Opinion
C. A. 8:21-cv-03683-CMC-JDA
03-22-2022
John McKinney, Plaintiff, v. Harriet Bailey, West P.I. Supervisor; Stokes, RN Care Provider; Burnett, RN Care Provider; Blake, RN Care Provider, Lee C.I. RN Anderson, Dr. Neville, Med Dir. SCDC April Clark, Dir. SCDC/Health Terr K. Marshall, Deputy, Warden of Lee C.I. Cecilia Reynolds, Dir. SCDC Bryan P. Stirling, Defendants.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
John McKinney (“Plaintiff”), proceeding pro se and in forma pauperis, brings this civil action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Plaintiff is a state prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and is currently incarcerated at the MacDougall Correctional Institution.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02, D.S.C., the undersigned Magistrate Judge is authorized to review such complaints for relief and to submit findings and recommendations to the District Court. Upon review, the undersigned finds that this action is subject to summary dismissal for the reasons below.
BACKGROUND
Procedural History
Plaintiff commenced this action by filing a Complaint pursuant to 42 U.S.C. § 1983. [Doc. 1.] By Order dated November 30, 2021, the undersigned directed Plaintiff to file the necessary information and paperwork to bring the case into proper form for possible service, including properly completed service documents. [Doc. 7.]
That same day, the undersigned entered an Order regarding amendment to notify Plaintiff that this action was subject to summary dismissal for reasons identified by the Court in its Order. [Doc. 8.] The Court noted, however, that Plaintiff may be able to cure the pleading deficiencies of his Complaint and granted Plaintiff twenty-one days to file an amended complaint. [Id. at 1, 14.] Further, Plaintiff was specifically warned as follows:
Specifically, the undersigned noted that, although Plaintiff named Defendants that are not proper Defendants in this § 1983 action and asserted claims that are not cognizable in this § 1983, he may be able to proceed with this action on a claim for deliberate indifference against any properly named Defendants, but only if he filed an amended complaint that complies with Rule 8 of the Federal Rules of Civil Procedure. [Id. at 1-2.]
If Plaintiff fails to file an amended complaint that corrects those deficiencies identified [in the Court's Order], this action will be recommended for summary dismissal pursuant to 28 U.S.C. § 1915.[Id. at 15.] On December 27, 2021, after the expiration of the deadline the Court set to bring the case into proper form and to file an amended complaint, the Court received a motion filed by Plaintiff that was construed as a motion for copies at no expense. [Doc. 11.] However, Plaintiff did not file an amended complaint or otherwise comply with the Court's Orders.
The Court then entered Orders dated January 3, 2022, denying Plaintiff's motion for copies, directing Plaintiff's attention to the Court's prior Orders, and again instructing Plaintiff to bring the case into proper form for possible service of process and to file an amended complaint. [Doc. 13.]
However, Plaintiff did not respond to the Court's Orders and did not file an amended complaint. Accordingly, the undersigned entered a Report on February 1, 2022, recommending dismissal of the action pursuant to Rule 41(b) for failure to prosecute and pursuant to 28 U.S.C. § 1916A for failure to state a claim. [Doc. 18.]
On February 24, 2022, the Honorable Cameron McGowan Currie entered an Order ruling on and adopting in part the Report and Recommendation. [Doc. 22.] In her Order, Judge Currie noted that Plaintiff had filed a letter evidencing an intent to amend his Complaint, and she therefore provided another opportunity for Plaintiff to do so. [Id. at 3.] Judge Currie also ordered as follows: (1) Plaintiff's negligence, violation of prison policy, and workers' compensation claims asserted in his original Complaint are not actionable under 42 U.S.C. § 1983; (2) Defendants SCDC, SCDC Contracted Medical Provider, Stirling, Marshall, Reynolds, and Clark are entitled to dismissal from this action because they are either not amenable to suit under § 1983 or there are no allegations against these Defendants relevant to the claim of deliberate indifference; and (3) Plaintiff may be able to make out a claim for deliberate indifference of medical needs but must come forward with specific allegations against the remaining named Defendants. [Id.]
Then, on March 2, 2022, Plaintiff filed a hand-written Amended Complaint [Doc. 26], a motion to amend the Complaint [Doc. 27], and service documents for the Defendants named in the Amended Complaint [Docs. 28; 28-1]. Accordingly, this matter is before the undersigned for a review of the Amended Complaint.
