Opinion
C/A 9:22-cv-511-MGL-MHC
09-29-2023
Larry James Tyler, Plaintiff, v. Diann Wilks, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff, proceeding pro se, filed this action, alleging a violation of his constitutional rights with respect to his medical care. This matter is before the Court on Plaintiff's Motion for Default Judgment as to Defendant Diann Wilks (“Motion”). ECF No. 70. For the following reasons, the undersigned recommends that Plaintiff's Motion be denied, and this action dismissed.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), and this Report and Recommendation is entered for review by the District Judge.
PROCEDURAL BACKGROUND
Plaintiff seeks a default judgment against Defendant Wilks for her failure to answer or otherwise respond to Plaintiff's Complaint. Plaintiff filed this lawsuit on February 17, 2022. ECF No. 1. On April 21, 2022, the Court directed Defendants to file an answer to the Complaint or otherwise plead. ECF No. 12 at 2. After process was served, Defendant Hudson responded to the Complaint. ECF No. 19. Defendant Wilks did not.
On November 15, 2022, the Court sought a status report from Plaintiff as to Defendant Wilks, because she appeared to have been served with the Complaint on May 27, 2022, but had not made an appearance in the action. ECF No. 29. On December 2, 2022, Plaintiff requested entry of default against Defendant Wilks, ECF No. 33, which was entered by the Clerk. ECF No. 34.
Plaintiff filed a Motion for Default Judgment against Defendant Wilks on July 13, 2022. ECF No. 70. He included a certificate of service that he mailed a copy of the Motion for Default Judgment to Defendant Wilks at the same address where the Complaint was served on her. ECF No. 70-2 at 3. Defendant Wilks has not filed any response to the Complaint, the Request for Entry of Default, or the Motion for Default Judgment.
DISCUSSION
Once entry of default has been entered pursuant to Federal Rule of Civil Procedure 55(a), Rule 55(b) permits entry of default judgment against properly served defendants who failed to file responsive pleadings. See Fed.R.Civ.P. 55(a)-(b). In determining whether to enter judgment on the default, “[t]he court must . . . determine whether the well-pleaded allegations in [Plaintiff's] complaint support the relief sought in this action.” Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001); see also Fed.R.Civ.P. 8(b)(6) (“An allegation - other than one relating to the amount of damages - is admitted if a responsive pleading is required and the allegation is not denied.”). Additionally, “[i]f the court finds that liability is established, it must then determine damages.” J & J Sports Prods., Inc. v. Romenski, 845 F.Supp.2d 703, 706 (W.D. N.C. 2012). In its findings, “[t]he court must make an independent determination regarding damages, and cannot accept as true factual allegations of damages.” Id.
A. Allegations in Complaint
Plaintiff's Complaint alleges the following pertinent facts: On or around December 4 or 5, 2021, Defendant Wilks did not give Plaintiff his migraine pain medication for two straight days. ECF No. 1 at 14. Then, for two more days, she only gave him a half-day supply. Id. Plaintiff alleges he suffered over 12 hours with a migraine. Id. Defendant Wilks has Plaintiff's previous medical records of his chronic migraines, such that she has known about his long medical history of his fractured skull and chronic migraines. Id.
Plaintiff alleges that he has submitted complaints for months about his pain medications not working on his migraines, with no response to improve the medication. Id. at 14-15. Plaintiff contends that Dr. John Trogdon refused to listen to his issues with the pills, send him to a specialist or find out why the medications are not working as they once did. Id. at 15. So, Plaintiff requested an informal resolution from Defendant Hudson. Id.
Plaintiff alleges that, on February 11, 2022, Defendant Wilks deliberately gave him the wrong medication, which never relieved his migraine pain, such that he suffered a migraine that day. Id. at 16. Plaintiff contends that Defendant Wilks leaves his medication crushed in water then lets the officer on duty give it to him, when only a certified nurse should do that. Id.
Additionally, Plaintiff has a fungus under his nails that will not allow the nail to adhere to his fingers, and all his nails have fallen off since he has been in jail. Id. at 15. He contends Defendant Wilks will not address the issue with his nails. Id.
B. Effect of Default
The undersigned finds that Defendant Wilks's failure to answer or otherwise defend against well-pled allegations in Plaintiff's Complaint means those allegations are deemed admitted. Ryan, 253 F.3d at 780. However, the defendant is not deemed to have admitted conclusions of law and the entry of “default is not treated as an absolute confession by the defendant of [her] liability and of the plaintiff's right to recover.” Id. (citation omitted); see also Romenski, 845 F.Supp.2d at 705. Thus, it is for the Court to determine whether the facts, as alleged, support Plaintiff's Motion for Default Judgment and the relief sought. See Ryan, 253 F.3d at 780; Romenski, 745 F.Supp.2d at 705.
C. Section 1983 Claim
Plaintiff has sued Defendant Wilks in her individual capacity, alleging a violation of his constitutional rights for deliberate indifference to his medical needs, pursuant to 42 U.S.C. § 1983. See ECF No. 1 at 2-3. To state a § 1983 claim, Plaintiff must demonstrate that Defendant Wilks, acting under color of state law, deprived him of a right secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983; Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001).
