Opinion
C/A No. 6:19-cv-03576-JFA-KFM
05-12-2020
Tyrone G. Wade, Plaintiff, v. Head Nurse Cheryl Luerre, Nurse Collins, D. Franke, Assistant Warden Erik Raymos, Brandy Lathan, Nurse Brezzle, Nurse Ms. Owens, Ms. Smith Warden M. Stephan, Defendants.
REPORT OF MAGISTRATE JUDGE
The plaintiff, a state prisoner, proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d), (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on December 26, 2019 (doc. 1). By order filed January 2, 2020, the plaintiff was given a specific time frame in which to bring his case into proper form for judicial screening (doc. 7). The plaintiff complied with the Court's Order, bringing his case into proper form. By order issued January 30, 2020, the undersigned issued an order informing the plaintiff that his claims were subject to dismissal as drafted and providing the plaintiff with 14 days to file an amended complaint (doc. 12). The order informed the plaintiff that if he failed to file an amended complaint or otherwise cure the deficiencies outlined in the order, the undersigned would recommend that his claims be dismissed with prejudice (id. at 8-9). On February 12, 2020, the plaintiff's amended complaint was entered on the docket (doc. 18). The plaintiff then filed a motion to amend his amended complaint on February 20, 2020 (doc. 20). The plaintiff's motion was granted, and he was instructed to file a second amended complaint (doc. 21). On March 9, 2020, the plaintiff's second amended complaint was entered on the docket (doc. 26). Accordingly, the plaintiff's second amended complaint is ready for consideration.
ALLEGATIONS
The plaintiff, a state prisoner in the custody of the South Carolina Department of Corrections ("SCDC") at Kirkland Correctional Institution, makes various claims against SCDC employees relating to his time at Broad River Correctional Institution ("Broad River") (doc. 25). The plaintiff alleges that on November 2, 2019, he was assaulted by another inmate in his "cell-window flap," causing a "split-open" wound on the plaintiff's left hand (id. at 7-8, 9). The plaintiff contends that the "flaps" are supposed to be secured at all times, but his was not, which allowed the other inmate to attack him (id.). The plaintiff contends that Lt. Levels and C/O Duffy witnessed the attack from the booth, but also asserts that the defendants were not watching the cameras (id. at 8, 11). Hours after the attack, the plaintiff contends that Nurses D. Franke and Ms. Brezzle arrived to wrap his hand (id. at 8, 9). He further alleges that Nurses D. Franke and Ms. Brezzle stated that the cut in his hand was superficial even though it was not and that they refused to contact the on-call doctor (id.). He contends that he was later moved to the Restricted Housing Unit ("RHU"), where he saw Nurse Reed, who re-bandaged the plaintiff's hand and indicated that the plaintiff needed outside medical treatment for his hand injury to get staples or stitches (id. at 9).
In prior filings before this court, the plaintiff indicated that the attack occurred on November 3, 2019 (docs. 1 at 11-12; 18 at 14).
During this same time, the plaintiff contends that Nurse Collins and Patel came to treat him in the RHU (id.). The plaintiff requested to see the doctor, but Nurse Collins responded by treating his injury "roughly" and then left the plaintiff with his hand uncovered (id.). On November 8, 2019, Nurse Owens saw the plaintiff and indicated that she was authorized by Dr. Myers to put staples into the plaintiff's hand, and proceeded to put seven staples in his hand (id.). The plaintiff alleges that Nurse Owens did not have that authority or the qualification to put the staples into his hand and that his hand later became infected because of how she put in the staples (id.). The plaintiff submitted several "requests to staff member" forms to Head Nurse Luerre to see a doctor about his hand wound, but his requests were denied (id. at 10). The plaintiff further contends that when Mrs. Smith treated his hand, she indicated that his hand was not infected even though it was (id.).
The plaintiff alleges that he informed A/W Raymos and D/W Lathan about the attack and they indicated that they would examine the cameras because the flaps were supposed to be secured (id.). The plaintiff contends that he showed his wound to Warden Stephan and asked him to contact medical so that he could obtain medical treatment for the wound (id.). The plaintiff further contends that he told every defendant about his need for medical care and to see a hand specialist (id. at 10).
For injuries, the plaintiff indicates that his hand usage is limited because he has nerve damage and he has still not received appropriate medical care for his hand (id. at 8, 11). For relief, the plaintiff seeks money damages as well as any other relief the court deems proper (id.).
STANDARD OF REVIEW
The 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, the plaintiff is a prisoner under the definition of 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 the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
As a pro se litigant, the plaintiff's 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 (2007) (per curiam). 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, 391 (4th Cir. 1990).
This complaint is filed 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).