By Order dated March 21, 2022, the undersigned granted Plaintiff's motion to amend the Complaint, in accordance with Judge Currie's Order permitting Plaintiff to file his Amended Complaint.
Factual Allegations
Plaintiff makes the following allegations in his Amended Complaint. [Doc. 26.] Plaintiff contends that he was injured on August 25, 2014, while working at Lee Correctional Institution (“Lee”) when a stack of six hundred pound product bags fell on him. [Id. at 2.] Plaintiff was crushed and pinned to the floor and he suffered a dislocated hip and injuries to his lower back, leg, and ankle. [Id.] Plaintiff's supervisor, Harriet Bailey, he was near him when he was injured. [Id.] Bailey and another inmate immediately took Plaintiff to medical. [Id.]
Plaintiff's Amended Complaint replaces his original Complaint and is considered to be complete in itself. See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (“As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.”) (citation and internal quotation marks omitted); see also 6 Charles Alan Wright et al., Federal Practice and Procedure § 1476 (3d ed. 2017) (“A pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified. Once an amended pleading is interposed, the original pleading no longer performs any function in the case ....”). As such, the undersigned considers only the allegations in Plaintiff's Amended Complaint.
At medical, Nurse Burnett gave Plaintiff a 3-day supply of ibuprofen and scheduled a follow-up visit for August 29, 2014. [Id.] On August 26, 2014, Plaintiff was still in pain in his lower back and hip and was seen by Nurse Anderson, who scheduled Plaintiff for a follow-up visit for August 28, 2014. [Id.]
Then, Plaintiff wrote to Nurse Stokes because he was still experiencing pain, but Nurse Stokes never answered his request. [ Id. at 2-3.] Plaintiff contends that he did not receive adequate medical treatment. [Id. at 3.] As such, he had his family call Warden Reynolds. [Id.]
On September 3, 2014, Plaintiff was seen at medical by Nurse Anderson. [Id.] Plaintiff told her that he was in extreme pain but had not had any follow-up appointments or x-rays and had not been seed by a doctor. [Id. at 3-4.] Nurse Anderson then referred Plaintiff to Nurse Blake. [Id. at 4.] Plaintiff explained what had been taking place to Nurse Blake and stated he was still experiencing extreme pain. [Id.] Nurse Blake told Plaintiff that they were out of ibuprofen, so she issued Plaintiff Motrin and stated she would schedule an x-ray. [Id.]
On September 9, 2014, fifteen days after Plaintiff's injury, he was seen by Dr. Neville. [Id.] Then, on September 11, 2014, seventeen days after his injury, Plaintiff was given an x-ray. [Id. at 4-5.]
Based on these allegations, Plaintiff contends that the actions of Defendants Neville, Burnett, Anderson, Stokes, and Blake were “not in line with accepted medical practice” in violation of his Eighth and Fourteenth Amendment rights. [Id. at 5.] Plaintiff contends that each of these Defendants knew or should have known of the substantial risk of harm to Plaintiff given the delay in adequate medical care. [Id.] Plaintiff contends that the actions of these Defendants constitute deliberate indifference to his medical needs. [Id. at 6.] Plaintiff contends these Defendants tried to cover up the accident. [Id.] Plaintiff contends he underwent an MRI, which showed that he had a left lumbar injury. [Id.] Plaintiff contends that he has been denied adequate medical care. [Id.]
For his relief, Plaintiff requests nominal damages in the amount of $10.1 million, compensatory damages in the amount of $500,000, punitive damages in the amount of $100,000, a jury trial, declaratory and injunctive relief requiring outside medical care, as well as other relief. [ Id. at 9-10.]
APPLICABLE LAW
Review under 28 U.S.C. §§ 1915 and 1915A
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, Plaintiff is a prisoner under the definition in 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 Plaintiff had prepaid the full filing fee, this Court would be charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Amended Complaint if (1) it were frivolous, malicious, or failed to state a claim upon which relief may be granted, or (2) if it sought monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Liberal Construction of Pro Se Pleadings
Because Plaintiff is a pro se litigant, his 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, 93-94 (2007). 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 (4th Cir. 1990). Even under the less stringent standard applicable to pro se pleadings, the Amended Complaint is subject to summary dismissal.
