Opinion
C/A No.: 1:18-2007-HMH-SVH
06-04-2019
Jeremy Renard Webb, Plaintiff, v. Cpt. Marvin Nicks, Defendant.
REPORT AND RECOMMENDATION
Jeremy Renard Webb ("Plaintiff") filed this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights by Captain Marvin Nix ("Nix") while detained at Pickens County Detention Center ("PCDC").
Plaintiff identifies the defendant as "Cpt. Marvin Nicks." However, the undersigned will use the correct spelling of the defendant's last name, Nix.
This matter is before the court on Defendant's motion for summary judgment. [ECF No. 33]. Having been fully briefed [ECF Nos. 51, 52], the motion is 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 in this case, the undersigned recommends the district judge grant Defendant's motion for summary judgment. I. Factual Background
Plaintiff alleges various constitutional violations occurring during his confinement at PCDC between February 10, 2018, and December 6, 2018. Plaintiff alleges he was exposed to black mold in the showers and bunks, resulting in a bad rash and difficulty breathing. Id. at 5, 7. He asserts he was forced to drink brown, foul-smelling water from rusty pipes; lead paint peeled from the walls; most of the bathrooms in the bunks did not function, leading to a bad smell; PCDC had a poor ventilation system; he lacked access to a law library; and he was denied medical treatment. Id. 5-8. In addition, Plaintiff contends PCDC was overcrowded, forcing detainees to sleep anywhere they could find space. [ECF No. 51 at 1]. He asserts he injured his right leg when he had to step over another inmate lying on the floor. [ECF No. 1-1 at 8]. In his response, Plaintiff further alleges Nix unsuccessfully attempted to have his criminal charges dropped so Plaintiff would dismiss this action. [ECF No. 51 at 3-4].
Plaintiff originally alleged his claims arose on February 8, 2018. [ECF No. 1-1 at 7]. However, PCDC records indicate Plaintiff did not arrive at PCDC until February 10, 2018. [See Leopard Aff., ECF No. 33-2 at 1].
Plaintiff seeks monetary damages for medical bills related to his leg injury, as well as for pain and suffering and inhumane conditions. [ECF No. 1-1 at 8]. 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. 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
1. Exhaustion
Defendant argues Plaintiff failed to timely exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), specifically 42 U.S.C. § 1997e(a). Section 1997e(a) provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Id. This requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). To satisfy this requirement, a plaintiff must avail himself of every level of available administrative review. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies neither need to meet federal standards, nor are they required to be plain, speedy, and effective. Porter, 534 U.S. at 524.
Satisfaction of the exhaustion requirement requires "using all steps that the agency holds out, and doing so properly." Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)) (emphasis in original). Thus, "it is the prison's requirements, and not the [PLRA], that define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 218 (2007). Defendant has the burden of establishing that Plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005).
PCDC grievance procedure requires inmates to first verbally discuss the problem with a detention officer. [See Inmate Orientation Packet, ECF No. 33-4 at 4]. If the inmate disagrees with the officer's explanation, he can then file a formal, written grievance by requesting a grievance form from an officer, completing the form, and returning it to the officer for a written response. Id. If the inmate disagrees with the written response, he may appeal to the officer's supervisor. Id.
In his complaint, Plaintiff alleges he filed grievances regarding all his claims, but did not receive responses. [ECF No. 1-1 at 9-11]. In his response, Plaintiff asserts he made informal grievances regarding the dark, foul-smelling water, poor ventilation system, chipping paint, and malfunctioning toilets and sinks. [ECF No. 51 at 2-3]. Plaintiff further alleges he filed a written grievance after an officer denied him bleach, but Plaintiff does not specify the contents of that grievance. Id. at 3. Plaintiff contends he did not receive a response to his written grievance and the form was not returned to him. Id.
PCDC's grievance policy does not specify a timeframe in which the receiving officer must respond to a grievance form, nor does it indicate a detainee may retain or request a copy of his grievance prior to receiving a response. [See ECF No. 33-4 at 4]. Further, it does not appear an inmate may appeal until he receives a response from the receiving officer. Id.
Defendant asserts PCDC has no record of Plaintiff filing a grievance [ECF No. 33-1] and supports that assertion with an affidavit from Kristy Leopard, PCDC's administrative lieutenant. [ECF No. 33-2 at 1, 5].
