Opinion
C. A. 6:21-cv-03475-JD-KFM
01-14-2022
Cederick Wise, Plaintiff, v. Christopher Poindexter, Sherisse Birch, Karis Brown, Brian Kendall, John Doe 1, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
The plaintiff, a state prisoner proceeding pro se and in forma pauperis, brought 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). By Order filed December 8, 2021, the undersigned informed the plaintiff that his excessive force claim against Mr. Poindexter, as pleaded, was sufficient to survive screening, and indicated that service would be recommended as to Mr. Poindexter on that claim (doc. 12 at 4, 10-11). The order also informed the plaintiff that the remainder of his claims were subject to dismissal as drafted and provided the plaintiff with fourteen days to file an amended complaint with respect to his claims (id. at 10-11). Two weeks after the deadline passed, the plaintiff's amended complaint was entered on the docket (doc. 14). Upon review, the undersigned is of the opinion that the plaintiff's amended complaint has not corrected the deficiencies noted in the court's December 8, 2021, order; thus, the plaintiff's claims are subject to summary dismissal as outlined below, except for the plaintiff's excessive force claim against Mr. Poindexter.
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. 14).
The plaintiff alleges that on April 14, 2020, he submitted a grievance to the Warden that all of the employees at Lieber were violating his constitutional rights (id. at 13-14). On April 17, 2020, the plaintiff contends that Mr. Poindexter moved him to a different cell without a mattress and that the move was in retaliation for the grievance the plaintiff filed (id. at 14). The plaintiff notes, however, that he is not arguing inhumane living conditions with respect to the cell he was moved to (id.).
On April 22, 2020, the plaintiff contends that he was taken to a holding cell to get his tablet, even though SCDC records were “falsified” to indicate that the plaintiff was taken to the holding cell after he broke the window of his cell by punching it (id. at 14-15). The plaintiff then informed Dr. Birch that Mr. Poindexter had violated his rights by moving him to a cell without his mattress (id. at 15). During the conversation, Mr. Poindexter came to the plaintiff's cell and maced the plaintiff even though he was not being recalcitrant and had not been told to exit the holding cell (id. at 15-17). The plaintiff fell as a result of being maced, and broke two fingers in his hand (id. at 16). The plaintiff contends that the macing was also retaliation for the grievance he filed (id. at 17-18).
The plaintiff alleges that Dr. Birch saw the plaintiff's injured hand, but did not treat it or put a cast on it (id. at 19). The plaintiff contends that failing to treat his hand was a violation of SCDC policy by both Dr. Birch and Nurse Brown (id.). The plaintiff contends that his medical records were falsified to show that his hand was damaged when he punched the window of his cell instead of from falling after being maced (id. at 19-21). The plaintiff contends that on June 15, 2020, he requested an x-ray of his hand because it was still not healed (id. at 21). He alleges that the medical records falsely showed he was given Ibuprofen and had his hand wrapped (id.). The plaintiff contends that the Warden's response to his grievance regarding medical care was that he was treated for a soft tissue injury to his hand (id. at 21-22). X-ray results in July 2020, indicated that the plaintiff's hand showed a healed boxer fracture (id. at 22). The plaintiff contends that because he had a bone broken, the only appropriate treatment would have been to cast his hand (id. at 22-23).
The plaintiff alleges supervisory liability against Warden Kendall and John Doe 1 for not granting his grievances because they should have known Mr. Poindexter had an animus against him (id. at 23-24, 25-26). The defendants also violated their oaths of office (id. at 13, 25).
For injuries, the plaintiff alleges sleep deprivation, mental anguish, and that he had broken bones in his hand (id. at 6). For relief, the plaintiff seeks an order requiring SCDC to do surgery on his hand as well as money damages (id. at 6, 26-27).
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 pleaded, the plaintiff's excessive force claim against Mr. Poindexter is sufficient to survive screening, and service will be recommended as to Mr. Poindexter on only this claim. As addressed below, the plaintiff has failed to correct the pleading deficiencies identified by the court with respect to the remainder of his claims; thus, the undersigned recommends that the remaining defendants and claims be dismissed.
Deliberate Indifference to Medical Needs Claim
The plaintiff contends that defendants Dr. Birch and Ms. Brown failed to provide him with adequate medical treatment (doc. 14 at 18-23). Not “every claim by a prisoner [alleging] that he has not received adequate medical treatment states a violation of the [Constitution].” Estelle v. Gamble, 429 U.S. 97, 105 (1976). The government is required to provide medical care for incarcerated individuals. Id. at 103. However, to establish deliberate indifference, the treatment “must be 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, 851-52 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837 (1994).
In order to state a claim, a plaintiff must show a serious medical need as well as that the defendant “knowingly disregarded that need and the substantial risk it posed.” DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018) (citing King v. Rubenstein, 825 F.3d 206, 218-20 (4th Cir. 2016); Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209-11 (4th Cir. 2017)). A “serious medical need” is a condition “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, 849 F.3d at 210 (citation omitted). “Deliberate indifference may be demonstrated by either actual intent or reckless disregard. A defendant acts recklessly by disregarding a substantial risk of danger that is either known to the defendant or which would be apparent to a reasonable person in the defendant's position.” Miltier, 896 F.2d at 851-52 (citation omitted). “It is only such indifference that can offend ‘evolving standards of decency' in violation of the Eighth Amendment.” Estelle, 429 U.S. at 106. Mere negligence or malpractice does not violate the Eighth Amendment. Id. Moreover, disagreements between an inmate and a physician over the inmate's proper medical care do not state a Section 1983 claim unless exceptional circumstances are alleged. Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985).
