Opinion
Case No. 8:18-cv-01159-RMG-JDA
02-11-2019
LeAndre Dion Budden, Plaintiff, v. United States of America Beth Drake, Mrs. Daniels, Mr. Van Sickle, Mr. Keys, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on a motion to dismiss, or in the alternative, for summary judgment filed by Defendants Daniels, Drake, and Van Sickle (the "Federal Defendants") [Doc. 28], and a motion for summary judgment filed by Defendant Keyes [Doc. 48]. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
Defendant Keyes uses this spelling of his name in his summary judgment motion. [Doc. 48.]
Plaintiff, proceeding pro se, filed this action on April 20, 2018, alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). [Doc. 1.] On August 30, 2018,the Federal Defendants filed a motion to dismiss or, in the alternative, for summary judgment. [Doc. 28.] And on November 8, 2018, Defendant Keyes filed a motion for summary judgment. [Doc. 48.] On the day after each motion was filed, the Court issued Orders in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and of the possible consequences if he failed to adequately respond to the motion. [Docs. 29; 49.] Plaintiff's responses to the motions were docketed on October 22, 2018, and January 4, 2019, respectively. [Docs. 43; 53.] Defendant Keyes filed a reply with regard to his motion on January 14, 2019. [Doc. 55.] The motions are now ripe for review.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on April 20, 2018. [Doc. 1 at 18 (Complaint signed by Plaintiff on April 20, 2018).]
BACKGROUND
At the time Plaintiff filed this action, he was a pretrial detainee housed at Lexington County Detention Center ("LCDC") in Lexington, South Carolina. [Doc. 1 at 3.] Plaintiff filed this action pro se (1) against Defendant Keyes pursuant to 42 U.S.C. § 1983, alleging deliberate indifference to medical needs, and (2) against the Federal Defendants, pursuant to Bivens, alleging deliberate indifference to medical needs. [Id. at 6.] Viewed in the light most favorable to Plaintiff, the record reveals the following facts.
Plaintiff initially included a claim against "two unknown ATF agents" for excessive force. [Doc. 1 at 6.] However, Plaintiff subsequently voluntarily dismissed that claim. [Doc. 33.]
Plaintiff claims that, on August 23, 2017, he reported to his probation officer for a scheduled visit. [Id. at 9.] When Plaintiff arrived, ATF agents rushed at him, grabbed him by the arm, slammed him to the floor, and "dropped [a knee] into [his] back, all without provocation." [Id.] Plaintiff later learned he had suffered trauma to his spleen. [Id.] He was then transferred to LCDC, and he complained about back pain upon his arrival. [Id.] One day, after about a week at LCDC, Plaintiff woke up feeling unbearable pain in his back; after complaining to an officer for nearly an hour, he was taken to be seen by a nurse. [Id.] He was told he had kidney stones, given pain medication and an antibiotic, and sent back to his dorm. [Id.] However, he was still in extreme pain for the next few days, and a nurse practitioner ordered an x-ray and ultrasound. [Id.].
While waiting for these tests, Plaintiff once again woke up with extreme pain and asked Officer Linda Thomas, who was working with Keyes, to call for medical. [Id.] Plaintiff claims that after about an hour, Thomas came and told Plaintiff that, according to Keyes, the only way Plaintiff would see a nurse would be to go to the first floor, which was lock-up. [Id. at 9-10.] Plaintiff contends that Keyes escorted Plaintiff to the first floor, where he "was given a thin mattress and crammed in a cell with two other people." [Id.] Plaintiff asserts that no nurse came to see him but that, later that day, an x-ray and ultrasound were performed on him and he was returned to regular population. [Id. at 10] Plaintiff was later informed that he had trauma to his spleen, which was the source of the pain. [Id. at 11.] He was also told that some itching he had experienced and the swelling of lymph nodes under his arm were probably due to lymphoma cancer; LCDC medical staff ordered more tests to follow up. [Id.] However, before he was able to get the tests done, United States Attorney Drake "had [Plaintiff] shipped Plaintiff to Ocilla County [J]ail and then to Atlanta [BOP], and ultimately to Butner FCI #1 Med." [Id.]
At the time of the events that are the subject of this action, "Lexington County, on behalf of the [Lexington County Sheriff's Department], had a contract with Correct Care Services ("CCS") to provide the medical services to the inmate population at LCDC." [Doc. 48-4 ¶ 6.] CCS employs "qualified and licensed medical staff for the detention center, to include around the clock nursing services, physicians, and dentists." [Id. ¶ 7.] "The [Lexington County Sheriff's Department] personnel at LCDC are not professional medical care providers." [Id. ¶ 8.]
