Opinion
C. A. 9:21-cv-03084-RMG-MHC
10-13-2022
Michael E. Hamm, Plaintiff, v. John Magill, Director of South Carolina Department of Mental Health; Sexually Violent Predator Treatment Program Director; Mr. Timothy Budz, Ex-Facility Administrator under Correct Care Recovery Solutions; Ms. Erin Gaffney, Facility Administrator, WellPath Recovery Solutions; Ms. Dobie, Chief Psychologist; Ms. Dorothy Zimmerman, B.M.C.; Ms. Hadiyah Lewis, B.M.C.; Capt. McDuffy, B.M.C. and in his official capacity as Captain; Ex-Major Davidson, B.M.C. and in his official capacity as Major now as Chief; Ms. McCoy, R.T.A.; Ms. Grumble, R.T.A.; Ms. Webber, R.T.A.; Ms. Darby, R.T.A.; Ms. Bates, R.T.A.; Mr. Sanders, Custody Officer; Capt. Eric Scott, B.M.C.; Ms. Millhouse, Unit Manager; Ms. Jackson, Unit Manager; Ms. Nickle, Medical Administrator; Lt. Watkins, Property, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
Plaintiff Michael E. Hamm (Plaintiff) initially filed this action in the South Carolina Court of Common Pleas on August 3, 2021. Defendants removed the case to this Court on September 23, 2021. See ECF No. 1.
Before the Court are Defendants' Motions for Summary Judgment. See ECF Nos. 39, 40. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to Defendants' Motions, Plaintiff filed a Response in Opposition. ECF No. 43. Plaintiff also contemporaneously filed a Motion for Injunctive Relief. ECF No. 44. Defendants filed a Reply to Plaintiff's Response in Opposition and filed Responses to Plaintiff's Motion for Injunctive Relief. ECF Nos. 45, 46, 47. The Motions are ripe for review.
All Defendants, except John Magill, are represented by the same counsel and filed one Motion for Summary Judgment. ECF No. 39. Defendant John Magill filed a separate Motion for Summary Judgment. ECF No. 40.
Defendant Magill did not file a Reply.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), and this Report and Recommendation is entered for review by the District Judge. For the following reasons, the undersigned recommends granting Defendants' Motions and denying Plaintiff's Motion.
I. BACKGROUND
Plaintiff is currently being held in the custody of the South Carolina Department of Mental Health (SCDMH) as a sexually violent predator (SVP) under the provisions of the South Carolina Sexually Violent Predator Act (SVPA), SC Code § 44-48-10 et seq., as part of the Sexually Violent Predator Treatment Program (SVPTP). The SVPTP is the SCDMH-established facility pursuant to the provisions of the SVPA. ECF No. 39-1 at 2.
On December 1, 2016, the operation of the SVPTP was transferred via a management contract from SCDMH to Wellpath. ECF No. 39-1 at 2. Wellpath provides licensed medical staff for the SVPTP, nursing services, sex offender treatment services, and access to physicians. ECF No. 39-1 at 2. Additionally, Wellpath provides psychiatric and psychological treatment to the residents of the SVPTP. ECF No. 39-1 at 2. Defendants are or were Wellpath employees at the SVPTP serving in various capacities.
In his Complaint, Plaintiff makes a variety of allegations, which are broken into two parts. In “Part One,” Plaintiff alleges Defendants have violated Title II of the Americans with Disabilities Act (ADA) “and/or” the Rehabilitation Act of 1973. In “Part Two,” Plaintiff alleges Defendants violated his constitutional rights under 42 U.S.C. § 1983.
Specifically, in the first part of his Complaint, Plaintiff alleges that Defendants have violated the ADA by (1) “punishing” him for suggesting the installation of safety equipment in resident showers; (2) “punishing” him by making him live in a noisy wing of the facility because of his claimed disability status; (3) failing to implement a self-evaluation procedure as contemplated under 28 C.F.R. § 35.105 of the ADA regulations; (4) failing to designate a “responsible employee and adoption of grievance procedure” with respect to Plaintiff's allegations of inadequate handicap access; (5) discriminating against Plaintiff on the grounds that he claims he is disabled; (6) making “direct threats” against Plaintiff by terminating him from his cafeteria job within the SVPTP on the grounds that he was an elevated fall risk; (7) discriminating against Plaintiff and other residents who use walkers by not giving them jobs within the SVPTP, and against Plaintiff specifically by preventing him from attaining any job; (8) designing and building resident rooms within the SVPTP in a manner different than that contemplated within ADA “design guides”; (9) designing handicap rooms and recreation yards in a manner that denies handicapped residents equal participation; and (10) generally discriminating against Plaintiff. See ECF No. 1-3 at 6-15. Plaintiff seeks injunctive and monetary relief for these alleged violations. ECF No. 1-3 at 15-16.
