Opinion
C. A. 5:20-1635-JD-KDW
09-24-2021
Roshune Lemarr Carelock, Plaintiff, v. Jeff Johnson; Lynnette Patton; William Barnes; Raheem Hammett; Robin Flemming; Josie Royal; Andrea Capers; Kimberly Scott; Christopher Neal; Matthew Metusiewicz; Emmanuel Sipp; Carl Majors; Ronnie Fuller; Jessie Johnson; Carlos McMillian; B. Young; Jevelton Gee; Shebieve Crosland; Jeffrey Palmer; De'Angelo Fludd; Jason Miles; Kristopher Crawford; Jordan Rhodes “Rhodes”; Hope Hatchell; Eric McDaniels; Tiffany Jones; Felicia Wilson; Joey Johnson; Sharon Davis; Ms. Piccone; Ms. Falvo; Santana Jennings; Jameel Henry; Jay Watson; Lamon Hicks; Tyrell Smith; Wayne Owens; and Jaqueline Ingram, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge.
Roshune Lemarr Carelock (“Plaintiff”), proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights while he was a pretrial detainee at Florence County Detention Center (“FCDC”). This matter is before the court on Defendants Jeff Johnson; Lynnette Patton; William Barnes; Raheem Hammett (“Hammett”); Robin Flemming; Josie Royal; Andrea Capers; Kimberly Scott (“Scott”); Christopher Neal; Matthew Metusiewicz; Emmanuel Sipp (“Sipp”); Carl Majors; Ronnie Fuller; Jessie Johnson; Carlos McMillian; B. Young; Jevelton Gee (“Gee”); Shebieve Crosland; Jeffrey Palmer; De'Angelo Fludd; Jason Miles; Kristopher Crawford (“Dr. Crawford”); Jordan Rhodes (“Rhodes”); Hope Hatchell (“Hatchell”); Eric McDaniels; Tiffany Jones; Felicia Wilson (“Wilson”); Joey Johnson; Sharon Davis; Ms. Piccone; Ms. Falvo; Santana Jennings (“Jennings”); Jameel Henry; Jay Watson; Lamon Hicks; Tyrell Smith (“Smith”); Wayne Owens; and Jaqueline Ingram's Motion for Summary Judgment. ECF Nos. 207, 229. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if he failed to respond adequately to Defendants' motion. ECF No. 208. After being granted two extensions, ECF Nos. 246, 267, Plaintiff filed a Response in Opposition to this Motion on May 11, 2021. ECF No. 265. Defendants filed a Reply to Plaintiff's Response on May 18, 2021. ECF No. 270.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.). Because the motion is dispositive, this Report and Recommendation is entered for the district judge's consideration. For the reasons that follow, the undersigned recommends Defendants' Motion for Summary Judgment be granted.
I. Factual Background
Plaintiff challenges his conditions of confinement at FCDC asserting excessive force, medical indifference, conditions of confinement, retaliation, and failure to protect claims. ECF Nos. 1; 1-2. Plaintiff says he was housed in max-segregation and was denied access to legal books, writing materials, legal materials, legal mail, and research materials. ECF No. 1 at 20-21. Plaintiff argues this limited access caused him to lose his previous lawsuit and impaired and/or hindered his ability to prosecute his current case. ECF Nos. 1 at 20-21; 1-2 at 8-15.
Plaintiff states on May 22, 2019 he was tased, handcuffed, and placed in a restraint chair after refusing to turn over a pencil that was in his cell, and refusing to be handcuffed. ECF No. 1 at 21-23. Plaintiff says he was placed in a restraint chair and the handcuffs, shoulder straps, and leg shackles were extremely tight. Id. at 23. Plaintiff states the officers notified medical about his request for care, and he was seen in medical two days later and given medical supplies to cleanse and treat his injuries, and his hand injury was x-rayed. Id. at 26-27.
Plaintiff alleges on May 29, 2019 he was physically restrained, stripped out of his jumpsuit, tased, handcuffed, and placed in a restraint chair after he refused to exit the shower and be handcuffed, refused to remove his jumpsuit, and physically interfered with the officer removing his jumpsuit. Id. at 28-31. Plaintiff says his arms were repositioned in the restraint chair after he complained about how he was placed in the restraint chair, including complaints about the shoulder straps cutting into his skin. Id. at 32. Plaintiff says a supervisor photographed his injuries on her personal cell phone. Id. Plaintiff claims he refused officers' repeated efforts to remove him from the restraint chair before he was returned to his cell. Id. Plaintiff says he asked for medical attention, but when he refused to put on a suicide gown, his request was refused. Id. at 33. Plaintiff says he was examined by Dr. Crawford a week later. Id. at 33-34. Plaintiff says that during this time he contracted a staph infection due to his cell conditions. Id. at 33.
Plaintiff says on October 5, 2019 he was tased, handcuffed, and placed in a restraint chair after he refused to take or return the medication he was given. Id. at 43-45. Plaintiff says he was placed in the restraint chair with his hands cuffed, legs shackled, and shoulders restrained. Id. at 45. Plaintiff says he requested medical treatment and Nurse Hatchell treated him for a taser prong injury. Id. Plaintiff states he refused the officer's efforts to remove him from the restraint chair and he was not removed from the chair until the next morning. Id.
Plaintiff says he reinjured his back in October and Rhodes left his cell without providing medical treatment because he would not tell him the name of his attorney in his civil case. Id. at 45-49. Plaintiff states he was examined at the emergency room the next day and diagnosed with a possible sprained back. Id. at 50-51. Plaintiff claims he asked for a wheelchair and mattress after he was returned to FCDC, and his request was denied. Id. Plaintiff states he was unable to walk, so he could not take a shower, use the bathroom, go to recreation, or retrieve his meals. Id. at 51. Plaintiff says he was seen by Dr. Crawford on October 11 and he requested a mattress and a wheelchair and Dr. Crawford denied Plaintiff's request explaining there was no medical need. Id. at 53. Plaintiff contends he was only permitted one bar of fragrance free soap per month, when he previously received two bars. ECF Nos. 1 at 68-69; 1-2 at 22. Plaintiff says he has an allergy to state soap and one bar of soap was inadequate to wash himself and his hands. ECF No. 1-2 at 22-23. Plaintiff also claims Defendants denied him medication for his glaucoma and delayed his referral to an ophthalmologist. ECF No. 1 at 62-67, 71-72.
Plaintiff alleges Hatchell retaliated against him for filing a lawsuit against her when she accused him of refusing to pick up medication he threw on the floor, calling other inmates to his cell to talk to them, and harassing Hatchell. ECF No. 1 at 67-69. Plaintiff says he was sent to maximum segregation unit (“MSU”) and locked up based on Hatchell's claims. Id.
