Opinion
Civil Action No. 9:18-2180-HMH-BM
10-29-2019
Aaron Shah Khan, Plaintiff, v. Southern Health Partners, Deputy Wilson, Deputy McDuffie, Sgt. Bradly, Lt. Eric Riddel, Nurse NFN Shellie, Deputy Craig Hallett, Deputy Timmerman, Nurse NFN Angel, Brandi Galloway, Sherry Hammick, Dr. NFN Williams, Deputy Gibson, Nurse NFN Robyn, Deputy Arthurs, Deputy Merrick, Deputy Cobb, Deputy Roberts, Lt. Butts, Lt. Hettich, Lt. Bowman, Lt. Clamp, Cpl. Brodus and Cpl Buggs, Defendants.
REPORT AND RECOMMENDATION
This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. § 1983. Plaintiff, who at the time this case was filed was a pretrial detainee at the Aiken County Detention Center (ACDC), alleges violation of his constitutional rights by the named Defendants.
42 U.S.C. § 1983 "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
Plaintiff is now incarcerated with the South Carolina Department of Corrections (SCDC). See Court Docket No. 74 (Change of Address Notice).
The Detention Center employee Defendants filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on March 20, 2019. As the Plaintiff is proceeding pro se, a Roseboro Order was entered by the Court on March 21, 2019, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to adequately respond, the Defendants' motions may be granted. The remaining medical Defendants then filed their own motion for summary judgment on March 22, 2019, and a second Roseboro Order was entered by the Court on March 25, 2019. After Plaintiff's mail was returned as being undeliverable, a Report and Recommendation for dismissal for failure to prosecute was entered on April 20, 2019. However, after a response in opposition to the motions for summary judgment was received on May 6, 2019, the undersigned vacated that Report and Recommendation.
The Defendants' motions are now before the Court for disposition.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), D.S.C. The Defendants have filed motions for summary judgment. As these are dispositive motions, this Report and Recommendation is entered for review by the Court.
Background and Evidence
Plaintiff's claims involve allegedly improper medical care he received in the period May - August 2018 while he was incarcerated at the ACDC. Plaintiff alleges in his verified Complaint that on or about May 16, 2018 the Defendant Nurse Shellie came by to administer night time meds, and when he swung his legs around to get out of his bunk he heard a slight popping/snapping noise. Plaintiff alleges that about two hours later his left leg began hurting. Plaintiff alleges that the following day (May 17th), early in the morning hours, he took four ibuprofen tablets that he had purchased from the canteen, and later informed the Defendant Deputy Wilson (while he was making his routine rounds) that he was in severe pain and could not stand or move his left leg. Plaintiff alleges that Wilson then contacted medical and/or the shift supervisor (the Defendant Lt. Riddel), who (along with the Defendants Sgt. Bradly and Deputy McDuffie) took him to medical in a wheelchair. Plaintiff alleges that after a "very brief examination", Nurse Shellie told him that he had probably pulled or strained a muscle and gave him an ibuprofen tablet.
In this Circuit, verified complaints by pro se litigants are to be considered as affidavits with respect to allegations contained therein that are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
Plaintiff alleges that later that morning he had Deputy Wilson call in for a walker so he could go to the bathroom. Plaintiff alleges that Lt. Riddel and Sgt. Bradly brought him a walker so he could use the bathroom, and then (after he had used the bathroom) removed the walker from his cell. Plaintiff alleges that a little later he was sitting on his bunk "in an uncomfortable upright position", when he fell to the floor while trying to hit the call button (which was located on an adjacent wall). Plaintiff alleges that Deputy Wilson (who he assumes heard him fall) called in a medical emergency, following which Riddel, Bradly and Nurse Shellie all came to his cell. Plaintiff alleges that Nurse Shellie checked his vitals and then spoke to Lt. Riddel, and that when Plaintiff asked Riddel if he could be helped off the floor, Riddel told him that the nurse had instructed him to leave Plaintiff on the floor because he might have a torn muscle, and moving him might worsen the damage. Plaintiff alleges that Riddel and Bradly then took two mats off of the bunk bed and placed them on the floor. Plaintiff alleges that about twenty minutes later, during "count", he asked Defendant Deputy Hallett if he would help him get off the floor, but that Hallett informed the Plaintiff that he had been instructed to leave him on the floor. However, Hallett also informed Plaintiff that he would call medical to come check on him again. Plaintiff alleges that after no one had come after about thirty minutes, he began to bang on his cell door and yell "at the top of my lungs", but that Hallett did not return for about an hour to inform him that the Defendant MTA Brandi Galloway was on the way. Plaintiff alleges that Galloway "finally showed up" about thirty minutes later (9:30 a.m.), examined his left leg, and told Plaintiff she would call the physician and get back to him.