In the second part of his Complaint, Plaintiff raises a litany of alleged constitutional violations related to his civil commitment to the SVPTP. Specifically, Plaintiff alleges Defendants violated his constitutional rights by (1) suspending group therapy treatments temporarily during the COVID-19 pandemic; (2) violating his “right to autonomy” by being able to look into the window of his maximum-security residential room; (3) violating his right to privacy by refusing to allow him to place a “flap” on the window of his room, and subsequently accusing him of committing numerous lewd and obscene acts in the presence of staff while therein; (4) violating his “right to autonomy” by refusing to allow him to masturbate; (5) punishing or discriminating against him by lowering his facility privilege level after the SVPTP's Behavioral Management Committee (BMC) determined that Plaintiff had engaged in impermissible behavior; (6) taking a television from his room “by force”; and (7) running a “punitive” and “unconstitutional” facility. See ECF No. 1-3 at 33-57. Plaintiff seeks injunctive and monetary relief for these allegations.
The SVPTP has certain behavioral rules in place which govern the conduct of residents. ECF No. 39-1 at 2. The purpose of the BMC is to address allegations of inappropriate behavior within the program and respond accordingly. ECF No. 39-1 at 2-3. Residents of the SVPTP are placed within “CARE” treatment levels in accordance with their level of compliance and progress with the treatment program. ECF No. 39-1 at 3. These levels can convey various privileges for residents, depending on treatment status and behavior. ECF No. 39-1 at 3. Substantiated BMC findings of allegations concerning behavior contrary to resident treatment goals may result in a loss or “restart” of a resident's CARE level. ECF No. 39-1 at 3.
II. LEGAL STANDARD
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, 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, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “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. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
III. DISCUSSION
Defendants argue they are entitled to summary judgment for several reasons. They argue, among other things, that Plaintiff has failed to adhere to the pleading requirements under Rule 8 of the Federal Rules of Civil Procedure; that he has not shown a viable claim under § 1983; and that he has not shown a viable claim under the ADA or the Rehabilitation Act. The Court agrees.
Defendants also argue that, to the extent the various allegations could be construed as state law medical malpractice claims, Plaintiff has failed to adhere to the pre-suit filing requirements under South Carolina law. The Court does not construe Plaintiff to be raising any such claims in his Complaint.
The recommendation to grant Defendants' Motions for Summary Judgment, if adopted, would render Plaintiff's Motion for Injunctive Relief moot. Accordingly, the undersigned recommends denying Plaintiff's Motion.
As an initial matter, Plaintiff's claims, as pled, do not meet the pleading requirements of Rule 8. See Fed.R.Civ.P. 8. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). As to § 1983 claims, the Supreme Court has made clear that a plaintiff “must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Here, Plaintiff's Complaint contains no specific allegations that would allow this Court to draw the reasonable inference that any of the named Defendants are liable for any misconduct. Indeed, although he mentions the role that the various Defendants play at the facility, Plaintiff does not supply any specifics whatsoever as to why they are named, and, more importantly, how they wronged Plaintiff. Rather, Plaintiff's Complaint merely airs various grievances he has with his civil commitment as an SVP-he does not actually connect these grievances to Defendants in any meaningful way. As a consequence, Defendants do not have “fair notice” of what they, as individuals, are being accused of. See Twombly, 550 U.S. at 555.
While the liberal pleading requirements of Rule 8 only require a short and plain statement of the claim, Plaintiff must offer more detail than merely stating Defendants violated the Constitution or the ADA. See Fed.R.Civ.P. 8. The undersigned cannot divine a cause of action from Plaintiff s filings, nor should the Court attempt to advocate on Plaintiff s behalf. See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (“District judges are not mind readers. Even in the case of pro se litigants, they cannot be expected to construct full blown claims from sentence fragments, which is essentially what [Plaintiff] is seeking here.”).
