Opinion
C. A. 1:20-2788-JMC-SVH
01-11-2022
Paul Morphy, Plaintiff, v. Willie Davis, Gary Lane, and John Does 1-9, all individually and/or in their official capacities, and The South Carolina Department of Corrections, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
A former inmate brings claims against two wardens and the South Carolina Department of Corrections (“SCDC”) claiming he was not kept safe from other inmates, leading to an April 21, 2017 assault, and that he was provided inadequate medical care thereafter.
Paul Morphy (“Plaintiff”) originally filed this case in the Court of Common Pleas for Lancaster County, South Carolina (“state court”). The case was removed to this court on July 30, 2020. Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and the South Carolina Tort Claims Act (“SCTCA”), alleging violations of his rights when he was housed as an inmate in SCDC institutions. Plaintiff brings this suit against SCDC, as well as Willie Davis (“Davis”), Gary Lane (“Lane”), and John Does 1-9 (collectively, “Defendants”).
This matter is before the court on Defendants' motion for summary judgment [ECF No. 24] and Plaintiff's motion to strike [ECF No. 25]. Having been fully briefed [ECF Nos. 26, 27, 28, 29], the motions are ripe for disposition.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been referred to the undersigned for all pretrial proceedings. Having carefully considered the record, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's federal claims, remand to state court Plaintiff's state-law claims, and deny Plaintiff's motion to strike.
I. Factual and Procedural Background
From 2014 to 2017, Plaintiff was incarcerated at Wateree River Correctional Institute (“Wateree”). [ECF No. 26-1 at 1]. While there, Plaintiff informed on certain gang members, was threatened by gang members, and was placed into protective custody. [ECF No. 26-1 at 1-2, ECF No. 26-13 at 3-6].
Plaintiff was transferred to Trenton Correctional Institution (“TCI”) on February 14, 2017, and placed in the general population. [ECF No. 26-1 at 2, ECF No. 26-10]. Plaintiff's cell assignment form classified him at “SP2.” [ECF No. 26-13 at 1] Davis, who was the warden of TCI from December 2, 2016, until August 17, 2017, testified as follows regarding this classification:
Q: What does that mean?
A: Security Precautions .... That mean[s] that either the inmate has a problem with being in the general population or the administration think[s] it's a problem with him being in the-in the population. But an inmate would not-would not be transferred to a general population in SP custody.[ECF No. 26-14 at 16:11-18, 24:17-25; see also id. 25:9-19]. Davis further testified that an inmate with a “SP2” classification would not have been placed in general population and to do so would have violated SCDC's policy and procedures. Id. at 30:9-22.
Davis, who was in his office during his deposition, stated he was accessing certain SCDC software and determined Plaintiff's classification as “MI, ” or “minimum, ” on February 14, 2017. [ECF No. 26-14 at 24:12-13, 29:8-31:9]. Plaintiff states that SCDC never produced any images or data from this SCDC software in response to Plaintiff's discovery requests. [See ECF No. 26 at 6 n.1].
Plaintiff testified he spoke to Major Canning (“Canning”) and Sergeant Hartley (“Hartley”) during this time to communicate to them his life was in danger, he was receiving threats, and he had come to TCI on protective custody from Wateree. [ECF No. 26-3 at 42:17-45:11; ECF No. 26-1 at 2-3]. Hartley eventually told Plaintiff that “the warden, which was Mr. Davis, was aware of what goes on in his institution.” [ECF No. 26-3 at 53:3-16, 54:3-12; see also ECF No. 26-1 at 2-3]. Plaintiff confirmed that Hartley did not tell him that he had actually spoken with Davis. [ECF No. 26-3 at 54:13-15].
