Opinion
C/A No. 9:18-2542-HMH-BM
10-24-2018
Fernadus Allen, Plaintiff, v. Marty Lutz, Defendant.
REPORT AND RECOMMENDATION
The Plaintiff, Fernandus Allen, proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. He is a pretrial detainee at the Greenville County Detention Center.
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915 and § 1915A, the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). 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), and a federal district court is charged with liberally construing a pro se complaint to allow the development of a potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).
However, even when considered pursuant to this liberal standard, for the reasons set forth herein below this case is subject to summary dismissal. 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009)[outlining pleading requirements under the Federal Rules of Civil Procedure].
Background
Plaintiff brings this action pursuant to § 1983 for a deprivation of his medical rights and for medical malpractice, because in the month of August 2018 he was prescribed a medication to which he is allergic. Complaint, ECF No. 1 at 4-5. In the statement of the claim, he states that he was given medication to which he has a known allergy. In the "Injuries" portion of the complaint, he states:
I was given Bactrim that I have a severe allergy I was prescribed this medic[i]ne because the boils and sores on my scalp.Complaint, ECF No. 1 at 6 [errors in original]. He requests that he be awarded $350,000. Id.
Discussion
Initially, it should be noted that Plaintiff fails to mention the sole Defendant, Marty Lutz, in the body of his Complaint. As such, the Defendant is entitled to summary dismissal as Plaintiff has not made any specific allegations against the Defendant and has not provided any specific factual information to support a claim that the Defendant violated his constitutional rights. See Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 [requiring, in order to avoid dismissal, "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests'" (quoting Fed. R. Civ. P. 8(a)(2)). In order to proceed under § 1983, a plaintiff must affirmatively show that a defendant acted personally in the deprivation of his constitutional rights; Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977); and when a complaint contains no personal allegations against a defendant, that defendant is properly dismissed. See Karafiat v. O'Mally, 54 F. App'x 192, 195 (6th Cir. 2002); Curtis v. Ozmint, C/A No. 3:10-3053-CMC-JRM, 2011 WL 635302 at *4 n. 5 (D.S.C. Jan. 5, 2011); Whaley v. Hatcher, No. 1:08CV 125-01-MU, 2008 WL 1806124, at *1 (W.D.N.C. Apr. 18, 2008). Here, Plaintiff fails to allege any facts about the Defendant that would show that he was personally involved in any purported constitutional deprivation. See Ashcroft v. Iqbal, 556 U.S. at 676 [providing that a plaintiff in a § 1983 action must plead that the defendant, through his own individual actions, violated the Constitution]; Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) ["In order for an individual to be liable under § 1983, it must be 'affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights. The doctrine of respondeat superior has no application under this section.'"](quoting Vinnedge v. Gibbs, 550 F.2d at 928).
Moreover, even if Plaintiff had named a proper party Defendant, his claim is still subject to dismissal. Since he is a pretrial detainee, his claim is evaluated under the due process clause of the Fourteenth Amendment; Bell v. Wolfish, 441 U.S. 520, 535 (1979); but, for purposes of consideration of Plaintiff's claim, the standard of whether he received constitutionally adequate medical care is essentially the same as that of a convicted prisoner. See Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988) [holding that the Fourteenth Amendment guarantees at least Eighth Amendment protections]; Estate of Miller, ex. Rel. Bertram v. Tobiasz, 680 F.3d 984, 989 (7th Cir.2012) ["The same standard applies for determining claims of deliberate indifference to the serious medical conditions of pretrial detainees and incarcerated individuals, though pursuant to the Fourteenth Amendment for pretrial detainees rather than the Eight Amendment."]; but see Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473, 2475 (2015)[holding that the test for excessive force claims brought by pretrial detainees under the Fourteenth Amendment differs from the test for excessive force claims brought by convicted prisoners under the Eighth Amendment]. Generally, to establish a claim based on alleged deliberate indifference, an inmate must establish two requirements: (1) objectively, the deprivation suffered or injury inflicted was "sufficiently serious," and (2) subjectively, the prison officials acted with a "sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994); Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). "What must be established with regard to each component 'varies according to the nature of the alleged constitutional violation.'" Williams, 77 F.3d at 761 (quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992)). Objectively, the court must assess "whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate." Helling v. McKinney, 509 U.S. 25, 36 (1993).