According to the affidavit of Kevin Jones, LCDC's Jail Administrator, Plaintiff's inmate records reflect that Plaintiff informed Thomas that he would like to be placed on "medical watch," and that request is what precipitated Keyes's escorting Plaintiff to his new cell. [Doc. 48-4 ¶ 10-11; see also Doc. 48-5.]
Plaintiff was moved to FCI Butner I after United States District Judge Joseph F. Anderson, Jr. ordered Plaintiff to undergo a psychiatric examination pursuant to 42 U.S.C. §§ 4241(b) and 4242 before proceeding further in Plaintiff's criminal case. See United States v. Budden, No. 3:17-cr-00769, D.E. 30 (Sept. 19, 2017). The Order contemplated about 45 days for the examination, absent further order from the court. [Id.]
Upon his arrival, on October 3, 2017, Plaintiff informed Defendant Nurse Van Sickle of his condition and complained about the itching and swollen lymph nodes. [Id.; Doc. 28-1 at 2, 4.] Nurse Van Sickle conducted Plaintiff's initial history and physical evaluation on October 5, 2017. Van Sickle noted that Plaintiff reported a recent unexplained 20-pound weight loss and that Plaintiff had "2 small pea size enlarged nodes" on his right neck and "at least 3 enlarged nodes to right axillary," of which the largest "felt as large as a compressed golf ball." [Doc. 28-2 at 8, 14.] After the examination, Van Sickle ordered a CT scan of Plaintiff's chest and neck to evaluate the enlarged lymph nodes. [Id. at 15, 19.] He also ordered an EKG and prescribed triamcinolone ointment for treatment of a rash and other nonspecific skin eruption. [Id. at 15.] Van Sickle also noted that Plaintiff had had blood drawn, which would be sent to the lab for subsequent testing. [Id. at 15, 18.] Doctor Lawrence Sichel reviewed Van Sickle's notes and consultation request and cosigned the encounter. [Id. at 17.]
On October 10, 2017, Plaintiff underwent a CT scan of his chest and neck. [Id. at 20-23.] The resulting radiologist notes indicate there was a possibility that Plaintiff was suffering from lymphoma or sarcoidosis and recommend that a biopsy should be considered. [Id. at 23.] The same day, Van Sickle made an administrative note in Plaintiff's medical records requesting a general surgical consult for a biopsy of Plaintiff's right axilla enlarged node. [Id. at 24.]
On October 19, 2017, Plaintiff complained to Health Services of blisters on his skin. [Id. at 25.] He was seen by an nurse, who, in turn, scheduled him to see Van Sickle to address Plaintiff's plan of care. [Id. at 25-26.] Van Sickle saw Plaintiff six days later, on October 25, 2017, at which time Plaintiff complained he had been suffering from blisters and foot pain after receiving new boots. [Id. at 28.] Van Sickle noted that an exam did not reveal any blisters or erythema. [Id. at 29.] At Plaintiff's request, Van Sickle also reviewed the October 10, 2017, CT scan result himself and noted that the surgery consultation for the biopsy was still pending. [Id.] Finally, Van Sickle assessed Plaintiff's rash, which Plaintiff denied was symptomatic at that time, and Van Sickle recommended Plaintiff continue using the triamcinolone. [Id.]
On November 2, 2017, Plaintiff was seen by a nurse, complaining of pain and itching, and he was scheduled for an appointment. [Id. at 31-32.] Five days later, on November 7, 2017, Van Sickle met with Plaintiff, who complained of back and generalized pain, "'all over rash and itching,'" and blood in his urine. [Id. at 34.] Van Sickle discontinued the triamcinolone and replaced the topical ointment with betamethasone ointment. [Id. at 36.] He also ordered a urinalysis to determine if there was blood in Plaintiff's urine. [Id.]
On November 13, 2017, Plaintiff reported a loss of sensation in his fingers. [Id. at 39.] He was seen by a nurse, who assessed him and addressed his complaints, and he was scheduled for a visit with a primary care provider. [Id. at 39-40.] On November 20, 2017, Van Sickle administratively renewed Plaintiff's prescription for betamethasone ointment per the nurse's request. [Id. at 44.]