Plaintiff weighs around 300 pounds. See Court Docket Nos. 55-4, p. 20; 60-3, p. 75.
Medical Team Administrator.
Plaintiff alleges that later that day, at about 2:15 p.m., he asked Deputy Hallett if he could leave his cell for his daily one hour recreation and also so he could try calling his family. Plaintiff alleges that after his cell door was opened, he proceeded to "crawl" from his cell to the D-Max telephone, where he called his mother and asked her to ask for medical help for him. Plaintiff alleges that about fifteen minutes later, he called his mother back and was told that someone in medical had informed her that Galloway was with the Plaintiff at that "very moment", which was untrue. Plaintiff alleges that he then "crawled" back to his cell and asked the Defendant Deputy Timmerman (who was giving Hallett a break) to close his cell door. Plaintiff alleges that about forty five minutes later (at 3:30 p.m.) Galloway "finally" came back to his cell and informed him that she had spoken to the physician. She then administered another eight hundred mg. Ibuprofen tablet and gave Plaintiff a bag of ice (which Plaintiff states "greatly helped").
Plaintiff alleges he also asked Galloway if he could get help getting off the floor, and that she said yes and left his cell. Plaintiff alleges that he then received his dinner tray around 4:15 p.m., but was told by Deputy Hallett that he would have to wait until "count" at 6:00 p.m. before he could get help to get Plaintiff up off the floor. Plaintiff alleges that at 6:15 p.m. Hallett finally helped get him off the floor, replaced his mattresses, and got him back on his bunk. The walker was also placed back in the cell at that point. Plaintiff complains, however, that during the 9:00 p.m. nurses "med-run" he did not receive a muscle relaxer (flexeril 10 mg) he was supposed to be receiving because they were out of the drug, which was a "recurring" problem.
Plaintiff alleges that the following morning he was again given some ice by Nurse Galloway while receiving his morning meds. Plaintiff alleges that around three thirty that afternoon, he asked the Defendant Deputy Gibson to call medical and ask when he could see the doctor, and that around 4:00 p.m. Gibson informed him that he would see the doctor that day. Plaintiff alleges that shortly thereafter (around 4:20 p.m.) he was "wheel-chaired" to medical and saw the ACDC physician (the Defendant Dr. Williams), who performed a "very brief" examination and diagnosed Plaintiff with a pulled or strained iliofemoral ligament. Plaintiff alleges the physician ordered ice for his leg and stated that heat should be applied to the affected area Saturday and Sunday mornings, which Plaintiff alleges "never occurred". Plaintiff further alleges that he asked Nurse Galloway for eight hundred milligrams (presumably of ibuprofen) to be administered to him twice a day and Tylenol once a day, and that although she agreed, that also "never occurred". Plaintiff also alleges that he received no ice, ibuprofen, or Tylenol from Nurse Shellie during the 9:00 p.m. med run that evening.
Plaintiff alleges that early the following morning (now May 19), at about 1:30 a.m., the Defendant Deputy Arthurs brought him an ice pack (per Nurse Shellie). However, during the 8 to 9 a.m. morning med run, Plaintiff complains he got no ibuprofen, and that the Defendant Nurse Angel told him "she had no idea how to get [him] heat for the leg injury". Plaintiff alleges that around noon he asked the Defendant Deputy Roberts to notify the Defendant Nurse Robyn that he wanted some ibuprofen and ice for the "increasing" pain in his leg, and that he continued to ask Deputy Roberts for ice for his leg over the course of the afternoon, but that around 5:00 p.m. Roberts informed him that the delay was due to them being unable to contact or reach Galloway to verify that ice had been prescribed for his leg injury. However, Plaintiff also alleges (contradicting his earlier statement in his Complaint) that the Defendant Nurse Robyn had brought ice to his cell that afternoon at around 3:45 p.m. Plaintiff further alleges that he had called his mother earlier that afternoon to complain and to ask that she call the medical department about his lack of medical care and treatment, and that when Nurse Robyn brought him his ice she was "noticeably upset" and told Plaintiff he would be charged with harassment if his family continued to call medical complaining about Plaintiff's medical treatment.
