Opinion
C/A 1:21-997-MBS-SVH
05-17-2022
Richard D. Ridley, Plaintiff, v. Errin Gaffney, Facility Administrator, Dr. Michelle Dube, Clinical Director, and Nurse C. Nickles, Medical Director, Defendants.
REPORT AND RECOMMENDATION AND ORDER
Shiva V. Hodges, United States Magistrate Judge.
Richard D. Ridley (“Plaintiff”), a resident of the South Carolina Sexually Violent Predator Treatment Program (“SVPTP”), has brought the instant lawsuit against administrators and directors of the program, challenging both the legality of his confinement and ways in which the program has been administered. The program's representatives have asked the court to dismiss Plaintiff's suit, arguing he has failed to present sufficient evidence to support any of his claims.
The SVPTP is the facility of the South Carolina Department of Mental Health (“SCDMH”) established pursuant to the South Carolina Sexually Violent Predator Act, SC Code Ann. §§ 44-48-10 through 44-48-170 (“SVPA”). On December 1, 2016, the operation of the SVPTP was transferred via a management contract from the SCDMH to Correct Care of South Carolina, LLC, now known as Wellpath Recovery Solutions (“Wellpath”). [See, e.g., ECF No. 29 at 1, ECF No. 45 at 1].
Proceeding pro se and in forma pauperis, Plaintiff filed this action on April 5, 2021, pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. [See, e.g., ECF No. 1 at 18, 20, 24]. He also alleges that his involuntary confinement under the SVPA violates the “Anti-Slavery laws of the United States and South Carolina” and that the SCDMH violated the non-delegation doctrine by contracting with Wellpath to operate the program. Id. Plaintiff names as defendants Wellpath employees, facility administrator Errin Gaffney (“Gaffney”), clinic director Dr. Michelle Dube (“Dube”), and medical director Nurse C. Nickles (“Nickles”) (collectively “Defendants”).
The case is before the court on Defendants' motion to dismiss and motion for summary judgment. [ECF Nos. 31, 40]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if he failed to respond adequately to the motions. [ECF Nos. 32, 41]. The motions having been fully briefed [see ECF Nos. 45, 51, 55, 68, 70], they are ripe for disposition. Also pending before the court are Plaintiff's motions for sanctions. [ECF Nos. 64, 67].
All pretrial proceedings in this case were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.). Because the motions are dispositive, this report and recommendation is entered for review by the district judge. For the following reasons, the undersigned denies Plaintiff's motions and recommends the district judge grant Defendants' motion for summary judgment, rendering Defendants' motion to dismiss moot.
I. Factual Background
Plaintiff was civilly committed as a sexually violent predator per the SVPA in September 2014. [ECF No. 1 at 3]. Pursuant to the SVPA, the SCDMH and the South Carolina Department of Corrections (“SCDC”) have entered into an interagency agreement whereby residents are housed in a segregated maximum-security location within the Broad River Correctional Institution. See In re Treatment and Care of Luckabaugh, 568 S.E.2d 338, 345 (S.C. 2002). In accordance with the SVPA, Plaintiff was placed in the care of SCDMH for the treatment of his sexual disorder and mental abnormality. [See ECF No. 1 at 3].
In his verified complaint, Plaintiff's primary complaint is that Dube placed allegedly false information in his clinical record (“2020 Treatment Summary”) by including the following statement, among other statements: “Ridley made sexual advances towards another resident and when his advances were rejected he . . . attempted to intimidate and threaten the other resident ....” Id. at 4. Plaintiff argues that Dube's inclusion of this information in his 2020 Treatment Summary resulted in him being denied release from the SVPTP. Id. at 5-6. Additionally, when he complained about Dube's actions, he was retaliated against, by not being allowed to take advantage of employment opportunities or to move dorms and was instead placed in a “problem” dorm. Id. at 7-9. Plaintiff also argues he was treated unfairly compared to other residents. Id. at 9-10.
In this Circuit, verified complaints by pro se prisoners are to be considered as affidavits when the allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
Plaintiff additionally takes issue with the way in which Gaffney responded to COVID-19 at the SVPTP, as well as arguing that Gaffney has failed to properly fund the SVPTP, including hiring and maintaining a sufficient number of nurses, resulting in inmates not receiving adequate treatment and small food portions. Id. at 10-17.
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 nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
Construing his complaint liberally, Plaintiff has brought an “antislavery” claim, a nondelegation claim, a First Amendment Retaliation claim, and multiple claims pursuant to the Fourteenth Amendment, including claims grounded in both the Due Process Clause and the Equal Protection Clause. [See ECF No. 68 at 2]. The court first addresses Plaintiff's motion for sanctions and then turns to Defendants' motion for summary judgment.
1. Plaintiff's Motions for Sanctions
His motion for sanctions filed March 28, 2022, Plaintiff asserts that Defendants have failed to produce responses to discovery requests, as ordered by this court. [See ECF No. 64 at 2; see also ECF No. 56 (court order granting Plaintiff's motion to compel in part, directing Defendants to provide response to certain of Plaintiff's discovery requests no later than March 16, 2022)].
After he filed his motion, it appears that Plaintiff received the requested discovery. [See ECF No. 71 at 2 (“Plaintiff made this discovery after receiving the documents March 29, 2022 that the Court had ordered the defendants to produce by March 16, 2022.”)]. Consistent with Plaintiff's representation, Defendants have submitted evidence from Jarad Anderson (“Anderson”), formerly the security director and currently the assistant facility administrator for Wellpath, that, based on a “[r]eview of the [SC SVPTP mail log] . . . Mr. Ridley received packages in the mail from defense counsel in this action on January 20, 2022 and March 28, 2022 . . . .” [ECF No. 66-1 ¶¶ 1, 78; see also, e.g., ECF No. 50-2 (indicating Defendants provided additional discovery responses on August 20, 2021)].
The court has considered Fed.R.Civ.P. 37, which provides that sanctions may be ordered where a party fails to make disclosures or comply with a court order concerning discovery. The court declines to impose sanctions on Defendants where Plaintiff is in receipt of the relevant discovery and has been provided a full opportunity to respond to Defendants' pending motions following review of that discovery. Accordingly, Plaintiff's March 28, 2022 motion for sanctions is denied.
