Opinion
C/A No.: 1:20-2172-RMG-SVH
12-02-2020
Herbert Demond York, Plaintiff, v. Officer Bostic, Officer Timmons, and Nurse Cooper, in their individual capacities, Defendants.
REPORT AND RECOMMENDATION
Herbert Demond York ("Plaintiff"), proceeding pro se and in forma pauperis, filed this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights while incarcerated at Kirkland Correctional Institution ("KCI") against Officer Bostic ("Bostic"), Officer Timmons ("Timmons"), and Nurse Cooper ("Cooper") (collectively "Defendants").
Plaintiff additionally brought claims against Capt. T. Reavns and Officer C. Robinson ("Robinson"), but those defendants have been dismissed. [See ECF No. 24, ECF No. 34].
This matter comes before the court on Defendants' motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). [ECF No. 19]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the motion to dismiss procedures and the possible consequences if he failed to respond adequately to Defendants' motion. [ECF No. 20]. Defendants' motion having been fully briefed [ECF Nos. 36, 37], the matter is ripe for disposition.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge deny Defendants' motion to dismiss. I. Factual and Procedural Background
In a verified complaint, Plaintiff alleges that on May 24, 2020, at 6:00 to 6:30 p.m., Bostic approached his cell and asked him if he wanted to move. [ECF No. 1 at 10]. Plaintiff stated he did not want to move, but moments later, Bostic and Timmons approached his cell again and informed him he was being moved to another cell at the request of another inmate and to pack his belongings. Id. Bostic and Timmons left but returned five minutes later with Robinson and entered Plaintiff's cell after Plaintiff informed them he had not packed his belongings. Id. at 10-11. The three officers grabbed Plaintiff as he held his hands to his sides. Id. at 11. Robinson then struck Plaintiff "in the face with a close[d] fist." Id. Bostic then grabbed him by the waist and Timmons grabbed him by the throat, choking Plaintiff. Id.
Plaintiff alleges all three officers punched his face, back, and neck, and, during this time, he "felt an object [went into] my rectum, causing me pain." Id. Plaintiff alleges Timmons then sprayed him directly in the face with pepper spray and he was dragged upstairs to another cell. Id. Plaintiff states he informed Bostic, Timmons, and Robinson that he needed medication for his asthma, with Timmons responding, "fuck your asthma." Id. Plaintiff states that during this incident he was not given his asthma medication and he did not pose a threat to himself or others. Id.
Plaintiff alleges that at 11:00 to 12:00 p.m., Cooper and two unknown officers approached him "with the post use of force video recording camera" and asked if he was "ok." Id. at 12. Plaintiff stated no, he had been sexually assaulted and beaten, his rectum hurt, he needed his asthma medication, he was suicidal, and he needed to see someone. Id. Cooper left Plaintiff's cell without providing any asthma medication, assisting him with his "PREA" claim, or providing mental health treatment. Id.
Plaintiff's "PREA" claim references the Prison Rape Elimination Act, 34 U.S.C. § 30301 et seq. ("PREA," formerly cited as 42 U.S.C. § 15601).
Plaintiff alleges on May 26, 2020, he spoke with Captain T. Rae ("Rae") about the incident, and she "smiled then walked off." Id. Plaintiff states the next day he submitted a request to staff member ("RTSM") entitled "Capt. Rae explain and complaining about the incident that took place May 24, 2020." Id. Plaintiff states Rae wrote back on the request "write a staff request," and he was never seen about the incident until May 29, 2020. Id. Plaintiff further alleges that on June 1, 2020, Rae informed him that if he continued to file complaints and grievances, she was "going to make sure it happen[s] again 'sexual[] assault and excessive force'" and "as long as she [was] Capt of D-Dorm my Grievances will be [destroyed]." Id. at 18.
Plaintiff states, in addition to the above, he filed grievances in U.S. District Court, in the Court of Appeals, with General Counsel, with Warden Terry Wallace, and with Assistant Warden Kim Jones ("Jones"), but he has received no response from "Kim Jones . . . Terry Wallace or General Counsel" and appears to allege his claim filed in U.S. District Court was returned or dismissed. Id. at 17. On May 29, 2020, Plaintiff also informed his mental health counselor Ms. Williams, who wrote an incident report, and Nurse Dixson, who saw Plaintiff and contacted Jones and head nurse Ms. Sherman. Id. at 18.