Although the Court must liberally construe the pro se pleadings and a plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in his pleadings, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact); cf. Skinner v. Switzer, 562 U.S. 521, 530 (2011) (holding that plaintiff need not pin his claim for relief to precise legal theory). “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.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). As noted, although the Court must liberally construe the pro se complaint, a plaintiff must do more than make conclusory statements to state a claim for relief. See Iqbal, 556 U.S. at 677; Twombly, 550 U.S. at 555. Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79; see also Adams v. Rice, 40 F.3d 72, 74-75 (4th Cir. 1994) (explaining that, although the court must liberally construe the pro se complaint, a plaintiff must do more than make mere conclusory statements to state a claim); White v. White, 886 F.2d 721, 723-74 (4th Cir.1989) (dismissing complaint dismissed because it “failed to contain any factual allegations tending to support his bare assertion”). Thus, although a plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the complaint, he must allege facts that support a claim for relief. Bass v. DuPont, 324 F.3d 761, 765 (4th Cir. 2003).
Deliberate Indifference Standard
“The Eighth Amendment prohibits the infliction of cruel and unusual punishment on one convicted of a crime.” Shakka v. Smith, 71 F.3d 162, 165 (4th Cir. 1995). The Eighth Amendment “provides protection with respect to ‘the treatment a prisoner receives in prison and the conditions under which he is confined.'” Id. at 165-66 (quoting Helling v. McKinney, 509 U.S. 25, 31 (1993)). In Farmer v. Brennan, 511 U.S. 825 (1994), the United States Supreme Court explained that a prison official violates the Eighth Amendment only when two requirements are met: (1) the alleged deprivation must be objectively “sufficiently serious, ” meaning it results “in the denial of ‘the minimal civilized measure of life's necessities, '” and (2) the prison official must have a “‘sufficiently culpable state of mind, '” i.e., “‘deliberate indifference' to inmate health or safety.” Id. at 834 (citations and internal quotation marks omitted). The Supreme Court further determined that its standard for “deliberate indifference” would be “subjective recklessness as used in the criminal law.” Id. at 839-40. “In short, the Court concluded that ‘a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.'” Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997) (citing Farmer, 511 U.S. at 847). Although “prisoners do not shed all constitutional rights at the prison gate, . . . lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Sandin v. Conner, 515 U.S. 472, 485 (1995) (citations and internal quotation marks omitted).
To state an Eighth Amendment claim for denial of medical care, a plaintiff must allege facts showing prison officials were deliberately indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 105 (1976) (explaining that, to show inadequate medical treatment rises to the level of a constitutional violation, a plaintiff “must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs”). “Thus, plaintiff must allege two distinct elements to state a claim upon which relief can be granted. First, he must allege a sufficiently serious medical need. Second, he must allege deliberate indifference to that serious medical need.” Quick v. Hercules, No. 1:12-cv-962-TSE-TCB, 2012 WL 4758679, at *2 (E.D. Va. Oct. 4, 2012) (citations omitted). However, “[a] § 1983 claim is not stated by disagreements between an inmate and a physician over treatment, diagnosis, or other questions of medical judgment.” Barton v. Dorriety, No. 9:10-cv-01362-RBH, 2011 WL 1049510, at *2 (D.S.C. Mar. 21, 2011). Further, “[t]he mere failure to treat all medical problems to a prisoner's satisfaction, even if actual medical malpractice is involved, is insufficient to support a claim under § 1983.” Id. (noting the plaintiff's allegations that medical staff conspired to fabricate medical records did not state a claim for deliberate indifference and finding the plaintiff's claim to be essentially “one of disagreement with his medical treatment plan”).
DISCUSSION
As noted, by Order dated February 24, 2022, Judge Currie authorized Plaintiff to file an Amended Complaint. [Doc. 22.] Plaintiff filed an Amended Complaint on March 2, 2022, and also filed a motion to amend the Complaint on that same day. [Docs. 26; 27.] The undersigned construed Plaintiff's motion as requesting leave to file his Amended Complaint and granted Plaintiff's motion on March 21, 2022. [Doc. 27.] As such, Plaintiff's Amended Complaint is before the Court for a review. However, like the original Complaint, the Amended Complaint is subject to summary dismissal for the reasons below.