This underlying defect prevents Plaintiff from showing any genuine issue for trial regarding any of his claims. As Plaintiff has failed to even meet the pleading requirements under Rule 8, he has certainly failed to meet his burden at the summary judgment stage. Although Defendants are entitled to summary judgment for this reason alone, the Court nevertheless addresses Defendants' alternative arguments below, which also entitle them to summary judgment.
A. Failure to show a viable § 1983 claim
Defendants argue that Plaintiff has failed to show a viable § 1983 claim. Specifically, they argue that (1) Plaintiff failed to exhaust his administrative remedies; that (2) Plaintiff has not shown Defendants had any personal involvement in any violation of the Constitution; and that (3) Defendants are entitled to qualified immunity.
1. Failure to exhaust under the PLRA
Defendants argue they are entitled to relief because Plaintiff did not exhaust his administrative remedies before filing this action as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). On this argument, Defendants are mistaken.
The PLRA requires an inmate to exhaust “such administrative remedies as are available” before bringing suit under § 1983 to challenge prison conditions. Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting 42 U.S.C. § 1997e(a)). However, Plaintiff is civilly committed and is being held by the SCDMH pursuant to the provisions of the SVPA.
Under the SVPA, a person convicted of a sexually violent offense may continue to be held following release from a prison sentence if he or she is classified as an SVP. S.C. Code §§ 44-4860 to -80. The SVPA “creates a system of civil, not criminal, detention.” Michau v. Charleston Cnty., S.C., 434 F.3d 725, 727 (4th Cir. 2006). As a civilly committed person, Plaintiff is not a “prisoner” as that term is defined in the PLRA. See id.; 42 U.S.C. § 1997e(h) (defining “prisoner” as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program”).
Accordingly, because Plaintiff was not a prisoner under the PLRA at the time he filed his Complaint, the PLRA's exhaustion requirement is inapplicable to this action. See Michau, 434 F.3d at 727-288 (finding the plaintiff's detention under the SVPA did not meet the PLRA's definition of prisoner and holding that the PLRA provided “no basis for the dismissal of [the plaintiff's] complaints”); see also Cofield v. Bowser, 247 F. App'x. 413, 414 (4th Cir. 2007) (per curiam) (“[I]t is the plaintiff's status at the time he filed the lawsuit that is determinative as to whether the § 1997e(a) exhaustion requirement applies.”).
2. Failure to show personal involvement
Defendants argue-as a corollary to Plaintiff's failure to adhere to the basic requirements under Rule 8-that Plaintiff has failed to show any personal involvement as to any Defendant. In this instance, the Court agrees.
To state a § 1983 claim, Plaintiff must demonstrate Defendants, acting under color of state law, deprived him of a right secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983; Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001).
Here, Plaintiff has failed to show that Defendants had any personal involvement in any alleged constitutional violations. See Williamson, 912 F.3d at 171 (noting a plaintiff must show that the official acted personally in violating the plaintiff's constitutional rights); Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017) (noting liability will only lie in § 1983 actions where it is “affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs' rights” (citation omitted)). Plaintiffs claims alleging that his constitutional rights were violated are related to either the actions of the BMC or the design of his room. In his Complaint, Plaintiff fails to provide any specific instance of who, what, where, and why any members of the BMC violated his rights. Indeed, Plaintiff fails to connect any specific Defendant to any specific acts of wrongdoing. Because Plaintiff fails to point to evidence in the record that supports a threshold essential element of a § 1983 claim, summary judgment is appropriate. See Celotex Corp., 477 U.S. at 322 (noting the non-movant must provide evidence of every element essential to his action to survive summary judgment).
To the extent Plaintiff may be alleging that any Defendant is vicariously liable by virtue of the actions of that Defendant's subordinates, such claim also fails. Pure supervisory liability will not lie in § 1983 actions. Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (“The doctrine of respondeat superior has no application under this section.” (quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977))). Rather, to hold a supervisor liable for a constitutional injury inflicted by a subordinate under § 1983, Plaintiff must show facts establishing the following elements: (1) the supervisor had actual or constructive knowledge that a subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to people like the plaintiff; (2) the supervisor's response was so inadequate as to constitute deliberate indifference or tacit authorization of the subordinate's conduct; and (3) there is an “affirmative causal link” between the supervisor's inaction and the plaintiff's constitutional injury. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). Plaintiff has failed to produce evidence showing any of these required elements.