Plaintiff was assaulted by multiple inmates in a dorm bathroom on or about April 21, 2017. [ECF No. 26-3 at 64:7-65:25; see also ECF No. 26-1 at 3]. The incident report is as follows:
At Trenton Correctional Institution on April 21, 2017 at approximately 0320 Officer Erika Blair stated that there was an offender in Dorm #3 delta bathroom bleeding. She stated she observed offender [Rickman] pushing offender Murphy while in the office and once she arrived to the bathroom, offender Murphy was on the ground and bleeding from the nose. When asked what happened he stated he fell. Lieutenant Jonathan Moore entered and escorted him to the holding cell. At this time he admitted that he had been assaulted because he told the offenders to lay down, get some rest, and stop attempting to masturbate on Officer Blair. At this time he was followed into the bathroom and assaulted. Offender Murphy was bleeding from the nose and mouth, two of his top teeth were pushed in, and he was complaining of pain from being hit in the back of his head. Offender Murphy requested protective custody and was in Unit #4A. Doctor Jacques Days at Kirkland Infirmary was notified and gave instruction for Offender Murphy to remain under observation until he could be seen by Trenton medical staff.[ECF No. 26-12 at 2-3].
Plaintiff's medical records indicate the next day, April 22, 2017, at 9:01 a.m., a registered nurse was informed that Plaintiff has been placed in restrictive housing (“RHU”) the previous day with injuries. [ECF No. 24-2 at 5]. At that time, “[w]hile attempting to speak with inmate he quickly became argumentative and I was informed by Lt. Mealing that he would bring him to medical to be seen when/if he calmed down. Lt. Mealing attempted to calm I/m before that but I/m only got louder.” Id.
On April 23, 2017, at 8:30 a.m., Plaintiff's injuries and vitals were assessed, and “small lacerations noted to middle of his nose, lower lip and to chin but all are healing” and “he may have had a tooth on the upper front knocked loose.” Id. at 4-5. Plaintiff had good range of movement but there was popping in his neck and he reported that his neck felt weak and he “can barely hold his head up.” Id. at 5. Plaintiff denied any other injuries. Id. X-rays were ordered, dental was notified, and Plaintiff was provided with ibuprofen. Id.
On April 24, 2017, at 7:18 a.m., Plaintiff had the following encounter: “Still with C/O this AM. Just started on ibuprofen yesterday per S.O. but obvious is going to need for longer period than the standard 3 days. He has an x-ray in the works.” Id. at 4. More ibuprofen was provided. Id.
Plaintiff submitted a grievance form on the same day, April 24, 2017, stating as follows:
I got jumped on and beat in the head in Dorm 3 at 3:30 am Friday morning. I was taken to Admin building and observed and pictures taken with mouth, nose, and face bleeding. I explained to white shirts that I had been hit in the back of the head and neck and I was in very bad pain inside my head. They said I was going to be seen in a few minutes and taken to hospital. It is Monday afternoon and I've only seen a nurse one time on Sunday, give[n] ibuprofen and said they would see me in a day or two. SCDC has deliberately failed to give me medical attention when it has been obvious I needed my head and neck x-rayed and see a doctor. It is now Mon. 4-24-17, 2pm.[ECF No 26-6 at 5].
Although Plaintiff indicates above that photographs or videos were taken of him, Defendants deny this occurred. [See ECF No. 25-4 at 2-3].
On April 26, 2017, Plaintiff was sent for x-rays. [ECF No. 24-2 at 4]. The next day, Plaintiff's records state “C-spine x-ray performed yesterday shows mild degenerative cervical spondylosis without apparent fracture or subluxation. Will place hard copy in record for MD review.” [ECF No. 24-2 at 4, see also id. at 37 (April 26, 2017 x-ray report)].
On May 3, 2017, at 7:32 a.m., the following was recorded by the registered nurse:
While issuing meds this am in RHU, I/M C/O his neck still bothering him and wanting to know when he was going to see the doctor. I/M has not had any C/O again until today and informed that if he was still having problems, he would need to fill out a request to staff per RHU protocol. He was made aware that his x-ray had been reviewed by the MD and that the x-ray showed no recent injury. He was not happy with anything that I told him and was starting to get loud so I stressed to him that he needed to fill out a request if he was still having issues as all RHU I/Ms do if need be.Id. at 4.