Defendant Wilks is apparently employed by Hartsville Medical Enrichment Services, LLC (“HMES”), which is a private company that provides medical services at the Darlington County Detention Center (“DCDC”). See ECF No. 37-2. Nevertheless, individual employees of medical companies providing contract medical care have been found to be “public officials” for purposes of § 1983 lawsuits. See, e.g., Womble v. Williams, No. CV 9:18-2625-MBS-BM, 2019 WL 8375941, at *4 n.6 (D.S.C. Oct. 16, 2019) (noting private physicians contracted by the State to provide medical care to prisoners were state actors for purposes of § 1983), report and recommendation adopted, No. CV 9:18-2625-MBS, 2020 WL 702752 (D.S.C. Feb. 12, 2020).
Plaintiff asserts that his Eighth and Fourteenth Amendment rights have been violated. ECF No. 1 at 4. While Eighth Amendment claims pertain to convicted prisoners and Fourteenth Amendment claims pertain to pretrial detainees, the analysis for claims of deliberate indifference is generally the same under either amendment. See Belcher v. Oliver, 898 F.2d 32, 34 (4th Cir. 1990) (“The Fourteenth Amendment right of pretrial detainees, like the Eighth Amendment right of convicted prisoners, requires that government officials not be deliberately indifferent to any serious medical needs of the detainee.”); see also Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001) (stating that whether the plaintiff is a pretrial detainee or a convicted prisoner, the “standard in either case is the same-that is, whether a government official has been ‘deliberately indifferent to any [of his] serious medical needs'” (quoting Belcher, 898 F.2d at 34)).
1. Constitutional Claim
To sustain his constitutional claim under 42 U.S.C. § 1983, Plaintiff must make (1) a subjective showing that Defendant Wilks was deliberately indifferent to his medical needs and (2) an objective showing that those needs were serious. Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (noting a “plaintiff must demonstrate that the officers acted with ‘deliberate indifference' (subjective) to the inmate's ‘serious medical needs' (objective)”); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (to state an Eighth Amendment claim, “a prisoner must allege acts or omissions sufficiently harmful to evidence [1] deliberate indifference to [2] serious medical needs”).
a. Objective Prong
As to the objective prong, a “serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Heyer v. United States Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (internal quotation marks omitted) (citing Iko, 535 F.3d at 241).
Here, there is no evidence before the Court that any physician has diagnosed Plaintiff's nail fungus as a serious medical condition. Moreover, based upon the allegations in the Complaint, the undersigned cannot conclude that “even a lay person would easily recognize the necessity for a doctor's attention” for Plaintiff's nail condition. See id. On this basis alone, Plaintiff's Motion for Default Judgment against Defendant Wilks on any claim pertaining to his nail fungus should be denied.
For purposes of Plaintiff's Motion, the undersigned assumes Plaintiff's migraines constitute an objectively serious medical condition. However, Plaintiff has failed to identify facts or other evidence in the record that supports a § 1983 action against Defendant Wilks regarding the subjective component of his constitutional claim against her regarding his nail fungus or migraines.
b. Subjective Prong
The subjective prong of deliberate indifference is a “very high standard” and merely negligent behaviors do not meet the subjective mens rea requirement. Young v. City of Mount Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001). The Fourth Circuit has recognized two different aspects of an official's state of mind that must be shown to satisfy the subjective prong in this context: “First, actual knowledge of the risk of harm to the inmate is required” and, second, “the officer must also have recognized that [her] actions were insufficient to mitigate the risk of harm to the inmate arising from his medical needs.” Iko, 535 F.3d at 241 (emphasis in original) (internal quotation marks and citations omitted); see also Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[A] prison official cannot be found liable . . . for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”).
As noted above, to prove deliberate indifference, Plaintiff must show Defendant Wilks knew of and disregarded an excessive risk to his health and safety regarding his migraines and his nail fungus. See Farmer, 511 U.S. at 837.
i. Nail Fungus
Notwithstanding there is no evidence before the Court to establish Plaintiff's nail fungus presents an objectively serious medical condition, there also is no evidence before the Court that Defendant Wilks knew of and disregarded an excessive risk to Plaintiff's health and safety regarding his nail fungus. For this additional reason, Plaintiff's Motion for Default Judgment against Defendant Wilks on any claim pertaining to his nail fungus should be denied.
The medical records in evidence indicate Plaintiff has received medical treatment for his nail fungus. ECF No. 37-3 at 1-7.
ii. Migraines
Plaintiff alleges that Defendant Wilks has the previous medical records of his chronic migraines, such that she knew about the medical history of his fractured skull and chronic migraines, which are facts taken as true. However, Plaintiff must show not just that Defendant Wilks knew of his history of migraines but that she knew of and disregarded an excessive risk to his health and safety regarding the treatment of his migraines. See Farmer, 511 U.S. at 837.
