Opinion
C. A. 6:21-cv-03477-JD-KFM
03-16-2022
Cederick Wise, Plaintiff, v. Brian Kendall, Christopher Poindexter, Travis Guest, NyKeemah Fields, Albert Mackie, Mr. Gore, John Doe 2, Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES 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 October 22, 2021 (doc. 1). On December 17, 2021, the undersigned issued an order informing the plaintiff that his complaint was subject to dismissal as drafted and providing him with time to file an amended complaint to correct the deficiencies noted in the order (doc. 12). The plaintiff was informed that if he failed to file an amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that his claims be dismissed (id. at 9-10). The plaintiff has failed to file an amended complaint within the time provided; accordingly, the undersigned recommends that the instant matter be dismissed.
ALLEGATIONS
The plaintiff, a prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and located at Broad River Correctional Institution (“Broad River”), brings this action seeking damages from the defendants for alleged constitutional violations which occurred while he was an inmate located at Lieber Correctional Institution (“Lieber”) (doc. 1).
The plaintiff contends that Mr. Gore did not send the plaintiff his heart healthy diet tray while he was on segregated detention from April, 22, 2020, to November 17, 2020 (id. at 5-6, 13-15). Not providing the plaintiff with the heart healthy diet was a violation of SCDC policy (id. at 6, 13). The plaintiff contends that he wrote to Warden Kendall and Mr. Gore about his heart healthy diet while in restricted housing, but still did not receive his heart healthy diet even after Warden Kendall responded to a grievance and said that the plaintiff would be provided with heart healthy diet trays (id. at 13-14). He contends that Mr. Gore did not walk through the restricted housing unit to check on inmates who requested, but were denied, special dietary meals (id. at 13-14, 15). As such, the plaintiff alleges that his equal protection rights were violated (id. at 14).
The plaintiff seeks supervisory liability against all the defendants for failing to ensure he received his heart healthy diet (id. at 13, 16-17, 19-20). The plaintiff also contends that the defendants have prevented him from receiving his heart healthy diet as retaliation for the grievances he filed (id. at 18). They have also violated their oaths of office (id. at 18, 20-21).
For injuries, the plaintiff contends he lost weight, suffered sleep deprivation due to hunger, had migraines, and suffered emotional distress (id. at 6). For relief, the plaintiff seeks money damages (id. at 21-22).
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
As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendants. However, the plaintiff's complaint is subject to summary dismissal. As an initial matter, the plaintiff references an excessive force incident with Mr. Poindexter in his complaint (doc. 1 at 17); however, it is subject to dismissal in this matter because the plaintiff seeks relief with respect to that incident in another case. See Wise v. Poindexter, et al, C/A No. 6:21-cv-03475 (D.S.C.).
Heart Healthy Diet Claim
The plaintiff contends that denial of his heart healthy diet constitutes cruel and unusual punishment in violation of his Eighth Amendment rights (see generally doc. 1). As an initial matter, the plaintiff has already filed an action seeking damages based upon denial of his heart healthy diet. See Wise v. Nelson, et al., C/A No. 6:21-cv-02308-JD-KFM (D.S.C.). However, because this claim involves his heart healthy diet at Lieber (and not Broad River as in the other case), the court will address the merits of the plaintiff's claim.
The Eighth Amendment expressly prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. To succeed on an Eighth Amendment claim for cruel and unusual punishment regarding the conditions of his confinement, a prisoner must prove that he was deprived of a basic human need and that prison officials were deliberately indifferent to that deprivation. See Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993). The first prong of the Strickler analysis requires an objective showing that the deprivation was sufficiently serious, such that significant physical or emotional injury resulted from it, while the second prong is a subjective test requiring evidence that prison officials acted with a sufficiently culpable state of mind. Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The Supreme Court has found that the Eighth Amendment imposes a duty on prison officials to provide inmates with “adequate food.” Farmer, 511 U.S. at 832. As recognized by the Fourth Circuit, other circuits have reasoned (although in unpublished decisions) that the duty includes providing a medically appropriate diet - if the diet is medically necessary. Scinto v. Stansberry, 841 F.3d 219, 233-34 (4th Cir. 2016) (internal citations omitted). The Fourth Circuit went on to note that only “an ‘extreme deprivation' is actionable under the Eighth Amendment.” Id. at 234.
Here, the plaintiff asserts that he was denied his heart healthy diet and only able to eat breakfast while in restricted housing, which caused him to lose weight (doc. 1 at 5-6, 13-15). First, the plaintiff has not plausibly alleged that the defendants acted in a sufficiently culpable manner with respect to his heart healthy diet. For example, the plaintiff submitted a grievance to Warden Kendall seeking the heart healthy diet, and Warden Kendall responded that the plaintiff's food choice would be updated - and the complaint contains no allegations that Warden Kendall was later on notice that the plaintiff had not actually received the heart healthy trays. Moreover, the plaintiff contends that Mr. Gore acted negligently in not coming by his cell and asking if he was receiving his heart healthy diet, but negligence is not actionable under § 1983. See Estelle, 429 U.S. at 106; See Daniels v. Williams, 474 U.S. 327, 328 (1986); Samuel v. Nolland, C/A No. 2:11-cv-03417-MGL-BHH, 2013 WL 360263, at *3 (D.S.C. Jan. 9, 2013), Report and Recommendation adopted by 2013 WL 361083 (D.S.C. Jan. 30, 2013) (collecting cases recognizing that negligence is not actionable in a § 1983 claim). Additionally, the plaintiff has not alleged an “extreme deprivation” as required by the Fourth Circuit. See Scinto, 841 F.3d at 234. The plaintiff has not plausibly alleged that there was no combination of foods in each meal that would have provided him with adequate sustenance without adverse medical consequences - providing no factual allegations about the meals he was served during his time in restricted housing (see generally doc. 1). As such, the plaintiff's heart healthy diet claim is subject to summary dismissal.