Plaintiff says he returned to general population in April 2020 and he was threatened by several inmates, including Swift and Sparks, and some of the inmates approached his cell and spit in his face. Id. at 73. Plaintiff claims Smith saw these interactions and Jennings heard the threats. Id. at 73-74. Plaintiff says he was out of his cell on recreation when he saw Smith let inmates Sparks and Swift out of their cell. Id. at 75. Plaintiff claims he walked outside, and Swift, Sparks, and another inmate approached him, and Plaintiff told them to fight him one on one. Id. Plaintiff claims he fought Swift and then he went back inside to avoid further confrontations. Id. at 75-76. Plaintiff claims Smith did not stop any of these actions. Id. at 76.
Plaintiff says Sparks and Swift followed him inside, and he got into a fight with them while he was returning to his cell. Id. Plaintiff says Smith administered “O.C.-Spray” to break up the fight. Id. at 76-77. Plaintiff says during his disciplinary hearing, Jennings stated she heard “the commotions of inmates” Sparks and Swift, realized there was a problem between the Plaintiff, and had intentions of moving/separating Sparks and Swift, but she got side-tracked. Id. at 77.
Plaintiff contends Defendants refused to provide him with disinfectants, gloves, or a mask during the Covid-19 pandemic. Id. at 79. Plaintiff claims he was only permitted to clean his cell once a week and was not provided any additional cleaning supplies. Id. at 80. Plaintiff also claims he suffered emotional distress when Sipp, Gee, Hatchell, Wilson, Scott, and Hammett refused to wear masks or gloves during the Covid-19 pandemic. ECF No. 1-2 at 19. Plaintiff says he was denied mental health counseling. Id.
Finally, Plaintiff alleges Defendants violated his rights under the Health Insurance Portability and Accountability Act of 1996 (“HIPPA”) when they reviewed his medical records after he informed his medical provider that he did not consent to the disclosure of these records to FCDC. ECF No. 1 at 57, 61.
II. Discussion
A. Standard on 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “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 “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly 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.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
1. Res Judicata
Defendants contend Plaintiff's claims concerning his glaucoma treatment and medication, placement in MSU, conditions of confinement in the MSU, and the limitation on his time with legal resources were unsuccessfully litigated in an earlier action, C/A No.: 19-116-JMC-KDW. ECF No. 207-1 at 5-7. Defendants argue these claims are barred by the doctrine of res judicata. Id.
Plaintiff argues he is not raising claims from his prior civil action, but asserting new claims of repetitive, constitutional deprivations by Defendants. ECF No. 265 at 71.
Under the doctrine of res judicata/claim preclusion, a prior suit will bar claims in a subsequent claim if: (1) the parties in the two actions are identical or are in privity; (2) the judgment in the first action was a final judgment on the merits; and (3) the “claims in the two actions are identical.” Bouchat v. Bon-Ton Dep't Stores, Inc., 506 F.3d 315, 326-27 (4th Cir. 2007). To be “identical” for these purposes, claims must arise out of the same “transaction, ” connoting a “natural grouping or common nucleus of operative facts.” Id. at 327.
Analyzing the complaints filed in the two actions, the undersigned finds Plaintiff raises identical claims in his prior legal action concerning the delay and denial of medical treatment for his glaucoma condition, his placement in MSU, denial of access to legal materials, and his conditions of confinement, i.e. cold temperatures, strip searches, cell conditions, denial of recreation, phone calls, mattress, and showers. Compare Compl. in C/A No.: 19-116-JMC-KDW with instant Compl. In fact, Plaintiff repeatedly states in the instant complaint that he is reincorporating by reference all facts and grounds stated in his previous civil action. The undersigned also finds the parties are the same in regard to these claims. Plaintiff makes allegations against Eric McDaniels, Hatchell, Lynette Patton, Dr. Crawford, Rhodes, Jeff Johnson, and Sharon Davis, who are Defendants in both actions, in support of these claims. Finally, the judgment on these claims in the prior case is unquestionably final. At the summaryjudgment stage of the prior litigation, the court considered and dismissed with prejudice the above-referenced medical indifference, placement in MSU, conditions of confinement, and denial of access to courts claims. The undersigned finds all three requisites for res judicata/claim preclusion are present, and therefore recommends the court dismiss these claims with prejudice.
Plaintiff has alleged new facts in support of his medical indifference, conditions of confinement, and denial of access to court claims, and these new allegations are addressed supra.
2. No Personal Allegations
Defendants move to dismiss Plaintiff's claims against any Defendant where Plaintiff has not set forth specific allegations that these defendants have violated Plaintiff's constitutional rights. ECF No. 207-1 at 7.
The undersigned finds Plaintiff's complaint does not contain any factual allegations of constitutional wrongdoing or discriminatory actions attributable to Defendants William Barnes, Josie Royal, Jessie Johnson, Shebieve Crossland, Jeffrey Palmer, De'Angelo Fludd, Tiffany Jones, Joey Johnson, Ms. Piccone, Ms. Falvo, Lamon Hicks, Wayne Owens, and Jaqueline Ingram. Plaintiff's general contentions that unidentified Defendants violated his constitutional rights are insufficient to state a constitutional claim. As to Carlos McMillian, Eric McDaniels, Jameel Henry, and Jay Watson, Plaintiff's allegations concerning his interactions with these defendants are insufficient to establish a constitutional violation. See Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (“While a plaintiff is not charged with pleading facts sufficient to prove [his] case, as an evidentiary matter, in [his] complaint, a plaintiff is required to allege facts that support a claim for relief.”); Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (stating that a Plaintiff must plead facts demonstrating that a defendant's own, individual actions violated the Constitution). Accordingly, the undersigned recommends the court grant Defendants' motion for summary judgment as to Plaintiff's claims against Defendants William Barnes, Josie Royal, Jessie Johnson, Shebieve Crossland, Jeffrey Palmer, De'Angelo Fludd, Tiffany Jones, Joey Johnson, Ms. Piccone, Ms. Falvo, Lamon Hicks, Wayne Owens, Jaqueline Ingram, Carlos McMillian, Eric McDaniels, Jameel Henry, and Jay Watson.
3. Medical Indifference
Plaintiff alleges Defendants denied him medication for his glaucoma, delayed his referral to an ophthalmologist, refused to provide him medical treatment for a back injury, and limited the amount of fragrance free soap he received. ECF No. 1 at 48-49, 51, 62-68, 71-72; ECF No. 1-2 at 22-23.