Plaintiff alleges that at 12:00 a.m. on Sunday morning (May 20th), he asked the Defendant Deputy Arthurs to call Nurse Shellie to inquire about getting some more ice, and that shortly thereafter she said she would bring it. Plaintiff complains that at 1:00 a.m. he asked Arthurs where his ice was, and was informed that the nurse was on the way. However, Plaintiff complains that Arthurs did not finally bring him his ice pack until 1:30 a.m. Plaintiff also alleges that from May 18 to May 31 the Defendant Galloway had agreed to give him ibuprofen two times a day and Tylenol once a day for his leg pain, but that he was only given this medication once. Plaintiff then alleges that on either May 31 or June 14, around 4:30 p.m., he was taken to medical for a followup visit for his left leg complaints, at which time the doctor gave him a steroid injection and ordered ice for the next two days in the morning.
Somewhat confusingly, Plaintiff also alleges that at 12:00 a.m. Sunday morning he had also asked the Defendant Deputy Merrick for ice, but that when he returned about thirty minutes later (at 12:30 a.m.) he told Plaintiff that Nurse Shellie had said no.
Plaintiff also alleges that about 9:00 a.m. on June 7 he spoke to Galloway about receiving some meds, and that at about 8:30 a.m. on July 2 he was taken from the Detention Center to the Carolina Musculoskelatal Institute for outside medical care, where he was seen by Dr. Kevin Ard. Plaintiff alleges that this visit was for a review of a separate complaint he had about neck/back pain, but that he asked the Defendant Deputy Cobb (who was transporting him) if he could also get his leg injury checked while he was there, but that Cobb said "no". Plaintiff alleges that he was given two steroid injections, was prescribed Zanaflex, three times a day, and was scheduled for an MRI. Plaintiff alleges that after he was returned to the Detention Center he informed Galloway what Dr. Ard had prescribed, and that Galloway told him she could only get the Zanaflex filled twice a day (or 2 then 1 pill a day, in either format).
It is unclear what Plaintiff means by this statement.
Plaintiff alleges that on July 9 he put in for a sick call asking Galloway to come see him to discuss the next step regarding his leg injury, but that she never came. However, between July 9 and July 13 he did speak to Galloway and she informed him that on his next outside medical visit (follow up) he could get both his neck/back and leg looked at. Plaintiff alleges that on July 15 he submitted a grievance regarding not receiving his Zanaflex pills. Plaintiff also alleges that he was taking Gabapentin for his back/neck pain, but when that drug was discontinued, as of July 23, 2018 he had never received a replacement medication. Plaintiff alleges that on July 23 he sent the Defendant Lt. Butts an inquiry concerning a request he had made, but that Butts responded back to him on July 24 that he had not "found the time yet" to sit down with the Defendant Lt. Bowman to discuss his request. Plaintiff alleges that thereafter, on August 5, 2018, he submitted two grievances concerning the medical department continuing to fail to provide appropriate medical care for his left leg injury, and for the Defendants Bowman, Hettich, Riddel and Butts failing to properly answer his grievances. Plaintiff requests monetary damages against the individual Defendants, as well as injunctive relief including more training for staff and improve medical responses/practices. See generally, Plaintiff's Complaint.
Plaintiff does not indicate what this request concerned.
In support of summary judgment in the case the Detention Center employee Defendants have submitted an affidavit from Nick Gallam, who attests that he is the Administrator of the Aiken County Detention Center, where he is responsible for the day to day operations of the Detention Center. Gallam attests that Plaintiff was detained at the ACDC beginning January 4, 2018 following his arrest on a charge of armed robbery, and that Plaintiff was transferred from the Detention Center to the South Carolina Department of Corrections on March 15, 2019. Gallam attests that the medical staff and personnel at the jail are not employees of the Sheriff or the jail, and are not under his supervision. Further, at no point was Plaintiff denied access to medical treatment during his period of Detention at the ACDC. Gallam has attached to his affidavit true and accurate copies of the Plaintiff's Inmate file (Exhibit A) and medical records (Exhibit B). See generally, Gallam Affidavit, with attached Exhibits.
The Affidavit contains a scrivener's error, giving this date as March 15, 2018.