Plaintiff submitted an additional grievance form on May 7, 2017, that is difficult to read, but also complains about the lack of medical care he had received. [ECF No. 26-6 at 3]. On May 9, 2017, Plaintiff was seen by dental and the following was recorded:
Pt presents for exam post altercation, pt reports teeth pushed
back. #8 and #9 have some mobility, PA taken does not show overt signs of nerve involvement, pdl intact around roots. Post traumatic mobility #8 and #9. Limited exam max anteriors and TMJ, pt reports kick in face, no pain @ this time, pt.[ECF No. 24-2 at 35; see also id. at 33-34 (“reports improvement in mobility, will recheck teeth in 3 months to monitor for nerve changes. NV: recheck #8 and #9”)].
Plaintiff was transferred to Kershaw Correctional Institution (“KCI”) on May 11, 2017. [See ECF No. 26-10 at 1]. On June 18, 2017, Plaintiff submitted the following grievance:
I got here to Kershaw 5-11-17. I've put in 3 requests to see a doctor during this time. I've explained to dorm officers on 2 different shifts that I'm having head problems from a beating incident at Trenton CI on 4-21-17 and I need to see a doctor and I've put in request and they will not respond. They told me they couldn't call medical ....[ECF No. 26-6 at 2]. Under “action requested, ” Plaintiff stated the following: “[m]onetary compensation or deliberately failing to give me medical attention and to provide all medical attention needed.” Id. The following response was provided: “Your grievance is being return[ed] due to no RTSM. You have to wait for them [to] answer your RTSM before you can file a grievance.” Id.
Plaintiff's medical screen at KCI dated June 23, 2017, indicates that he reported no medical concerns, and none were observed, although Plaintiff indicated he would like to see a doctor. [ECF No. 24-2 at 45].
On July 3, 2017, Plaintiff submitted the following grievance:
I got to Kershaw on 5-11-17. I've put in 5 requests also signed up for sick call, also I've explained to officers on 2 different shifts that I'm in great pain and I've been having blurred vision because of head injury I received on 4-21-17 by being beat and knocked out at Trenton CI! On my request to medical I've explained my situation and my need of seeing and treatment by a Doctor. Medical and staff are not doing anything to help me in my Medical Needs. They have committed deliberate indifference to provide medical assistance for my needs.[ECF No. 26-6 at 1; see also id. (providing the following response: “Your grievance is being returned due to no kiosk or RTSM.”)].
Lane was the warden of KCI from July 18, 2017, until June 2, 2018, when he retired from SCDC. [ECF No. 26-2 at 17:23-18:1, 24:11-15]. Lane testified at KCI he supervised his associate warden of programs, who in turn had oversight over medical operations. Id. at 18:2-19:9.
Plaintiff submitted a kiosk complaint on July 21, 2017, three days after
Lane became Warden, complaining about his inability to grieve a medical complaint. [ECF No. 26-4]. Plaintiff was informed that “[w]hen it comes to medi[c]al you must send them a RTSM in order to get an informal resolution.” Id.
Plaintiff testified he spoke with Lane twice, once in the cafeteria and once the character dorm, and communicated his concerns about not receiving medical care for his injuries and handed Lane copies of his grievances the first time he spoke to him. [ECF No. 24-3 at 108:23-114:25]. Though Lane did not recall these conversations, he testified he was accessible to inmates, conducting frequent walk-throughs of the facility, including in the cafeteria and character dorm, although he also testified he did not take documents from inmates. [ECF No. 26-2 at 19:10-22:8].
Plaintiff was seen by a doctor on September 16, 2019, complaining of neck stiffness due to his 2017 assault. [ECF No. 24-2 at 7]. The examination found tenderness, stiffness, and decreased range of motion. Id. An x-ray performed the following day showed “cervical degenerative disease showing mild progression from April 26, 2017.” Id. at 36. Plaintiff states he has been “suffering from constant neck pain since [his] April 2017 assault ” [ECF No. 26-1 at 3].
