Freeman
v.
Sheriff Al Cannon Det. Ctr.

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINAJul 23, 2018
C/A No. 5:18-cv-00875-TMC-KDW (D.S.C. Jul. 23, 2018)

C/A No. 5:18-cv-00875-TMC-KDW

07-23-2018

Richard Curtis Freeman, II, Plaintiff, v. Sheriff Al Cannon Detention Center; Carolina Center for Occupational Health; Nurse A. Allen; Nurse R. Jordan, and Stephany Singleton, Defendants.


REPORT AND RECOMMENDATION

Richard Curtis Freeman, II ("Plaintiff") is a detainee at the Sheriff Al Cannon Detention Center, also known as the Charleston County Detention Center ("CCDC"). Pursuant to 28 U.S.C. § 636(b)(1), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. §§ 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal). I. Factual Background

Plaintiff believes he has syphilis, but he alleges that Defendants refuse to test his blood even though he has requested that they do so. ECF No. 1 at 6. He indicates that he has been provided with some medical care for his problems, but he does not believe that the care he has received is adequate. Id. at 7. There are no allegations that his complaints have been ignored by staff at CCDC; instead, Plaintiff only contests the lack of a blood test. Id. Plaintiff also contends that his constitutional rights are being violated by the lack of a law library or access to legal materials at the CCDC. Id. at 6. He alleges that he is representing himself in his criminal case, but acknowledges in his Answers to the Court's Special Interrogatories that he was offered court-appointed counsel, but he declined that representation. ECF No. 12. There are no allegations showing that Plaintiff has been prevented from filing timely documents, that he lost arguments on motions, or that any of his submissions were rejected or dismissed in the criminal case. Plaintiff seeks compensatory damages and injunctive relief. ECF No. 1 at 7.

By Order dated May 30, 2018, Plaintiff was informed that his Complaint failed to state plausible claims and was provided 14 days in which to file an amended complaint to cure those deficiencies. Plaintiff was warned that if he failed to cure the deficiencies, his Complaint would be recommended for dismissal without further opportunity to amend. ECF No. 16. Plaintiff did not respond to that Order and his time for compliance has now passed. II. Standard of Review

Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se Complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).

Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 72 (4th Cir. 2016). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003). Nevertheless, the requirement of liberal construction does not mean that this court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Even under this less stringent standard, the Complaint filed in this case is subject to summary dismissal under the provisions of 28 U.S.C. § 1915(e)(2)(B). III. Discussion

Plaintiff's allegations, liberally construed, fail to state a plausible medical-indifference claim under 42 U.S.C. § 1983 against any Defendant. The allegations show that Plaintiff has been receiving medical care while housed at CCDC. However, he wants additional or different care in the form of a specific test for a venereal disease. Although both state and federal prisoners retain many constitutional rights, it has been recognized that incarceration inherently limits certain constitutional rights of prisoners. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). The United States Supreme Court has held that prison officials have a duty under the Eighth Amendment to provide humane conditions of confinement: they must ensure adequate food, clothing, shelter and medical care, and must take reasonable measures to guarantee the safety of inmates. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). While the Due Process Clause of the Fourteenth Amendment guarantees pre-trial detainees—such as Plaintiff—humane conditions of confinement, "the Eighth Amendment standard provides the benchmark for such claims." Craig v. Eberly, 164 F.3d at 495; see also Chisolm v. Cannon, No. C.A. 4:02-3473-RBH, 2006 WL 361375 (D.S.C., Feb. 15, 2006). For this reason, the standards discussed in Farmer v. Brennan are equally applicable in Plaintiff's case. The Farmer Court stated that "deliberate indifference entails something more than mere negligence . . . [but] 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 835. It requires that a prison official actually know of and disregard an objectively serious condition, medical need, or risk of harm. Id. at 837; see Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (subjective component not shown where no allegations that certain defendants knew of the alleged deprivation or could take action to change medical official's orders "for [prisoner's] own protection").