On November 29, 2017, Plaintiff was seen in the general surgery clinic by Dr. Shane Hodge. [Id. at 50-51.] After examining Plaintiff, Dr. Hodge proposed performing a biopsy of the lesions for tissue diagnosis, and Plaintiff and the surgical team agreed to that plan. [Doc. 50-51.] However, on December 4, 2017, Plaintiff's psychiatric study concluded, and Plaintiff was transferred out of FCI Butner with the biopsy not yet having been performed. [Doc. 28-1 at 2, 3.]
Plaintiff filed this action on April 20, 2018, alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983 and Bivens. [Doc. 1.] For his injuries, Plaintiff claims that, due to the lack of medical attention, he has suffered a blistering rash all over his body, blisters on his feet, uncontrollable itching, and progression of lymphoma cancer. [Id. at 8.] Plaintiff has difficulty breathing due to swollen lymph nodes in his throat. [Id.] Also, his spleen was injured when he was arrested by ATF agents. [Id.] For his relief, Plaintiff asks for $1 million in damages. [Id.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under § 1983
This action is filed pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 "'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)). Accordingly, a civil action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
Section 1983 provides, in relevant part,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant "deprived [the plaintiff] of a right secured by the Constitution and laws of the United States" and (2) that the defendant "deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage." Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
The under-color-of-state-law element, which is equivalent to the "state action" requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.Id. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, "the deed of an ostensibly private organization or individual" may at times be treated "as if a State has caused it to be performed." Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Specifically, "state action may be found if, though only if, there is such a 'close nexus between the State and the challenged action' that seemingly private behavior 'may be fairly treated as that of the State itself.'" Id. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). State action requires both an alleged constitutional deprivation "caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible" and that "the party charged with the deprivation [is] a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party's allegedly unconstitutional conduct is fairly attributable to the State requires the court to "begin[ ] by identifying 'the specific conduct of which the plaintiff complains.'" Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). Requirements for a Cause of Action Under Bivens
In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for violation of federal constitutional rights. 403 U.S. at 389. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983; federal officials cannot be sued under § 1983, however, because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); Mitchell v. Forsyth, 511 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir. 1988). To establish a claim under Bivens, a plaintiff must prove two elements: (1) the defendant deprived the plaintiff of a right secured by the Constitution and laws of the United States and (2) the defendant did so under color of federal law. See Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (citation and internal quotation marks omitted) (setting forth requirements for a § 1983 claim under color of state law); see also Bivens, 403 U.S. at 389 ("In [a previous case], we reserved the question whether violation of [the Constitution] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does.").
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Eighth Amendment Deliberate Indifference
Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment and states a cause of action under § 1983 because deliberate indifference constitutes "the 'unnecessary and wanton infliction of pain.'" Estelle, 429 U.S. at 104-05 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)). Deliberate indifference exists when prison officials know of a substantial risk to a prisoner's health or safety and consciously disregard that risk. See Farmer v. Brennan, 511 U.S. 825, 836 (1994); Miltier v. Beorn, 896 F.2d 848, 851-52 (4th Cir. 1990) ("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." (citation omitted)). Within the United States Court of Appeals for the Fourth Circuit, "the treatment must be so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness" to violate a prisoner's Eighth Amendment rights. Miltier, 896 F.2d at 851.
"A medical need is 'serious' if it is one that has been 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." Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990) (citing Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3rd Cir. 1987); Hendrix v. Faulkner, 525 F. Supp. 435, 454 (N.D. Ind. 1981)).
To prevail on an Eighth Amendment claim, the prisoner must demonstrate (1) his medical condition was a sufficiently serious one and (2) subjectively, the prison officials acted with a sufficiently culpable state of mind, which is satisfied by showing deliberate indifference by the prison officials. Goodman v. Wexford Health Sources, Inc., 425 F. App'x 202, 204 (4th Cir. 2011) (quoting Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998)). As the United States Supreme Court has explained,
Since, we said, only the "'unnecessary and wanton infliction of pain'" implicates the Eighth Amendment, a prisoner advancing such a claim must, at a minimum, allege "deliberate indifference" to his "serious" medical needs. "It is only such indifference" that can violate the Eighth Amendment; allegations of "inadvertent failure to provide adequate medical care," or of a "negligent . . . diagnos[is]," simply fail to establish the requisite culpable state of mind.Wilson v. Seiter, 501 U.S. 294, 297 (1991) (emphasis and alteration in original) (citations omitted). Further, in the context of prisoner medical care, the Constitution requires only that prisoners receive adequate medical care; a prisoner is not guaranteed his choice of treatment. Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988) (citing Layne v. Vinzant, 657 F.2d 468, 471 (1st Cir. 1981)); see Russell v. Sheffer, 528 F.2d 318, 318 (4th Cir. 1975) (citing Blanks v. Cunningham, 409 F.2d 220 (4th Cir.1969); Hirons v. Director, 351 F.2d 613 (4th Cir.1965)) ("Prisoners are entitled to reasonable medical care."); see also, e.g., Barton v. Dorriety, No. 9:10-cv-1362, 2011 WL 1049510, at *2 (D.S.C. Mar. 21, 2011) (citing Jackson, 846 F.2d at 817). The fact that a prisoner believed he had a more serious injury or that he required better treatment does not establish a constitutional violation. See, e.g., Russell, 528 F.2d at 319.