Defendants Entitled to Dismissal
First, certain Defendants named in this action are subject to dismissal because they are not proper parties subject to suit under § 1983 or because Plaintiff has failed to allege facts showing they were personally involved in the purported constitutional violations. Plaintiff filed this action 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).
In his original Complaint, Plaintiff named the following Defendants: Bryan Stirling, the Director of SCDC; Terre K. Marshall, the Deputy Director for SCDC Health Services; Cecilia Reynolds, the Warden/Director of Lee; and April Clark, the SCDC Medical Director. [Doc. 1 at 2-3.] In her Order dated February 24, 2022, Judge Currie dismissed these four Defendants from this action noting that “they are either not amenable to suit under § 1983 or there are no allegations against these Defendants relevant to the claim of deliberate indifference.” [Doc. 22 at 3.] Despite Judge Currie's Order, Plaintiff has again named these four Defendants in his Amended Complaint. [Doc. 26 at 1, 7-8.] However, Plaintiff has not alleged allegations to state a claim for relief that is plausible against these Defendants. As such, the undersigned finds that these four Defendants are subject to dismissal for the reasons previously identified and as summarized below.
Defendant Stirling
Plaintiff names Bryan P. Stirling, who is the Director of SCDC. [Doc. 26 at 1, 7.] However, Defendant Stirling is subject to summary dismissal. As an initial matter, Plaintiff makes no allegations in the Amended Complaint about his direct involvement in the alleged unconstitutional conduct. Instead, Plaintiff makes only general, vague allegations about this Defendant's obligations over SCDC and the prisons at which Plaintiff has been incarcerated. [Id. at 7.] “However, such general allegations, absent any specific facts of personal involvement in the events giving rise to this case, are insufficient to state a cognizable § 1983 claim.” Tracey v. Nelson, No. 1:12-cv-1614-JMC-SVH, 2012 WL 4583107, at *2 (D.S.C. Aug. 31, 2012) (dismissing claims against the Governor of South Carolina and former director of SCDC), Report and Recommendation adopted by 2012 WL 4588205 (D.S.C. Oct. 1, 2012).
Further, construing Plaintiff's claims against Defendant Stirling as based on supervisory liability, the undersigned notes that the doctrine of respondeat superior is generally not applicable in § 1983 actions. Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999). For a supervisory official to be held liable for constitutional injuries inflicted by his subordinates, certain criteria must be established. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).
Specifically, a plaintiff must show that the supervisory official was (1) actually or constructively aware of a risk of constitutional injury, (2) and deliberately indifferent to that risk, and (3) that an affirmative causal link exists between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. Carter, 164 F.3d at 221. Here, the Complaint contains no plausible allegations against Defendant Stirling to demonstrate that he was aware of, or deliberately indifferent to, any risk of constitutional injury to Plaintiff. As such, the Complaint fails to state a claim upon which relief may be granted against Defendant Stirling, and he should be dismissed from this action on that basis. See Ford v. Stirling, No. 2:17-cv-02390-MGL, 2017 WL 4803648, at *2 (D.S.C. Oct. 25, 2017).
Defendants Marshall, Reynolds, and Clark
Similarly, Plaintiff again names the following three Defendants in his Amended Complaint, as he did in his original Complaint: Terre K. Marshall, the Deputy Director for SCDC Health Services; Cecilia Reynolds, the Warden/Director of Lee; and April Clark, the SCDC Medical Director. [Doc. 26 at 7-8.] These three Defendants are subject to summary dismissal for the same reasons that Defendant Stirling is entitled to dismissal. First, Plaintiff makes no allegations in the Amended Complaint about their direct involvement in the alleged unconstitutional conduct, and instead he makes only general, vague allegations about their respective obligations over the prisons at which Plaintiff has been incarcerated. As noted, absent allegations of specific facts of personal involvement in the events giving rise to Plaintiff's claims, his Amended Complaint is insufficient to state a cognizable § 1983 claim. Tracey, 2012 WL 4583107, at *2. Likewise, Plaintiff's claims against these Defendants fail under a theory of supervisory liability. Shaw, 13 F.3d at 798; Ford, 2017 WL 4803648, at *2. Accordingly, these three Defendants are entitled to dismissal from this action.