Plaintiff filed his original complaint on April 17, 2020. In that complaint, the Plaintiff alleged only 42 U.S.C. § 1983 claims asserting violations of his constitutional rights against Davis and Lane. On June 29, 2020, Plaintiff filed an amended complaint that added SCDC as a party and included a claim against SCDC grounded in negligence. [See ECF No. 1-1]. Plaintiff's deadline for naming expert witnesses, including medical experts and corrections experts, expired on December 4, 2020, and he named no expert witnesses. [See ECF No. 7].
The parties have not submitted Plaintiff's original complaint; however, it is located on the Lancaster County Public Index. See Lancaster County Public Index, https://publicindex.sccourts.org/Lancaster/PublicIndex/PISearch.aspx (last visited January 7, 2022). A court may take judicial notice of factual information located in postings on government websites. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (finding that court may “properly take judicial notice of matters of public record”).
II. Discussion
A. Standard on Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
B. Analysis
1. Statute of Limitations
As a preliminary matter, the court address Defendants' argument that Plaintiff's claims are in whole or in part barred by the applicable statute of limitations. [See ECF No. 24-1 at 4].
It is undisputed that there is no federal statute of limitation for actions brought under 42 U.S.C. § 1983 and that the analogous state law statute of limitations for personal injury applies. See Owens v. Okure, 488 U.S. 235, 240-41 (1989) (“Because § 1983 claims are best characterized as personal injury actions, . . . a State's personal injury statute of limitations should be applied to all § 1983 claims.”). “A state's limitations and tolling rules are to be followed unless doing so defeat[s] either § 1983's chief goals of compensation and deterrence or its subsidiary goals of uniformity and federalism.” Battle v. Ledford, 912 F.3d 708, 713 (4th Cir. 2019) (citation omitted).
“In South Carolina, the general or residual statute of limitations for personal injury claims is codified at S.C. Code Ann. § 15-3-530(5), which provides that the statute of limitations is three years for ‘an action for assault, battery, or any injury to the person or rights of another, not arising on contract and not enumerated by law ....'” Williams v. City of Sumter Police Dep't, C/A No. 3:09-2486, 2011 WL 723148, at *3 (D.S.C. Feb. 23, 2011); see also S.C. Code Ann. § 15-78-110 (“[A]ny claim brought pursuant to [South Carolina Torts Claims Act (“SCTCA”)] is forever barred unless an action is commenced within two years after the date of loss or . . . the action is commenced within three years of the date the loss was or should have been discovered.”).
Plaintiff brought his federal claims against Davis and Lane on April 17, 2020. Applying a three-year statute of limitations, Plaintiff may only proceed with those claims or allegations that accrued on April 17, 2017, or later. In other words, any act or omission that occurred prior to April 17, 2017, is time-barred. Therefore, Plaintiff's claims concerning the inmate-on-inmate assault occurring on April 21, 2017, and the care he received thereafter are not barred by the statute of limitations. However, any claim Plaintiff may be asserting regarding his classification status when he was transferred from Wateree to TCI on February 14, 2017, would be barred.
It appears that Plaintiff agrees that any claim he may be asserting against Davis as to his classification status that occurred on February 14, 2017 would be barred by the applicable statue of limitations. [See ECF No. 26 at 7].
2. Failure to Protect Claim
The Eighth Amendment imposes a duty on prison officials “to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal quotation marks omitted). “Gratuitously allowing the beating . . . of one prisoner by another serves no legitimate penological objective, any more than it squares with evolving standards of decency.” Odom v. South Carolina Dept. of Corrections, 349 F.3d 765, 770 (2003) (quoting Farmer, 511 U.S. 833).
However, not “every injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials responsible for the victim's safety.” Farmer, 511 U.S. at 834. To establish a claim under the Eighth Amendment, a prisoner must satisfy two elements. “First, the deprivation alleged must be, objectively, ‘sufficiently serious.'” Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, a prisoner must present evidence that the prison officials had a “‘sufficiently culpable state of mind.'” Farmer, 511 U.S. at 834 (citing Wilson, 501 U.S. at 297). That is, that the defendant acted with deliberate indifference.
