendants' motion is now before the court for disposition.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d) and (e), D.S.C. The Defendants have filed a motion for summary judgment. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.
Background and Evidence
Plaintiff alleges in his verified Complaint that the Defendants McFadden and Byrne have denied him medical treatment for his feet, sinus, prostate, and for anemia, which Plaintiff terms "serious medical needs." Plaintiff alleges that he could "lose both of his feet because of Defendant Byrne, Defendant Broadwater, and Defendant McFadden malice conduct and gross negligent to the Plaintiff serious medical problems." Byrne is alleged to be a doctor at ACI, while Broadwater and McFadden are nurses.Plaintiff further alleges that
since November 16th 2004, Defendant Broadwater have stated to the Plaintiff that she would not treat him under any circumstances and refused to give Plaintiff any sinus medication since January 2005 after the Defendant Broadwater examined the Plaintiff and saw how bad the Plaintiff sinus is, nor would Defendant Broadwater have the doctor check Plaintiff prostate or let Plaintiff be seen by the eye doctor since March 2005 out of retaliation for Plaintiff filing a sexual harassment grievance against Defendant Broadwater.
* * *
Defendant McFadden have with malice intently denied Plaintiff medical treatment out of retaliation for Defendant Broadwater no matter what Plaintiff condition be. Defendant McFadden refused to treat the Plaintiff, Defendant McFadden like Defendant Broadwater, very vindictive. . . . Defendant McFadden and Defendant Broadwater and T.Byrne in their personal capacity trying to [kill] the Plaintiff in this case by denied Plaintiff medical treatment for his condition.
* * *
Defendant Mary Coleman [alleged to be SCDC Grievance Branch Chief] have known for years the medical problems Plaintiff have, and refuse to take any step on Plaintiff grievances out of retaliation. . . . Defendant Byrne who have checked Plaintiff fields and know how bad they are and the pain that Plaintiff in, have refused to let Plaintiff see a specialist about his feets, nor have Defendant Byrne allowed Plaintiff to get a complete physical or have his prostate checked out of retaliation for Plaintiff filing SCDC grievances against Defendant Broadwater, Defendant McFadden.
* * *
Defendant Hagan [alleged to be the Warden at ACI] in his personal capacity as warden of this institution have allowed Defendant Broadwater to deliberately neglect Plaintiff medical needs when Defendant Hagan were made aware of Plaintiff needs for medical treatment that was ignored by Defendant Broadwater and Defendant McFadden.
Plaintiff seeks monetary damages, as well as declaratory and/or injunctive relief. See generally, Verified Complaint. Plaintiff has attached to his Complaint as exhibits copies of several inmate grievance forms and responses dealing with his medical claims, along with some other forms regarding matters not at issue in this lawsuit.
Those other "matters" relate to the filing of grievances. However, any claims relating to grievances are not properly before this Court. See Orders filed October 27, 2005 (Court Document No. 35) and December 7, 2005 (Court Document No. 51).See also, Section I, infra, relating to Plaintiff's claims being subject to the "three strikes" rule of 28 U.S.C. § 1915(g).
In support of summary judgment in the case, the Defendant Byrne has submitted an affidavit wherein he attests that he is a physician employed by the Department of Corrections to provide medical services to inmates at ACI. Byrne has attached a copy of Plaintiff's medical summary to his affidavit, and attests that from November 9, 2004 to November 4, 2005, Plaintiff had 117 encounters with the SCDC medical/dental staff and outside consultants, during which time the nurses, other doctors, and he examined, evaluated and treated all of Plaintiff's medical/dental problems, including his complaints about his feet, sinus, anemia and eyes. Byrne attests that Plaintiff has never complained to him about his prostate, that Plaintiff does not need to be examined by an outside foot specialist, and does not need additional medication to treat any sinus problems. Byrne attests that Plaintiff is not experiencing any serious or life threatening medical conditions, and has not suffered any emergent or urgent medical problems which have required immediate or emergency care. Byrne attests that Plaintiff's medical problems have been timely evaluated and appropriately treated, and that neither he nor any other Defendant has violated any standards of medical/nursing practice in their care and treatment of the Plaintiff. Finally, Byrne attests that Plaintiff has a history of being non-compliant with his medical care, such as refusing medical care and medications numerous times, all as is noted in the medical summary. See generally, Byrne Affidavit with attached Exhibit.
In his responses to the Defendants' motion, Plaintiff claims that the Defendants are "racists", complains that another inmate died at the hands of Defendants Broadwater and McFadden and that this should constitute evidence that these Defendants are doing the same thing to him, and that the Court should not grant summary judgment without requiring an affidavit from each named Defendant. Plaintiff has attached to his opposition memoranda copies of numerous grievance forms wherein he complains about his medical care. These grievance forms include the responses from the prison administration, all of which indicate that Plaintiff is receiving adequate medical care and attention for his medical complaints.