Plaintiff alleges the injuries he sustained as a result of this incident are as follows: "swollen anus, lumps on backside of my head, cuts on my left arm, swollen ribs, anal bleeding, bleeding penis, and blurry vision." Id. at 13. Plaintiff seeks compensatory and punitive damages against each defendant in his or her individual capacity. Id. at 13-15. II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed. R. Civ. P. 12(b)(1) where the court lacks subject-matter jurisdiction and under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, "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, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ). The court is "not required to accept as true the legal conclusions set forth in a plaintiff's complaint." Edwards, 178 F.3d at 244. Indeed, "[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion." Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
1. Eleventh Amendment Immunity
Plaintiff's claims are brought pursuant to 42 U.S.C. § 1983. [ECF No. 1 at 2]. A civil action brought pursuant to 42 U.S.C. § 1983 provides a means to vindicate violations of rights, privileges, or immunities secured by the Constitution and laws of the United States, but the statute is not, itself, a source of substantive rights. Albright v. Oliver, 510 U.S. 266, 271 (1994). "Section 1983 imposes liability on any person who, under the color of state law, deprives another person 'of any rights, privileges, or immunities secured by the Constitution and laws.'" Doe v. Kidd, 501 F.3d 348, 355 (4th Cir. 2007) (citing 42 U.S.C. § 1983). "Under 42 U.S.C. § 1983, a plaintiff must establish three elements to state a cause of action: (1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law." Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997).
Defendants argue that to the extent Plaintiff asserts causes of action arising under state law, these claims should be dismissed. [See ECF No. 19 at 10-11]. Because the undersigned does not discern any claims other than pursuant to 42 U.S.C. § 1983, Defendants' arguments need not be addressed.
The Eleventh Amendment provides, "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. Amend. XI. The United States Supreme Court has long held the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001).
A plaintiff "is not entitled to monetary damages under § 1983 against Defendants in their official capacities." Moneyhan v. Keller, 563 F. App'x 256, 258 (4th Cir. 2014) (citing Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (holding that Eleventh Amendment bars suits against non-consenting state, its agencies, and its officers acting in their official capacities)). However, suits for damages against state officials sued in their individual capacity are not barred by the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21, 30-31 (1991) ("[T]he Eleventh Amendment does not erect a barrier against suits to impose 'individual and personal liability' on state officials under § 1983.") (citation omitted).
Here, and as recognized by Defendants, Plaintiff does not allege claims against Defendants in their official capacities, but in their individual capacities only. [ECF No. 19 at 3-4, see also ECF No. 1 at 3-5, 13-14]. Notwithstanding, Defendants argue Eleventh Amendment immunity extends to them, appearing to argue that even though Plaintiff has named them in their individual capacities, this suit is, in fact, against them in their official capacities. [See ECF No. 19 at 4 ("The alleged acts of Defendants occurred while performing their duties within the scope of their employment, and were inextricably tied to their official duties.")]. In support of their position, Defendants invoke Fourth Circuit precedent that addressed the "real, substantial party in interest" as to claims brought under the Family and Medical Leave Act ("FMLA") and the Fair Labor Standard Act ("FSLA"). See id. at 3-4 (citing Lizzi v. Alexander, 255 F.3d 128, 136-37 (4th Cir. 2001), overruled in part on other grounds by Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003); Martin v. Wood, 772 F.3d 192, 195-96 (4th Cir. 2014)).
The Fourth Circuit has rejected Defendants' argument, holding Lizzi and Martin inapplicable to a suit, like the instant one, brought pursuant to § 1983:
In Martin, we laid out a five-factor inquiry to "identify the real, substantial party in interest" in suits alleging violations of the [FLSA]. Those factors focus on the connection between the officer's conduct and his official duties, his interests and the state's interests, and his authority and the state's authority. This makes sense in the context of the FLSA, as "Congress manifested a desire to exclusively define the private remedies available to redress violations of" that statute. But Congress enacted § 1983 to give private litigants a mechanism to "enforce provisions of the Fourteenth Amendment against those who carry a badge of
authority of a State and represent it in some capacity." Applying the Martin factors, which focus on the official character of the defendant's actions, to § 1983 claims would "absolutely immunize state officials from personal liability for acts within their authority and necessary to fulfilling governmental responsibilities." We refuse to apply to § 1983 claims these factors, which we articulated for use in considering claims under a very different statute, and which would undermine the very purpose of § 1983.Adams v. Ferguson, 884 F.3d 219, 225-26 (4th Cir. 2018) (citations omitted); see also Lizzi, 255 F.3d at 137 ("Unlike § 1983, the FMLA is not focused against those who carry the 'badge of authority of a State.' Whereas § 1983 is intended as a broad enforcement vehicle to bring suit against state officials for violations of all other federal statutory and constitutional rights, the FMLA is focused on creating a set of statutory entitlements in its own right.") (citation omitted).