Dismissal for Failure to State a Claim
As to the remaining five Defendants-Neville, Burnett, Anderson, Stokes, and Blake-the undersigned recommends that this action against them be dismissed for failure to state a claim for the reasons below.
Deliberate Indifference
First, Plaintiff's cursory allegations about his purported injury from 2014 and the medical care he received for that injury fail to establish a claim for deliberate indifference. Critically, Plaintiff fails to identify any specific individual responsible for the deprivation of any constitutional right, and he fails to allege specific facts to support the denial of any constitutional right. Rather, he makes only general, vague allegations about the pain he experienced as a result of an injury and the medical care he received. Indeed, Plaintiff's own allegations show that he was seen repeatedly by medical staff at the prison, including on the day of his injury and numerous times in the weeks that followed; he was given pain medication; and he eventually had an x-ray. To the extent Plaintiff contends the seventeen-day delay in receiving an x-ray constitutes deliberate indifference, that allegation fails to establish a denial of medical care in violation of the Eighth Amendment. See, e.g., Barbour v. W. Reg'l Dir. VDOC, No. 7:08-cv-00598, 2008 WL 5062126, at *5 (W.D. Va. Nov. 26, 2008) (finding the plaintiff's allegations that prison officials delayed an x-ray for months did not constitute deliberate indifference and dismissing plaintiff's claim pursuant to § 1915A(b)(1)), aff'd 324 Fed.Appx. 282 (4th Cir. 2009); Simmons v. Surry Cty. Sheriff Dep't, No. 1:09-cv-94, 2010 WL 1418319, at *3 (M.D. N.C. Apr. 2, 2010) (finding the plaintiff failed to allege facts to support a claim of deliberate indifference to serious medical needs based on the defendants' alleged delay in ordering x-rays after the plaintiff fell from a prison transportation van). Importantly, Plaintiff fails to allege that he experienced any substantial harm as a result of any delay in receiving an x-ray. See Allen v. Ulep, No. 1:19-cv-1477-TSE-IDD, 2021 WL 3779246, at *9 (E.D. Va. Aug. 24, 2021) (noting an alleged delay in the plaintiff receiving an ordered x-ray did not constitute deliberate indifference where the plaintiff filed to allege he experienced any substantial harm).
In sum, Plaintiff has failed to allege facts under the applicable standard to show that any Defendant acted with deliberate indifference to a serious medical need. Beyond conclusorily asserting that he was denied care, his pleadings are void of plausible allegations regarding injuries that required medical care other than what he received. See Griffith v. State Farm Fire & Cas. Co., No. 2:12-cv-00239-DCN, 2012 WL 2048200, at *1 (D.S.C. June 6, 2012) (finding that the plausibility standard requires more than “‘an unadorned, the-defendant-unlawfully-harmed-me accusation.'” (quoting Iqbal, 556 U.S. at 678)). Although Plaintiff concedes that he was examined by numerous nurses and was given pain medication and an x-ray, he appears to disagree with the medical care he received. Nevertheless, he is not entitled to the treatment of his choice. See Sharpe v. S.C. Dep't of Corrs., 621 Fed.Appx. 732, 733 (4th Cir. 2015) (noting that “mere disagreement between an inmate and medical staff regarding the proper course of treatment provides no basis for relief” under § 1983). As such, Plaintiff's Amended Complaint fails to state a claim for medical indifference and his claims are subject to dismissal.
Plaintiff's Claims are Time-Barred
As an additional basis for dismissal, the undersigned notes that Plaintiff's claims appear to be time barred under the applicable statute of limitations.
Although a statute of limitations issue is an affirmative defense, “a court may raise a statute of limitations defense sua sponte when a complaint is filed in forma pauperis pursuant to 28 U.S.C. § 1915.” Brown v. Jones, No. 5:21-CT-3269-BO, 2021 WL 5779441, at *1 (E.D. N.C. Nov. 19, 2021) (collecting cases); see also Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656-57 (4th Cir. 2006) (noting a court may sua sponte dismiss on initial review a complaint, filed in forma pauperis pursuant to 28 U.S.C. § 1915, as barred by the statute of limitations); Spicer v. Satterelli, No. 3:19-cv-10, 2021 WL 5711791, at *5 (N.D. W.Va. Oct. 14, 2021) (noting that the screening authority under § 1915 permits the district court to sua sponte consider the statute of limitations and dismiss a case on that basis) (collecting cases), Report and Recommendation adopted by 2021 WL 5712464 (N.D. W.Va. Dec. 1, 2021).