Discussion
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The moving party has the burden of proving that judgment on the pleadings is appropriate. Once the moving party makes this showing, however, the opposing party must respond to the motion with "specific facts showing there is a genuine issue for trial." Rule 56(e), Fed.R.Civ.P. Further, while the Federal Court is charged with liberally construing a complaint filed by apro se litigant to allow the development of a potentially meritorious case, see Cruz v. Beto, 405 U.S. 319 (1972);Haines v. Kerner, 404 U.S. 519 (1972), the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a Federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990). Here, after careful consideration of the arguments and evidence presented, the undersigned finds and concludes that Plaintiff's claims are without merit, and should be dismissed.
I.
First, it can be judicially noticed that the Plaintiff has filed more than three (3) prior frivolous cases in this Court, which have been deemed "strikes" under the Prison Litigation Reform Act. Hence, in order to proceed with his claims in this Court without payment of the filing fee and other Court costs, Plaintiff must show that he is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Granting Plaintiff's Complaint the liberal construction to which he is entitled as a pro se litigant, the undersigned has considered Plaintiff's medical claims as meeting the minimum threshold under the "imminent danger of serious physical injury" standard so as to allow for a consideration of those claims on the merits.
A bare unsupported claim by a prisoner that he or she is under imminent danger of serious physical injury will not suffice. Sufficient factual allegations must be set forth to reach this threshold. See Carson v. Texas Dept. of Criminal Justice-Institutional Division, 1998 WL 906989, at *1 (N.D. Texas, December 17, 1998) ["Plaintiff is simply attempting to tailor his allegations so they will fall within the statutory exception, but his claims are really simply the usual dissatisfactions with prison life[.]"].
However, the remainder of the claims set forth in the Complaint, dealing with allegations concerning grievances and how certain prison employees (Linda Martin, Kenneth Long, and, to the extent Plaintiff's allegations concern solely the grievance process, Mary Coleman and George Hagan) have dealt with those grievances, fail to meet the imminent danger of serious physical injury standard. Therefore, as Plaintiff has failed to pay the filing fee or other court costs in this case, these claims should be dismissed, without prejudice. Further, the Defendants named as parties under those claims are entitled to dismissal as party Defendants. See also Orders filed October 27, 2005 (Court Document No. 35) and December 7, 2005 (Court Document No. 51); n. 3, supra.
II.
With respect to Plaintiff's medical claims, in order to avoid summary judgment on these claims, Plaintiff must present sufficient evidence to show a material issue of fact as to whether any named Defendant was deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Actions rise to the level of deliberate indifference only when the treatment provided is "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 (4th Cir. 1990).Here, it is clear from the record before this Court, including Plaintiff's own exhibits, that he has been provided with frequent and ongoing medical care during the period of his incarceration at ACI. The Defendants have submitted substantial evidence showing the nature and extent of the medical care Plaintiff has received, including voluminous medical records. Conversely, Plaintiff has provided no evidence to support his claim (other than his own general and conclusory allegations, with no back-up medical support or other competent evidence), or to show that any named Defendant has been deliberately indifferent to any serious medical need that he has. Plaintiff's general and conclusory claims in his Complaint that the Defendants are being "deliberately indifferent and neglectful to his serious medical needs", that the Defendants have refused to let a doctor check his prostate or to give him any sinus medication, or that the Defendants are trying to kill him, without any evidentiary support, are simply not sufficient to maintain a constitutional claim in this Court. Papasan v. Allain, 478 U.S. 265, 286 (1986)[Courts need not assume the truth of legal conclusions couched as factual allegations.]; Bender v. Suburban Hospital, Inc., 159 F.3d 186 (4th Cir. 1998); Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)["Even though pro se litigants are held to less stringent pleading standards than attorneys the court is not required to 'accept as true legal conclusions or unwarranted factual inferences.'"].
Further, Plaintiff's own grievances, copies of which he has attached to his Complaint and his memoranda in opposition to summary judgment, themselves reflect the continuing and ongoing medical evaluation and treatment Plaintiff has received, the opinions of the health care professionals concerning Plaintiff's needs, and the nature and amount of continued care and treatment he should receive. The fact that Plaintiff may not have received the care and treatment he personally desired, or received the treatment he did get as soon as he wanted it, does not mean that his constitutional rights have been violated. For purposes of a constitutional claim, whether or not Plaintiff was provided with the care he desired is immaterial. Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988) [the Constitution "does not guarantee to a prisoner the treatment of his choice."]; see Brown v. Thompson, 868 F.Supp. 326, 329-330, n. 2 (S.D.Ga. 1994). cf. Casey v. Lewis, 834 F.Supp. 1569, 1583 (D.Ariz. Apr. 5, 1993) ["[A] mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference."].
Finally, even if the Court were to find based on Plaintiff's claims as set forth in his verified Complaint and in his exhibits that there is at least a question of fact as to whether any named Defendant acted inappropriately or without sufficient care in dealing with Plaintiff's complaints (a finding which the undersigned expressly does not make), such a finding by itself would not be sufficient to maintain a claim under § 1983 for deliberate indifference to Plaintiff's serious medical needs.See DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 200-203 (1989) [§ 1983 does not impose liability for violations of duties of care arising under state law]; Baker v. McClellan, 443 U.S. 137, 146 (1976) [§ 1983 claim does not lie for violation of state law duty of care]; Estelle, 429 U.S. at 106 ["medical malpractice does not become a constitutional violation merely because the victim is a prisoner."]; see also Brooks v. Celeste, 39 F.3d 125 (6th Cir. 1994); Sellers v. Henman, 41 F.3d 1100 (7th Cir. 1994); White v. Napoleon, 897 F.2d 103, 108-109 (3d Cir. 1990); Smart v. Villar, 547 F.2d 112 (10th Cir. 1976) [affirming summary dismissal].