In his April 18, 2022 motion for sanctions, as well as in his response to Defendants' motion for summary judgment, Plaintiff argues Defendants have relied on affidavit evidence that has been submitted in bad faith and that should be stricken from the record. [See ECF No. 67 (challenging Dube's affidavit), ECF 68 at 3-6 (challenging Dube's affidavit), see also ECF No. 68 at 6-8 (challenging Anderson's affidavit)].
a. Dube's Affidavit
In support of their motion for summary judgment, Defendants primarily rely on affidavit evidence from Dube, the clinical director for Wellpath, a licensed psychologist, and the person who prepared Plaintiff's 2020 Treatment Summary. [ECF No. 40-1 ¶¶ 1, 4, 11]. Plaintiff argues this summary prevented him from being released from the SVPTP, among other damages.
As attested by Dube concerning treatment summaries generally and the 2020 Treatment Summary specifically:
Wellpath staff do not provide a recommendation or determination to the South Carolina Department of Mental Health regarding a given resident's fitness for continued commitment or discharge from the program. Rather, Wellpath provides summaries of residents' treatment and conduct (“Treatment Summaries”) within the SVPTP for possible use by SCDMH personnel in making such an evaluation.
Treatment Summaries include descriptions of all pertinent treatment and behavioral records of conduct which arise during the course of residents' treatment within the SVPTP. They do not generally contain subjective descriptions, impressions, or opinions by the summarizer other than impressions regarding the resident's treatment progress. Rather, Treatment Summaries contain factual summaries of records produced by the original authors of those records, and may include a variety of information pertaining to resident treatment and behavior. Treatment Summaries may include summaries of allegations of sexually deviant behavior, incident reports, investigations, and any other relevant information contained in the records.
The purpose of a Treatment Summary is to provide SCDMH evaluators with sufficient information about the resident's behavior and treatment developments as contained within the applicable records as a tool to help the evaluator to determine whether the resident is likely to continue to engage in acts of sexual violence if released, in accordance with South Carolina law. The evaluators are also provided with copies of the records
themselves.
I prepared an annual Treatment Summary of Mr. Ridley's treatment for his SCDMH review, which occurred during February and March 2020. I included within that Treatment Summary all pertinent information available to me related to Mr. Ridley's treatment and conduct within the SVPTP.
Within Mr. Ridley's Treatment Summary, I included summaries of records from various other providers and staff within the SVPTP related to Mr. Ridley's history of inappropriate behavior towards other residents. These summaries included factual descriptions of Mr. Ridley's conduct as it is contained within his records. Specifically, these included details of Mr. Ridley's threatening violence to another resident who declined his sexual advances. This information was of course pertinent to Mr. Ridley's treatment within the program as an adjudicated sexually violent predator.
All information contained within Mr. Ridley's Treatment Summary was included to provide the SCDMH evaluator with a complete description of Mr. Ridley's treatment progress and conduct within the SVPTP, and came directly from treatment and facility records. At no point did I opine on the veracity of the allegations of Mr. Ridley's sexual misconduct or provide a personalized subjective description thereof. Rather, the Treatment Summary was an objective summary of pertinent events of the preceding year involving Mr. Ridley. Indeed, within the Treatment Summary I explicitly stated that the foregoing allegations regarding Mr. Ridley were then under investigation.
I am aware that Mr. Ridley has claimed that he “won a grievance” and was allowed to put a clarifying note in his treatment records pertaining to the above-referenced allegation. This is untrue. Mr. Ridley did not receive a determination through the SVPTP grievance process relatedto the fact that this allegation was placed in his Treatment Summary.Id. ¶¶ 8-14 (emphasis added).
Plaintiff first argues that Dube has submitted false information above in that he in fact “won the grievance pertaining to the fact that this sexual allegation was placed in my treatment summary.” [ECF No. 67 at 2]. In support, Plaintiff has submitted a grievance and resident communication form, dated April 14, 2020, and April 24, 2020, respectively, in which he contests the accuracy of the allegation included in his treatment summary that he made threats towards another resident who declined his sexual advances. [ECF No. 67-1 at 18-19]. In the grievance, although Plaintiff argued “[unsubstantiated allegations should not be in my records,” under “relief requested,” Plaintiff stated only “[a] clarifying note should be placed in my records ....” See id.
In response to his grievance, staff provided the following on April 20, 2020: “Mr. Ridley-you have the right to write a statement for your record that you disagree with your annual review. We will not amend your record but will include your statement if you choose to provide one.” See id. In response to his communication form, Dube provided the following response on May 4, 2020:
All information contained in your treatment summary was taken directly from your SVP records. No changes will be made to your report. This was explained to you by admin + other staff already- We will not make any changes to your records. You can write a statement about your concerns, as explained in a recent grievance about this same issue.See id. Additionally on May 4, 2020, staff provided the following further response to Plaintiff's grievance: “The letter that you wrote addressing this issue has been scanned into the communication section of your record.” See id.
As argued by Plaintiff [see ECF No. 71 at 3], in conjunction with the final response to his grievance, quoted above, in the space provided to indicate if the “relief requested is . . . upheld [or] denied,” the box for upheld is checked. [ECF No. 67-1 at 18]. Plaintiff argues this clearly shows he won his grievance and Dube knowingly submitted false information in her affidavit stating otherwise.
A review of Plaintiff's evidence indicates that although he requested and was allowed to place a clarifying note in his records, no determination was made regarding the inclusion of the sexual allegations as found in the 2020 Treatment Summary, as indicated by Dube in her affidavit. For example, there is no indication that a determination was made that Dube included false or misleading information in Plaintiff's 2020 Treatment Summary. Accordingly, the undersigned denies Plaintiff's request to sanction Defendants to have Dube's affidavit struck from the record on this basis.
Plaintiff additionally objects to Dube's assertion, highlighted above, that she did not “opine on the veracity of the allegations of Mr. Ridley's sexual misconduct or provide a personalized subjective description thereof,” and, instead, provided an objective summary. In support, Plaintiff cites to the following statements made by Dube in the 2020 Treatment Summary:
Mr. Ridley's criminal personality traits were exemplified in his actions towards Mr. Doe (as discussed in a previous section) ....
Additionally, as mentioned in a previous section of this report,
when a resident declined to engage in sexual activities with Mr. Ridley, he threatened the resident and attempted to intimidate him ....
Additionally, his recent interactions with Mr. Doe suggest that he has relapsed into his sexual offending cycle ....
Mr. Ridley engaged in treatment-interfering behaviors that were indicative of parallel offending (e.g., interactions with Mr. Doe) . . ..[See ECF No. 67 at 3-4 (citing ECF No. 67-1 at 6, 10, 12, 13)].