As a pretrial detainee, Plaintiff's claims are evaluated under the Fourteenth Amendment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). Unlike convicted inmates, pretrial detainees have not been adjudicated guilty of a crime and may not be subjected to any form of “punishment.” Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). To establish that a condition or restriction of confinement is constitutionally impermissible “punishment, ” a pretrial detainee must show “either that it was (1) imposed with an expressed intent to punish or (2) not reasonably related to a legitimate nonpunitive governmental objective, in which case an intent to punish may be inferred.” Id. (citing Bell v. Wolfish, 441 U.S. 520, 538-40 (1979)). Courts may infer that a restriction or condition is not reasonably related to a legitimate governmental objective, and is therefore punishment, if the restriction is arbitrary or purposeless. Bell, 441 U.S. at 539. However, while the purpose of pretrial confinement is to ensure the detainee's presence at trial, the detention center may impose restraints on the detainee that are reasonably related to the detention center's interest in maintaining the facility's security, even if the restraints “are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial.” Id. at 539-40. In any event, “[t]he due process rights of a pretrial detainee are at least as great as the [E]ighth [A]mendment protections available to the convicted prisoner.” Martin, 849 F.2d at 870.
In the case of Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court reviewed the Eighth Amendment prohibition of punishments that “involve the unnecessary and wanton infliction of pain.” Id. at 103 (quoting Gregg v. Georgia, 428 U.S. 153, 169-73 (1976)). The court stated:
An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.... We therefore conclude that deliberate indifference to serious medical needs of a prisoner constitutes the “unnecessary and wanton infliction of pain, ” proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.Estelle, 429 U.S. at 103-105 (citations and footnotes omitted). Despite finding that “deliberate indifference to serious medical needs” was unconstitutional, the court was careful to note that “an inadvertent failure to provide adequate medical care” does not meet the standard necessary to allege an Eighth Amendment violation. Id. at 105-06.
The Fourth Circuit also considered this issue in the case of Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990). In that case, the court noted that treatment “must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness, . . . Nevertheless, mere negligence or malpractice does not violate the Eighth Amendment.” Id. at 851 (citations omitted). Unless medical needs were serious or life threatening, and the defendant was deliberately and intentionally indifferent to those needs of which he was aware at the time, the plaintiff may not prevail. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Sosebee v. Murphy, 797 F.2d 179, 182-83 (4th Cir. 1986).
In support of their summary judgment motion, Defendants offer an affidavit from FCDC nurse practitioner Jordan Sauls, formerly Jordan Rhodes (“Sauls”). ECF No. 207-2. Sauls attests Plaintiff received “more than simply adequate medical treatment” for his medical conditions. Id. at 2. Addressing Plaintiff's complaints about the treatment of his glaucoma, Sauls states Plaintiff's glaucoma medication was discontinued in January 2020 because he complained of adverse reactions to his medication. Id. Sauls states she did not observe any objective evidence of adverse reactions. Id. Sauls states Plaintiff refused any alternative medication other than Lumigan. Id. Sauls attests Plaintiff was referred to an ophthalmologist and was seen by Carolina Center for Sight on September 16 and December 16, 2020. Id. In regard to Plaintiff's back pain, Saul states Plaintiff was examined by FCDC medical staff concerning his allegations of back pain and there was no objective finding of a back injury. Id. at 3. Sauls also notes Plaintiff refused the offer of ibuprofen for his back pain. Id. Addressing Plaintiff's concerns about fragrance free soap, Sauls attests Plaintiff has liquid fragrance free Dial soap available in dispensers. Id.
In response, Plaintiff reiterates the allegations of his Complaint, and he offers his medical records and his own declaration to show Defendants denied him ophthalmologist care and assessments for his condition, and that Rhodes discontinued his glaucoma medication for seven months. ECF No. 265 at 52-57; ECF No. 42-1 at 19-20; ECF No. 265-2 at 372-79, 387, 401, 402-408, 410-12, 422-424, 427, 430, 433, 435-37, 472, 475-76, 480. Plaintiff agrees Defendants met with him on numerous occasions concerning his medical complaints, but argues the care he was provided was inadequate. ECF No. 265 at 58-59, 62-65. Plaintiff also offers a February 24, 2020 letter from Dr. Kocher in response to an inquiry from Plaintiff about his glaucoma medications. ECF No. 265-2 at 431. Dr. Kocher explained the information in his letter was generalizations that may not apply to Plaintiff's case since he did not review Plaintiff's medical records or examine Plaintiff. Id. Dr. Kocher stated the glaucoma medicines Plaintiff referenced were interchangeable, the adverse reactions that Plaintiff described were not common occurrences and he could not say these medications caused the referenced reactions. Id. Dr. Kocher recommended Plaintiff use one of the three medications he referenced in his letter on a daily basis. Id.
The undersigned finds Sauls' affidavit and Plaintiff's medical records establish Plaintiff was seen by FCDC medical staff and outside medical providers on seventeen occasions for complaints of back pain and glaucoma complications, from October 8, 2019 to January 12, 2021. The care provided included medical evaluations and assessments, prescription and over-the-counter medications, hospital admissions, x-rays and CT scans. In regard to Dr. Kocher's letter, the undersigned notes the letter fails to support Plaintiff's contention that his glaucoma medical care was inadequate. The undersigned finds Plaintiff has failed to demonstrate Defendants were deliberately indifferent to his serious medical needs.
To the extent Plaintiff argues he should have received additional or different treatment, a disagreement about the proper treatment for a medical condition does not in and of itself state a constitutional violation. See Brown v. Thompson, 868 F.Supp. 326, 331 (S.D. Ga. 1994) (finding that although the provision of medical care by prison officials is not discretionary, the type and amount of medical care is discretionary); Thomas v. Anderson City Jail, No. 6:10-3270-RMG-KFM, 2011 WL 442053, at *3 (D.S.C. Jan. 19, 2011) (finding the Constitution requires prisoners be provided with a certain minimum level of medical treatment, but it does not guarantee to a prisoner the treatment of his choice); Smart v. Villar, 547 F.2d 112 (10th Cir. 1976) (explaining a disagreement as to the proper treatment to be received does not in and of itself state a constitutional violation). The undersigned further finds that Plaintiff's complaint about the quality of the care he received does not meet the standard for a plausible claim under § 1983 as this claim is more akin to a claim of neglect or malpractice. Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985). The undersigned recommends Defendants be granted summary judgment on Plaintiff's medical indifference claim.
4. Excessive Force and Cruel and Unusual Punishment
Plaintiff claims Defendants used excessive force when they tased him and placed him in a restraint chair after he refused to follow Defendants' orders or directives and physically interfered with Defendants handcuffing him and removing his jumpsuit. ECF No. 1 at 21-23, 28-31, 44-45.