To be deliberately indifferent, a prison official must “know of and disregard an objectively serious . . . risk of harm.” Rish v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997). “[T]he official must be both aware of facts from which the inference could be drawn that a possibility of harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. A showing of mere negligence does not qualify as deliberate indifference. Davidson v. Cannon, 474 U.S. 344, 347 (1986); Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999).
Additionally, under the qualified immunity defense, “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 v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity ensures that “[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Whether an officer is entitled to qualified immunity is a question of law for the court and, when there are no relevant disputed material facts, a court should rule on the qualified immunity issue at the summary judgment stage. Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005) (“Ordinarily, the question of qualified immunity should be decided at the summary judgment stage.”).
To resolve a qualified immunity defense, the court must (1) determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendants' conduct violated a constitutional right, and (2) determine whether the right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts may address the two prongs of the qualified immunity analysis in whichever order is appropriate in light of the circumstances of the particular case at hand. Id.
Plaintiff argues that his “testimony regarding his conversations with Major Canning and Sergeant Hartley provide the genuine issue of material fact regarding Davis's actual knowledge of threats to [Plaintiff]'s life.” [ECF No. 26 at 8]. However, Plaintiff testified he did not speak to Davis, has provided no evidence that Canning spoke with Davis, and testified only, as to Hartley, that Hartley stated Davis “was aware of what goes on in his institution, ” confirming also that Hartley did not tell Plaintiff that he had spoken to Davis. [See ECF No. 26-3 at 53:3-54:15].
This falls short of the evidence needed to sustain Plaintiff's claim. As stated by the Supreme Court, “a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842. In other words, “a prison official's subjective actual knowledge can be proven through circumstantial evidence showing, for example, that the substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known' about it.” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (quoting Farmer, 511 U.S. at 842). As the Fourth Circuit reasoned, “prison officials may not simply bury their heads in the sand and thereby skirt liability.” Id. The “heavy” burden of showing deliberate indifference lies with the prisoner. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014) (citing Whitley v. Albers, 475 U.S. 312, 325 (1986)).
Here, Plaintiff has failed to carry the heavy burden showing that Davis buried his head in the sand or otherwise ignored an obvious risk to Plaintiff. Because there is no constitutional violation, much less a clear constitutional violation, Davis is entitled to qualified immunity. Accordingly, the undersigned recommends the district judge grant Defendants' motion as to this claim.
3. Deliberate Indifference to a Serious Medical Need Claims
A prisoner has a constitutional right to the medical care necessary to address his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 10304 (1976). And a prison official's “deliberate indifference to an inmate's serious medical needs constitutes cruel and unusual punishment under the Eighth Amendment.” See Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). A claim of deliberate medical indifference requires more than a showing of mere negligence, Estelle, 429 U.S. at 105-06, and “more than ordinary lack of due care for the prisoner's interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986). Treatment “must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990) (citation omitted).
Additionally, “to bring a claim alleging the 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 a prison physician's treatment, or tacitly authorized or was indifferent to the prison physician's misconduct. Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990). In certain circumstances, prison personnel may rely on the opinions of the medical staff as to the proper course of treatment. Id.; see also James v. Cartledge, C/A No. 1:13-2292-TMC, 2014 WL 3100097, at *3 (D.S.C. July 7, 2014), aff'd, 589 Fed.Appx. 72 (4th Cir. 2014) (finding no evidence that warden was subjectively and deliberately indifferent to inmate's medical needs); Wright v. Ozmint, C/A NO. 2:07-2515-JFA-RSC, 2008 WL 4542915, at *5 (D.S.C. Oct. 7, 2008) (“The warden is not a medical professional as therefore he had a right to rely on the medical expertise of the professionals providing inmate care.”).
