Opinion
C. A. 4:22-1398-SAL-TER
04-28-2023
CLIFTON DONELL LYLES, PLAINTIFF, v. MEDICAL DIRECTOR JOHN B. McREE, NURSE LAPOINTE, WARDEN SHARPE, ASSOCAITE WARDEN CHUALA, ASSOCIATE WARDEN BRIGHTHARP, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, UNITED STATES MAGISTRATE JUDGE
This is a civil action filed pro se by Clifton Lyles (“Plaintiff/Lyles”) under 42 U.S.C. §1983 on May 2, 2022, alleging a violation of his constitutional rights. Plaintiff was housed at Turbeville Correctional Institution at the time of the allegations in the complaint but is currently housed at Livesay Correctional Institution. This matter is before the court on the motion for summary judgment filed by Defendants on October 28, 2022, along with a memorandum and exhibits. (ECF No. 38). As the Plaintiff is proceeding pro se, the court issued an order on or about November 1, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. Plaintiff filed a response on November 16, 2022, and Defendants filed a reply on November 28, 2022. (ECF Nos. 42 and 43).
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 Rule 73.02(B)(2)(d), DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the district judge.
DISCUSSION
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. 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, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with ... affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
ALLEGATIONS
Plaintiff alleges that Defendants were deliberately indifferent to his medical needs after he incurred an injury to his right knee on November 20, 2020, while working in the prison garden “as a horticulture worker.” (Complaint). Plaintiff alleges that his knee popped out of place, and he was seen in medical on November 23, 2020. Id. Plaintiff was given a “knee brace and some iburpofen” and informed by medical that he would be scheduled for x-rays of his knee. Id. Plaintiff was told he would receive x-rays and be seen by a doctor but that did not occur. Id. On February 12, 2021, Plaintiff received a crutch, an ACE bandage, and Ibuprofen but did not receive any x-rays or see a doctor as he requested. Plaintiff was again seen by medical on April 2, 2021, and received a second crutch. Id. Plaintiff was transferred from Turbeville Correctional Institution to Evans Correctional on October 11,2021. Id. At Evans, Plaintiff was seen by a nurse in November 2021, and wrote Medical on February 27, 2022, requesting to be seen by a doctor. Id. Plaintiff brings this action against the Defendants alleging medical indifference. Id.
In the motion for summary judgment, Defendants argue that Plaintiff has failed to state causes of action against Defendants under 42 U.S.C. §1983, that Plaintiff does not have a constitutional right to effective treatment, that Plaintiff failed either to prove direct participation on the part of Defendants relating to the November 20, 2020, incident or Defendants failure to provide medical assistance, that any claim under a supervisory liability theory of recovery must be dismissed, and that they are entitled to qualified immunity.
MEDICAL INDIFFERENCE
The government is "obligat[ed] to provide medical care for those whom it is punishing by incarceration." Estelle v. Gamble, 429 U.S. 97, 102 (1976). This obligation arises from an inmate's complete dependence upon prison medical staff to provide essential medical service. Id. The duty to attend to prisoners' medical needs, however, does not presuppose "that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment." Id. at 105. Instead, it is only when prison officials have exhibited "deliberate indifference" to a prisoner's serious medical needs. In Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), the Fourth Circuit Court of Appeals noted that treatment "must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness, medical needs" that the Eighth Amendment is offended. Id. at 104.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. Estelle, 429 U.S. 104; Farmer v. Brennan, 511 U.S. 825 (1994); Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986). "A medical need is ‘serious' if it is ‘one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention' or if denial of or a delay in treatment causes the inmate ‘to suffer a life-long handicap or permanent loss.'" Coppage v. Mann, 906 F.Supp. 1025, 1037 (E.D.Va. 1995) (internal citations omitted).
Further, incorrect medical treatment, such as an incorrect diagnosis, is not actionable under 42 U.S.C. § 1983. Estelle v. Gamble, supra. Negligence, in general, is not actionable under 42 U.S.C. § 1983. See Daniels v. Williams, 474 U.S. 327, 328-36 & n. 3 (1986); Davidson v. Cannon, 474 U.S. 344, 345-48 (1986); Ruefly v. Landon, 825 F.2d 792, 793-94 (4th Cir.1987); and Pink v. Lester, 52 F.3d 73, 78 (4th Cir. 1995) (applying Daniels vs. Williams and Ruefly v. Landon: “The district court properly held that Daniels bars an action under § 1983 for negligent conduct.”).