The medical Defendants have provided an affidavit from the Defendant Brandi Galloway, as well as a copy of Plaintiff's medical records. Galloway attests that she is a Registered Nurse employed by the Defendant Southern Health Partners , Inc. as the MTA at the Aiken County Detention Center, where her job is to provide nursing care to detainees/patients and coordinate the medical department. Galloway attests that the Defendant Nurse Shellie is Shellie Donaldson, who formerly worked as a nurse in the medical department at the Detention Center, and that her last day of work was July 8, 2018. Galloway further attests that the Defendant Sherry Hammick's correct name is Sue Hammock, and that she filled in as a nurse on an as needed basis at the Detention Center on three occasions in 2018 - February 7, March 8, and March 27. Galloway attests that the Defendant Nurse Robyn is Roben Wolfe, who is no longer a nurse at the Detention Center. Galloway attests that the Defendant Nurse Angel's correct name is Angel Reed, and that she is the Medication Technician at the Detention Center. In this position, Reed passes out medications that have been prescribed to inmates during MedPass, which is twice a day. Galloway attests that the Defendant Dr. Williams is Dr. Robert Williams, who is the Medical Director at the Detention Center. Galloway attests that Dr. Williams provides treatment to detainees and oversees the care provided by the nurses. Galloway attests that neither she nor any of the nurses in the medical department can prescribe medication or change dosages of a medication that has been prescribed. Galloway further attests that all of the employees in the medical department are employed by Southern Health Partners, not by Aiken County or the Detention Center, and that these individuals' only role is to provide health services. They do not have involvement in any other matters at the Detention Center.
Galloway attests that Plaintiff was detained at the Detention Center from January 4, 2018 to approximately March 15, 2019. Galloway attests that during his time at the Detention Center Plaintiff regularly complained about pain in his neck and back. Galloway attests that shortly after he arrived, Plaintiff advised medical that he had a degenerative neck/back condition which caused chronic pain, and also that he had sleep apnea. Galloway attests that they initially provided Plaintiff with prescription strength ibuprofen for pain, and also gave him an order allowing for him to have a c-pap machine for his sleep apnea. Further, when Plaintiff continued to complain of neck and back pain, Dr. Williams ordered Naproxen for him, and then provided Plaintiff with Tylenol until the Naproxen order had arrived. However, Galloway attests that shortly after receiving the Naproxen, Plaintiff advised that it was not working and that he was still experiencing pain. Plaintiff requested Gabapentin (Neurontin) instead, saying that he had previously taken this medication and that it helped, so Dr. Williams ordered Gabapentin for the Plaintiff and also added Cyclobenzaprine (a muscle relaxant, also know as Flexeril) to Plaintiff's medical list. Galloway attests that medical also issued a request for Plaintiff to receive a second mat for his bed in order to make him more comfortable. Even so, over the following months Plaintiff continued to complain and ask that his dosages be increased. Galloway attests that in response Dr. Williams made several modifications to Plaintiff's dosages as he deemed appropriate in an effort to address Plaintiff's continuing pain complaints. They also requested records of prior care from Plaintiff's outside physician to learn more about his condition, and these records revealed prior knee and neck issues.
Galloway attests that in the early hours of May 17 medical was called to Plaintiff's cell, where he was found on the floor. Plaintiff stated that he had heard a "pop" when he had tried to get out of his bed, and was experiencing intense pain in his thigh/groin area. Galloway attests that Plaintiff was checked by the nurse and provided with some prescription strength ibuprofen. He was also monitored throughout the next day and given ice packs and then warm compresses for the area. Galloway attests that Dr. Williams examined Plaintiff the next day (May 18) and determined that Plaintiff had a muscle/ligament strain. Dr. Williams placed Plaintiff on a tapering course of oral steroid in an effort to address his pain complaints.
Galloway attests that when Plaintiff still complained of pain during Dr. Williams' follow up with him on June 21, Dr. Williams gave him a steroid injection in the area of the strain, and Plaintiff was advised to rest, relax, stretch and keep ice on the area. Plaintiff also continued to receive oral pain medications and muscle relaxants. Moreover, because Plaintiff continued to have a pain in his neck and back area, medical arranged for Plaintiff to have an appointment with Carolina Musculoskeletal Institute (CMI), which is where Plaintiff reported he had been treated in the past. Galloway attests that Plaintiff was transported there beginning July 28, and that he continued to go for injections thereafter, as ordered. Galloway further attests that CMI took multiple x-rays, including x-rays of Plaintiff's back, hip and knee (in response to his complaints of the groin/thigh pain), and that these reports showed no fractures or dislocations, although he did have signs of degenerative issues. Galloway attests that an MRI was also done, which showed the presence of some disc bulging, mild degenerative disc disease, mild stenosis, and mild facet joint disease.
Galloway attests that in addition to these visits to CMI, Dr. Williams also regularly followed up with the Plaintiff, and that additional pain relievers and muscle relaxers (Zanaflex, Baclofen, Tizanidine and Meloxicam) were provided to the Plaintiff in response to his visits both with Dr. Williams and with CMI. Galloway attests that the medical department also gave Plaintiff a "pillow pass" per CMI's recommendation, which meant he could have a special pillow in the jail. He also had a walker to assist him in getting around. Galloway further attests that Plaintiff also received medications and care for his various other complaints while at the Detention Center, including migraine/headaches, nausea/vomiting, rash, arm/shoulder pain, mental health issues, medications for high blood pressure, and head pain/vision complaints (after an altercation).