Resolving all disputes of material fact in favor of Plaintiff as the non-moving party, it is unclear whether PCDC's grievance procedure was truly "available" to Plaintiff. See Ross v. Blake, 136 S.Ct. 1850, 1858-59 (2016) (noting that only "available" administrative remedies must be exhausted). Therefore, the undersigned evaluates the merits of the matter.
2. Conditions of Confinement
Conditions of confinement of pretrial detainees are evaluated under the Due Process Clause of the Fourteenth Amendment rather than under the Eighth Amendment's proscription against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535, 537 n.16 (1979); see also Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). However, "pretrial detainees are entitled to at least the same protection under the Fourteenth Amendment as are convicted prisoners under the Eighth Amendment." Young v. City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001) (citing City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 243-44 (1983). Therefore, the standards applied in Eighth Amendment conditions of confinement cases are essentially the same as those in cases arising under the Fourteenth Amendment for pretrial detainees.
To state a claim that conditions of confinement violate constitutional requirements, "a plaintiff must show both (1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials." Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993). To demonstrate that the conditions deprived him of a basic human need, a plaintiff must allege that officials failed to provide him with humane conditions of confinement, such as "adequate food, clothing, shelter, and medical care, and [taking] reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 832 (1994). As to the second prong, a prison official is deliberately indifferent if he has actual knowledge of a substantial risk of harm to a prisoner and disregards that substantial risk. Id. at 847; see also Parrish v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (stating the standard of deliberate indifference requires actual knowledge and disregard of a substantial risk of serious injury).
Further, a plaintiff asserting unconstitutional conditions of confinement must demonstrate that he suffered a serious or significant physical or mental injury because of the challenged condition. See Strickler, 989 F.2d at 1380-81. "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). Plaintiff has only alleged injuries related to his claims of exposure to black mold, overcrowding, and denial of medical care. [See ECF No. 1-1 at 7-8; ECF No. 51 at 1-3]. Thus, those are the only claims on which he can proceed.
a. Black Mold
Plaintiff alleges black mold in PCDC's bathrooms and cells caused him a skin rash and breathing difficulties. [ECF No. 1-1 at 7-8]. Plaintiff's medical records do not note a skin rash; however, they indicate Plaintiff presented to medical staff in February 2018 complaining of a cough and congestion and again in November 2018 complaining of a head cold with sinus pain, an itchy throat, and a headache. [ECF No. 41 at 19, 29]. Plaintiff's February 2018 illness occurred almost immediately upon his arrival at PCDC, prior to his alleged exposure to mold in F-Block, and Plaintiff admits his symptoms went away after treatment with standard cold medicine. [ECF No. 51 at 1]. In November 2018, Plaintiff specifically stated on his sick-call form he had a "head cold" and the record from his subsequent medical appointment does not mention difficulty breathing. [ECF No. 41 at 20-22].
Plaintiff alleges an officer denied his request for cleaning supplies to clean mold behind his cot, informing Plaintiff he would be provided cleaning supplies in the morning. [ECF No. 51 at 1-2]. However, Plaintiff admits he was able to clean the mold immediately with soap and water and received praise from the officer for having done so. Id. Plaintiff alleges on one occasion black mold fell from the ceiling onto his head while he showered and claims an officer denied his request for bleach to clean the mold. Id. at 2-3. Nix asserts PCDC detainees are provided cleaning supplies, including shower brushes that reach the ceiling, and are responsible for cleaning the cell blocks and bathrooms. [ECF No. 52 at 4-5].
At the most, the record suggests Plaintiff suffered two head colds while detained at PCDC that Plaintiff has not affirmatively connected to any mold exposure. In addition, Plaintiff's allegations do not rise to the level of an actionable constitutional violation, nor has he alleged deliberate indifference by Nix. Thus, summary judgment should be granted as to these claims. See Strickler, 989 F.2d at 1381 (holding "plaintiff must produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions"); Jordan v. Franks, 2010 WL 4007641, at *2 (S.D. Ga. Aug. 30, 2010) ("[M]ere exposure to mold, mildew, and odors does not amount to 'an excessive risk to inmate health or safety' under the Eighth" or Fourteenth Amendments) (quoting Farmer, 511 U.S. at 834); Farmer, 511 U.S. at 834-35 ("only extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim regarding conditions of confinement").
d. Overcrowding
Plaintiff alleges PCDC is overcrowded, forcing some inmates to sleep on mats on the floor. [ECF No. 1 at 1]. He asserts he chose to sleep on top of a table while housed in E-Block and was forced to sleep on the floor for a time in F-Block, but then received a cot to sleep on. [ECF No. 51 at 1]. Plaintiff alleges the inmates sleeping on the floor slept on one-inch thick mats. [ECF No. 1 at 1]. He states he injured his right leg when he stepped over another inmate sleeping on the floor. [ECF No. 1-1 at 8].