Here, as in Adams, Plaintiff's complaint clearly states he is suing Defendants in their individual capacities, "nothing in the remainder of the complaint, or in the record, undermines [plaintiff's] clear statement that this is a personal-capacity, rather than official-capacity, suit," and "the complaint seeks to recover damages only from [defendant] herself and makes no mention of relief from the state." Adams, 884 F.3d at 225.
Even applying cases invoked by Defendants, it is difficult to discern how the allegations made by Plaintiff, particularly allegations of physical and sexual assault, could be considered, as argued by Defendants, as acts occurring "within the scope of [Defendants'] employment" and "inextricably tied to their official duties." [See ECF No. 19 at 4].
Accordingly, the undersigned recommends the district judge deny Defendants' motion to dismiss based on Eleventh Amendment immunity.
2. Exhaustion of Administrative Remedies
Defendants argue Plaintiff failed to timely exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), specifically 42 U.S.C. § 1997e(a). Section 1997e(a) provides "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Id. This requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). To satisfy this requirement, a plaintiff must avail himself of every level of available administrative review. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies neither need to meet federal standards, nor are they required to be plain, speedy, and effective. Porter, 534 U.S. at 524.
Satisfaction of the exhaustion requirement requires "using all steps that the agency holds out, and doing so properly." Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)) (emphasis in original)). Thus, "it is the prison's requirements, and not the [PLRA], that define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 218 (2007). Defendants have the burden of establishing that Plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005). However, "an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it." Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008); see also Ross v. Blake, 136 S. Ct. 1850 (2018).
Defendants do not address Plaintiff's allegations that the administrative remedy process was unavailable to him in that he attempted to submit a RTSM concerning the incident in question, it was returned to him by Rae, he was informed by Rae that all of his grievances would be destroyed, and he attempted to submit grievances to multiple other people, to no avail. Instead, Defendants argue only that Plaintiff "does not allege or provide any proof" that he exhausted his administrative remedies. [ECF No. 19 at 8-9]. As held by the Supreme Court, "failure to exhaust is an affirmative defense under the PLRA, and . . . inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones, 549 U.S. at 216; see also Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017).
Plaintiff has sufficiently alleged the administrative remedy was not "available" in that he "was prevented from availing himself of it . . . through no fault of his own," Moore, 517 F.3d at 725; see also Mann v. Scott, C/A No. 0:14-3474-RMG, 2015 WL 5165198, at *5 (D.S.C. Sept. 1, 2015) ("The Court finds that the prison's failure to respond to Plaintiff's RTS's made an administrative remedy unavailable in this case, excusing his resulting failure to exhaust prior to filing suit."). Accordingly, the undersigned recommends the district judge deny Defendants' motion to dismiss for failure to exhaust administrative remedies.
3. Failure to State a Claim
Plaintiff brings claims against Defendants for violations of his Eighth and Fourteenth Amendment rights, claiming he was subjected to excessive force and deliberate indifference to his medical needs and that he was not afforded equal protection. Although Defendants request all of Plaintiff's claims be dismissed, Defendants fail to address Plaintiff's deliberate indifference and equal protection claims. Because Defendants' arguments are limited to Plaintiff's excessive force claim, the court limits its review to the excessive force issue and does not address whether Plaintiff's other claims are otherwise viable. The undersigned recommends these claims, as well as Plaintiff's excessive force claim as discussed below, should remain in the case.
To state a claim for excessive force in violation of the Eighth Amendment, a prisoner must show (1) that "the prison official[s] acted with a sufficiently culpable state of mind (subjective component)" and (2) that "the deprivation suffered or injury inflicted on the inmate was sufficiently serious (objective component)." Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citing Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996)). "[T]he 'core judicial inquiry' regarding the subjective component of an excessive force claim is 'whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Parker v. Stevenson, 625 F. App'x 196, 198 (4th Cir. 2015) (quoting Iko, 535 F.3d at 239).