Plaintiff asserts a claim of deliberate indifference against Davis and Lane. As to Davis, Plaintiff's claim concerns his time at TCI following the assault until he was transferred to KCI, from April 21, 2017, to May 11, 2017. During this time, Plaintiff's medical records indicate he was seen by a nurse multiple times, given ibuprofen, provided with an x-ray that showed mild degenerative cervical spondylosis without apparent fracture or subluxation that was reviewed by a doctor, and was assessed by dental. Plaintiff has failed to argue or present any evidence indicating that Davis personally denied him needed medical treatment, deliberately interfered with his medical treatment, or was indifferent to any misconduct by any of the medical providers.
The same is true for Lane. Taking the evidence in light most favorable to Plaintiff, Plaintiff was attacked on April 12, 2017, he received care as discussed above at TCI until he was transferred to KCI on May 11, 2017. Immediately thereafter, he submitted multiple grievances complaining that he needed to see a doctor to treat the injuries he had sustained at TCI. Lane arrived at KCI as the warden on July 18, 2017, and stayed for about 10 months. Plaintiff submitted one more grievance, although it did not detail his medical concerns, but concerned the grievance process. Plaintiff had two conversations with Lane “that [he] needed medical attention of what had happened to me-what had happened to me at Trenton, ” and handed him grievances; although the second time Plaintiff spoke to Lane, Lane “didn't remember [anything] about it.” [See ECF No. 24-3 at 108:23-114:25]. There are no other relevant grievances or medical records until September 16, 2019, when Plaintiff saw medical personnel concerning his neck, although during this time period, the record shows he saw medical personnel for reasons unrelated to his 2017 assault. The x-ray showed “cervical degenerative disease showing mild progression from April 26, 2017.” [ECF No. 24-2 at 36].
Plaintiff's evidence is insufficient to support a claim for deliberate indifference to his serious medical needs for multiple reasons. First, Plaintiff has provided no evidence that he communicated to Lane that he had a serious medical need-only that he complained about the lack of medical attention he received. Lane cannot be deliberately indifferent to a medical need of which he is unaware.
Second, although the record indicates that following an examination and x-ray on April 26, 2017, Plaintiff did not receive another examination and x-ray until September 16, 2019; but Plaintiff has failed to put forth any evidence that this treatment is “so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness, ” Miltier, 896 F.2d at 851, or is even an issue of negligence or malpractice, neither of which are not actionable under 42 U.S.C. § 1983. For example, Plaintiff does not identify “any actions, procedures, or medications to which he believes he was entitled or that he believes would have been more effective.” Wells v. Sampson, C/A No. 8:07-600-CMC, 2007 WL 4322266, at *4 (D.S.C. Dec. 5, 2007).
It appears Plaintiff may have frustrated with the type of care he received. However, in the context of prisoner medical care, the Constitution requires only that prisoners receive adequate medical care; a prisoner is not guaranteed his choice of treatment. Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988); see Russell v. Sheffer, 528 F.2d 318, 318 (4th Cir. 1975). The fact that Plaintiff believed he had a more serious injury than what was assessed or that he believed he required different treatment than he received, where his treatment was constitutionally adequate, does not establish a constitutional violation. See, e.g., Bridges v. Keller, 519 Fed.Appx. 786, 787 (4th Cir. 2013) (“Disagreement regarding the proper course of treatment provides no basis for relief.”) (citing Russell, 528 F.2d at 319).
Plaintiff attests, without further supporting evidence, that he has suffered “from constant neck pain since my April 2017 assault” and “upon information and believe, [his] suffering has increased due to SCDC's failure to give [him] medical attention.” [ECF No. 26-1 at 3].
Here, Plaintiff has failed to establish that either Davis or Lane was deliberately indifferent to a serious medical condition. Both Davis and Lane are therefore entitled to qualified immunity. Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to these claims.