Plaintiff's allegation that he had to sleep on a mat on the floor or on a cot fails to allege sufficient facts to state a § 1983 claim. When overcrowded conditions compel prison officials to have inmates sleep on the floor, there is no constitutional violation as long as the inmates are provided mats on which to sleep. Hines v. Sheahan, 845 F. Supp. 1265, 1269 (N.D. Ill. 1994) ("requiring an inmate to sleep on a mattress on the floor does not in itself rise to the level of a constitutional violation"); see also Smalls v. Myers, No. 9:05-2995-GRA-GCK, 2006 WL 1454779, at *7 (D.S.C. May 24, 2006) ("Being forced to sleep on the floor or on an uncomfortable mattress, in and of itself, does not rise to a level of a constitutional violation.").
In addition, Plaintiff has failed to produce any evidence of his alleged leg injury. Plaintiff's medical records reflect multiple complaints of leg pain related to varicose veins, but do not note an acute injury from a fall. [ECF No. 41 at 19, 27, 28]. For these reasons, Defendant's motion for summary judgment should be granted as to this claim.
3. Deliberate Indifference to Serious Medical Need
Plaintiff alleges PCDC and the medical staff, which are contracted through Southern Health Partners, failed to adequately treat his varicose veins. [ECF No. 51 at 3].
To establish an Eighth Amendment violation, Plaintiff must show defendants exhibited "deliberate indifference" to his "serious medical needs." Farmer, 511 U.S. at 835 (1994); Wilson v. Seiter, 501 U.S. 294, 297 (1991). A claim of deliberate medical indifference requires more than a showing of mere negligence, Estelle v. Gamble, 429 U.S. 97, 105-06 (1976), and "more than ordinary lack of due care for the prisoner's interests or safety." Whitley v. Albers, 475 U.S. 312, 319 (1986). The Fourth Circuit has noted that 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).
Plaintiff's alleges he began complaining about leg pain from his varicose veins in February 2018. [ECF No. 51 at 3]. Plaintiff's medical records contain a March 1, 2018 sick-call form regarding a "messed up" vein in Plaintiff's right leg. [ECF No. 41 at 28]. The form states Plaintiff completed a sick-call form a week and half prior regarding the same problem and was seen by medical personnel. Id. Plaintiff informed the medical staff he wore compression socks to alleviate the pain and requested they order some for him. Id. On March 6, 2018, Plaintiff was seen in response to his March 1, 2018 sick-call request and was informed the detention center and medical personnel could not order compression socks for him, but he could have a family member bring some for him. Id.
On May 22, 2018, Plaintiff submitted a sick-call form regarding the varicose veins in his left leg. Id. at 27. Dr. Way examined Plaintiff's leg on June 2, 2018, and found no swelling and mild varicosities. Id. at 19. During this appointment, Plaintiff reported prior treatment for his veins by Oconee Hospital. Id. Dr. Way prescribed ibuprofen for Plaintiff's pain and requested his records for the past five years from Oconee Hospital. Id. On June 4, 2018, Oconee Hospital responded, stating Plaintiff had not been seen there since 2008. Id.
Plaintiff's medical records indicate he again presented with complaints of leg pain due to his veins on July 7, 2018. Id. At that time, his veins were visibly enlarged, and he was instructed to fill out a sick-call request for an appointment. Id.