Here, the plaintiff has failed to state a claim for deliberate indifference to medical needs with respect to the treatment of his hand. First, the plaintiff's complaint and his attachments indicate that he was provided medical care for his hand - just not the medical care of his choice. For example, the plaintiff alleges that he was not immediately provided an x-ray or a cast for his hand, but there is no indication that an x-ray or cast were required. Indeed, the plaintiff's own attached “evidence” to his complaint and amended complaint detail the medical care provided for his hand, including that a laceration was treated, his hand was wrapped, and he was provided an x-ray - which showed that his boxer's fracture had healed and required no further treatment (docs. 1-1 at 1-3; 14-1 at 1). The plaintiff contends that despite the healed fracture, he requires surgery for his hand; however, the plaintiff is not constitutionally entitled to the treatment of his choice. See Sharpe v. S.C. Dep't of Corrs., 621 Fed.Appx. 732, 733 (4th Cir. 2015) (unpublished per curiam opinion) (noting that “mere disagreement between an inmate and medical staff regarding the proper course of treatment provides no basis for relief” under § 1983 (citing Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975))). Moreover, to the extent the plaintiff requests that the court order SCDC to provide hand surgery for his hand, he requests relief this court cannot grant. See Meachum v. Fano, 427 U.S. 215, 228-29 (1976) (noting that “the federal courts do not sit to supervise state prisons”). As such, the plaintiff's deliberate indifference claim is subject to summary dismissal.
Supervisory Liability
The plaintiff specifically seeks supervisory liability against Warden Kendall and John Doe 1, asserting that they should have prevented the remaining defendants from violating the plaintiff's rights (doc. 14 at 21-26). 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 has not alleged that these defendants were on notice that the plaintiff's rights were being violated - and his grievances (filed after the incidents in question) do not satisfy that element of a supervisory liability claim. Additionally, as noted above, the plaintiff's disagreement with the medical treatment provided for his hand - alleging that the Warden wrongfully noted that he was treated for a soft tissue injury to his hand - does not provide a basis for a medical indifference or supervisory liability claim. Moreover, the plaintiff cannot seek supervisory liability against these defendants based upon their denial of his grievances 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 these 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
The plaintiff's retaliation claim also fails to state a claim for relief (doc. 14 at 13-15, 17-18). 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 against Mr. Poindexter fails. The plaintiff alleges that his protected activity was a grievance filed on April 14, 2020, informing the Warden that all of the Lieber employees were violating his rights (doc. 14 at 13-14). He contends that in retaliation for that grievance, on April 17, 2020, Mr. Poindexter moved him to a cell without his mattress and that on April 22, 2020, maced him for no reason (id. at 15-16, 17-18). However, there are no allegations regarding Mr. Poindexter's involvement in or knowledge of the plaintiff's engagement in protected activity (i.e., filing a grievance) prior to the retaliatory acts alleged herein. Additionally, other than timing, and indicating that he was holding a copy of the grievance when the macing occurred, the plaintiff has not alleged a plausible causal link between the protected activity and the alleged retaliatory act(s). As such, the plaintiff has not plausibly alleged that the grievance (of which the plaintiff has not alleged Mr. Poindexter had knowledge) was a substantial factor motivating his cell move and the macing. Additionally, 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. 14 at 13, 25), 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 defendants Dr. Birch and Nurse Brown have violated his constitutional rights by violating various SCDC policies (doc. 14 at 19), 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.
Abandoned Claims
It appears that the plaintiff has abandoned his claim requesting criminal prosecution of Mr. Poindexter and his equal protection claim (see doc. 14) as his amended complaint omits mention of those matters. Additionally, the plaintiff appears to have affirmatively abandoned his conditions of confinement claim, specifically alleging that he is not asserting “inhumane living conditions” (doc. 14 at 14). The plaintiff was warned that an amended complaint replaces the complaint and “should be complete in itself” (doc. 12 at 11 (citing Young, 238 F.3d at 572)). As such, the undersigned recommends dismissal of the plaintiff's abandoned claims. To the extent the plaintiff did not intend to abandon these claims, for the reasons set forth in the court's prior order, the claims would still be subject to summary dismissal (see doc. 12 at 4-6).
RECOMMENDATION
As noted above, the plaintiff's case will go forward with respect to his excessive force claim against Mr. Poindexter. However, with respect to the plaintiff's remaining claims, despite filing an amended complaint, the plaintiff has not cured the deficiencies identified in the order dated December 8, 2021 (doc. 12). As such it is recommended that the plaintiff's remaining claims be dismissed with prejudice and without issuance and service of process because the plaintiff failed to file an amended complaint to cure the deficiencies identified in the order issued December 8, 2021. 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, 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)); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020). The attention of the parties is directed to the important notice on the following page.
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 10-11).
IT IS SO RECOMMENDED.