To the extent that Plaintiff brings any additional federal claims against Davis or Lane, any such claims should also be dismissed. Plaintiff has failed to offer argument or evidence as to the personal involvement of either Davis or Lane any violation of Plaintiff's constitutional rights. See Williamson v. Stirling, 912 F.3d 154, 171 (4th Cir. 2018) (“To establish personal liability under § 1983 . . . the plaintiff must affirmatively show that the official charged acted personally in the deprivation of the plaintiff's rights.” (citations omitted)). To the extent Plaintiff sues Davis and Lane in their capacities as supervisors, these claims also fail. The doctrine of supervisory liability is generally inapplicable to § 1983 suits, such that an employer or supervisor is not liable for the acts of his employees, absent an official policy or custom that results in illegal action. See Monell v. Department of Social Services, 436 U.S. 658, 694 (1978); Slakan v. Porter, 737 F.2d 368, 372-74 (4th Cir. 1984) (finding officials may be held liable for the acts of their subordinates, if the official is aware of a pervasive, unreasonable risk of harm from a specified source and fails to take corrective action as a result of deliberate indifference or tacit authorization).
4. State-Law Claims and Related Motion
Plaintiff has additionally brought a negligence-based claims against SCDC. Defendants argue these claims, brought pursuant to the SCTCA, are barred by the statue of limitations, as conceded by Plaintiff in part. [See ECF No. 26 at 10 (“the statute of limitations on Morphy's claims against SCDC have largely expired”); see also ECF No. 24-1 at 6-8]. Defendants also argue these claims should be dismissed because Plaintiff has failed to provide any medical expert evidence in support of his claims, an argument Plaintiff does not address. [See ECF No. 24-1 at 21-22].
Plaintiff does argue, however, that “[i]n the event this Court dismissed the individual Defendants, it should not exercise supplemental jurisdiction over the claims against Defendant SCDC, ” instead remanding the claims to state court. [ECF No. 26 at 9-10]. As stated by the Supreme Court and cited by Plaintiff, “a remand generally will be preferable to a dismissal when the statute of limitations on the plaintiff's state-law claims has expired before the federal court has determined that it should relinquish jurisdiction over the case.” See id. at 10 (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351-52 (1988)).
If the district judge adopts the recommendation contained herein with respect to Plaintiff's federal claims, the only claims remaining will be Plaintiff's state-law claims, and, under the circumstances, the undersigned recommends the district judge not retain jurisdiction over these state law causes of action, but instead remand them back to state court for disposition. See Clark v. Brown, 861 F.2d 66, 68 (4th Cir. 1988) (directing dismissal of state law claims on remand following dismissal of plaintiff's federal § 1983 claim); Mills v. Leath, 709 F.Supp. 671, 675-676 (D.S.C. 1988) (noting that federal courts should generally decline to exercise pendant jurisdiction over remaining state law claims after dismissal of federal claims in a lawsuit).
Plaintiff has also filed a motion to strike SCDC's answer for failing to appear for its October 29, 2021 deposition. The parties disagree as to whether such a harsh sanction is warranted and whether the applicable criteria has been met in the instant situation. See Mut. Fed. Sav. & Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (“When a sanction involved is judgment by default . . . [a court applies the following] four-part test: (1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions.”); see also, e.g., ECF No. 27 at 6 (SCDC arguing that “if the Court finds that the Plaintiff has been prejudiced in any respect, the remedy is not striking SCDC's answer; the remedy is to allow for the taking of Rule 30(b)(6) deposition.”)].
Because the undersigned recommends the district judge decline to exercise supplemental jurisdiction over Plaintiff's state-law claims, brought against SCDC, the undersigned additionally recommends the district judge deny without prejudice to refile in state court Plaintiff's motion to strike SCDC's answer, to allow the state court to determine if and how Plaintiff's state law claims against SCDC should proceed.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's federal claims [ECF No. 24], decline to exercise jurisdiction over his state law claims, remand them to the Court of Common Pleas for Lancaster County, South Carolina, and deny without prejudice Plaintiff's motion to strike [ECF No. 25].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
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).