“[T]he Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). To prevail on an excessive force claim, “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015). A court “cannot apply this standard mechanically, ” id., and must instead look to the “facts and circumstances of each particular case.” Id. (quoting Graham, 490 U.S. at 396) (internal quotation marks omitted). “A court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Id. A court must also account for the government's interests that flow from the management of a detention facility, appropriately deferring to the judgment of jail officials and the policies and practices they have developed to maintain order, discipline, and security. Id. (citing Bell v. Wolfish, 441 U.S. at 540). In determining whether an officer was acting objectively unreasonably, a court may consider many factors including the amount of force used relative to the need for force; “the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” Id.
a. Factual Background and Argument
1) May 22, 2019
Plaintiff says Defendants used excessive force when they tased him and improperly placed him in a restraint chair after he refused to turn over a pencil and be handcuffed. ECF No. 1 at 21-23.
Defendants contend Plaintiff's claims should be dismissed because the actions taken by the FCDC Defendants were reasonable as they were making a good faith effort to maintain and restore discipline due to Plaintiff's actions that “necessitated the need to use necessary force.” ECF No. 207-1 at 17. In support of this contention, Defendants offer an affidavit from FCDC lieutenant Andrea Capers (“Capers”) and a May 22, 2019 Jail Incident and Use of Force Report. ECF No. 207-3. Capers attests she received a call to assist in transferring Plaintiff to another unit so his cell could be cleaned due to pencil markings on the ceiling. Id. at 2. Capers states when she arrived at Plaintiff's cell, she and other officers instructed Plaintiff several times to turn to the rear and place his hands into the door flap to be handcuffed. Id. Capers attests she repeatedly tried to convince Plaintiff to cooperate to allow the cleaning process, and when Plaintiff briefly complied, she attempted to handcuff him, and her finger got caught in the handcuffs when Plaintiff began to resist. Id. Capers says Plaintiff continued to resist and became extremely disorderly and combative with the officers. Id. Capers states Plaintiff was informed that he would be tased if he did not comply, and Plaintiff told the officers to go ahead and tase him. Id. Capers says Plaintiff continued to resist and the taser was deployed to control Plaintiff for his safety and the safety of the officers. Id. Capers states she was then able to gain control of Plaintiff's arm, but Plaintiff continued to resist. Id. Capers states that after continued efforts to get Plaintiff under control, Plaintiff was properly placed in the restraint chair for his safety and the safety of the officers. Id. Capers states the prongs for the taser were removed after Plaintiff was placed in the restraint chair. Id. at 2-3.
The May 22, 2019 Jail Incident Report provides the following additional facts: Metusiewicz explained to Plaintiff that he was being moved to another cell so the writing on his ceiling could be cleaned, and Capers explained to Plaintiff that the cleaning process would not take long and he would be placed back in his cell. Id. at 4. Plaintiff refused to leave his cell. Id. After Plaintiff refused to place his hands through the door flap to be handcuffed, his cell was unlocked and officers instructed Plaintiff to turn to the rear to be handcuffed, and Plaintiff refused. Id. When Capers informed Plaintiff her finger was caught in the cuffs, Plaintiff began using profanity, and told the officers that they could not make him move, and to take their hands off him. Id. Plaintiff continued to resist being handcuffed after he was tased, and officers tased him two additional times before they were able to get Plaintiff handcuffed to the rear. Id. Plaintiff continued to be disruptive after he was handcuffed, using potentially threatening language, and Plaintiff was placed in the restraint chair. Id.
In Response, Plaintiff denies the allegations in the Jail Incident Report and contends Defendants initiated the May 22 incident to confiscate his writing and legal materials. ECF No. 265 at 14-15. Plaintiff also denies Defendants informed him of their intent to move him to another cell so his cell could be cleaned. Id. at 15. Plaintiff claims he felt threatened by Defendants. Id. at 15-16. Plaintiff states Defendants immediately tased him without warning, and denies that he continued to resist officers. Id. at 16. Plaintiff states he received medical treatment for his injuries two days later. Id. at 18. Plaintiff argues even if force was necessary in light of him grabbing the handcuffs, Plaintiff claims he was subjected to excessive force when he was excessively tased. Id. at 18-19. Plaintiff also offers his own declaration where he states Sipp assaulted him and placed him into a restraint chair in a “hog-tied fashion, ” with his hands handcuffed behind his back and leg-shackles “extremely-tight” for hours. ECF No. 216-1 at 3.
Plaintiff references a May 22 security video, but this video has not been produced for the court's review. ECF No. 265 at 16-19. The undersigned notes Plaintiff served Defendants with Requests for Production in which he requested a copy of the video footage from maximum segregation on May 22, 29, and October 5, 2020, and April 4-6, 2021, and a copy of the audio recording from Plaintiff's disciplinary hearings. In their Response to these Requests, Defendants indicate that they searched for these requested items, and Plaintiff was given an opportunity to view all the videos that were located and that were responsive to his requests. See ECF Nos. 96, 121, 237, 241, 246.
Plaintiff states he sustained injury to his neck, wrist, ankles and armpits. Id.
2) May 29, 2019
Plaintiff alleges Defendants utilized excessive force when they tased him and improperly placed him in a restraint chair after Plaintiff refused to exit the shower, to be handcuffed, to remove his jumpsuit, and he physically prevented the removal of his jumpsuit. ECF No. 1 at 2831.
Defendants contend Plaintiff's claims should be dismissed because the actions taken by the FCDC Defendants were reasonable as they were making a good faith effort to maintain and restore discipline due to Plaintiff's action that “necessitated the need to use necessary force.” ECF No. 207-1 at 17. In support of this contention, Defendants offer an affidavit from FCDC Sergeant Kimberly Scott (“Scott”) and a May 29, 2019 Jail Incident and Use of Force Report. ECF No. 207-4.
Scott states she was called to MSU and when she arrived, she was informed Plaintiff refused to come out of the shower and had threatened one of the officers. ECF No. 207-4 at 2. Scott says she directed Plaintiff to place his hands behind his back and he complied, and Plaintiff was taken back to his cell. Id. at 2, 5. Scott attests that Plaintiff was then directed to remove his jumper due to being placed on a 23-hour privilege revoked status, and Plaintiff indicated he did not have on boxers and he had them around his neck. Id. at 2. Scott says Plaintiff began to attempt to expose himself and Scott attempted to remove herself from the location informing Plaintiff multiple times to remove his jumper and properly position his boxers. Id. Scott says Plaintiff refused to remove his jumper and when she attempted to assist him, Plaintiff became combative and grabbed her arms. Id. Scott says Plaintiff's physical confrontation continued and she attempted to push Plaintiff against the wall to gain control of Plaintiff, and to keep herself, Plaintiff, and the other officers safe. Id. Scott says other officers assisted in the removal of Plaintiff's uniform. Id. Scott states Plaintiff remained combative and physically resisted the officers verbal directives, and after giving Plaintiff opportunities to comply, Hammett deployed his taser. Id. Scott says Plaintiff continued to resist after he was tased, and Hammett directed Plaintiff to be placed in the restraint chair. Id. Scott says Plaintiff was covered with a blanket after he was placed in the chair, and Plaintiff tried to remove the blanket. Id. at 3. Scott states an effort was made for Plaintiff to be assessed by Medical where the prongs made contact, but Plaintiff refused to wear his boxers or a smock and continued to be argumentative with the officers. Id. at 3.