Because § 1983 does not specify a statute of limitations, the Supreme Court has counseled that, “where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions.” Owens v. Okure, 488 U.S. 235, 249-50 (1989) (footnote omitted); see Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180, 187 (4th Cir. 1999) (“It is well-settled that sections 1983 and 1985 borrow the state's general personal injury limitations period.” (citations omitted)). In South Carolina, the residual statute of limitations for personal injury actions is three years. S.C. Code Ann. § 15-3-530. The limitations period of S.C. Code Ann. § 15-3-530 begins to run when the plaintiff “knew or by the exercise of reasonable diligence should have known that he had a cause of action.” Gibson v. Bank of Am., N.A., 680 S.E.2d 778, 782 (S.C. Ct. App. 2009) (emphasis omitted). The test is an objective one, Burgess v. Am. Cancer Soc'y, SC Div., Inc., 386 S.E.2d 798, 800 (S.C. Ct. App. 1989) (citing Rogers v. Efird's Exterminating Co., Inc., 325 S.E.2d 541, 542 (S.C. 1985)); the limitations period begins to run when “the facts and circumstances of an injury would put a person of common knowledge and experience on notice . . . that some claim against another party might exist, ” Snell v. Columbia Gun Exchange, Inc., 278 S.E.2d 333, 334 (S.C. 1981).
Here, Plaintiff alleges that he was injured on August 25, 2014. [Doc. 26 at 2.] Plaintiff alleges that he sought care from Defendants in the weeks following his injury as follows. He was taken to medical by Defendant Bailey for evaluation on the day of his injury. [Id.] Defendant Burnett gave Plaintiff ibuprofen and scheduled a follow up visit for August 29, 2014. [Id.] However, the day after his injury, on August 26, 2014, Plaintiff was seen by Nurse Anderson after complaining of pain, and she scheduled another appointment for August 28, 2014. [Id.] Around that time, Plaintiff wrote to Defendant Stokes complaining of pain and had his family contact the Warden. [Id. at 2-3.] On September 3, 2014, Plaintiff again reported that he was experiencing pain, and he was seen by Nurse Anderson who referred Plaintiff to Nurse Blake. [Id. at 3.] On September 9, 2014, Plaintiff was seen by Dr. Neville and, on September 11, 2014, he was given an x-ray. [Id. at 4-5.] Plaintiff makes no other allegations about his injury or the treatment he received or did not receive after the two-week time period noted above.
Because the limitations period begins to run when the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some claim against another party might exist, the undersigned concludes that the three-year limitations period began to run sometime between August 25, 2014, the date of his injury, and September 11, 2014, the last date of medical care referenced in Plaintiff's Amended Complaint. Assuming the limitations period began to run on the latest date alleged by Plaintiff, September 11, 2014, the statute of limitations would have expired three years later, September 11, 2017. Nevertheless, more than four years passed after the expiration of the limitations period before Plaintiff commenced this action. As such, Plaintiff's claims asserted in this action are time-barred.
CONCLUSION and RECOMMENDATION
Consequently, for the reasons stated above, Plaintiff's Amended Complaint is subject to summary dismissal. Therefore, the undersigned recommends that the District Court dismiss this action pursuant to 28 U.S.C. § 1915.
Because Plaintiff has already had an opportunity to amend his pleadings and in light of the analysis above, the undersigned recommends that the instant action be dismissed without affording Plaintiff an additional opportunity to amend. See Thomas v. Drive Auto. Indus. of Am., Inc., No. 6:18-cv-169-AMQ, 2018 WL 5258811, at *2 (D.S.C. July 25, 2018) (declining to automatically give plaintiff leave to amend because plaintiff could not cure the defects in his claims against defendant by mere amendment), Report and Recommendation adopted by 2018 WL 5255183 (D.S.C. Oct. 22, 2018); Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 (D.S.C. Oct. 2, 2018) (declining to give plaintiff leave to amend because it would be futile for plaintiff to amend his complaint against the defendants being dismissed), aff'd, 766 Fed.Appx. 1 (4th Cir. 2019).
IT IS SO RECOMMENDED.
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 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).