The records suggest Plaintiff was seen by medical personnel in response to each of his sick-call requests. Thus, Plaintiff has not shown the medical staff, much less Nix, disregarded or ignored his medical needs and, therefore, has not shown deliberate indifference. Rather, Plaintiff complains medical staff did not provide him compression socks and did not take a picture of his leg. [ECF No. 51 at 3]. However, a disagreement about the proper course of treatment does not in and of itself state a constitutional violation. See Brown v. Thompson, 868 F. Supp. 326, 331 (S.D. Ga. 1994) (finding that although the provision of medical care by prison officials is not discretionary, the type and amount of medical care is discretionary); Thomas v. Anderson City Jail, No. 6:10-3270-RMG-KFM, 2011 WL 442053, at *3 (D.S.C. Jan. 19, 2011) (finding the Constitution requires prisoners be provided with a certain minimum level of medical treatment, but it does not guarantee to a prisoner the treatment of his choice); Smart v. Villar, 547 F.2d 112 (10th Cir. 1976) (explaining a disagreement as to the proper treatment to be received does not in and of itself state a constitutional violation).
Accordingly, Plaintiff has failed to state a cognizable claim regarding his medical treatment.
4. No Supervisory Liability
Plaintiff has not alleged Nix had direct responsibility for the alleged constitutional violations or ever received notice of the violations through a grievance or otherwise. Plaintiff's only allegations regarding Nix are that Plaintiff and several other inmates requested to speak with Nix, but he was not yet at the detention center and that Nix spoke with Plaintiff's attorney and attempted to have his criminal charges dropped. [ECF No. 51 at 3-4]. Neither of those assertions amount to violations of Plaintiff's constitutional rights. Thus, Plaintiff's allegations about Nix arise out of his supervisory role within PCDC, rather than any direct involvement in the alleged deprivations.
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); Fisher v. Washington Metro. Area Transit Authority, 690 F.2d 1133, 1142-43 (4th Cir. 1982). The Supreme Court explains that "[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676; see 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).
Plaintiff has not alleged any constitutional violation resulted from an official policy or custom or shown Nix was deliberately indifferent to his subordinates' actions that posed a constitutional risk of injury to Plaintiff. See Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999) (outlining the requirements to hold a supervisor liable for constitutional injuries inflicted by their subordinates). Nor has Plaintiff alleged or shown that Nix had notice of a specific threat to Plaintiff's safety and, thus, an opportunity to prevent harm.
An act or omission unaccompanied by knowledge of a significant risk of harm might well be something society wishes to discourage, and if harm does result society might well wish to assure compensation. . . . But an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.Farmer, 511 U.S. at 837-38. Thus, even assuming the truth of Plaintiff's allegations, Plaintiff has failed to show Nix had knowledge of a significant risk to Plaintiff's health or safety. And without knowledge, Nix cannot be liable.
5. Official Capacity Claims
In his complaint, Plaintiff indicated he intended to sue Nix in his official capacity. [ECF No. 1-1 at 2]. As an arm of the state, Nix is immune from suit in his official capacity under the Eleventh Amendment.
The Eleventh Amendment provides, "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The United States Supreme Court has long held the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001).
Because Nix is an employee of a South Carolina county, when acting in his official capacity, he is considered an arm of the state and not a "person" within the meaning § 1983. See Pennington v. Kershaw Cnty., S.C., No. 3:12-1509-JFA-SVH, 2013 WL 2423120, at *4 (D.S.C. June 4, 2013) (citing S.C. Code Ann. § 4-1-10 and applying the Eleventh Amendment to a county as "a political subdivision of the State"); Chisolm v. Cannon, C/A No. 4:02-3473-RBH, 2006 WL 361375, at *5-6 (D.S.C. Feb. 15, 2006) (finding Charleston County Detention Center entitled to Eleventh Amendment immunity as an arm of the state); Cone v. Nettles, 417 S.E.2d 523, 525 (S.C. 1992) (employees of a county Sheriff are state officials); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) ("[N]either a state nor its officials acting in their official capacities are 'persons' under § 1983.").
A state cannot, without its consent, be sued in a district court of the United States by one of its own citizens upon the claim that the case is one arising under the Constitution and laws of the United States. Edelman, 415 U.S. at 663. The State of South Carolina has not consented to be sued in this case, see S.C. Code Ann. § 15-78-20(e); thus, as an arm of the state, Nix is immune from Plaintiff's claims for damages against him in his official capacity. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned finds Plaintiff has failed to show Nix violated his constitutional rights and recommends the district judge grant Nix's motion for summary judgment.
IT IS SO RECOMMENDED. June 4, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
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).