Plaintiff additionally identifies one more statement, located in the final summary of the report, placed in context below:
In sum, since his admission to the SC-SVPTP, it appears that Mr. Ridley has managed to progress through the program without disclosing the details of his sexual offenses. His persistence and effectiveness in concealing aspects of his sexual offense history and using impression management to circumvent treatment requirements is consistent with psychopathic and antisocial personality traits. It appears Mr. Ridley has been superficially engaged in treatment services, while also maintaining sexually deviant behaviors that paralleled his sexual offending behaviors. Namely, Mr. Ridley sexually propositioned a young resident, and when his advances were rejected, he attempted to intimidate and threaten the resident to comply with his sexual demands. The resident described being in fear of retaliation or bodily harm and locked himself in his room. Mr. Ridley has maintained that official records of his sexual offenses are inaccurate; however, his behaviors are consistent with these reports. This suggests that Mr. Ridley has not discussed or explored key components of his sexual offending behaviors, including his use of threats, intimidation and violence. It is unclear if Mr. Ridley is aroused by sexualized violence or if these methods were used solely as tactics to force himself upon the victims. This area requires further exploration, particularly since the sexual assaults of at least two victims involved sadistic elements (i.e., instructing the victims to write a
list of humiliating or degrading behaviors and forcing them to engage in one or more of those behaviors). Mr. Ridley also continued to demonstrate a perceived need for power, control and revenge (e.g., false reports against staff); therefore, this area also requires further intervention. Until these treatment needs are addressed, Mr. Ridley will likely continue to engage in parallel offending behaviors and remain at risk of sexual reoffending.[See ECF No. 67-1 at 17 (emphasis added)].
Plaintiff argues the above-identified statements “clearly state[] that these were my action, not that this was based on an unsubstantiated allegation that was currently under investigation,” and that, even though Dube specifically noted that the matter was under investigation, she should not have included these allegations in her treatment summary. [ECF No. 67 at 4]. Plaintiff additionally argues that Dube should not have included the above statements where the resident in question, in the past, had made “false sexual allegation[s]” against another resident. [See, e.g., ECF No. 71 at 4].
At this time, the court does not address Plaintiff's argument that Dube should not have included certain information in the 2020 Treatment Summary; to the extent relevant, the court addresses this issue below. Instead, for purposes of Plaintiff's motion for sanctions, the court begins with Fed.R.Civ.P. 56(h), which allows the court to impose certain sanctions where the court is “satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay.” As held by this court:
Although the term “bad faith” is not defined in the Federal Rules of Civil Procedure, courts have held that the term “bad faith” connotes an action taken without any colorable legal or factual basis.Rutherford v. Cannon, C/A No. 8:09-2137-HMH-BHH, 2010 WL 3475283, at *1 (D.S.C. Sept. 2, 2010) (citations omitted); see also, e.g., U.S. Sec. Holdings, Inc. v. Andrews, C/A No. 21-2263-DSF-MRWX, 2021 WL 6882436, at *3 (C.D. Cal. Dec. 24, 2021) (“courts interpreting the Rule have held that ‘[b]ad faith in the context of Rule 56(h) requires a deliberate or knowing act for an improper purpose'”) (citations omitted)).
There is no indication that Dube submitted her affidavit for the purposes of delay, without any factual basis, or for any improper purpose. Dube's representation to the court, that she did not opine on the veracity of the allegations made concerning Plaintiff and instead provided an objective summary, is consistent with the representations made in her report, in which she stated multiple times the allegations were under investigation and in which she stated, for example, that although Plaintiff disputed the allegations as accurate, “his behaviors are consistent with these reports.” [ECF No. 67-1 at 17]. Although, in other sections of her report, she references the allegations without repeating again that the allegations were under investigation, the court is satisfied that Dube's representations in her affidavit were not made deliberately or knowingly for an improper purpose. See, e.g., Jimenez v. City of New York, 666 Fed.Appx. 39, 41 (2d Cir. 2016) (“Bad faith may be found when [the actions taken] are so completely without merit . . . that they must have been undertaken for some improper purpose.”) (citations omitted)).
Accordingly, the undersigned denies Plaintiff's motion to sanction Defendants to have Dube's affidavit struck from the record.
b. Anderson's Affidavit
Anderson attests, in part, as follows:
Mr. Ridley has a demonstrated history of behavioral management concerns. These include at least twenty-six (26) charges while within the SVPTP and multiple major facility rules violations in the recent past, which have resulted in the imposition of appropriate behavioral management sanctions. As such, it is unlikely that Mr. Ridley would be considered a suitable candidate for one of the limited number of jobs available within the SVPTP. No personal discrimination against Mr. Ridley has occurred on any grounds whatsoever with respect to his employment status.[ECF No. 40-2 ¶ 7].
Plaintiff argues that this information is incorrect, has been submitted in bad faith, and should be stricken, in that
Plaintiff has been in the SVPTP since September 2014 and never had a disciplinary charge of any kind until May of 2018. Plaintiff has had 3 major charges and 2 minor charges that he has been found guilty of since 2014.[ECF No. 68 at 6 (citing ECF No. 68-1 at 19)].
Plaintiff's request to sanction Defendants and have this evidence struck from the record is denied where, here, Anderson attests as to the number of charges Plaintiff has faced, not found guilty of, a number Plaintiff does not dispute.
In sum, the undersigned denies Plaintiff's requests to sanction Defendants for the submission of the Dube and Anderson affidavits and to have these affidavits struck from the record.
2. Defendants' Motion for Summary Judgment a. “Anti-Slavery” Claim
Plaintiff was civilly committed under the SVPA, and the purpose of his commitment was to treat him for his inability to refrain from illegal and inappropriate sexual acts. In relevant part, SC Code Ann. § 44-48-20 states that “[t]he General Assembly finds that a mentally abnormal and extremely dangerous group of sexually violent predators exists who require involuntary civil commitment in a secure facility for long-term control, care, and treatment.” The legislature intended that the treatment of those committed under the SVPA be “long-term” even though it is “involuntary.”
A civilly committed individual under the SVPA most closely resembles the custody status of a pre-trial detainee. Treece v. McGill, C/A No. 3:08-03909-DCN, 2010 WL 3781695, at *4 (D.S.C. Sept. 21, 2010).
The Thirteenth Amendment prohibits slavery or involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted ....” U.S. Const. amend. XIII, § 1. Here, Plaintiff appears to challenge, generally, “private, for profit incarceration.” [See ECF No. 68 at 21]. However, Plaintiff has provided no case law or argument providing a valid basis for challenging his commitment. See, e.g., Kansas v. Hendricks, 521 U.S. 346, 350, 138 (1997) (holding the Kansas Sexually Violent Predator Act, Kan. Stat. Ann. § 59-29-01 et seq., which established procedures for the civil commitment of sexually violent predators for treatment of their mental abnormality causing them to engage in sexual violence, did not violate Constitutional due process requirements); see also In re Matthews, 550 S.E.2d 311, 317 (S.C. 2001) (upholding the South Carolina SVPA).