Secondly, 42 U.S.C. § 1983 does not impose liability for violations of duties of care arising under state law. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 200-03 (1989). Similarly, medical malpractice is not actionable under 42 U.S.C. § 1983. Estelle v. Gamble, supra, at 106 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”) See also Brooks v. Celeste, F.3d 125 (6th Cir. 1994) (Although several courts prior to the Supreme Court's decision in Farmer v. Brennan, supra, held that “repeated acts of negligence could by themselves constitute deliberate indifference, Farmer teaches otherwise.”); Sellers v. Henman, 41 F.3d 1100, 1103 (7th Cir. 1994) (“If act A committed by the X prison shows negligence but not deliberate indifference, and B the same, and likewise C, the prison is not guilty of deliberate indifference.”); White v. Napoleon, 897 F.2d 103, 108-109 (3rd Cir. 1990); and Smart v. Villar, 547 F.2d 114 (10th Cir. 1976) (affirming summary dismissal).
Although the Constitution does require that prisoners be provided with a certain minimum level of medical treatment, it does not guarantee to a prisoner the treatment of his choice.” Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988). Although the provision of medical care by prison officials is not discretionary, the type and amount of medical care is discretionary. See Brown v. Thompson, 868 F.Supp. 326 (S.D.Ga. 1994). Further, a disagreement as to the proper treatment to be received does not in and of itself state a constitutional violation. See Smart v. Villar, 547 F.2d 112 (10th Cir. 1976); Lamb v. Maschner, 633 F.Supp. 351, 353 (D.Kan. 1986). Mistakes of medical judgment are not subject to judicial review in a § 1983 action. Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975).
In response to summary judgment, Plaintiff argues that he was subjected to unnecessary and wanton infliction of pain in his knee before receiving x-rays and seeing a doctor. Plaintiff asserts that he filed several Requests to Staff Member (RTSM) and grievances to see a doctor, but Defendants failed to provide him with any meaningful assistance. (ECF No. 42 at 2). As set forth above, Plaintiff argues that his RTSM responses would state that he was placed on the sick call list and that he would be taken for x-rays. Id. However, Plaintiff states that he was not taken to Kirkland for x-rays until August 10, 2021, and was informed that the results of the knee x-ray were negative when he went to sick call on August 17, 2021. (ECF No. 42). On September 21, 2021, Plaintiff was seen in medical for a sick call and again was informed that the x-rays of his right knee were negative. Id. The next day, Plaintiff wrote an RTSM to Nurse Lapointe stating that he did not agree with the findings of the x-rays and requested to see a doctor. Id. The response to the RTSM stated that the provider had seen his x-rays and had not ordered anything else to be done. Id. On October 11,2021, Plaintiff was transferred from Turbeville Correctional to Evans Correctional Institution where he was seen by a nurse. Id. On March 4, 2022, Plaintiff was again taken to Kirkland for additional x-rays and seen by the doctor on Mach 24, 2022. Id. Plaintiff contends that he was informed that his x-rays showed arthritis and bone spurs, the doctor observed that his right knee appeared swollen, he was prescribed a twelve-month regimen of Meloxicam, and he received a standing appointment for cortisone shots. Id.
Any claims raised in the response that were not alleged in the complaint will not be addressed. See Cleveland v. Duvall, No. 8:14-CV-04305-RBH, 2015 WL 6549287, at *2 (D.S.C. Oct. 28, 2015), affd, 647 Fed. App'x 156 (4th Cir. 2016).
The Defendants submitted portions of the transcript from Plaintiff's deposition. (ECF No. 38-4). When questioned why he named Nurse LaPointe in the complaint, Plaintiff testified because she is the one in charge of setting up appointments and she would not order x-rays for his knee. (Id. at 3). Plaintiff testified that after he was issued crutches, he would leave the crutches so he could go to work “so I can be out and get some fresh air and sunlight and vegetables and stuff like that, exercise.” (Id. at 8). Plaintiff testified that he had two X-rays of his knee with no significant findings, and he saw a doctor that reviewed the X-ray of the knee while at Evans Correctional informing Plaintiff that he had arthritis in both knees. (Id. at 9). Plaintiff was prescribed medication for the arthritis to be taken daily. (Id.). However, Plaintiff testified that he was not taking it daily. (Id. at 9-10). When asked what, if anything, has SCDC done or not done or could have done differently for treatment after the fall, Plaintiff testified that “they” could have seen him earlier and provided timely medical care. (Id. at 10).