Defendants argue "Plaintiff has no constitutional right to be housed in a particular cell," "his admitted refusal to obey orders because Plaintiff did not want to move into a different cell led to the use of force and chemical munitions in order to restore order and secure Defendants' safety," and "Plaintiff fails to allege any injuries as a result of Defendants' alleged conduct." [ECF No. 19 at 7]. More specifically, Defendants argue, without support, that "[b]ecause Plaintiff's allegations, liberally construed, show no injury resulting from the alleged use of force incident, Plaintiff fails to show facts what would support an essential element of a § 1983 claim." Id.
First, Plaintiff has not alleged his constitutional rights were violated because he was not housed in a particular cell. Second, Defendants do not address Plaintiff's allegations that he was sexually assaulted, which, presumably, Defendants would not argue was employed "to restore order and secure Defendants' safety." [See ECF No. 19 at 7]. Finally, to the extent it is necessary, Plaintiff has alleged injuries as a result of Defendants' alleged conduct, including a "swollen anus, lumps on backside of my head, cuts on my left arm, swollen ribs, anal bleeding, bleeding penis, and blurry vision." [ECF No. 1 at 13; see also ECF No. 36 at 2 ("Plaintiff was also sprayed with chemical agents and left in his prison cell with chemical agents still on Plaintiff.")].
As held by the Fourth Circuit, "[t]he extent of [a plaintiff's] injury is not one of the relevant factors and does not, contrary to the government's suggestion, preclude a violation of the Eighth Amendment . . . . when use of force is malicious or repugnant, a plaintiff need not suffer anything significant to establish an excessive force claim." Thompson v. Commonwealth of Virginia, 878 F.3d 89, 100-01 (4th Cir. 2017) (citations omitted).
Defendants additionally invoke a qualified immunity defense. [ECF No. 19 at 9-10]. Under the qualified immunity defense, "government 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). However, Defendants argue only as follows regarding this defense:
Defendants were, at all times relevant to this action, performing discretionary functions within the scope of employment. At no time were Plaintiff's constitutional rights violated by Defendants. Additionally, at no time did Defendants knowingly violate any of Plaintiff's statutory or constitutional rights, and at no time did Defendants knowingly violate any of Plaintiff's constitutional or statutory rights of which they knew or should have known.[ECF No. 19 at 9].
Defendants' denial of Plaintiff's allegations and recitation of the elements of the qualified immunity defense, without more, fails to carry their burden in showing this defense is applicable in the present instance. See, e.g., Betton v. Belue, 942 F.3d 184, 190 (4th Cir. 2019) ("The burden of establishing the affirmative defense of qualified immunity rests on the party seeking to invoke it.").
Defendants also argue that because Plaintiff has been released from KCI, any declaratory or injunctive relief sought by him has been rendered moot. [ECF No. 19 at 5-6]. Although it appears that Plaintiff seeks only compensatory and punitive damages, [ECF No. 1 at 13-15, but see id. at 2], to the extent he seeks injunctive or declaratory relief, the court agrees with Defendants that these claims have been rendered moot. See, e.g., Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009) ("[A]s a general rule, a prisoner's transfer or release from a particular prison moots his claims for injunctive and declaratory relief with respect to his incarceration there.") (citation omitted).
4. Additional Matters
Plaintiff indicates in his response to Defendants' motion to dismiss that he has served discovery requests on Defendants that have not been timely addressed. [See ECF No. 36 at 3-4]. Defendants argue, however, that the time for them to provide responses to Plaintiff's requests have not yet expired. [See ECF No. 37 at 3]. It therefore appears no discovery dispute exists as of yet.
Finally, in both Plaintiff's complaint and response to Defendants' motion to dismiss, Plaintiff references a PREA claim. "The PREA is intended to address the problem of rape in prison, authorizes grant money, and creates a commission to study the issue . . . ." De'lonta v. Clarke, C/A No. 7:11-00483, 2013 WL 209489, at *3 (W.D.Va. Jan. 14, 2013) (citation omitted). However, the PREA did not create a private right of action allowing, in this instance, Plaintiff to bring a claim pursuant to the PREA against Defendants. See Byrd v. South Carolina Dep't of Corr., C/A No. 5:11-3340-MGL, 2013 WL 5309759, at *11 (D.S.C. Sept. 19, 2013) ("Because § 1983 itself does [not] create any rights, and the text and the structure of the PREA provide no indication that Congress intended to create a new individual rights, there is no basis for a private right of action for inmates to sue prison officials for noncompliance with the Act.") (footnote and citations omitted). III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge deny Defendants' motion to dismiss. [ECF No. 19].
IT IS SO RECOMMENDED. December 2, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and 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
901 Richland Street
Columbia, South Carolina 29201
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).