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to this claim.
b. Nondelegation Claim
Plaintiff also alleges that Gaffney, as the SVPTP administrator, violated the Nondelegation Doctrine by contracting with the SCDMH to operate the SVPTP. Defendants argue that, in South Carolina, this doctrine “states simply that the Legislature may not delegate its power to make laws” and that the “state legislature delegated the authority to treat and regulate sexually violent predators to the SCDMH, which in turn contracted with Wellpath to operate the program, not legislate.” [ECF No. 40 at 10-11 (citing Bauer v. S.C. State Housing Authority, 271 S.C. 219, 232 (1978))].
Plaintiff disagrees that the Nondelegation Doctrine is limited to “the ability of the legislative branch to enact laws,” [ECF No. 68 at 19-20 (citing on Dep't of Transp. v. Ass'n of Am. Railroads, 575 U.S. 43, 44 (2015))], but does not address case law cited by Defendants and offers no evidence or argument that the state legislature's delegation of its treatment authority, which SCDMH contracted out to Wellpath, violates this doctrine.
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to this claim.
c. First Amendment Retaliation Claim
To state a claim of retaliation under § 1983, a plaintiff must establish that “(1) he engaged in protected First Amendment activity, (2) the defendant took some action that adversely affected his First Amendment rights, and (3) there was a causal relationship between his protected activity and the defendant's conduct.” Martin v. Duffy, 977 F.3d 294, 299 (4th Cir. 2020) (citations omitted).
As to the first element, prisoners have a “First Amendment right to be free from retaliation for filing a grievance.” Booker v. S.C. Dep't of Corr., 855 F.3d 533, 541 (4th Cir. 2017). With regard to the second element of a retaliation claim, “a plaintiff suffers adverse action if the defendant's allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005) (citations omitted). Although the standard is an objective one, rather than subjective, the fact that a plaintiff has not, in fact, been deterred from continuing in his protected activity is a factor that can be considered. Id. at 500 (noting that, although it is not dispositive, “the plaintiff's actual response to the retaliatory conduct provides some evidence of the tendency of that conduct to chill First Amendment activity”).
As it relates to alleged violations of the First Amendment, courts have applied the same law to civilly-committed plaintiffs as to prisoners. See, e.g., Heyer v. U.S. Bureau of Prisons, 849 F.3d 202 (4th Cir. 2017).
The third element of each claim requires a plaintiff to show a causal causation between the First Amendment activity and the alleged adverse action. In the prison context, the Fourth Circuit has directed district courts to apply the “same-decision test” of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), in determining the causation element. Martin, 977 F.3d at 299. Under that test, a plaintiff must first put forth evidence to show that his “protected conduct was a substantial or motivating factor in a prison guard's decision to take adverse action.” Id. at 300. At a minimum, he must show both that the defendant was aware the plaintiff had engaged in protected activity and “some degree of temporal proximity to suggest a causal connection.” Constantine, 411 F.3d at 501. If a plaintiff shows that the protected conduct motivated the defendant or was a substantial factor in the defendant's decision, then the burden shifts to the defendant to prove a permissible basis for taking the adverse action. Martin, 977 F.3d at 299. “‘If the defendant fails to carry that burden, the inference is that ‘but for' causation . . . has been shown: the plaintiff would not have been harmed had his rights not been violated by the defendant.'” Id. at 299 (citing Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011)).
The Fourth Circuit has cautioned that courts must treat an inmate's claim of retaliation by prison officials “with skepticism because ‘[e]very act of discipline by prison officials is by definition ‘retaliatory' in the sense that it responds directly to prisoner misconduct.'” Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996) (citing Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994)).
Plaintiff alleges in his verified complaint that Dube included false information in the 2020 Treatment Summary. [ECF No. 1 at 4]. In response, in April and May 2020, Plaintiff wrote to the SVPTP oversight committee, filed a grievance, and filed an ethical complaint, in addition to contacting Dube. Id. at 6-8. Plaintiff has submitted a response he received dated July 1, 2020, from the South Carolina Department of Labor, Licensing and Regulation (“SCDLLR”), informing him that his complaint about Dube had been received, but that the SCDLLR was not the correct department to address the issue, and directing Plaintiff to contact the U.S. Department of Health and Human Services. [ECF No. 68-1 at 62].
There is no indication that Plaintiff ever contacted the U.S. Department of Health and Human Services. Defendants briefly argue that this indicates that Plaintiff has failed to exhaust his administrative remedies. [ECF No. 70 at 5 n.1].
Plaintiff alleges that following his complaints about Dube, multiple events occurred. First, Plaintiff alleges that in March 2021, he spoke with Dube about “being moved to the ‘problem' dorm,” and was informed by Dube that although it had been discussed about moving Plaintiff to a different dorm, Dube “felt there would be an issue with . . . Plaintiff being in a dorm with a certain resident.” [ECF No. 1 at 8-9].
Plaintiff also alleges that on August 5, 2019, March 2, 2020, and June 29, 2020, he applied for a job and was refused, and, around March 10, 2020, his case manager informed Plaintiff that he “needed to stop pissing off management with complaints if he wanted to get a job,” informing Plaintiff that she was “aware that my complaints against Dr. Dube were well known, and that was mainly why I was not being given a job or even the opportunity to move to another dorm.” [ECF No. 1 at 6-8, see also ECF No. 68-1 at 63-65, 67-69 (Plaintiff's complaints to Wellpath staff concerning job distribution, dated June 29, 2020 (complaint “sent to Mr. Edwards”), May 20, 2021 (grievance rejected by Anderson due to pending litigation concerning the issue), June 7, 2021 (same), February 1, 2022 (addressed by Gaffney), February 9, 2022 (no response))].
Plaintiff further argues in briefing that he was retaliated for filing a complaint with the SCDLLR about Dube as follows:
• Jobs withheld even though eligible ....
• Refused to move plaintiff even when eligible per policy as a level 5 ....
• Plaintiff was placed on the Mis-behavior unit (midlands) for what was nothing but horseplaying with another resident, but midlands is suppose to be for level 2-3 residents and even after plaintiff was demoted to a level 4 he still should not have been placed in midlands as he does not habitually get in trouble and has never done anything sexual in the program.