Here, Plaintiff fails to show that he was denied medical treatment by Defendants. The medical records show that Plaintiff was seen in medical after his injury as a medical emergency. It was noted in the medical record that there was no swelling or redness, and he was able to bend his knee all the way back underneath him with discomfort voiced. Plaintiff had a “slight hobbling gait.” (ECF No. 38-3 at 3). The notes state that Plaintiff was treated for musculoskeletal pain, issued Ibuprofen and an elastic knee sleeve, and instructed to stay off of the knee as much as possible. (Id.). Plaintiff was seen in medical on December 7, 2020, at the Turbeville Correctional Institution requesting to see an Orthopedic doctor for right knee pain and it “popping out.” (Id. at 5). Plaintiff “ hurt his right knee while in the garden on November 23, 2020", and he was able to pop it back into place but “it has since popped back out and cannot get it to pop back in.” (Id. at 10). Plaintiff had an unsteady gait due to right knee pain, had a knee brace, and was on a starter pack of Tylenol. (Id. at 10). Nurse LaPointe ordered X-rays on December 7, 2020, with one or two views of the right knee. (Id. at 5). Plaintiff was seen for sick call on February 12, 2021, when it was noted that Plaintiff worked in horticulture and had a flare up of his right knee. (Id. at 20). The right knee was swollen and warm compared to the left knee, he had a noticeable limp in his gait, and appeared in pain with a grimace of the face when he walked. Id. It was noted that there were orders for an X-ray of the knee, he had one crutch, an ace wrap, and Ibuprofen. (Id. at 20 and 22). Nurse LaPoint noted that she was adding orders for an x-ray of the other knee in addition to the x-ray previously ordered. (Id. at 22). Plaintiff was seen in medical for an emergency visit on March 22, 2021, complaining of increased pain of the right knee which he stated had popped out of place again and he could not get it to pop back into place. (Id. at 24). Plaintiff informed medical that his right knee popped out on November 20, 2020, and he was treated in medical with pain medication and a knee sleeve. (Id). This was causing little weight bearing, limited range of motion, and slight puffiness. (Id. at 24). Plaintiff was treated and educated to stay off of the knee as much as possible and keep it elevated as much as possible. (Id.). Nurse LaPointe noted that an “xray has been ordered since December-please get with MR to schedule.” (Id.). Along with x-rays, Nurse LaPointe ordered that Plaintiff be issued two crutches for ongoing complaints of knee pain until the x-rays could be done. (Id. at 26). On March 26, 2021, Plaintiff was issued a second crutch and informed that an appointment for x-rays had been scheduled. (Id. at 27). Plaintiff was seen in sick call on May 17, 2021, asking to “stop getting my heart health diet” but there was no mention of his knee in this medical record. (Id. at 47). On June 7, 2021, Plaintiff was seen for diagnostic tests, i.e. x-ray. (Id. at 58). On August 10, 2021, the clinical notes state that “inmate returned from KCI Radiology without any recommendations.” (Id. at 90). Plaintiff's medical records show that he received two right knee views and the impression was “New Medial Joint Space Narrowing with Small knee Joint Effusion When Compared with Images From February 2015. No Other Significant Finding, No Acute Fractures.” (Id. at 92).
Plaintiff submits that he was seen in medical and prescribed medication, a knee bandage/brace, crutches, and received x-rays of his right knee. However, Plaintiff argues that there was a delay in receiving the x-rays, and he was only seen in the beginning by nurses even though he requested to be seen by a doctor. Based on the medical records, Plaintiff received medical care even though it may not have been the medical care he so desired. As held in Estelle, 429 U.S. at 107, a complaint of negligence in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Even if Plaintiff's allegations are true, he has shown nothing more than a disagreement with the medical treatment provided, not that he was completely denied medical treatment. Additionally, Plaintiff has failed to show that he had a serious medical need of which Defendants knew about and consciously ignored.
Nurse LaPointe and Dr. McKee
Nurse LaPointe ordered x-rays of Plaintiff's right knee on December 7, 2020. On February 12, 2021, Nurse LaPointe noted that Plaintiff was prescribed Ibuprofen for ten days and ordered his spine and left knee to be x-rayed along with the right knee. In the medical record of March 22, 2021, Nurse LaPointe noted that scheduling personnel was to set up the x-ray which had been ordered since December. (ECF No. 38-3 at 26). She ordered an additional crutch for Plaintiff. Based on the record, Nurse LaPointe was not deliberately indifferent to his medical needs.