Galloway attests that the medical staff at the Detention Center responded continuously to Plaintiff's requests for care, that no one was ever deliberately indifferent to him, and in fact, went to great lengths to assist him with his complaints, as evidenced by the many changes in his medications (both in types and dosage amounts) as well as by his outside visits with CMI. Galloway attests that the medical department tried to address Plaintiff's needs and provide care as determined by Dr. Williams at CMI to be medically necessary and appropriate. See generally, Galloway Affidavit., with attached Exhibit (Plaintiff's Medical Records).
Plaintiff did not provide any evidence or exhibits in opposition to the Defendants' motions.
Discussion
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entiled to judgment as a matter of law. Rule 56, Fed.R.Civ.P. The moving party has the burden of proving that judgment on the pleadings is appropriate. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991). Once the moving party makes this showing, however, the opposing party must respond to the motion with specific facts showing there is a genuine issue for trial. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). Further, while Federal Courts are charged with liberally construing a complaint filed by a pro se litigant to allow for the development of a potentially meritorious case, see Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972), the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a Federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990).
Here, after careful review and consideration of the evidence and arguments submitted, the undersigned finds and concludes for the reasons set forth hereinbelow that the Defendants are entitled to summary judgment in this case.
I.
First, since Plaintiff is no longer incarcerated at the Detention Center, to the extent he is seeking injunctive and/or declaratory relief (that the Defendants increase training and improve their medical responses and practices), that claim is moot. Slade v. Hampton Roads Reg'l Jail, 407 F.3d 243, 248-249 (4th Cir. 2005)[holding that former detainee's request for injunctive relief was moot]; Taggart v. Oklahoma, 74 Fed.Appx. 880, 882 (10th Cir. 2003)[Noting that inmate's claims concerning his medical needs against prison officials for injunctive relief were rendered moot by his release]; LaFlame v. Montgomery County Sheriff's Dep't., 3 Fed.Appx. 346 at * * 1 (6th Cir. Jan. 31, 2003)[same].
Therefore, Plaintiff's claim for injunctive and/or declaratory relief in this case should be dismissed. See United States Parole Commission v. Geraghty, 445 U.S. 388, 397 (1980) [Noting that the issue in controversy must "exist at the commencement of the litigation . . . [and] must continue throughout its existence"]; Powell v. McCormack, 395 U.S. 486, 496 (1969) ["[A] case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome"].
II.
Plaintiff's claim for monetary damages survives his release from the Detention Center; see Mawhinney v. Henderson, 542 F.2d 1, 2 (2d Cir. 1976); and as public officials the named individual Defendants are all subject to suit for damages in their individual capacities in a § 1983 lawsuit. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); Hafer v. Melo, 112 S.Ct. 358, 365 (1991); Goodmon v. Rockefeller, 947 F.2d 1186, 1187 (4th Cir. 1991). The Defendant Southern Health Partners can also be subject to suit under § 1983 and liable for damages if a constitutional violation resulting in damages to the Plaintiff was the result of a policy or custom of Southern Health Partners. Austin v. Paramount Parks, Inc., 195 F.3d 715, 728 (4th Cir. 1999) ["[A] private corporation is liable under § 1983 only when an official policy or custom of the corporation causes the alleged deprivation of federal rights."]; Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) ["Section 1983 will not support a claim based on a respondeat superior theory of liability."]. As Plaintiff was a pretrial detainee during the time period set forth in the Complaint, his claims against these Defendants are evaluated under the due process clause of the Fourteenth Amendment, rather than the Eighth Amendment, which is used to evaluate conditions of confinement for those convicted of crimes. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Even so, the underlying standard for determining whether any named Defendant violated Plaintiff's constitutional rights is essentially the same. See Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988) [Holding that the Fourteenth Amendment guarantees at least Eighth Amendment protections]. Plaintiff's claims are therefore discussed herein pursuant to this constitutional standard of review.