Therefore, as there is no evidence before the Court to show that during the relevant time period any named Defendant was deliberately indifferent to any serious medical condition from which the Plaintiff was suffering, Plaintiff's medical claims should be dismissed. Estelle, 429 U.S. at 105; Harris v. Thigpen, 941 F.2d 1495, 1505-1507 (11th Cir. 1991); see Levy v. State of Ill. Dept. of Corrections, No. 96-4705, 1997 WL 112833 (N.D.Ill. March 11, 1997) ["A defendant acts with deliberate indifference only if he or she 'knows of and disregards' an excessive risk to inmate health or safety.'"], quoting Farmer v. Brennen, 511 U.S. 825, 837 (1994).
Conclusion
Based on the foregoing, it is recommended that any non-medical claims set forth in Plaintiff's Complaint be dismissed, without prejudice, under the "three strikes" rule of 28 U.S.C. 1915(g). It is further recommended that with respect to Plaintiff's medical claims, the Defendants' motion for summary judgment be granted, and that those claims be dismissed, with prejudice.
The parties are referred to the Notice Page attached hereto.
Notice of Right to File Objections to Magistrate Judge's Report and Recommendation The Serious Consequences of a Failure to Do So
The parties are hereby notified that any objections to the attached Report and Recommendation (or Order and Recommendation) must be filed within ten (10) days of the date of its filing. 28 U.S.C. § 636 and Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three days for filing by mail. Fed.R.Civ.P. 6. Based thereon, this Report and Recommendation, any objections thereto, and the case file will be delivered to a United States District Judge fourteen (14) days after this Report and Recommendation is filed. Advance Coating Technology, Inc. v. LEP Chemical, Ltd., 142 F.R.D. 91, 94 n. 3 (S.D.N.Y. 1992). A magistrate judge makes only a recommendation, and the authority to make a final determination in this case rests with the United States District Judge. See Mathews v. Weber, 423 U.S. 261, 270-271 (1976); and Estrada v. Witkowski, 816 F. Supp. 408, 410 (D.S.C. 1993).During the ten-day period, but not thereafter, a party must file with the Clerk of Court specific, written objections to the Report and Recommendation, if he wishes the United States District Judge to consider any objections. Any written objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. Failure to file written objections shall constitute a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the United States District Judge. See United States v. Schronce, 727 F.2d 91, 94 n. 4 (4th Cir.), cert. denied, Schronce v. United States, 467 U.S. 1208 (1984); and Wright v. Collins, 766 F.2d 841, 845-47 nn. 1-3 (4th Cir. 1985). Moreover, if a party files specific objections to a portion of a magistrate judge's Report and Recommendation, but does not file specific objections to other portions of the Report and Recommendation, that party waives appellate review of the portions of the magistrate judge's Report and Recommendation to which he did not object. In other words, a party's failure to object to one issue in a magistrate judge's Report and Recommendation precludes that party from subsequently raising that issue on appeal, even if objections are filed on other issues. Howard v. Secretary of HHS, 932 F.2d 505, 508-509 (6th Cir. 1991). See also Praylow v. Martin, 761 F.2d 179, 180 n. 1 (4th Cir.) (party precluded from raising on appeal factual issue to which it did not object in the district court), cert. denied, 474 U.S. 1009 (1985). In Howard, supra, the Court stated that general, non-specific objections are not sufficient:
A general objection to the entirety of the [magistrate judge's] report has the same effects as would a failure to object. The district court's attention is not focused on any specific issues for review, thereby making the initial reference to the [magistrate judge] useless. * * * This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrates Act. * * * We would hardly countenance an appellant's brief simply objecting to the district court's determination without explaining the source of the error.Accord Lockert v. Faulkner, 843 F.2d 1015, 1017-19 (7th Cir. 1988), where the Court held that the appellant, who proceeded pro se in the district court, was barred from raising issues on appeal that he did not specifically raise in his objections to the district court:
Just as a complaint stating only 'I complain' states no claim, an objection stating only 'I object' preserves no issue for review. * * * A district judge should not have to guess what arguments an objecting party depends on when reviewing a [magistrate judge's] report.See also Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989) ("no de novo review if objections are untimely or general"), which involved a pro se litigant; and Goney v. Clark, 749 F.2d 5, 7 n. 1 (3rd. Cir. 1984) ("plaintiff's objections lacked the specificity to trigger de novo review"). This notice, hereby, apprises the parties of the consequences of a failure to file specific, written objections. See Wright, supra,; and Small v. Secretary of HHS, 892 F.2d 15, 16 (2nd Cir. 1989). Filing by mail pursuant to Fed.R.Civ.P. 5 may be accomplished by mailing addressed as follows:
Larry W. Propes, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201