There is no evidence that Defendant McKee was personally involved in the treatment of the Plaintiff during the times alleged. Plaintiff testified that he named Defendant McKee because he was the medical director over SCDC and he responded to Plaintiff's Step Two grievance. (ECF No. 38-4 at 7).
Plaintiff has failed to show that any conduct by Defendants “shocks the conscious” as required by Miltier v. Beorn, supra. Any disagreement between an inmate and medical personnel generally fails to state a claim. Although there is nothing to indicate that there were mistakes of medical judgment, even if shown, mistakes of medical judgment are not subject to judicial review in a § 1983 action. Russell v. Sheffer, supra. Based on the evidence presented, there has been no deliberate indifference shown to the overall medical needs of the Plaintiff. Even construing the facts in the light most favorable to Plaintiff, the evidence establishes, at the most, “mere negligence or delay in treatment.” Miller v. Metts, Case No. 2:10-cv-2108-HMH-BHH, 2011 WL 861928, at *3 (D.S.C. Feb. 17, 2011), adopted by, 2011 WL 862025 (D.S.C. Mar. 10, 2011) (dismissing medical indifference claims where the plaintiff alleged, “at most, mere negligence or delay in medical treatment” and there was no evidence that “such delays resulted in any injury” to the plaintiff); see also Estelle, 429 U.S. at 105-106 (“[A]n inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain' or to be ‘repugnant to the conscience of mankind.' ”). Plaintiff has failed to present any evidence to show that any delay in receiving the x-rays or seeing a doctor as opposed to the nurses amounted 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); Khan v. S. Health Partners, No. CV 9:18-2180-HMH-BM, 2019 WL 6255594, at *7 (D.S.C. Oct. 29, 2019), report and recommendation adopted, No. CV 9:18-2180-HMH-BM, 2019 WL 6255118 (D.S.C. Nov. 22, 2019). Accordingly, summary judgment should be granted in favor of Defendants on this issue.
To the extent Plaintiff asserts a state law claim of medical malpractice, it is subject to dismissal for failure to follow South Carolina medical malpractice statutory pleading requirements by attaching an affidavit of an expert witness prior to filing or initiating a civil action.
Warden Sharpe and Associate Wardens Chuala and Brightharp
Additionally, any claims of medical indifference on the part of Warden Sharpe and Associate Wardens Chuala and Brightharp should be denied. To state a claim of denial of medical treatment against non-medical prison personnel, an inmate must show that such officials were personally involved with a denial of treatment, deliberately interfered with prison doctors' treatment, or tacitly authorized or were indifferent to the prison physicians' misconduct. Miltier v. Beorn, 896 F.2d 848 (4th Cir.1990). Prison personnel may rely on the opinion of the medical staff as to the proper course of treatment. Id.
Under these principles, the Plaintiff has not alleged sufficient facts stating any claim actionable under § 1983 regarding his medical treatment against non-medical personnel. The Plaintiff's pleadings, grievance forms, and medical records clearly show that Plaintiff was seen and treated by medical after the alleged incident and Nurse LaPointe ordered x-rays. While Plaintiff may have been denied the treatment of his choice, to be seen by the doctor and to receive an x-ray of his knee when requested, such a claim is not cognizable under §1983. See Slusser v. United States, 2022 WL 3572742, at *2 (D.S.C. Aug. 19, 2022)(citing Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988) (holding a prisoner is entitled to adequate medical care, not his choice of treatment)). Additionally, the medical records reveal that Plaintiff was seen several times by medical personnel and received treatment following the alleged injury. Plaintiff asserts that Warden Sharp denied his Step One grievance and attached a copy of the grievance form and Warden Sharpe's response as follows:
I have reviewed your concern. In your grievance you allege that on November20, 2020 while working in Horticulture you stepped in a hole and dislocated your knee. You stated that you were only given an ace bandage and Ibuprofen but other than that you claim that Medical is not following up with x-rays. You stated that you want to see a doctor because your knee is healing in a deformed manner. An investigation found that you had previous appointments complaining of right knee pain and that you continued to work in horticulture with your injury immediately following the incident. Records indicate that Medical released you without any work restrictions. Your Supervisor even allowed you to take a few days off, after which time you returned back to work again with no work restrictions from Medical and continued to work until you were placed in lock-up due to an unrelated matter. X-rays have been ordered but due to the pandemic it has caused delay. You are advised to seek Medical attention as you deem necessary. Therefore your grievance is denied.(ECF No. 42-1 at 36).