• Plaintiff was told by the defendant directly that he was not being placed in the other level 4-5 dorm as his “friend” was in that dorm ....[ECF No. 68 at 24]. Finally, Plaintiff has submitted two declarations from other residents in the program as follows:
I was present when Dr. Michelle Dube told resident Richard Ridley that she would not move him to the other 4-5 dorm (Sandhill)
because he friend was in that dorm and she did not want them in the same dorm. This happened on 3-17-21 at about 3 p.m.
I would further state that it is a known fact that Resident Ridley was being singled out for mistreatment by staff based on him filing complaints about lack of treatment and Dr. Dube placing a false sexual allegation in his records.[ECF No. 68-1 at 71].
I am a resident of the S.V.P.T.P....on or about 2-28-21 I was on the . . . rec. field when officer Travis Whetstone of Wellpath recovery solutions told resident Richard Ridley that he was not on [unclear] because of the allegation by a resident and he was on [unclear] because of the complaints he had made to [unclear] about Wellpath not providing treatment to the residents ....Id. at 70.
Plaintiff further alleges that he “was placed on lock-up, ‘supposedly for investigation', Yet staff told plaintiff it was for complaining about the lack of treatment to SCDMH” [ECF No. 68 at 24]; however, Plaintiff offers no evidence in support of these allegations.
In contrast to the evidence presented by Plaintiff, Defendants have submitted the following from Anderson:
Within the SVPTP, certain residents are granted available employment opportunities within the facility. A decision to grant or deny a resident's employment application occurs at the end of a thorough process which includes application, a security clearance and vetting process, staff review, and other steps designed to ensure that qualified residents are placed within gainful employment, if such is available. Residents are not guaranteed employment.
As such, not every resident is qualified to work within the SVPTP. Additionally, there are fewer jobs available within the SVPTP facility than there are SVPTP residents. Per SVPTP rules and policies, residents are not entitled to employment in general or any specific job.
Mr. Ridley has a demonstrated history of behavioral management concerns. These include at least twenty-six (26) charges while
within the SVPTP and multiple major facility rules violations in the recent past, which have resulted in the imposition of appropriate behavioral management sanctions. As such, it is unlikely that Mr. Ridley would be considered a suitable candidate for one of the limited number of jobs available within the SVPTP. No personal discrimination against Mr. Ridley has occurred on any grounds whatsoever with respect to his employment status.
I am aware of Mr. Ridley's allegation that he has not been moved to housing within his desired wing of the SVPTP. Mr. Ridley further alleges that he was moved to an undesired wing because he had engaged in unauthorized physical contact with another resident. He appears to claim that he should be allowed to move to another wing because he is bisexual and friends with a resident who lives within that wing.
SVPTP facility staff make housing decisions based on numerous criteria pertaining to security and resident treatment developments. A resident's sexual orientation is not one of those criteria and does not factor into the analysis of where to house residents. However, it is contrary to treatment and security goals to allow residents to continue to engage in unauthorized physical contact with other residents. Residents are in no way entitled to living in a particular wing of the facility.
All housing decisions related to Mr. Ridley's commitment within the S.C. SVPTP have been made in the utmost professional judgment in light of security concerns, facility policy, and treatment developments. All of Mr. Ridley's housing assignments have been made in accordance with those criteria, including the goal of mitigating the possibility for inappropriate sexual contact between Mr. Ridley and other residents. Mr. Ridley has not been personally discriminated against in any way with respect to his housing assignments.[ECF No. 40-2 ¶¶ 5-10].
Here, Plaintiff has brought a First Amendment retaliation claim solely against Dube. [See ECF No. 68 at 2, 24]. Plaintiff has submitted evidence that Dube may have been generally involved in decisions concerning both job and dorm placements. [See ECF No. 1 at 20, ECF No. 68-1 at 66]. Plaintiff also has put submitted evidence that Dube chose not to place him in the dorm of his choosing because of concerns about Plaintiff's interactions with another resident.
Plaintiff has failed to establish his complaining about Dube was a substantial or motivating factor in her decision to not place him in the dorm of his choosing and, instead, has submitted significant evidence that her decision was based on her concerns about his interactions with another resident. Additionally, Plaintiff has failed to establish that Dube was involved in any of the other decisions of which he complains, particularly concerning employment opportunities. Here, there is no evidence in the record that Dube took any action that adversely affected Plaintiff's First Amendment rights. See, e.g., Constantine, 411 F.3d at 500 (“First Amendment retaliation is actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights.”) (citations omitted)).
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to this claim.
d. Fourteenth Amendment Due Process Claims
As stated by the Fourth Circuit:
[I]t is settled that pretrial detainees possess a constitutional right “to be free from punishment.” See Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). That right-as to state detainees- derives from the Due Process Clause of the Fourteenth Amendment, which protects such detainees from punishment “prior to an adjudication of guilt in accordance with due process of law.” See id. & n.16.15 The courts of appeals have applied this settled principle to substantive and procedural due process claims pursued by pretrial detainees.Williamson v. Stirling, 912 F.3d 154, 173-74 (4th Cir. 2018). As further stated by the Fourth Circuit, specifically regarding claims brought by a resident of the SVPTP, the Due Process Clause provides that such residents are entitled to “adequate food, shelter, clothing, and medical care.” Christian v. Magill, 724 Fed.Appx. 185, 187 (4th Cir. 2018) (citing Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982)). However, “liability for the treatment of civilly committed individuals cannot be imposed for mere negligence; it can only be imposed when ‘the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.'” Christian, 724 Fed.Appx. at 187 (citing Youngberg, 457 U.S. at 323)).
Plaintiff challenges the following as violations of his Fourteenth Amendment Due Process rights: (1) understaffing, underfunding, and inadequate food, (2) COVID-19 precautions, (3) treatment suspension, and (4) inclusion of sexual allegations in the 2020 Treatment Summary. The court addresses each in turn below.
(1) Understaffing, Underfunding, and Inadequate Food
Plaintiff's claim that the SVPTP is critically short-staffed is not supported in the record. Plaintiff points to Gaffney's discovery responses to claim that the evidence shows staff turnover is high [ECF No. 68 at 13 (citing ECF No. 68-1 at 51)] and argues 10 clinicians for 200 residents is insufficient, See id., but has submitted no evidentiary proof that the SVPTP is staffed in a manner insufficient to comply with the SVPA or provide adequate treatment to residents. Anderson, on the other hand, has submitted testimony that the SVPTP is properly and sufficiently staffed. [ECF No. 40-2 ¶ 16 (“The SVPTP has sufficient staff to operate the facility as normal and care for residents while ensuring security. No units have been ‘locked down' because of a staffing shortage”); see also ECF 68-1 at 52 (“Currently, there are ten (10) Clinical Therapists, two (2) Clinical Team Leaders, two (2) Psychologists, one (1) Clinical Director, one (1) Director of Social Services, one (1) Education Instructor, and one (1) Vocational Instructor employed”)].