"A delay in treatment may constitute deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate's pain." Abraham v. McDonald, 493 F. App'x 465, 466 (4th Cir. 2012) (internal quotation marks omitted).
DISCUSSION
Section 1983 Claim Against Keyes
Keyes maintains that he is entitled to summary judgment because Plaintiff has not properly exhausted his claim against him. [Id. at 4-6.] The Court agrees.
The Prison Litigation Reform Act ("PLRA") provides, in pertinent part, that "[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." 42 U.S.C. § 1997e(a). A defendant has the burden of establishing that a plaintiff failed to exhaust his administrative remedies. Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017).
Exhaustion is defined by each prison's grievance procedure, not the PLRA; a prisoner must comply with his prison's grievance procedure to exhaust his administrative remedies. Jones v. Bock, 549 U.S. 199, 218 (2007). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules . . . ." Woodford v. Ngo, 548 U.S. 81, 90 (2006).
Pursuant to LCDC's grievance procedure, an inmate seeking to complain of must file a grievance within three days of the occurrence of the event they with to complaint about. [Doc. 48-2 ¶ 5.] If the detainee is dissatisfied with the response he receives, he must appeal the response within five days. [Id.¶ 6.]
Keyes submitted the affidavit of Paula Hare, who is employed by the Lexington County Sheriff's Department as Grievance Manager for LCDC. [Doc. 48-2.]
In this case, the record reflects that Plaintiff filed only one grievance during his incarceration at LCDC and that that grievance did not relate to any of the allegations contained in his Complaint. [Doc. 48-1 at 5; Doc. 48-2 at 2.] As the Court has stated, to survive a motion for summary judgment asserting he failed to exhaust, an inmate is required to produce competent evidence to refute the contention that he failed to exhaust. See Hill, 380 F. App'x at 270. Plaintiff has failed to meet his burden with regard to his claim against Keyes. Accordingly, Keyes is entitled to summary judgment because of Plaintiff's failure to exhaust his administrative remedies. Bivens Claim Against the Federal Defendants
Even if Plaintiff had exhausted his administrative remedies, Keyes would have been entitled to summary judgment to the extent he was sued in his official capacity. It is undisputed that the Sheriff of Lexington County is charged with the administration of the LCDC, see S.C. Code Ann. § 24-5-10, and that Keyes was an employee of the Sheriff working in the course and scope of his employment at all relevant times in regards to the allegations in Plaintiff's Complaint. Thus, to the extent that Plaintiff brings suit against Keyes in his official capacity, his claim is actually against the Lexington County Sheriff's Office, which is considered a state agency for purposes of Plaintiff's claims. See Gulledge v. Smart, 691 F. Supp. 947, 954-55 (D.S.C. 1988) (explaining that a Sheriff's Office is considered a state agency in South Carolina).
The Eleventh Amendment to the United States Constitution divests this Court of jurisdiction to entertain a suit for damages brought against the State of South Carolina or its integral parts. U.S. Cons. Amend. XI; see also Harter v. Vernon, 101 F.3d 334, 338-39 (4th Cir. 1996); Bellamy v. Borders, 727 F. Supp. 247, 248-50 (D.S.C. 1989). The law is clear that a state must expressly consent to suit in a federal district court. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984). However, the State of South Carolina has not consented to suit in federal court. See S.C. Code § 15-78-20(e) (1976) (South Carolina statute expressly providing that the State of South Carolina does not waive Eleventh Amendment immunity, consents to suit only in a court of the State of South Carolina, and does not consent to suit in a federal court or in a court of another State); see also McCall v. Batson, 329 S.E.2d 741, 743 (S.C. 1985) (abolishing sovereign immunity in tort "does not abolish the immunity which applies to all legislative, judicial and executive bodes and to public officials who are vested with discretionary authority, for actions taken in their official capacities"), superseded by statute, S.C. Code Ann. § 15-78-100(b), as recognized in Jeter v. S.C. Dep't of Transp., 633 S.E.2d 143 (S.C. Ct. App. 2006). Since the Eleventh Amendment bars the relief that Plaintiff requests against Keyes, Plaintiff's claim against Keyes is barred.