Plaintiff filed a Step Two grievance which was denied by Defendant McKee on February 15, 2022, as follows:
Your Grievance has been reviewed. In your grievance, you expressed
concerns about knee pain and an x-ray of the knee. Since the time of your original grievance, you have been examined by the nursing staff, medical providers, and have had an x-ray of your knee with no significant findings for treatment. You have a current regimen of medication that is provided to you. It appears you have received medical care and assistance. Therefore, your grievance is denied.(Id. at 32).
Viewed in the light most favorable to Plaintiff, the record creates no genuine issue of material fact to support his deliberate indifference claim against non-medical personnel, as there is no evidence that Plaintiff was denied any necessary treatment by these Defendants or that these Defendants interfered with medical treatment.
Accordingly, summary judgment should be granted for Defendants with respect to the claim of medical indifference.
SUPERVISORY LIABILITY
Defendants argue that there is a lack of evidence establishing any personal involvement on the part of Defendants relating to Plaintiff's claim of medical indifference and, thus, any claims of supervisory liability fail.
The doctrines of vicarious liability and respondeat superior are generally not applicable to § 1983 suits. Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”). There are three elements necessary to establish supervisory liability under §1983: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) that there was affirmative causal link between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994). To satisfy the requirements of the first element, a plaintiff must show the following: (1) the supervisor's knowledge of (2) conduct engaged in by a subordinate (3) where the conduct poses a pervasive and unreasonable risk of constitutional injury to the plaintiff. Id. citing Slakan v. Porter, 737 F.2d 368 (4th Cir. 1984). Establishing a “pervasive” and “unreasonable” risk of harm requires evidence that the conduct is widespread, or at least has been used on several different occasions and that the conduct engaged in by the subordinate poses an unreasonable risk of harm of constitutional injury. Id. A plaintiff may establish deliberate indifference by demonstrating a supervisor's “continued inaction in the face of documented widespread abuses.” Id. Causation is established when the plaintiff demonstrates and affirmative causal link between the supervisor's inaction and the harm suffered by the plaintiff. Id.
Plaintiff has failed to meet this burden in that he has failed to establish a constitutional violation. In order to assert a plausible § 1983 claim against any particular state actor, a “causal connection” must exist between the conduct alleged by the plaintiff and the particular defendant named in the suit. See Kentucky v. Graham, 473 U.S.159, 166 (1985); Rizzo v. Good, 423 U.S. 362, 371-72 (1976) (a § 1983 plaintiff must show that he suffered a specific injury resulting from a specific defendant's specific conduct and must show an affirmative link between the injury and that conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (for an individual to be liable under § 1983, the Plaintiff must show that the defendant named acted personally in the deprivation of the plaintiff's rights). Plaintiff here must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed. App'x 212, 215 (4th Cir.2001) (affirming dismissal of the plaintiff's claim against five defendants when the plaintiff did not allege any of the defendants were personally involved in the alleged deprivation of his civil rights). To establish personal liability under §1983, Plaintiff is obligated to establish “that the official charged acted personally in the deprivation of the plaintiff's rights[,]” meaning that “the official's own individual actions must have violated the Constitution.” Williamson v. Stirling, 912 F.3d 154, 171 (4th Cir. 2018) (internal quotation marks omitted). The “doctrine of respondeat superior has no applicability to § 1983 claims.” Harbeck v. Smith, 814 F.Supp.2d 608, 626 (E.D. Va. 2011) (citing Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004)). “Given that limitation, supervisors can be held liable ‘in their individual capacities only for their personal wrongdoing or supervisory actions that violated constitutional norms.' ” Id. at 626-27 (quoting Clark v. Md. Dep't of Pub. Safety & Corr. Servs., 316 Fed.Appx. 279, 282 (4th Cir. 2009)).
Plaintiff has failed to allege facts sufficient to hold Defendants liable as supervisors either in their individual capacities or for supervisory actions under § 1983. As previously stated, the law is clear that personal participation of a defendant is a necessary element of a § 1983 claim against a government official in his individual capacity. See Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001). “Because vicarious liability is inapplicable to ...§ 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. At his deposition, Plaintiff testified that he named Warden Sharp as a defendant because he was in charge of the prison and he had spoken to Sharpe, Chuala, and Brightharp about the situation and they did nothing to help. (Id. at 4-5). “Mere knowledge is not sufficient to establish personal participation.” Herbert v. Treaster, 2014 WL 1093050, at *3 (D.S.C. Mar. 18, 2014) (citing Iqbal, 556 U.S. at 677).