Plaintiff additionally argues that the short staffing, as well as “cuts to all areas of the program” made by Gaffney, have resulted in delays in medical care and provision of medication, a resident receiving the wrong medication, supplies for activities and crafts as well as the jobs program being underfunded, and residents being charged for treatment materials. [ECF No. 1 at 14-15, ECF No. 68 at 13 (citing ECF No. 68-1 at 53)]. However, as stated by the Fourth Circuit,
“The substantive component of the [D]ue [P]rocess [C]lause protects against only the most egregious, arbitrary governmental conduct-that is, conduct that can be said to shock the conscience.” The requisite analysis is not whether the Defendants could have taken more or better action, but whether their decision was “so completely out of professional bounds as to make it explicable only as an arbitrary, nonprofessional one.”Christian, 724 Fed.Appx. at 187 (citing Patten v. Nichols, 274 F.3d 829, 834 (2001)). Here, to the extent that Plaintiff's allegations are connected to understaffing or underfunding, he has not submitted evidence of egregious, arbitrary conduct.
The same is true with respect to Plaintiff's claim of inadequately-small food portions. Plaintiff argues as follows:
Plaintiffs position is that he is not getting the daily recommended nutritional value out of the small portions of food, especially as the kitchen is not putting the correct portions that the nutritionist established. This has been and is a continuing issue that the facility Captains have had to take pictures of repeatedly, yet nothing has been done to correct the issue. The defendant Errin Gaffney as the facility administrator is liable as this was brought to her attention on multiple occasions by plaintiff personally, and is well documented.[ECF No. 68 at 14].
However, Plaintiff has failed to submit evidence in support of this claim, evidence he argues is well-documented, and, instead, has only submitted evidence that he and others have complained about the food portions. [See ECF No. 68 at 14, ECF No. 68-1 at 31, 55-61]. Evidence of complaints is not sufficient to show that the food he and others have received is in some way deficient. In contrast, Anderson has testified that the SVPTP's culinary regimen is nutritionally-appropriate, adequate for residents, and developed in collaboration with a registered and licensed dietician. [ECF No. 40-2 ¶ 17].
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's claims that his Fourteenth Amendment rights were violated due to the understaffing, underfunding, and inadequate food of the SVPTP.
(2) COVID-19 Precautions
As to his claim concerning inadequate COVID-19 precautions, Plaintiff argues that Gaffney rented out a dorm in the facility housing Plaintiff and others to evaluate of pre-trial detainees from multiple local jails in the beginning of the pandemic, “thereby increasing the risk of the pandemic spreading.” [ECF No. 68 at 14, see also ECF No. 1 at 21]. Plaintiff additionally takes issue with a lack of testing and argues that nothing was done, even after Plaintiff complained, concerning “the airvents or air system.” [ECF No. 68 at 15-16]. Plaintiff argues “[o]ne whole side of the dorm I was in caught the virus while the facility was on lockdown . . ., which proved that the virus was spreading through the airvents ....” [ECF No. 68 at 16, see also ECF No. 1 at 21]. Plaintiff argues that “Gaffney took no steps, as a mater of fact she put plaintiff's life at even more risk of harm through her reckless actions.” [ECF No. 68 at 17].
Plaintiff argues that he saw on the news that SCDC “had ordered ionizers for the airvents, as they had found that the virus was traveling from cell to cell, even after all inmates were locked down statewide, through the airvents,” and requested ionizers for the same reasons, but was told “cell to cell infection could not happen” by Gaffney and others. [ECF No. 1 at 11-12].
Although Plaintiff has submitted evidence that some residents “tested positive for COVID-19” and were “taken to the infirmary” [ECF No. 1 at 21], he offers no evidence that either he was infected with COVID-19 or that “Gaffney took no steps” to protect the SVPTP facility from the pandemic. In contrast, Anderson has testified that the SVPTP implemented reasonable measures to combat the spread of COVID-19 that were in accordance with available guidance from the relevant authorities. [ECF No. 40 ¶¶ 11-13]. Specifically, SVPTP staff disseminated personal protective equipment, implemented quarantine and screening protocols, provided virus testing, distributed educational materials related to the virus, and provided vaccines once available. Id. ¶ 11. Anderson further attests as follows:
One such precaution was the proactive implementation of a weekly or biweekly COVID-19 testing protocol for all residents. This protocol was recently suspended following achievement of a 96% vaccination rate among residents. Mr. Ridley's first such test occurred on October 22, 2020. His last such test occurred on June 1, 2021. Mr. Ridley never tested positive for COVID-19.Id. ¶ 13.
Plaintiff has failed to submitted evidence in support of his claim that his constitutional rights were violated based on his conditions of confinement. Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to this claim.
Plaintiff references in his complaint that he was not provided medication or meals for some period of time due to a claim that his COVID-19 test was lost. [See ECF No. 1 at 14]. Plaintiff does not address this issue again in briefing [see, e.g., ECF No. 68], and Defendants have submitted evidence that, although Plaintiff argues this incident was documented, there is “no documentation whatsoever that this occurred.” [ECF No. 40-2 ¶ 14]. Plaintiff additionally indicates in his complaint and in briefing that Wellpath staff forged or falsified medical documents. [See, e.g., ECF No. 1 at 13, 24; ECF No. 68 at 1, 2; see also ECF No. 40-2 ¶ 16 (Anderson offering affidavit evidence denying this claim)]. However, Plaintiff does not offer any further evidence in support of this allegation, nor indicate what claim he is intending to assert based on this allegation.
(3) Treatment Suspension
Although, Plaintiff challenges Defendants' COVID-19 precautions as inadequate, he also challenges one such precaution as a violation of his constitutional rights. Plaintiff argues that Defendants were deliberately indifferent to his serious medical needs in that treatment was suspended during the COVID-19 outbreak starting in March 2020. [ECF No. 1 at 10; see also ECF No. 68 at 10 (“Plaintiff was denied this treatment for an extended period of time beginning March 27, 2020 and continuing into February 2021); Id. at 9 (“Gaffney has failed to provide plaintiff with treatment for his serious medical needs . . . and this went on from March 17, 2020 until November 2021”); Id. (“Plaintiff was held in custody for over a year and a half without being provided any treatment ....”)].