Equal Protection Claim
The plaintiff's equal protection claim is also subject to summary dismissal. The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Fourth Circuit has held that
[t]o succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination. Once this showing is made, the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001) (internal citations omitted). Here, the plaintiff's allegations - that he was treated differently than all other prisoners on restricted housing (doc. 1 at 14) - does not allege how he has been treated differently than other inmates based upon a suspect class - as being a prisoner (or a prisoner with a special diet tray on restricted housing) is not a suspect classification. See Wilkins v. Gaddy, 734 F.3d 344, 348 (4th Cir. 2013) (noting that circuit precedent clearly holds “that prisoners are not a ‘suspect class'”). As such, the plaintiff's equal protection claim is subject to summary dismissal.
Supervisory Liability
The plaintiff specifically seeks supervisory liability against the majority of the defendants, asserting that they should have ensured he received his heart healthy diet (doc. 1 at 13, 16-17, 19-20). The plaintiff's supervisory claims, however, are subject to summary dismissal because the doctrines of vicarious liability and respondeat superior are generally not applicable to § 1983 suits. 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.”); Polk Cnty. 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 Fed.Appx. 78, 80 (4th Cir. 2013). Here, the plaintiff's allegations indicate that upon notifying Warden Kendall about his heart healthy diet, Warden Kendall indicated that the plaintiff's food tray information had been updated - and there is no indication that Warden Kendall was aware that the plaintiff continued to not receive the appropriate food tray. Moreover, to the extent the plaintiff's supervisory claims involve the alleged wrongful denial of his grievances, his claim is subject to dismissal because it is well-settled that an inmate's access to and participation in a prison's grievance process is not constitutionally protected. See Taylor v. Lang, 483 Fed.Appx. 855, 858 (4th Cir. 2012); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). As such, the plaintiff's complaint fails to state a supervisory liability claim against the defendants. 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).
Retaliation Claim
To the extent the plaintiff asserts a retaliation claim against the defendants (doc. 1 at 18), the plaintiff has failed to state a claim for relief. Where a plaintiff alleges that an act was taken in response to the exercise of a constitutionally protected right, the plaintiff must allege that (1) he engaged in “protected First Amendment activity, (2) [the defendant] took some action that adversely affected [his] First Amendment rights, and (3) there was a causal relationship between [his] protected activity and [the defendant's] conduct.” Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)). Because conduct that “tends to chill the exercise of constitutional rights might not itself deprive such rights, ” a plaintiff can plausibly allege a retaliation claim without alleging an actual deprivation of his First Amendment rights. Constantine, 411 F.3d at 500. With respect to causation, a plaintiff must plausibly allege knowledge by the defendant of a plaintiff's protected activity as well as that the retaliation took place within some “temporal proximity” of that activity. Id. at 501; see Germain v. Bishop, C/A No. TDC-15-1421, 2018 WL 1453336, at *14 (D. Md. Mar. 23, 2018). A prisoner must present more than conclusory accusations of retaliation, and must provide facts that show the exercise of his constitutional right was a substantial factor motivating the retaliation. See e.g., Adams, 40 F.3d at 74-75; Cochran v. Morris, 73 F.3d 1310, 1318 (4th Cir. 1996).
Here, even liberally construed, the plaintiff's retaliation claim is insufficient. For example, it is unclear what defendants were involved in or aware of the plaintiff's participation in protected activity, who was involved with the alleged retaliatory acts, and there are no allegations providing a plausible causal link between the protected activity and alleged retaliatory acts. To the extent the plaintiff contends that the retaliation involves his cell placement in restricted housing, prisoners generally do not have a constitutionally recognized liberty interest in a particular security classification or prison placement. Hewitt v. Helms, 459 U.S. 460, 468 (1983) (finding no constitutional right under the due process clause to a particular security classification or prison placement), overruled in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). As such, the plaintiff's retaliation claim is also subject to dismissal.
Oath of Office Claims
To the extent that the plaintiff purports to bring any independent claims for “violation of oath of office” by the defendants (see doc. 1 at 18), these are not cognizable, independent, claims under either state or federal law. See Alford v. Mecklenburg Cnty. Clerk of Superior Ct., C/A No. 3:19-cv-00156-MOC-DSC, 2019 WL 2881556, at *6 (W.D. N.C. July 2, 2019).
Violation of SCDC Policy Claims
Finally, to the extent the plaintiff asserts that the defendants have violated his constitutional rights by violating various SCDC policies (doc. 1 at 6, 13, 16, 17-18), he has not alleged a plausible claim because a violation of an SCDC policy or rule, on its own, does not constitute a violation of the plaintiff's constitutional rights. See Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C. 1992); Johnson v. S.C. Dep't of Corrs., C/A No. 3:06-cv-02062-CMC-JRM, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007) (The plaintiff's allegation that defendants did not “follow their own policies or procedures, standing alone, does not amount to a constitutional violation.”). As such, the plaintiff's claims regarding alleged violations of SCDC policies are subject to summary dismissal.
RECOMMENDATION
By order issued December 17, 2021, the undersigned provided the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to timely file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment (doc. 12). The plaintiff failed to file an amended complaint within the time provided. Accordingly, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, the undersigned recommends that the district court dismiss this action with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, 724 Fed.Appx. 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, directing the district court 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)); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020). It is further recommended that this action be designated as a “strike” pursuant to 28 U.S.C. § 1915(g). The attention of the parties is directed to the important notice on the following page.
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 committees 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, Room 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).