Defendant Magill also argues that he is entitled to Eleventh Amendment immunity to the extent Plaintiff's suit is brought against him in his official capacity as an employee of the state of South Carolina. See ECF No. 40-1 at 6. The Court agrees, and further notes Eleventh Amendment immunity would extend to any other Defendants who are being sued in their official capacity. See Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020) (noting, under the Eleventh Amendment, federal courts are barred from hearing claims for monetary damages against a state or its agents, instrumentalities, and employees, unless the state has consented to the suit); see also Hunt v. South Carolina, No. CV 8:18-2241-TMC-JDA, 2018 WL 7150756, at *3 (D.S.C. Sept. 18, 2018) (“South Carolina Department of Mental Health [is] protected from suit pursuant to § 1983 by the Eleventh Amendment[.]”), report and recommendation adopted, No. CV 8:18-2241-TMC, 2019 WL 401412 (D.S.C. Jan. 31, 2019).
In sum, as to any allegations that his constitutional rights were violated, Plaintiff has not met his burden in showing a genuine issue for trial. See Anderson, 477 U.S. at 248 (noting “a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial” (citation and internal quotation marks omitted)); see also Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993) (“The mere incantation of ‘physical and mental injury,' of course, is inadequate to survive a motion for summary judgment. At a minimum, an inmate must specifically describe not only the injury but also its relation to the allegedly unconstitutional condition.”). Put plainly, Plaintiff has not shown his claims are supported. See Anderson, 477 U.S. at 249 (noting that, in the face of a properly supported motion for summary judgment, a plaintiff cannot rest on his allegations to get to a jury without “any significant probative evidence tending to support the complaint”). Thus, the undersigned recommends granting summary judgment for Defendants
3. Qualified Immunity
Defendants are also entitled to qualified immunity from Plaintiff's § 1983 claims. The doctrine of qualified immunity offers some protection to a government employee being sued in his or her individual capacity, as is the case with Defendants. The Supreme Court has held that “[g]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Renn by and Through Renn v. Garrison, 100 F.3d 344, 349 (4th Cir. 1996).
“The threshold inquiry a court must undertake in a qualified immunity analysis is whether a plaintiff's allegations, if true, establish a clear constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). If a violation of a constitutional right in fact exists, qualified immunity nonetheless shields a prison official from liability, unless the violation was of a “clearly established right of which a reasonable person would have known.” Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (citation and internal quotation marks omitted).
As set forth above, Plaintiff has failed to establish a genuine issue of material fact on any of his allegations of constitutional violations. Because Defendants did not violate Plaintiff's constitutional rights, they are also shielded from liability by qualified immunity. See, e.g., Lott v. Budtz, No. CV 6:19-1087-RMG, 2020 WL 3051320, at *1 (D.S.C. June 8, 2020).
B. Failure to show a viable ADA claim
Defendants argue that Plaintiff has failed to show a viable claim under the ADA and/or the Rehabilitation Act of 1973. The Court agrees.
As an initial matter, Plaintiff has not shown Defendants are subject to the Rehabilitation Act. The Rehabilitation Act prohibits disability discrimination by recipients of federal funding, and Plaintiff has not argued, much less shown, that Defendants receive such federal assistance. See 29 U.S.C. § 794 (a); cf. Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 460 (4th Cir. 2012) (finding Wake Forest University was subject to the Rehabilitation Act because it is a “program . . . receiving Federal financial assistance”). Thus, to the extent Plaintiff purports to bring his action under the Rehabilitation Act, he has failed to show its applicability here.
The ADA “prohibits discrimination against persons with disabilities in three major areas of public life: employment, under Title I, 42 U.S.C. §§ 12111-12117; public services, under Title II, 42 U.S.C. §§ 12131-12165; and public accommodations, under Title III, 42 U.S.C. §§ 1218212189.” A Helping Hand, LLC v. Baltimore Cnty., MD, 515 F.3d 356, 361 (4th Cir. 2008).
Plaintiff indicates in his Complaint that he is bringing his claims under Title II. See ECF No. 1-3 at 4. Title II of the ADA provides that no qualified individual shall, “by reason of [a] disability,” be denied the benefits of public “services, programs, or activities” or be subject to discrimination by a public entity. 42 U.S.C. § 12132. To prove a violation under Title II, an individual must show “(1) that he has a disability or has been regarded as having a disability; (2) that he is otherwise qualified to receive the benefits provided by a public entity; and (3) that he was denied those benefits or was otherwise discriminated against on the basis of his disability.” Fauconier v. Clarke, 966 F.3d 265, 276 (4th Cir. 2020).