To succeed on a 42 U.S.C. § 1983 claim for deprivation of medical care, Plaintiff must plead sufficient facts to establish both a subjective component and an objective component under the applicable two-part test. Gordon v. Schilling, 937 F.3d 348, 356 (4th Cir. 2019) (citation omitted). As to the objective component, Plaintiff must show he suffered a “serious medical need.” Id. (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “[A] medical condition is serious when it has ‘been diagnosed by a physician as mandating treatment or is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'” Id. (citing Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)).
As to the subjective component, Plaintiff must show “that the defendant . . . acted with ‘deliberate indifference.'” Id. (citing Estelle, 429 U.S. at 104). “The Supreme Court has explained that ‘deliberate indifference entails something more than mere negligence,' but the standard ‘is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.'” Id. at 357 (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)). A defendant acts with deliberate indifference sufficient to establish a deprivation of medical care claim where the defendant has “actual knowledge of the [plaintiff's] serious medical needs and the related risks, but nevertheless disregarded them.” Id. (citing DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018)). “A defendant's subjective knowledge can be proven ‘through direct evidence of [his or her] actual knowledge or circumstantial evidence tending to establish such knowledge, including evidence that [he or she] knew of a substantial risk from the very fact that the risk was obvious.'” Id. (citing Scinto, 841 F.3d at 226)).
Plaintiff appears to argue that the above test, which includes an objective and subjective component, may not apply following the Supreme Court's decision in Kingsley v. Hendrickson, 576 U.S. 389, 395 (2015) (holding that the Due Process Clause of the Fourteenth Amendment for excessive force is subject solely to an objective reasonableness test). [See ECF No. 68 at 17]. However, the Fourth Circuit has not applied the Kingsley test to a pretrial detainee's medical indifference claim and has held that “regardless of Kingsley, qualified immunity turns on whether ‘any reasonable official in the defendant's shoes would have understood that he was violating' that objective and subjective standard.” See Mays v. Sprinkle, 992 F.3d 295, 301-02 (4th Cir. 2021) (citations omitted).
On March 17, 2020, a Wellpath memo was issued regarding COVID-19 protocols that were to go into effect, including the suspension of treatment groups. [ECF No. 68-1 at 20]. As stated in the memo, treatment groups were to be replaced “by on-unit sex offender specific programming led by our Clinical Staff,” to begin the following week. Id. On April 1, 2020, Plaintiff received a memo directing the time and place for him to attend one-hour individual sessions with his case manager. Id. at 21.
On April 8, 2020, an additional general memo was issued, urging residents to self-quarantine and describing additional protocols in place to mitigate the spread of the virus. Id. at 22-23. On November 10, 2020, Plaintiff received a memo stating groups sessions were to reconvene, but that they would be conducted within resident's respective living units as a safety precaution. Id. at 24.
On February 10, 2021, Plaintiff submitted a grievance form, complaining, in part, as to the lack of group therapy; Dube provided the following response:
Residents have been working on treatment assignments for their respective treatment phase. I assigned coping logs to complete. This is all part of the comprehensive treatment curriculum. Groups sessions have been replaced with individual contacts in accordance with our COVID protocols. Treatment continues to be provided.Id. at 25.
On January 22, 2021, Plaintiff received a memo detailing one-hour individual therapy sessions to be implemented every other week. Id. at 26. On June 28, 2021, Plaintiff submitted a resident communication form, complaining of the COVID-19 risk inherent in group therapy sessions, although it appears this submission was either not received or not responded to by any staff. Id. at 27.
Based on the above, Plaintiff's evidence indicates that he has received mental health treatment with reasonable practical modifications in light of the COVID-19 pandemic. During the relevant time period, the record indicates Plaintiff continued to receive treatment, albeit modified for safety reasons.
Plaintiff argues, without supporting evidence, that the modified treatments identified in some of the memos above never occurred. [See ECF No. 68 at 8]. However, Plaintiff has submit evidence that although Dube stated treatment continues to be provided, “this is not possible as plaintiff has not been able to put any of this assignments in the computer or in the records since March 2020,” further arguing that “[c]oping logs are put in the computer, yet these are done totally by the residents, and are not even reviewed by the case mangers with the residents, just put in the computer.” [ECF No. 1 at 15]. The evidence presented by Plaintiff appears to only support the conclusion that coping logs may not have been reviewed by case managers, but there is no indication coping logs must be reviewed for treatment to occur, nor does this evidence bear on the other treatment the evidence indicates was provided to Plaintiff during the relevant time period.
Although Plaintiff has submitted multiple declarations made by others in the SVPTP program, complaining, for example, that “Wellpath has not been able to provide treatment on a consistent basis since March of 2020,” [see ECF No. 68-1 at 28, see also id. at 29-33], this evidence also does not support the conclusion that Defendants were deliberately indifferent to Plaintiff's serious medical needs. Additionally, much of this evidence is vague and/or indicates disagreement over proper treatment, which is not evidence of a constitutional violation. See id. at 30 (“Treatment is a joke, as the case managers do not know what they are suppose[d] to be teaching us, and often contradict each other.”); see also 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 v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975)).
Plaintiff additionally argues that “defendants failure to provide treatment clearly was one of the reasons” for the denial of his release from the SVPTP. [ECF No. 68 at 11]. However, Plaintiff's annual review report that Dr. Rozanna Tross (“Tross”) completed pursuant to S.C. Code Ann. § 44-48-110 on March 25, 2020, indicates otherwise. [ECF No. 68-1 at 34-50]. In addition to noting the sexual allegations as found in the 2020 Treatment Report, Tross' report describes Plaintiff as:
• Admitting that he was engaged in “grooming” another resident whom he “loved;”
• That he “wanted to touch” and was “attached” to the resident with whom he denies he engaged in sexual misconduct;
• Having “dynamic risk for reoffense” that is “entrenched in [his] personality characteristics” and “inherent in his overall lifestyle choices and offending patterns;”
• Admitting “his tendency to be entitled, callous, interpersonally exploitative, and aggressive,” although not
“in a way that would suggest control, management, or amelioration of his risk”;
• Having failed a polygraph test regarding prior sexual contact with minors and within the program; and
• As “continuing to engage in the same type of criminal, deviant, and inappropriate behaviors found in his prior community behavior and department of corrections behavior.”Id. at 42, 46-50. Additionally, Plaintiff's compliance with treatment that he has received is described as exceedingly poor. Id. at 48. Plaintiff further admitted that he “lacked the motivation” for treatment. Id. at 50. Finally, the report states Tross reviewed at least twenty-five categories of documents in addition to 2020 Treatment Summary and consulted with “various Wellpath Treatment Staff.” Id. at 35.