At his deposition, Plaintiff testified that he named Nurse LaPointe as a defendant because she was in charge of setting up appointments and giving orders to see a doctor or obtain x-rays. (ECF No. 38-4 at 3). As set forth above, the medical records reveal that Nurse LaPointe ordered x-rays on December 7, 2020, and noted in March 2021, when she ordered additional x-rays, that the x-rays she ordered in December 2020 had not been scheduled. Id. Nurse LaPointe noted that “MR” was to be contacted to get the ordered x-rays scheduled. (ECF No. 38-3 at 26). Plaintiff has not shown any intentional delay on the part of Defendant LaPointe with regard to scheduling. Further, in the response to Plaintiff's Step One grievance, the Warden addressed the fact that the pandemic had caused delays in receiving x-rays. (ECF No. 42-1 at 36). As to John McRee, Plaintiff testified that he named him as a defendant because he was “the actual doctor at that time over at-the medical director over SCDC. I filed grievances all the way up to him, and no-one never did anything.” (ECF No. 38-4 at 7). Therefore, summary judgment should be granted for Nurse LaPointe and Medical Director McKee on supervisory liability.
To the extent Plaintiff's complaint can be construed as seeking supervisory liability against Warden Sharpe and Dr. McRee for wrongfully denying his grievances, the claims should be denied. See Ford v. Stirling, C. A. No. 2:17-02390-MGL, 2017 WL 4803648, at *2 (D.S.C. Oct. 25, 2017)(As other Courts have held, an official's response to a prisoner's after-the-fact grievance does not provide a basis for a Section 1983 claim.)(collecting cases). “Receipt of or response to a grievance is not sufficient personal involvement in the grieved circumstances to impose ... liability on a supervisory official.” Washington V. Federal Bureau of Prisons, C. A. No. 5:16-3913-BHH-KDW, 2019 WL 2125246, at *12 (D.S.C. Jan. 3, 2019) (citing Wright v. Collins, 766 F.2d 841,850 (4th Cir. 1985); Green v. Beck, 539 Fed.Appx. 78, 80 (4th Cir. 2013); Wise v. Poindexter, No. 6:21-CV-03475-JD-KFM, 2022 WL 507670, at *4 (D.S.C. Jan. 14, 2022), report and recommendation adopted, No. 6:21-CV-03475-JD-KFM, 2022 WL 507441 (D.S.C. Feb. 18, 2022). Accordingly, it is recommended that Defendants' motion for summary judgment be granted.
An inmate's access to and participation in a prison's grievance process is not constitutionally protected. See Taylor v. Lang, 483 Fed.Appx. 855, 858 (4th Cir. 2012); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994).
QUALIFIED IMMUNITY
Defendants deny that any of the alleged conduct or conditions complained of by Plaintiff gives rise to a constitutional violation. However, Defendants assert that, even if this Court concludes that the facts are sufficient to establish a Constitutional claim, they are entitled to qualified immunity.
The doctrine of qualified immunity attempts to reconcile two potentially conflicting principles: the need to deter government officials from violating an individual's federal civil rights and the need for government officials to act decisively without undue fear of judicial second guessing.Akers v. Caperton, 998 F.2d 220, 225-26 (4th Cir. 1993).
The Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982), established the standard which the court is to follow in determining whether Defendant is protected by this immunity.
Government 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, 457 U.S. at 818.
In a discussion of qualified immunity, the Court of Appeals for the Fourth Circuit stated:
Qualified immunity shields a governmental official from liability for civil monetary damages if the officer's "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." "In determining whether the specific right allegedly violated was 'clearly established,' the proper focus is not upon the right at its most general or abstract level, but at the level of its application to the specific conduct being challenged." Moreover, "the manner in which this [clearly established] right applies to the actions of the official must
also be apparent." As such, if there is a "legitimate question" as to whether an official's conduct constitutes a constitutional violation, the official is entitled to qualified immunity.Wiley v. Doory, 14 F.3d 993 (4th Cir. 1994) (internal citations omitted), cert. Denied, 516 U.S. 824 (1995). As discussed above, the Plaintiff fails to show that Defendants violated any of his clearly established constitutional or statutory rights. Thus, the undersigned recommends that summary judgment for Defendants be granted.
CONCLUSION
For the reasoning set forth above, it is recommended that the motion for summary judgment filed by Defendants be granted and this action dismissed. (ECF No. 38).