Here, as with Plaintiff's claims under § 1983, Plaintiff's ADA claims fail because he did not adhere to the basic requirements under Rule 8. Other than generally stating he was “punished” or discriminated against, Plaintiff does not set forth how Defendants discriminated against him because of his disability.
Additionally, it is questionable whether Plaintiff has even sufficiently pleaded the first two elements of an ADA claim under Title II. For example, in his Complaint, Plaintiff stated he had surgery for cancer, and he was then placed in the infirmary during radiation treatment and while his immune system recovered. See ECF No. 1-3 at 7. He stated that “[he] is disabled not handicapped” although it is unclear what exactly his disability is. See ECF No. 1-3 at 8. Later, Plaintiff stated that he has fallen in the past “due to a condition called Gogging [sic] of the right leg and due to Plaintiff's white matter disease.” ECF No. 1-3 at 9. However, he then indicated that he has never fallen while doing any of the jobs he had while working within the SCDMH, which seems to indicate that these ailments do not substantially limit his ability to do major life activities as required under the ADA. See 42 U.S.C. § 12102 (defining disability under the ADA).
As a consequence of failing to meet the pleading requirements under Rule 8, Plaintiff has likewise failed to meet his burden at the summary judgment stage. As thoroughly detailed by Defendants in their brief-and supported by affidavit-Plaintiff has not shown that he was impermissibly discriminated against in any way or that certain procedures under the ADA were not followed. Likewise, he has not shown any of the alleged design problems actually run afoul of the ADA. Put plainly, Plaintiff fails to set forth facts that could lead a reasonable jury to find a violation of the ADA. Accordingly, Plaintiff's ADA claims fails.
Defendants presented the affidavit of Jarad Anderson, the former Security Director and current Director of Quality Improvement for Wellpath. ECF No. 39-1. Mr. Anderson reviewed Plaintiff's various allegations and provided explanations regarding Wellpath's policies and procedures. Mr. Anderson's testimony showed that Plaintiff's housing assignment was a routine COVID-19 quarantine precaution. ECF No. 39 at 29-30. As to the various procedures that were allegedly not followed (which allegedly violated the ADA), Mr. Anderson averred the SVPTP does, in fact, employ such procedures, and that Plaintiff has participated in some of them. ECF No. 39 at 3031. Finally, Mr. Anderson averred that Plaintiff was released from his job assignment because of his noncompliance with prescribed medical treatment, which placed himself and other residents at risk, and that Plaintiff is now unable to be employed within the facility because he does not possess the required behavioral management level. ECF No. 39 at 32-33. Plaintiff has neither argued nor pointed to evidence that puts Mr. Anderson's testimony into dispute. See Anderson, 477 U.S. at 249 (noting that, in the face of a properly supported motion for summary judgment, a plaintiff cannot rest on his allegations to get to a jury without “any significant probative evidence tending to support the complaint”).
Mr. Anderson testified that the SVPTP facility provides compliant accommodations for disabled residents. ECF No. 39 at 34. Plaintiff has not shown otherwise. See Anderson, 477 U.S. at 249.
Furthermore, even if the Court were to assume that Plaintiff sufficiently pleaded that he was disabled under the ADA's definition, he has not pointed to sufficient evidence that he suffers from a medical condition that substantially limits one or more major life activities. See 42 U.S.C. § 12102. Rather, Plaintiff's only evidence is a physician's progress note that does not clearly indicate a disability. See ECF No. 1-3 at 18-20. Even if the Court were to further assume that Plaintiff's white matter disease-which was referenced in passing in the Complaint-was the medical condition that Plaintiff purports classified him as disabled, he has not pleaded, argued, or shown how the disease affected him. Cf. Denning v. Powers, No. 12-14103-CIV, 2012 WL 12867869, at *3 (S.D. Fla. Dec. 13, 2012) (finding Plaintiff pointed to sufficient evidence for a jury to find her white matter disease satisfied the definition of disability under the ADA because Plaintiff offered deposition testimony and an affidavit where she explained how the disease detrimentally affected her vision and that her doctor advised her that she should not be driving).
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motions for Summary Judgment, ECF Nos. 39 and 40, be GRANTED, and that this case be DISMISSED. Because Defendants are entitled to summary judgment, it is further RECOMMENDED that Plaintiff's Motion for Injunctive Relief, ECF No. 44, be DENIED as moot.
The parties are directed to the attached Notice for their rights to file objections to this 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 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).