With respect to the individually named medical Defendants, even though they are apparently all employees of a private company (Southern Health Partners, which is also a named Defendant) and provide medical services to detainees at the Detention Center pursuant to a contract, individual employees of medical companies providing contract medical care have been found to be "public officials" for purposes of § 1983 lawsuits. West v. Atkins, 487 U.S. 42, 48 (1988)[Holding that private physicians that contracted with the State to provide medical care to prisoners were state actors because they were hired to fulfil an obligation - medical care - which was traditionally filled by the State]; Mavins v. McFadden, No. 09-483, 2009 WL 4906573, at * 5 (D.S.C. Dec. 18, 2009) [Rejecting argument that actions by employees of Correct Care were not taken under color of state law as required by § 1983); Robinson v. Greene, No. 06-985, 2007 WL 1447871 at * 6 n. 5 (D.S.C. May 11, 2007) [Rejecting argument that the medical defendants were not state actors because they were employed by a private health contractor to provide services at the detention center]; see also Holly v. Scott, 434 F.3d. 287, 292, n. 3 (4th Cir. 2006)[Dismissing Bivens claim against GEO Group, which provided medical care to federal prison inmates at a privately run facility pursuant to a contract with the Federal Bureau of Prisons, but declining to decide whether employees of a private prison facility under contract with a state are subject to liability under § 1983]. Indeed, the medical Defendants have not asserted that they are not public officials or subject to suit under §1983 in their motions for summary judgment.
However, it is noted that Plaintiff's Complaint fails to identify where at least four (4) of the named Defendants (Lt. Clamp, Cpl Brodus, Cpl. Buggs and Sherry Hammick) were even involved in the incidents Plaintiff sets forth in his Complaint. While public officials such as the Defendants are subject to monetary damages under § 1983 in their individual capacities, in order for them to be liable, Plaintiff must have evidence to show that the named Defendants actually engaged in conduct which denied Plaintiff his constitutional rights. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1999) ["Liability . . . must be based on the personal involvement of the Defendant"], cert denied, 522 U.S. 1154 (1999); Wilson v. Cooper, 922 F.Supp. 1286, 1293 (N.D.Ill. 1996); see also Horton v. Marovich, 925 F.Supp. 540 (N.D.Ill. 1996) ["Thus, a plaintiff suing a government official in his individual capacity and therefore seeking to hold the official personally liable must show that the official personally caused or played a role in causing the deprivation of a federal rights"]. Therefore, these Defendants are entitled to dismissal even if Plaintiff's case is otherwise allowed to proceed against the other Defendants.
In order to survive summary judgment and proceed with his claims for denial of adequate medical care, Plaintiff must have evidence sufficient to create a genuine issue of fact as to whether any named Defendant was deliberately indifferent to his serious medical needs. Scarbo v. New Hanover County, 374 Fed. Appx. 366, 370 (4th Cir. Apr. 1, 2010) [Pretrial detainee must produce evidence of acts or omissions sufficiently harmful to constitute deliberate indifference to the inmate's serious medical needs]; see also Estelle v. Gamble, 429 U.S. 97, 106 (1976); Farmer v. Brennen, 511 U.S. 825, 837 (1994); Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986); Wester v. Jones, 554 F.2d 1285 (4th Cir. 1977); Russell v. Sheffer, 528 F.2d 318 (4th Cir. 1975); Belcher v. Oliver, 898 F.2d 32 (4th Cir. 1990). Plaintiff has failed to submit any such evidence. To the contrary, the evidence before this Court, including not just the medical records and documents provided by the Defendants, but also Plaintiff's own statements in his verified pleading, show that he received continuous and ongoing treatment for his medical complaints. He was regularly seen by nurses as well as the medical staff physician, he was prescribed numerous medications and received various tests, and he was transported to and seen by outside physicians when that was deemed to be necessary by medical personnel. See Court Docket No. 60-3, pp. 2-31, 59-99, and Docket No. 60-4, pp. 2-61, 63-64, 66-78. None of the medical evidence provided to this court shows that any named medical defendant was deliberately indifferent to Plaintiff's serious medical needs. Levy v. State of Ill. Dept. of Corrections, No. 96-4705, 1997 WL 112833 (N.D.Ill. March 11, 1997) ["A defendant acts with deliberate indifference only if he or she 'knows of and disregards' an excessive risk to inmate health or safety.'"], quoting Farmer, 511 U.S. at 837.