Plaintiff has failed to put forth credible evidence that he received inadequate mental health treatment under the circumstances or that Defendants were deliberately indifferent to his serious medical needs. Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to this claim.
(4) Sexual Allegations in 2020 Treatment Summary
Plaintiff additionally brings a Fourteenth Amendment Due Process claim based on the following:
Plaintiff has an established liberty interest in being released from
civil commitment, yet plaintiff was denied this freedom based on the defendant Dr. Michelle Dube violating the professional standards of psychology and putting in an unsubstantiated sexual allegation in plaintiff's treatment summary.[ECF No. 68 at 22].
To establish a claim for violation of due process rights under the Fourteenth Amendment, a plaintiff must show that (1) a constitutionally protected liberty or property interest is in issue, and (2) the state utilized constitutionally deficient procedures in its deprivation of that interest. Board of Regents v. Roth, 408 U.S. 564 (1972). Plaintiff has a strong liberty interest in not being detained. See Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (recognizing that civil commitment is a “significant deprivation” of liberty).
Thus, the remaining issue is whether Plaintiff was subjected to constitutionally-insufficient procedures. As stated by the Fourth Circuit, “[t]he realities of maintaining order and safety on the SVPTP ward “require some amount of flexibility in the due process inquiry.” Christian, 724 Fed.Appx. at 188 (citing Dilworth v. Adams, 841 F.3d 246, 253 (4th Cir. 2016)).
Here, Plaintiff has failed to present any evidence that he was subjected to constitutionally-insufficient procedures regarding his continued detention. As cited by Plaintiff, SC Code Ann. § 44-48-110 provides that he, and others committed pursuant to the SVPA, “must have an examination of his mental condition performed once every year,” detailing some of the procedures involved in that process. However, Plaintiff does not indicate in what way his annual review was constitutionally deficient beyond his argument that Dube incorrectly included details concerning sexual allegations made against him that were subject to an ongoing investigation. Plaintiff fails to cite statutory or case law, nor is the court aware of any, indicating that Dube's inclusion of these allegations was improper in this context, nor does he provide any support as to his allegation that Dube violated any professional standards.
Defendants argue that even if Dube provided a professional opinion regarding Plaintiff's sexual misconduct, which Defendants deny, particularly in that she specifically stated the misconduct charges were under investigation, “there is nothing legally impermissible, negligent, or constitutionally violative about a forensic psychologist expressing her professional opinion under these circumstances. On the contrary, this is exactly what the Sexually Violent Predator Act (SVPA) envisions for the treatment of individuals confined within the SVPTP.” [ECF No. 70 at 5 (citing S.C. Code. Ann. § 44-48-10 et seq.)].
Accordingly, the undersigned recommends the district judge grant Defendants' motions for summary judgment as to this claim.
e. Fourteenth Amendment Equal Protection Claim
The Equal Protection Clause of the Fourteenth Amendment provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. To that end, the Equal Protection Clause provides that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, (1985). To establish an equal protection claim, a plaintiff “‘must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination' .... If he makes this showing, ‘the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.'” Veney v. Wyche, 293 F.3d 726, 730-31 (4th Cir. 2002) (citing Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)).
To survive Defendants' motion for summary judgment, Plaintiff must assert “specific, non-conclusory factual allegations that establish improper motive.” Williams v. Hansen, 326 F.3d 569, 584 (4th Cir. 2003) (King, J. dissenting) (citing Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001)). “[M]ere conclusory assertions” of discriminatory intent are insufficient. Id.; see also Pronin v. Johnson, 628 Fed.Appx. 160, 164 (4th Cir. 2015) (same).
Here, Plaintiff's limited allegations are insufficient to establish he was treated differently from others with whom he was similarly situated. Plaintiff offers only that he was treated differently in that he was punished for actions, such as “horseplay,” that others were not punished for and he was punished more severely, such as being moved to another dorm, where others, who had committed greater infractions, had not. [ECF No. 1 at 9-10, 19-20; ECF No. 68 at 25 (citing ECF No. 68-1 at 72-77)]. The only specific resident that Plaintiff names or offers evidence as to is James Calhoun (“Calhoun”), and this evidence indicates only that after a major violation of “failure to comply w/ count procedures,” Calhoun was allowed to remain a “level 5 resident” and stay in the same dorm, whereas Plaintiff was not, following a major violation of “unauthorized physical contact w/ other residents.” [ECF No. 68-1 at 72-75].
This evidence is insufficient to show that Plaintiff is similarly situated to Calhoun or that the alleged unequal treatment was the result of intentional or purposeful discrimination. See, e.g., Morrison, 239 F.3d at 657 (finding that the inmate had demonstrated, under the relevant policy, that he was “treated differently from others with whom he is similarly situated and that this unequal treatment [was] the result of intentional or purposeful discrimination on the basis of his race”).
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to this claim.
f. Injunctive Relief
To obtain a preliminary injunction, the plaintiff must demonstrate “(1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest.” Winter v. Natural Resources Defense Council., Inc., 555 U.S. 7 (2008). As discussed above, Plaintiff has not shown he is likely to succeed on the merits. Accordingly, the undersigned recommends the district judge deny Plaintiff's request for injunctive relief.
g. State-Law Claims
To the extent Plaintiff raises any state law claims [see, e.g., ECF No. 1 at 18, 20, 24 (indicating Plaintiff is bringing only federal claims)], the court need not reach them. If the district judge accepts the recommendations made, the original federal jurisdiction claims will be dismissed. The Fourth Circuit has recognized that “trial courts enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (holding district court did not abuse its discretion in declining to retain jurisdiction over the state law claims); see also 28 U.S.C. § 1367(c)(3); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27 (1966). Therefore, the undersigned recommends that the district judge decline to retain jurisdiction over any remaining state law claims.
Given the recommendations above, it is unnecessary to address Defendants' arguments that Plaintiff has failed to state a claim for medical malpractice under state law or that some of the evidence offered by Plaintiff is inadmissible. [See ECF No. 40 at 7, ECF No. 70 at 2].
III. Conclusion and Recommendation
Accordingly, the undersigned denies Plaintiff's motions for sanctions [ECF Nos. 64, 67] and recommends the district judge grant Defendants' motion for summary judgment [ECF No. 40], rendering moot Defendants' motion to dismiss [ECF No. 31].
IT IS SO ORDERED AND 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).