The May 29, 2019 Jail Incident Report provides the following additional facts: Scott arrived at the MSU shower and she was informed Plaintiff was complaining about the lock down and refused to exit the shower after he finished washing up. Id. at 5. After Plaintiff was returned to his cell and his handcuffs were removed, Plaintiff was told that if he did not remove his jumper, that the jumper would be forcibility removed. Id. Plaintiff refused to remove his jumper. Id. After Plaintiff was tased, Plaintiff was assisted to the floor by officers who helped to remove his jumper. Id. Plaintiff requested medical attention and McDaniel entered the cell accompanied by Gee. Id. At this time, Plaintiff began to yell and curse, and Hammett directed officers to place Plaintiff in the restraint chair. Id. While Plaintiff was being placed in the chair, he continued to yell and curse at the officers. Id. Once Plaintiff was secured, McDaniel observed the area where the prongs made contact and the position of Plaintiff in the chair. Id. McDaniel indicated he could stick a finger between the restraints. Id. When Plaintiff was returned to his cell, he refused to put on the boxers he had in his cell, and instead stood on his cell bunk and showed his genitals to the officers. Id. Plaintiff was informed if he did not put on the smock, he could not go to medical, and Plaintiff refused to put on the smock. Id.
In response, Plaintiff reiterates the allegations in his Complaint. ECF No. 265 at 22-31.Additionally, Plaintiff admits he had his boxers around his neck as he had handwashed them in the shower, but denies that he had other boxers in his cell. Id. at 24, 31. Plaintiff denies he was physically combative. Id. at 24. Plaintiff also denies that Defendants covered his nudity, or that he continued to remove the blanket. Id. at 25. Plaintiff further denies he threatened Gee or refused to exit the shower, and argues there was no security need. Id. at 27. Plaintiff also offers his own declaration. ECF No. 216-1 at 3-5. Plaintiff states he had a disagreement with Gee about twisting his wrists to handcuff him, citing to injuries he sustained on May 22. Id. at 3. Plaintiff states Gee handcuffed him without twisting his wrists and Plaintiff says he argued with Gee and Sipp while they escorted him to the shower. Id. Plaintiff states Gee attempted to twist his wrists to handcuff him after he finished his shower, and Plaintiff refused to be handcuffed. Id. at 4. Plaintiff states he explained the situation to Scott who handcuffed him “properly” and escorted him to his cell. Id. Plaintiff says Sipp instructed him to strip out of his jumpsuit and Plaintiff refused stating he did not have on any underwear. Id. Plaintiff states Scott explained that they will use force to take off the jumpsuit if Plaintiff did not take the jumpsuit off himself. Id. Plaintiff says he still refused to remove his clothing and Scott radioed for backup. Id. Plaintiff says Scott came in his cell and began removing his jumpsuit and Plaintiff grabbed her hand and told Scott to get off him. Id. at 5. Plaintiff states Scott slammed him into the wall where Sipp and Fuller pinned him. Id. Plaintiff says Hammett shot him with the taser and Scott, Sipp, and Fuller stripped his clothing leaving Plaintiff nude. Id. Plaintiff states he was handcuffed on the floor. Id. Plaintiff says he walked to the cell door so the security camera could see he was nude. Id. Plaintiff states he was placed in the restraint chair, arms handcuffed to the back and leg-shackled “extremely-tightly.” Id. Plaintiff says he was rolled into the multi-purpose room and placed in front of two large windows. Id. Plaintiff states he sustained cuts, bruises, and abrasions to his back, neck, arms, ankles, and armpits. Id. Plaintiff says he requested medical attention, but his request was refused by Scott and Hammett. Id. See also, ECF No. 42-1 at 7-8. Additionally, Plaintiff offers a declaration from inmate De'Angelo Laquan Thomas who reiterates Plaintiff's version of the May 29, 2019 events, virtually verbatim to Plaintiff's declaration. See ECF No. 204-1. Thomas, however, does not provide any information about how he obtained personal knowledge of the events outlined in his declaration.
Plaintiff references a May 29 security video, but this video has not been produced for the court's review. ECF No. 265 at 22, 25, 31. The undersigned notes Plaintiff served Defendants with Requests for Production in which he requested a copy of the video footage from maximum segregation on May 22, 29, and October 5, 2020, and April 4-6, 2021, and a copy of the audio recording from Plaintiff's disciplinary hearings. In their Response to these Requests, Defendants indicate that they searched for these requested items, and Plaintiff was given an opportunity to view all the videos that were located and that were responsive to his requests.
See ECF Nos. 96, 121, 237, 241, 246.
3) October 5, 2019
Plaintiff says Defendants used excessive force when they tased him and improperly placed him a restraint chair after he refused to take or return the medication Hatchell gave him. ECF No. 1 at 44-45.
Defendants contend Plaintiff's claims should be dismissed because the actions taken by the FCDC Defendants were reasonable as they were making a good faith effort to maintain and restore discipline due to Plaintiff's action that “necessitated the need to use necessary force.” ECF No. 207-1 at 17. In support of this contention, Defendants offer an affidavit from FCDC officer Brad Young (“Young”) and a October 5, 2019 Jail Incident and Use of Force Report. ECF No. 207-5.
Young states he was contacted by Hatchell who indicated Plaintiff refused to take his medication or give the medication back to her. ECF No. 207-5 at 2. Young states he asked Plaintiff several times to take his medication or return them to Hatchell and he refused. Id. Young says he discussed the situation with Corporal Vasquez, and it was determined that Plaintiff needed to be placed in the restraint chair to control the situation and to obtain the medication for his safety. Id. Young attests Plaintiff was given directives to comply and cooperate with officers and after failing to comply, Young tased Plaintiff and had him placed in the restraint chair. Id.
The October 5, 2019 Jail Incident Report provides the following additional facts: Plaintiff complained about hitting his head when he was tased and that his chest hurt. Id. at 5. Scott notified Medical who told Scott to check Plaintiff's vitals. Id. Scott checked Plaintiff's vitals and
Medical directed Scott to give Plaintiff clonidine and a pack of Tylenol. Id. When officers tried to remove Plaintiff from the chair, Plaintiff threatened to sue them if he was removed by nonmedical personnel. Id. After consulting with Medical, officers assisted Plaintiff out of the chair and onto his bunk. Id. Plaintiff was offered the medication ordered by Medical, and Plaintiff took the clonidine, but refused the Tylenol. Id.