The United States Supreme Court has held that for a pretrial detainee to establish an excessive force claim under the Fourteenth Amendment, he need not show that the officer was subjectively aware that the use of force was excessive; rather, he need only show that the force purposely, knowingly, or possibly recklessly used against him was objectively unreasonable. Kingsley v. Hendrickson, 135 S. Ct. at 2472. However, Kingsley did not address whether this standard applies to other claims by pretrial detainees pursuant to the Fourteenth Amendment, and, to date, the Fourth Circuit has not considered this issue. Cf. Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) [extending Kingsley to conditions of confinement claims by pretrial detainees pursuant to the Fourteenth Amendment]; Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc ) [extending Kingsley to failure-to-protect claims by pretrial detainees pursuant to the Fourteenth Amendment]. In an unpublished case, the Fourth Circuit applied the Kingsley standard to a detainee's excessive force claim but not the detainee's medical need claim. Duff v. Potter, 665 F. App'x 242, 244-45 (4th Cir. 2016); see also Lanier v. Henderson Cnty. Det. Ctr., No. 1:15-cv-262-FDW, 2016 WL 7007537, at *2, n. 3 (W.D.N.C. Nov. 29, 2016)[noting that the Supreme Court in Kingsley did not explicitly extend the objective reasonableness standard outside the excessive force context]. Here, however, it is unnecessary to address whether the Kingsley standard extends to a pretrial detainee's Fourteenth Amendment claim asserting deliberate indifference to a serious need because, as discussed below, Plaintiff has not alleged that he meets the first objective prong of his deliberate indifference case such that it is unnecessary to determine if he meets the subjective prong.
Here, Plaintiff does not assert that he even took or used the medication prescribed (Bactrim), nor has he alleged that he suffered any injury as a result of allegedly being prescribed the wrong medication. Further, to the extent that Plaintiff's claim is a disagreement as to the proper treatment to be received, such an allegation does not in and of itself state a constitutional violation. See Smart v. Villar, 547 F.2d 112 (10th Cir.1976); Lamb v. Maschner, 633 F.Supp. 351, 353 (D.Kan. 1986). Thus, Plaintiff fails to allege sufficient facts to indicate that he meets the first prong of his medical deliberate indifference claim. Additionally, to the extent Plaintiff alleges claims for medical malpractice, such claims are subject to summary dismissal because it is well settled that negligent or incorrect medical treatment (medical malpractice) is not actionable under 42 U.S.C. § 1983. Estelle, 429 U.S. at 106; Daniels v. Williams, 474 U.S. 327, 328-36 (1986); Davidson v. Cannon, 474 U.S. 344, 345-48 (1986); Ruefly v. Landon, 825 F.2d 792, 793-94 (4th Cir. 1987); see Pink v. Lester, 52 F.3d 73 (4th Cir. 1995)[applying Daniels and Ruefly: "The district court properly held that Daniels bars an action under § 1983 for negligent conduct[.]"]. A medical malpractice claim "does not become a constitutional violation merely because the victim is a prisoner." Estelle, at 106; Grayson v. Peed, 195 F.3d 692, 695-96 (4th Cir. 1999).
Finally, to the extent Plaintiff may be attempting to bring claims for malpractice or negligence under South Carolina law, since Plaintiff fails to state any federal claim, only these state law claim(s) would remain, and federal courts are allowed to hear and decide state-law claims only in conjunction with federal-law claims, through the exercise of "supplemental jurisdiction." See 28 U.S.C. §1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). While a district court may have jurisdiction over a state law civil action "where the matter in controversy exceeds the sum or value of $75,000...and is between-(1) citizens of different States...". 28 U.S.C. § 1332; in order to maintain an action based upon diversity jurisdiction, complete diversity between the plaintiffs and defendants must exist at the time the complaint is filed. Martinez v. Duke Energy Corp., 130 F. App'x 629, 634 (4th Cir. 2005). Plaintiff has not alleged complete diversity of the parties, nor has he alleged an amount in controversy exceeding $75,000. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) [Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side]. Therefore, as Plaintiff has asserted no valid federal claim and there is no diversity jurisdiction, this Court should not exercise supplemental jurisdiction over any state law claims Plaintiff may be asserting. See 28 U.S.C. § 1367; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002)[affirming district court's dismissal of state law claims when no federal claims remained in the case]; Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) ["[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants"].
Recommendation
Based on the foregoing, it is recommended that the Court dismiss Plaintiff's Complaint without prejudice and without issuance and service of process. Plaintiff is further advised that this Report and Recommendation constitutes notice to him of material defects in his filings. See, e.g., Brockington v. South Carolina Dept. of Social Service, No. 17-1028, 2017 WL 1531633 (4th Cir. April 28, 2017) [Noting that pro se Plaintiff should be provided an opportunity to amend his complaint to cure defects prior to a dismissal]; Evans v. Richardson, No. 17-1144, 2017 WL 2294447 (4th Cir. May 25, 2017) [same]; Breyan v. All Medical Staff, No. 17-6186, 2017 WL 2365232 (4th Cir. May 31, 2017) [same].
Plaintiff's attention is also directed to the important notice on the next page.
/s/_________
Bristow Marchant
United States Magistrate Judge October 24, 2018
Charleston, 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
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).