DISCUSSION
After review of the plaintiff's second amended complaint (doc. 25), the undersigned finds that only the deliberate indifference to medical needs claim should be served against Nurse Ms. Owens, Nurse Practitioner Ms. Smith, Nurse Collins, D. Franke, Nurse Brezzle, Head Nurse Luerre, and Warden Stephan. Accordingly, service will be authorized as to these defendants on this claim only. As addressed below, however, the plaintiff has failed to correct the pleading deficiencies identified by the court with respect to the remaining claims; thus, the court recommends summary dismissal of the remainder of the plaintiff's claims.
Failure to Protect Claim
The plaintiff asserts a failure to protect claim against A/W Raymos, Brandy Lathan, and Warden Stephan based upon the flap to his cell not being secured (doc. 25 at 7-8, 9, 11). To plausibly state a failure to protect claim, a plaintiff must allege sufficient factual allegations to show that a prison official had actual knowledge of a substantial risk of harm to an inmate and disregarded that substantial risk. Farmer, 511 U.S. at 847; see also Parrish v. Cleveland, 372 F.3d 294, 302-03 (4th Cir. 2004) (stating the standard of deliberate indifference requires actual knowledge and disregard of a substantial risk of serious injury). Here, the plaintiff's allegations do not meet that standard, as he presents no specific claims of personal threat or risk of harm, and certainly none known to the defendants with resulting indifference. Indeed, as addressed below with respect to the plaintiff's claims against some of the defendants in their supervisory capacities, the plaintiff's second amended complaint contains no personal allegations with respect to a failure to protect claim—beyond conclusorily noting that the flaps are supposed to be secured and were not when the plaintiff was attacked (doc. 25 at 7, 8, 9, 11). As such, because the allegations in his second amended complaint fail to meet the plausibility standard, the plaintiff's failure to protect claim is subject to summary dismissal. See Iqbal, 556 U.S. at 678 (noting that "[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.") (citing Twombly v. Bell Atl. Corp., 550 U.S. 544, 556-57 (2007)).
Supervisory Liability
Liberally construed, it also appears that the plaintiff asserts claims against A/W Raymos in his supervisory capacity. However, such claims are subject to summary dismissal because the doctrines of vicarious liability and respondeat superior are generally not applicable to § 1983 suits. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("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."); Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981) (noting that "Section 1983 will not support a claim based on a respondeat superior theory of liability" (emphasis in original)). Indeed, to allege a plausible claim requires a showing that the supervisor (1) had actual or constructive knowledge that his/her subordinates engaged in conduct posing a pervasive or unreasonable risk of constitutional injury; (2) the supervisor's response to the knowledge was "so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices;" and (3) an affirmative causal link between the inaction by the supervisor and the particular constitutional injury suffered by the plaintiff. Green v. Beck, 539 F. App'x 78, 80 (4th Cir. 2013). As noted above, the plaintiff has not alleged that A/W Raymos was responsible for the conditions complained of herein. Indeed, according to the second amended complaint, when the plaintiff reported his attack to A/W Raymos, A/W Raymos took action to investigate the attack (doc. 24 at 10). Moreover, the plaintiff's vague and conclusory allegation that he told every defendant about his need for medical care is insufficient to impose supervisory liability against A/W Raymos. As such, to the extent the plaintiff's complaint can be read as asserting a supervisory claim against A/W Raymos, it is subject to summary dismissal. See Ford v. Stirling, C.A. No. 2:17-02390-MGL, 2017 WL 4803648, at *2 (D.S.C. Oct. 25, 2017); London v. Maier, C.A. No. 0:10-00434-RBH, 2010 WL 1428832, at *2 (D.S.C. Apr. 7, 2010).
As noted herein, the plaintiff's claims against defendants Nurse Luerre and Warden Stephan will continue with respect to the plaintiff's deliberate indifference claim.
RECOMMENDATION
As for the claims presented in the second amended complaint, the deliberate indifference claim will be served as noted above against defendants Nurse Ms. Owens, Nurse Practitioner Ms. Smith, Nurse Collins, D. Franke, Nurse Brezzle, Head Nurse Luerre, and Warden Stephan. As to all other claims, including the plaintiff's failure to protect claim, the undersigned recommends they be dismissed with prejudice and without issuance and service of process because the plaintiff's second amended complaint has not cured the deficiencies identified in the order issued January 30, 2020. See Workman v. Morrison Healthcare, 724 F. App'x 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, the district court was directed on remand to "in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order") (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)).
That order warned the plaintiff that if he failed to file an amended complaint or failed to cure the deficiencies identified therein, the undersigned would recommend to the district court that those claims be dismissed with prejudice and without leave for further amendment (doc. 12 at 8-9). Despite the warning, as noted herein, the plaintiff's second amended complaint did not cure any of the noted pleading deficiencies with respect to these claims.
Should the district court adopt this recommendation, defendants A/W Raymos and Brandy Lathan would be terminated from this action.
The plaintiff's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge May 12, 2020
Greenville, South Carolina
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
300 East Washington Street, Room 239
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).