Sovereign Immunity
The Court notes that Bivens claims for damages are not actionable against the United States, federal agencies, or public officials acting in their official capacities. See FDIC v. Meyer, 510 U.S. 471, 486 (1994) (declining to extend a Bivens remedy to federal agencies); see also Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (noting "a Bivens action does not lie against either agencies or officials in their official capacity"). However, sovereign immunity does not bar damages actions against a federal officer in his individual capacity for violation of an individual's constitutional rights. Gilbert v. Da Grossa, 756 F.2d 1455, 1459 (9th Cir. 1985) (citing Davis v. Passman, 442 U.S. 228 (1979)). Further, sovereign immunity is not a bar to actions seeking equitable relief. Singletary v. Fallen, No. 0:11-543-CMC-PJG, 2012 WL 368375, at *2-3 (D.S.C. Jan. 17, 2012) (discussing relevant case and statutory law), Report and Recommendation adopted by 2012 WL 368364 (D.S.C. Feb. 3, 2012). Accordingly, to the extent Plaintiff asserts claims under Bivens for damages against Defendants in their official capacities, those claims should be dismissed, but the Court will consider Plaintiff's Bivens claims to the extent they are asserted against Defendants in their individual capacities.
Absolute Immunity for Van Sickle under the Public Health Service Act
Van Sickle is entitled to absolute immunity under the terms of the Public Health Service Act, 42 U.S.C. § 233(a). Section 233(a) makes the Federal Tort Claims Act the exclusive remedy for legal actions against members of the Public Health Service "for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions . . . by any commissioned officer or employee of the Public Health Service while acting within the scope of his office of employment." Hui v. Castaneda, 559 U.S. 799, 805 (2010). As the Supreme Court observed in Hui, "proof of scope is in most § 233(a) cases established by a declaration affirming that the defendant was a [Public Health Service] official during the relevant time period." Id. at 811. Van Sickle avers he is a nurse practitioner in the United States Public Health Service. [Doc. 28-1 ¶ 1.] Accordingly, Van Sickle is entitled to absolute immunity, and he should be granted summary judgment on this basis, as Plaintiff concedes [Doc. 43 at 1].
Absolute Prosecutorial Immunity for Drake
Drake is entitled to absolute immunity because "[p]rosecutors are immune from claims for monetary damages (under § 1983 or Bivens) for acts taken in their prosecutorial role." Keys v. Crick, No. 6:16-cv-3167-MGL-MGB, 2016 WL 6993974, at *4 (D.S.C. Oct. 14, 2016) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Nivens v. Gilchrist, 444 F.3d 237, 249-50 (4th Cir. 2006)). The Court should grant summary judgment to Drake for this reason, as Plaintiff concedes [Doc. 43 at 3].
Qualified Immunity for Daniels
The Federal Defendants argue that Daniels is entitled to summary judgment on the basis of qualified immunity because Plaintiff has failed to forecast evidence that would create a genuine factual dispute regarding whether Daniels acted with deliberate indifference toward Plaintiff's serious medical needs. [Doc. 28 at 16-23.] In his response, Plaintiff argues that he "spoke with Defendant Daniels repeatedly about his worsening medical condition." [Doc. 43 at 2.] He argues that "[a]s Assistant Administrator o[f] Health Services Daniels should have either changed the Plaintiff's care provider (from Van[ ]Sickle), changed the doctor, made arrangements for an outside medical consultation, or taken other steps to assess the Plaintiff's clearly obvious worsening medical condition." [Id.] The Court agrees with the Federal Defendants that Daniels is entitled to qualified immunity as a matter of law.