Rather, Plaintiff simply disagrees with the care decisions made by the nurses and physician, including with respect to what types of drugs and other medications he was to receive, whether and when he should have been sent to an outside physician for evaluation, and whether his medical complaints were emergent conditions that required immediate care (and not just immediate care, but the kind that Plaintiff was demanding). However, Plaintiff's mere lay disagreement with the decisions made by medical personnel with respect to his medical care is not "evidence" of deliberate indifference, and is not a sufficient ground on which to allow this case to proceed. Scheckells v. Goord, 423 F.Supp. 2d 342, 348 (S.D.N.Y. 2006) (citing O'Connor v. Pierson, 426 F.3d 187, 202 (2d Cir. 2005) ["Lay people are not qualified to determine...medical fitness, whether physical or mental; that is what independent medical experts are for."]. Instead, in order to avoid summary judgment on this claim, Plaintiff needs to present actual medical evidence sufficient to create a genuine issue of fact that the Defendants were being deliberately indifferent to his serious medical needs. However, Plaintiff has provided no medical evidence, such as depositions or affidavits from medical experts attesting that the extensive and continuing treatment he received (as is shown by the medical record exhibits) did not meet the requisite stand of care, to support his own lay opinion that the medical Defendants breached a recognized duty of care with respect to the care and treatment he was provided. Green v. Senkowski, 100 Fed.Appx. 45 (2d Cir. 2004) (unpublished opinion) [finding that plaintiff's self-diagnosis without any medical evidence insufficient to defeat summary judgment on deliberate indifference claim].
While Plaintiff complains he did not always get ice when he wanted it, did not receive heat compresses that he was supposed to have received, or on occasion did not receive a medication he was scheduled to receive (allegations assumed to be true for purposes of summary judgment), he has failed to present any evidence to show that such delays or omissions/commissions in his treatment or examinations (assuming they even occurred) amount to a constitutional violation. Cf. Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1188-1189 (11th Cir. 1994)["An inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment to succeed"], overruled in part by Hope v. Pelzer, 536 U.S. 730, 739 n. 9 (2002); Graham v Stansberry, No. 07-3015, 2008 WL 3910689 at * 8 n. 6 (E.D.N.C. Aug. 20, 2008) [Finding that "[e]ven if Plaintiff had alleged a claim based upon [an] alleged delay in receiving . . . medication, his claim would be without merit because delay in medical care, with no resulting injury, does not violate the Eighth Amendment.] (citing Strickler v. Waters, 939 F.2d 1375, 1380-1381 (4th Cir. 1993). Nor does Plaintiff's complaint that he was left on the floor for several hours give rise to a constitutional claim. Plaintiff (who weighed around 300 pounds) himself alleges that he had already injured himself twice while trying to get out of his bunk, ending up on the floor. Plaintiff further alleges (and the documentary evidence confirms) that Plaintiff's mattresses were put on the floor for him, and in fact he was provided with double mattresses (a "double mat pas"). It is hardly surprising that given Plaintiff's propensity (according to his own allegations) to fall off his bunk and injure himself due to his condition, and in light of his size and weight, that it was decided that his mattresses should be moved to the floor, at least for a while. Further, at least for part of that time, Plaintiff was not moved because they did not want to risk further injuring him. Even if Plaintiff did not like this arrangement (which he apparently did not), that does not amount to a violation of his constitutional rights. Levy, No. 96-4705, 1997 WL 112833 ["A defendant acts with deliberate indifference only if he or she 'knows of and disregards' an excessive risk to inmate health or safety.'"].
Plaintiff alleges that the time he remained on his mattresses on the floor was from when he fell early in the morning on May 17th, until about 6:15 that evening.
In contrast to Plaintiff's lack of supporting evidence for his medical claims, the evidence before the Court (from both the Defendants and the Plaintiff) showing that there was no "deliberate indifference" to his medical complaints. This evidence includes not just voluminous medical records and exhibits showing the ongoing care and treatment Plaintiff received, but also a sworn affidavit from a licensed medical professional attesting that the medical professionals involved in Plaintiff's care evaluated his condition and rendered judgement as to the type of care and treatment was warranted based on their professional experience and judgment. Again, Plaintiff's mere lay disagreement with the opinions or diagnoses of these medical professionals, without any contrary medical evidence to show that any medical professional violated the requisite standard of care for his complaints, is not sufficient to survive summary judgment with respect to his §1983 deliberate indifference claims. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985)[Disagreements between an inmate and a physician over the inmate's proper medical care do not state a § 1983 claim absent exceptional circumstances]; Scheckells, 423 F.Supp. 2d at 348 (citing O'Connor, 426 F.3d at 202 ["Lay people are not qualified to determine...medical fitness, whether physical or mental; that is what independent medical experts are for."]). While Plaintiff may not agree with the extent and nature of the medical care he received, he cannot simply allege in a conclusory fashion that he did not receive constitutionally adequate medical care or attention, otherwise provide no supporting evidence (while in fact submitting his own verified statements in his pleading showing that he received repeated care for his complaints), and expect to survive summary judgment, particularly when the Defendants have submitted medical documents and evidence showing that Plaintiff was regularly seen and evaluated by medical personnel for his complaints and which refute Plaintiff's claims. Green, 100 Fed.Appx. 45 (unpublished opinion) [finding that plaintiff's self-diagnosis without any medical evidence insufficient to defeat summary judgment on deliberate indifference claim]; see also Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987) ["Even though pro se litigants are held to less stringent pleading standards than attorneys the court is not required to 'accept as true legal conclusions or unwarranted factual inferences.'"]; Levy, No. 96-4705, 1997 WL 112833 ["A defendant acts with deliberate indifference only if he or she 'knows of and disregards' an excessive risk to inmate health or safety.'"].