In Response, Plaintiff reiterates the allegations in his Complaint. ECF No. 265 at 40-41.
Plaintiff also admits he kicked the pill that fell on the floor under the cell door. Id. at 42. Plaintiff denies he refused to take his medication. Id. at 44. Plaintiff also argues the use of force was unreasonable because he was not uncooperative or threatening towards Defendants. Id. at 45. Plaintiff also offers his own declaration. ECF No. 216-1 at 1-2. Plaintiff states when Hatchell gave him his medication earlier that day, one of the pills fell to the floor. Id. at 1. Plaintiff states he notified Young and requested a substitute dose, and Hatchell stated she would bring the medication on her own time. Id. Plaintiff says Young asked him where the medication was, and Plaintiff told him the medication was outside his cell door. Id. Plaintiff says Young retrieved the medication and placed it on the table. Id. Plaintiff says he made repeated requests for his missing medication, but he did not receive it. Id. at 2. Plaintiff says Hatchell returned that afternoon to distribute medication. Id. Plaintiff says when he received his medication, he disputed not being given a substitute dose. Id. Plaintiff says he asked Young to speak to supervisor Flemming about his medication, and Hatchell and Young instructed him to take the medication he was given. Id. Plaintiff states he told them he was going to take the medication, but he wanted to see the supervisor to document the medication he was not given. Id. Plaintiff says Young and Hatchell requested he give the medication back, and he told them he was going to take it, but he needed to see the supervisor. Id. Plaintiff says Young opened his cell door and tased Plaintiff, and then Smith and Young put Plaintiff in the restraint chair. Id. Plaintiff says his hands were handcuffed behind his back and the leg shackles and chair straps were “extremely tight.” Id. Plaintiff says he was refused medical attention, but Fuller later checked his vital signs and his blood pressure was elevated. Id. Plaintiff says he advised the officers he had a back injury and officers removed him from the restraint chair against his will. Id. Plaintiff states he never received medical attention. Id.
Plaintiff references an October 5 video, but this video has not been produced for the court's review. ECF No. 265 at 42-43, 45. The undersigned notes Plaintiff served Defendants with Requests for Production in which he requested a copy of the video footage from maximum segregation on May 22, 29, and October 5, 2020, and April 4-6, 2021, and a copy of the audio recording from Plaintiff's disciplinary hearings. In their Response to these Requests, Defendants indicate that they searched for these requested items, and Plaintiff was given an opportunity to view all the videos that were located and that were responsive to his requests. See ECF Nos. 96, 121, 237, 241, 246.
The undersigned notes that Plaintiff's response in opposition to Defendants' summary judgment motion is an unsworn document and therefore standalone statements in that document were not considered when evaluating Defendants' motion for summary judgement. See Solis v. Prince George's County, 153 F.Supp.2d 793, 798 (D. Md. 2001) (noting “[u]nsworn statements do not qualify as affidavits and are not considered by the Court when ruling on a motion for summary judgment.”).
The undersigned finds Plaintiff's claims concerning the May 22 and 29, and October 5 use of force fail to show Defendants used an objectively unreasonable amount of force against him. The undersigned finds Plaintiff repeatedly refused to follow directions and orders from Defendants, which included Plaintiff trying to physically prevent Defendants from handcuffing him or removing his jumpsuit. The undersigned further finds Plaintiff was given multiple opportunities to comply with Defendants' orders before force was used. Given these circumstances, the undersigned finds it was reasonable for Defendants to use some physical force to maintain control over Plaintiff. Although Plaintiff claims to have suffered injuries from the use of force, Plaintiff has not offered any evidence that the injuries he suffered were significant. Additionally, Defendants have shown, and Plaintiff has admitted, that Plaintiff either received medical treatment following the use of force or Plaintiff refused the offered medical treatment. The Supreme Court has recognized that prison management “may require and justify the occasional use of a degree of intentional force” against pretrial detainees. Kingsley, 135 S.Ct. at 2475. The Court has also long recognized that, while “the state cannot hold and physically punish an individual except in accordance with due process of law . . . [t]here is, of course a de minimis level of imposition with which the Constitution is not concerned.” Ingraham v. Wright, 430 U.S. 651, 673-74 (1977). Considering the significant deference given to prison officials in their efforts to maintain order and control, the undersigned finds Defendants' use of the taser and restraint chair was not objectively unreasonable given the facts before the court. The undersigned recommends Defendants be granted summary judgment on this claim.
5. Failure to Protect
Plaintiff alleges Defendants failed to protect him from inmates who threatened Plaintiff and later caused Plaintiff to engage in a physical altercation with them. ECF No. 1 at 72-78.
Although a pretrial detainee's “failure-to-protect claim . . . constitutes a due process claim under the Fourteenth Amendment, . . . the same standards apply as for an Eighth Amendment claim brought by a convicted prisoner.” King-Fields v. Leggett, C. A. No. ELH-11-1491, 2014 WL 694969, at *10 (D. Md. Feb. 19, 2014). Prison officials have a duty to maintain “‘reasonable measures to guarantee the safety of the inmates, '” which includes “‘a duty to protect prisoners from violence at the hands of other prisoners[.]'” Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (citing Farmer, 511 U.S. at 832). However, “not every injury suffered by a prisoner at the hands of another translates into constitutional liability for prison officials responsible for the victim's safety.” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015). To prevail on a claim of failure to protect from violence, a pretrial detainee must demonstrate (1) that he was incarcerated under conditions posing a substantial risk of serious harm, and (2) that the “prison official [has] a sufficiently culpable state of mind, ” which amounts to “deliberate indifference” to the detainee's health or safety. Farmer, 511 U.S. at 834; accord Odom v. S.C. Dep't. of Corr., 349 F.3d 765, 770 (4th Cir. 2003). Deliberate indifference is “more than mere negligence;” the standard for “deliberate indifference” is “subjective recklessness as used in the criminal law.” Farmer, 511 U.S. at 835, 839-40; see also Brooks v. Burford, C. A. No. 2:10-689-TLW-BHH, 2011 WL 2119281, at *7 (D.S.C. Mar. 3, 2011), adopted in 2011 WL 2116416, at *1 (D.S.C. May 27, 2011).
Defendants argue Plaintiff's failure-to-protect allegations are only supported by conclusory allegations and assumptions and therefore his claim must be dismissed. ECF No. 207-1 at 22-23. Defendants point out that Plaintiff admitted that he assumed the inmates were going to lynch him, but instead of reporting this or returning to his cell, Plaintiff challenged the inmates to a fight. Id. at 23. Defendants argue Plaintiff had an opportunity to avoid the incident, and chose not to. Id.