Qualified immunity protects government officials performing discretionary functions from civil damage suits as long as the conduct in question does not "violate clearly established rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, qualified immunity does not protect an official who violates a constitutional or statutory right of a plaintiff that was clearly established at the time of the alleged violation such that an objectively reasonable official in the official's position would have known of the right. Id. Further, qualified immunity is "an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
"In determining whether an officer is entitled to summary judgment on the basis of qualified immunity, courts engage in a two-pronged inquiry." Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015). The first concerns whether the facts, viewed in the light most favorable to the plaintiff, demonstrate that the officer's conduct violated a federal right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). The second "asks whether the right was clearly established at the time the violation occurred such that a reasonable person would have known that his conduct was unconstitutional." Smith, 781 F.3d at 100. For purposes of this analysis, a right is "clearly established" if "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).
District court judges are "permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009). If a court decides in the negative the first prong it considers—i.e., the court decides the plaintiff has not alleged the deprivation of an actual constitutional right or the right was not clearly established at the time of the alleged violation—the court need not consider the other prong of the qualified immunity analysis. See id. at 243-45; Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991) (holding the court "need not formally resolve" the constitutional question of "whether the [plaintiffs] were arrested without probable cause" to address the plaintiffs' § 1983 claim; the court stated that it "need only determine whether [the defendant]—a deputy sheriff performing within the normal course of his employment—acted with the objective reasonableness necessary to entitle him to qualified immunity").
The Court concludes that Plaintiff's claim against Daniels fails under the first qualified-immunity prong because the forecasted evidence, viewed in the light most favorable to Plaintiff, does not demonstrate that Daniels' conduct was unconstitutional. Even assuming that Daniels actually believed that Plaintiff had a serious medical condition that was worsening, there is no evidence that gives rise to a reasonable inference that Daniels intentionally disregarded Plaintiff's need for medical care. Plaintiff arrived at the prison on October 3, 2017, and by October 10, 2017, he had already undergone a CT scan of his chest and neck. [Docs. 28-1 at 4; 28-2 at 19-23.] Based on the suspicion that Plaintiff was suffering from lymphoma or sarcoidosis, Van Sickle sought a general surgical consult for a biopsy of the right axilla enlarged node. [Doc. 28-2 at 24.] When Daniels came in on November 7, 2017, complaining of blood in his urine, Van Sickle promptly ordered a urinalysis. [Id. at 34, 36.] On November 29, Plaintiff was seen at the general surgery clinic, and Dr. Hodge proposed a biopsy and planned to see Plaintiff in a few days. [Id. at 50-51.] Plaintiff points to nothing in the record that would tend to show that Daniels believed, at any point, that Plaintiff was not receiving appropriate treatment and care.
Nor does Plaintiff forecast any evidence that Daniels believed that Plaintiff was not receiving appropriate care for his acute skin-related symptoms. On October 5, 2017, Van Sickle prescribed triamcinolone ointment for treatment of a rash and other nonspecific skin eruption. [Id. at 15, 19.] On October 19, 2017, Plaintiff complained of blisters on his skin, and he was seen by Nurse Turner, who scheduled him to see Van Sickle. [Id. at 25-26.] Van Sickle then saw Plaintiff six days later, on October 25, at which time Plaintiff complained of blisters after receiving his new BOP-issued boots. [Id. at 28.] Van Sickle noted that no blisters or erythema were apparent on Plaintiff's feet. [Id. at 29.] Van Sickle also assessed Plaintiff's rash, which Plaintiff denied was symptomatic at that time, but Van Sickle nevertheless recommended Plaintiff continue the triamcinolone. [Id.] On November 2, 2017, Plaintiff again complained of pain and itching and was seen by a nurse, who again scheduled him for an appointment. [Id. at 31-32.] On November 7, 2017, Plaintiff met with Van Sickle and complained of "all over rash and itching," but Van Sickle saw no evidence of a rash or other nonspecific skin eruption. [Id. at 34.] Van Sickle discontinued the triamcinolone and replaced the topical ointment with betamethasone ointment. [Id. at 36.] On November 20, 2017, Van Sickle administratively renewed Plaintiff's prescription for betamethasone ointment per the nurse's request. [Id. at 44.] Again, nothing in the record gives rise to a reasonable inference that Daniels believed that Plaintiff was not receiving appropriate care and treatment. Accordingly, the Court concludes that Daniels is entitled to summary judgment.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Federal Defendants' motion to dismiss, or in the alternative, for summary judgment [Doc. 28] and Defendant Keyes' motion for summary judgment [Doc. 48] both be GRANTED.
Because the Court concludes that the Federal Defendants are entitled to summary judgment, it declines to address their arguments that they are entitled to dismissal under Rule 12(b)(6).
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge February 11, 2019
Greenville, South Carolina