Plaintiff's claims against the non-medical Defendants fail for this same reason. Plaintiff has presented no evidence to show that any of these Defendants failed to provide Plaintiff with medical care per instructions from any of the doctors or nurses, failed to provide him with medications when instructed to do so by medical personnel (in fact, Plaintiff's medical records are replete with notations indicating where Plaintiff had received his prescribed medications), or failed to transport Plaintiff for medical appointments when so instructed. Further, these non-medical Defendants were entitled in any event to rely on instructions received from medical personnel, and therefore none of these Defendants is subject to liability for medical care decisions made by the medical Defendants. Cf. Shakka v. Smith, 71 F.3d 162, 167 (4th Cir. 1995) [officials entitled to rely on judgment of medical personnel]; Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990) [officials entitled to rely on expertise of medical personnel].
Of course, Plaintiff may pursue a claim in state court if he believes that the medical care provided to him constituted malpractice. However, that is not the issue before this Court with respect to Plaintiff's constitutional claims asserted under § 1983. See Estelle, 429 U.S. at 106 ["medical malpractice does not become a constitutional violation merely because the victim is a prisoner."]; see also Paul v. Davis, 424 U.S. 693, 701 (1976) [not every claim which may set forth a cause of action under a state tort law is sufficient to set forth a claim for a violation of a constitutional right]. The only question before this Court with respect to Plaintiff's § 1983 claims is whether the evidence submitted is sufficient to raise a genuine issue of fact as to whether any named Defendant was deliberately indifferent to Plaintiff serious medical needs, the standard for a constitutional claim. See DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 200-203 (1989) [§ 1983 does not impose liability for violations of duties of care arising under state law]; Baker v. McClellan, 443 U.S. 137, 146 (1976) [§ 1983 claim does not lie for violation of state law duty of care]; Estelle, 429 U.S. at 106 ["medical malpractice does not become a constitutional violation merely because the victim is a prisoner."]. Plaintiff has failed to submit evidence sufficient to meet this constitutional standard, and therefore his § 1983 medical claims should be dismissed.
Plaintiff may also be attempting to assert a separate non-medical claim against Bowman, Hettich, Riddel, and Butts about improperly handling or responding to his grievances. However, even if so, that would not state a viable constitutional claim against these Defendants, as there is no constitutional right of access to a grievance procedure. See Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) [existence of a prison grievance procedure does not confer any substantive right upon inmates]; Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991); Brown v. Dodson, 863 F.Supp. 284 (W.D.Va. 1994) [inmates do not have a constitutionally protected right to a grievance procedure]; Azeez v. DeRobertis, 568 F.Supp. 8, 10 (N.D.Ill. 1982) [even where a state elects to provide a grievance mechanism, violations of its procedures do not deprive prisoners of federal constitutional rights]; Burnside v. Moser, 138 Fed.Appx. 414, 415-416 (3d Cir. June 30, 2005). Therefore, a defendant's failure to follow a jail grievance procedure (even if that had been shown in this case) does not give rise to a § 1983 claim. Spencer v. Moore, 638 F.Supp. 315, 316 (E.D.Mo. 1986) [holding that an inmate grievance procedure is not constitutionally required]; see also McGuire v. Forr, No. 94-6884, 1996 WL 131130, at *1 (E.D.Pa. March 21, 1996), aff'd, 101 F.3d 691 (3d Cir. 1996) [creation of a grievance system by a state does not create any federal constitutional rights, as prisoners are not constitutionally entitled to a grievance procedure]; Moore v. Sergent, No. 01-1271, 2001 WL 1355298 (6th Cir. Oct. 26, 2001); cf. Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) [prison officials may place reasonable limits on prisoner's access to grievance procedure].
Conclusion
Based on the foregoing, it is recommended that the Defendants' motions for summary judgment be granted, and that this case be dismissed.
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge October 29, 2019
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).