In response, Plaintiff argues he only used the 1-on-1 tactic to prevent himself from being lynched. ECF No. 265 at 68. Plaintiff also claims Smith was the only officer assigned to work in his unit, and therefore his ability to report or seek protection was non-existent. Id. at 69. Plaintiff also offers his own declaration. See ECF No. 42-2 at 20-23. Plaintiff claims on April 9, his housing unit “was extremely loud, with inmates yelling threats, insults, and profanity to [Plaintiff].” Id. at 21. Plaintiff states Jennings called Smith and advised him to tell the inmates to stop all the commotion. Id. Plaintiff states Jennings entered C-Unit and ordered Sparks and Swift to stop, and advised Smith to add 72-hour lockdown to Sparks' lock-down time. Id. Plaintiff says Jennings claimed to be aware of a problem between Plaintiff, Sparks, and Swift because she heard “Sparks and Swifts voice specifically.” Id. Plaintiff claims Jennings mentioned her intention to separate him, Swift, and Sparks, but says she “obviously forgot.” Id. at 22. Plaintiff states he exited his cell for out-of-cell recreation at 1 pm and “people” informed him that Smith was going to let Spark and Swift out to fight Plaintiff before recreation was over. Id. Plaintiff says that at approximately 1:55 to 2 pm, he saw Smith unlock Sparks' and Swift's doors. Id. Plaintiff says he left the dayroom and went outside to the recreation yard where Sparks, Swift, and a third person attempted to lynch Plaintiff, which “resulted in [Plaintiff] fighting with Swift fairly.” Id. Plaintiff says he then went back inside the unit where all three inmates attempted to lynch him in the presence of Smith. Id. Plaintiff claims Smith did not do anything or call backup. Id. Plaintiff says at 2:25, Sparks and Swift followed him to his cell “and engaged [him] in a fight.” Id. at 23. Plaintiff states Smith and another officer called for back-up, and Smith sprayed all three of the inmates with mace. Id. Plaintiff claims Smith and Jennings were aware of the assault, and failed to protect him. Id.
Plaintiff references an April 6 to 9, 2020 video and an April 11, 2020 disciplinary hearing audio but this video and audio has not been produced for the court's review. ECF No. 265 at 68, 69. The undersigned notes Plaintiff served Defendants with Requests for Production in which he requested a copy of the video footage from maximum segregation on May 22, 29, and October 5, 2020, and April 4-6, 2021, and a copy of the audio recording from Plaintiff's disciplinary hearings. In their Response to these Requests, Defendants indicate that they searched for these requested items, and Plaintiff was given an opportunity to view all the videos that were located and that were responsive to his requests. See ECF Nos. 96, 121, 237, 241, 246.
Plaintiff also offers an April 9 incident report. ECF No. 265-2 at 470. The report states Smith heard Sparks, Swift, and Plaintiff arguing about gang affiliations, and instructed the inmates to return to their cell immediately. Id. Smith states Sparks and Swift engaged Plaintiff in combat and Smith called for back-up and sprayed Plaintiff, Smith and Sparks, and the inmates separated from each other. Id.
Here, the record fails to establish Smith and Jennings knew of, and disregarded, an excessive risk to Plaintiff's safety. Although Plaintiff attests inmates, including Sparks and Swift, threatened him in the presence of Smith and Jennings, Plaintiff indicates the basis for this knowledge was based on rumors from other inmates and his own speculation. ECF No. 41-2 at 21-22. Plaintiff also fails to explain the nature of those threats, or why he did not return to his cell after learning of the threats. Although Plaintiff claims he could not report the threats because Smith was the only officer assigned to his unit, Plaintiff admits that Jennings was present in his unit prior to the April 9 incident, and he fails to explain why he did not seek protection or make a report to her. Additionally, Plaintiff admits he started a fight with Swift in an effort to avoid an altercation with all three inmates. ECF No. 1 at 75; ECF No. 42-2 at 22. Further, after Smith became aware of the altercation between Plaintiff, Swift, and Sparks, Smith approached the inmates, asked them to return to their cell, and when they did not comply, sprayed them with mace to separate them. See ECF No. 42-2 at 20-23; ECF No. 265-2 at 470. Finally, Jennings' purported statement that she knew there was a problem between Plaintiff, Sparks, and Swift, and that she intended to separate them, but forgot, at the most establishes that Jennings may have been negligent, which is insufficient to establish deliberate indifference. On this record, Plaintiff's allegations do not rise to the level to state a claim for a constitutional violation. The undersigned recommends Defendants be granted summary judgment on this claim.
6. Conditions of Confinement
Plaintiff claims he suffered emotional distress when officers refused to wear masks or gloves, and FCDC refused to give him sanitizer or masks during the Covid-19 pandemic. ECF No. 1 at 79-80; ECF No. 1-2 at 19. Plaintiff also says Sipp would drop keys on the floor and handle his food, and Gee and Sipp put Plaintiff in a cell previously occupied by a detainee who possibly tested positive for Covid-19. ECF No, 1-2 at 19-20. Plaintiff says he was denied mental health counseling for months. Id. at 19.
The Fourteenth Amendment proscribes incarcerating a pretrial detainee in conditions that “amount to punishment, or otherwise violate the Constitution.” Bell v. Wolfish, 441 U.S. at 520. To demonstrate that conditions of confinement constitute cruel and unusual punishment, [an inmate] must (1) establish that prison officials acted with ‘deliberate indifference' and (2) prove extreme deprivations of basic human needs or ‘serious or significant' pain or injury.” Smith v. Ozmint, 578 F.3d 246, 255 (4th Cir. 2009) (quoting Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996)). To demonstrate that the conditions deprived him of a basic human need, a plaintiff must allege officials failed to provide him with humane conditions of confinement, such as “adequate food, clothing, shelter, and medical care, and [taking] reasonable measures to guarantee the safety of the inmates.” Farmer, 511 U.S. at 832.
Defendants argue Plaintiff's allegations regarding his conditions for confinement while at FCDC do not rise to the level of a constitutional violation. ECF No. 207-1 at 25. Defendants contend Plaintiff has not offered any evidence to support his claim that FCDC officers did not wear masks in his presence. Id. at 26. Defendants also claim Plaintiff has failed to establish he or any other FCDC detainee contracted Covid-19 or that he was at any greater risk than any member of the public for contracting the disease. Id.
In response, Plaintiff offers his own affidavit where he reiterates the allegations in his Complaint. ECF No. 42-2 at 16-18. Plaintiff also states FCDC neglected to inform the detainees when FCDC staff tested positive for Covid-19, or to quarantine detainees who entered FCDC before they placed them in general population. Id. at 16-17. Plaintiff says he was only allowed to clean his cell on Friday, and he was “rushed with cleaning.” Id. at 17. Plaintiff states he was screened by a psychiatrist at FCDC and he received mental health medications to help with his problems. Id. Plaintiff also offers affidavits from other FCDC inmates who state that they were not provided materials, such as face masks, hand sanitizer and disinfectant spray, to minimize exposure to Covid-19; and that newly admitted detainees were only given vital sign checks before being placed in general population. ECF No. 42-2 at 7-14.