In that regard, the facts, taken as true from the allegations in the Complaint, are that Defendant Wilks delayed giving Plaintiff his migration medication by two days once in December, then only gave him half the amount, such that he suffered migraine pain; gave him the wrong medication on February 11, 2022, such that he suffered a migraine; and leaves his medication crushed in water to let the officer give it to him, when a certified nurse should do that.
However, this brief delay in providing medication or the one day without correct medication does not give rise to a constitutional violation. See Rodriguez v. Hockings, No. 3:08-CV-1403-K ECF, 2009 WL 648886, at *2 (N.D. Tex. March 10, 2009) (finding six-day delay in providing eye drops for chemicals spilled in inmates eyes did not constitute deliberate indifference); King v. Kilgore, 98 F.3d 1338, 1996 WL 556845, at *1 (5th Cir. 1996) (unpublished) (stating that delay in medical care causing pain and discomfort was insufficient to establish substantial harm); Hill v. Bowles, No. 3:02-CV-2527-P, 2003 WL 21448045, at *4 (N.D. Tex. June 18, 2003) (finding delay in medical care causing migraine headaches insufficient to establish substantial harm), report and recommendation adopted, 2003 WL 21977138 (N.D. Tex. July 31, 2003).
The medical evidence before the Court shows that Plaintiff has been receiving medication for his migraine headaches. ECF No. 37-3. While the pain from a migraine can certainly be excruciating, the allegations from Plaintiff's Complaint, at best, may show negligent behavior but do not meet the “very high standard” of establishing the subjective mens rea requirement for a deliberate indifference claim. See Young, 238 F.3d at 575-76; see also Wright v. Ozmint, No. CA 2:07-2515-JFA-RSC, 2008 WL 4542915, at *4 (D.S.C. Oct. 7, 2008) (“The 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.”).
Moreover, the method of administering medication does not rise to the level of demonstrating deliberate indifference to serious medical needs. Indeed, the records before the Court indicate that Defendant Wilks was ordered by Dr. Trogdon to crush Plaintiff's medication in water, given concerns that Plaintiff was selling his migraine medication. ECF No. 37-2 at 3.
To the extent Plaintiff maintains the medication he has been prescribed is not effective or that he should receive some other type of pain medication, those allegations pertain to Dr. Trogdon. Indeed, Defendant Wilks did not prescribe Plaintiff's medication but, instead, administered it. Regardless, however, a “difference of opinion regarding the . . . treatment provided by SCDC does not rise to a constitutional violation.” Broach v. Ozmint, No. CA 0:08-3471-HMH-PJG, 2009 WL 1956699, at *5 (D.S.C. July 7, 2009); see also Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (noting that the Fourth Circuit has consistently found disagreements between an inmate and a physician over the inmate's proper medical care “fall[s] short of showing deliberate indifference”); Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (“Disagreements between an inmate and a physician over the inmate's proper medical care do not state a § 1983 claim[.]”); Randall v. Wyrick, 642 F.2d 304, 308 & n.8 (8th Cir. 1981) (finding that a prison's refusal to allow a prisoner access to a chiropractor to relieve pain did not constitute deliberate indifference, but rather was merely a difference of opinion as to the most desirable treatment).
Notably, notwithstanding the admissions gleaned from Plaintiff's Complaint, Plaintiff “has presented no medical opinion that the treatment he is currently receiving is inadequate or improper” to address his migraines. See Broach v. Ozmint, No. CA 0:08-3471-HMH-PJG, 2009 WL 1956699, at *5 n.2 (D.S.C. July 7, 2009) (emphasis in original); see also Green v. Senkowski, 100 Fed.Appx. 45, 47 (2d Cir. 2004) (unpublished) (finding that a plaintiff's self-diagnosis unsupported by any medical evidence in the record was insufficient to defeat summary judgment on a deliberate indifference claim). Moreover, complaints about unsuccessful medical treatment do not give rise to a civil rights action. King, 1996 WL 556845, at *1 (citing Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).
Thus, Plaintiff has not shown Defendant Wilks was deliberately indifferent to his serious medical needs.
2. Qualified Immunity
Defendant Wilks is also entitled to qualified immunity from Plaintiff's claim. The doctrine of qualified immunity offers some protection to a government employee being sued in her individual capacity, as is the case with Defendant Wilks here. The Supreme Court has held that “[g]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Renn by and Through Renn v. Garrison, 100 F.3d 344, 349 (4th Cir. 1996).
“The threshold inquiry a court must undertake in a qualified immunity analysis is whether a plaintiff's allegations, if true, establish a clear constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). If a violation of a constitutional right in fact exists, qualified immunity nonetheless shields a prison official from liability, unless the violation was of a “clearly established right of which a reasonable person would have known.” Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (citation and internal quotation marks omitted). Because Defendant Wilks did not violate Plaintiff's constitutional rights, she is also shielded from liability by qualified immunity.
RECOMMENDATION
For the foregoing reasons, the undersigned recommends that Plaintiff's Motion for Default Judgment (ECF No. 70) be DENIED and the claims against Defendant Wilks be DISMISSED.
The parties are directed to the next page for their rights to file objections to this recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
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).