The undersigned finds Plaintiff has not shown FCDC's Covid-19 policies failed to reasonably guarantee the safety of Plaintiff and the other FCDC detainees. The undersigned further finds Plaintiff's claims that FCDC officers allegedly did not wear protective gear fails to establish that Plaintiff was exposed to conditions constituting extreme deprivations of a basic human need. Plaintiff has not offered any evidence that he was exposed to, or has contracted, Covid-19. Finally, Plaintiff has not shown his purported emotional distress constituted serious or significant pain or injury. The undersigned recommends the court grant Defendants summary judgment on Plaintiff's conditions of confinement claims.
7. Retaliation
Plaintiff alleges Defendants retaliated against him after he filed an earlier lawsuit against them. ECF No. 1 at 67-69; ECF No. 1-2 at 17. To succeed on his § 1983 retaliation claim, Plaintiff must establish that (1) he engaged in protected First Amendment activity, (2) “the alleged retaliatory action adversely affected his protected speech, ” and (3) a but-for causal relationship existed between the protected activity and the retaliatory act. Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015). Finally, a plaintiff must show that he suffered some adverse impact on the continued exercise of his constitutional rights as a result of the retaliatory conduct. American Civil Liberties Union, Inc. v. Wicomico County, 999 F.2d 780, 785 (4th Cir. 1993). Claims of retaliation by prison inmates are generally treated with skepticism because “[e]very act of discipline by prison officials is by definition ‘retaliatory' in the sense that it responds to prisoner misconduct.” Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996); Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994).
In support of his retaliation claim, Plaintiff alleges Scott and Hatchell, who were Defendants in his earlier lawsuit, made frivolous allegations and reports resulting in Plaintiff's placement in MSU. ECF No. 1-2 at 17. Plaintiff says Hatchell frivolously reported disciplinary infractions in February 2020 causing Plaintiff to be placed in MSU. Id. Plaintiff claims Defendants coerced an officer to verify their claims that Plaintiff was disrespectful, made threats towards another inmate, and refused to return to his cell. Id.
Defendants argue Plaintiff has done nothing more than assert conclusory allegations of retaliation and harassment and therefore any retaliation claim fails and should be dismissed. ECF No. 207-1 at 29-30. In response, Plaintiff cites to the allegations in his Complaint. ECF No. 265 at 71.
Here, Plaintiff has failed to set forth any evidence, other than his own speculation, to establish that Defendants intentionally acted against Plaintiff in response to Plaintiff filing a lawsuit against them. Plaintiff has also not shown that these alleged actions adversely impacted the continued exercise of his constitutional rights. The undersigned finds Plaintiff's conclusory allegations are insufficient to state a retaliation claim and recommends that summary judgment be granted on this claim.
8. Denial of Access to Courts
Plaintiff alleges Defendants denied him access to legal mail and legal research, paper and pencils, and the computer which impaired his ability to research case law, deprived him of the ability to study his case, and prejudiced his ability to argue his claims, research reference citations in Defendants' motions to the court, and to present facts or grounds necessary to satisfy legal standards in support of his claims. ECF No. 1 at 20-21; ECF No. 1-2 at 8-15.
Defendants argue Plaintiff's claim should be dismissed because Plaintiff has failed to allege facts that rise to the level of constitutional violations. ECF No. 207-1 at 30. Defendants also contend Plaintiff has failed to demonstrate that he sustained an injury attributable to these alleged deprivations. Id.
The undersigned finds Plaintiff has failed to allege sufficient facts to state a denial of access of courts claim. To state a constitutional claim for denial of meaningful access to the courts, an inmate must allege specific injury resulting from the alleged denial. See Lewis v. Casey, 518 U.S. 343, 349 (1996) (holding that an inmate alleging denial of access to the courts must be able to demonstrate “actual injury” caused by the policy or procedure in effect at the place of incarceration in that his non-frivolous legal claim had been frustrated or was being impeded); Michau v. Charleston Cnty., 434 F.3d 725, 728 (4th Cir. 2006) (finding sua sponte dismissal appropriate where the plaintiff did not explain how he was injured by any limitations on his access to a law library).
The undersigned finds Plaintiff's contention that his denial of access to the FCDC law library, his legal mail, and other legal materials hindered his ability to properly present his claims “to satisfy legal-standards/grounds necessary to [his] case” is without merit. See ECF No. 42-1 at 2-3, 17. The undersigned notes Plaintiff has filed numerous pleadings and motions with the court, and the court has granted Plaintiff his requested relief in several of his motions. Additionally, Plaintiff has filed a 81-page complaint, a 74-page supplemental pleading, and 72-page response in opposition to summary judgement, with 490 pages of supporting documents, consisting of factual and legal arguments. It is clear that that this purported limited access to legal materials did not impair his ability to prosecute his claims, or cause him to suffer an actual injury. See Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996) (finding that plaintiff failed to identify any actual injury resulting from official conduct); Strickler v. Waters, 989 F.2d 1375, 1384 (4th Cir. 1993) (holding that a prisoner had a “basic requirement that he show specific harm or prejudice from the allegedly denied access”). Accordingly, the undersigned recommends Defendants be granted summary judgment on this claim.
9. HIPPA
Plaintiff alleges Defendants violated HIPPA when they reviewed his medical records without his permission. ECF No. 1 at 57, 61. Defendants move to dismiss this claim arguing HIPPA does not confer a private right of action to individuals. ECF No. 207-1 at 33.
HIPAA provides that “[a] person who knowingly . . . discloses individually identifiable health information to another person” without authorization shall be fined, imprisoned, or both. Planned Parenthood S. Atl. v. Baker, 941 F.3d 687, 696 (4th Cir. 2019). However, every circuit court to consider whether HIPAA created a private right to sue has found that it does not. See, e.g., Meadows v. United Servs., Inc., 963 F.3d 240, 244 (2d Cir. 2020); Stewart v. Parkview Hosp., 940 F.3d 1013, 1015 (7th Cir. 2019); Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010).
Because Plaintiff has no private right of action under HIPAA, the undersigned recommends the court grant Defendants summary judgment on this claim.
III. Conclusion
For the foregoing reasons, the undersigned recommends Defendants' Motion for Summary Judgment be granted, ECF No. 207, and this case be dismissed with prejudice.
IT IS SO RECOMMENDED.
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
Post Office Box 2317
Florence, South Carolina 29503
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).