Section 1983 is the procedural mechanism through which Congress provided a private civil cause of action based on allegations of federal constitutional violations by persons acting under color of state law. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731-32 (1989). The purpose of § 1983 is to deter state actors from the using badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails. Wyatt v. Cole, 504 U.S. 158, 161 (1992). --------

While Plaintiff may consider it desirable to have specific tests done, such feelings do not change the fact that a detainee does not have a right to receive the treatment of his choice. Jackson v. Fair, 846 F.2d 811, 817-18 (1st Cir. 1988); Sanchez v. Coleman, No. 2:13-CV-0982, 2014 WL 7392400, at *7 (W.D. Pa. Dec. 11, 2014). At most, the allegations indicate that Plaintiff is not satisfied with the quantity or quality of the medical care he had received at CCDC as of the time the Complaint was filed and wished to receive different or additional medical care and treatment. Thus, Plaintiff's allegations do not permit an inference that his medical needs are being ignored by Defendants. The allegations do not satisfy the objective prong of a plausible medical-indifference claim.

Furthermore, Plaintiff has listed as Defendants Stephany Singleton, A. Allen, and R. Jordan. To the extent that Plaintiff sues persons, he fails to state a plausible claim for medical care against anyone because his allegations show that he is seeking more or additional medical care from that which he has already been provided. There is no showing of deliberate indifference to his medical needs because he is being provided with some medical care, just not the amount and type of care he desires. See Wilson v. Seiter, 501 U.S. 294, 298 (1991) (medical-indifference claim requires consideration of both an objective and a subjective component); Harden v. Green, 27 F. App'x 173, 176 (4th Cir. 2001) (same); see also Kentucky v. Graham, 473 U.S. 159 (1985) (to state a plausible § 1983 claim, a causal connection or affirmative link must exist between the conduct of which the plaintiff complains and the official sued); Evans v. Chalmers, 703 F.3d 636, 654 (4th Cir. 2012) (same).

Under the circumstances presented by the Complaint in this case, Plaintiff fails to state a plausible § 1983 claim for medical indifference against any Defendant in this case. See Keeler v. Pea, 782 F. Supp. 42, 44 (D.S.C. 1992) (violations of prison policies which fail to reach the level of a constitutional violation are not actionable under the Fourteenth Amendment); see also Scott v. Hamidullah, No. 05-3027, 2007 WL 904803, at *5 n.6 (D.S.C. Mar. 21, 2007) (citing Riccio v. County of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir. 1990)). At most, Plaintiff's allegations support an inference of negligence on Defendants' part, which is not actionable as a federal claim pursuant to 42 U.S.C. § 1983. See DeShaney v. Winnebage Cnty. Dep't of Social Servs., 489 U.S. 189, 200-03 (1989) (federal actions for damages against state actors pursuant to 28 U.S.C. § 1983 do not impose liability for violations of duties of care (such as those involved in negligence actions) arising under state law); Primus v. Lee, 517 F. Supp. 2d 755, 758 (D.S.C. 2007) (state-law based medical malpractice/negligence is not cognizable under 42 U.S.C. § 1983, but it is cognizable in federal diversity actions); see also Newman-Greene, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989) (the complete diversity rule requires that, to maintain a diversity suit in federal court, no plaintiff can be a citizen of the same state as any of the defendants).

Next, regarding Plaintiff's allegations that his constitutional rights are being violated by the lack of a law library at CCDC, "[t]he Constitution does not guarantee an inmate adequate legal assistance and an adequate law library; rather, it guarantees a right to reasonable access to the courts. See Lewis v. Casey, 518 U.S. 343, 351 (1996); Bounds v. Smith, 430 U.S. 817, 838 (1977). In order to establish a claim of denial of access to the courts, an inmate cannot rely on conclusory allegations but must instead allege an actual injury or specific harm or prejudice that has resulted from the denial. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996) (en banc)." Harden v. Bodiford, 442 F. App'x 893, 896 (4th Cir. 2011). A careful review of the allegations of Plaintiff's complaint discloses that his contentions relating to the lack of law library access do not raise a cognizable § 1983 claim because there are no allegations of any specific injury Plaintiff has suffered or is likely to suffer as a result of the alleged inadequate access to legal materials while in pre-trial detention. See Lewis v. Casey, 518 U.S. at 351 (plaintiff must allege actual injury resulting from allegedly inadequate jail library in order to state a claim under section 1983); Michau v. Charleston Cnty., S.C., 434 F.3d 725 (4th Cir. 2006) (in access to court claim, inmate must allege and show that he has suffered an actual injury or specific harm to his litigation efforts as a result of the defendant's actions); Magee v. Waters, 810 F.2d 451 (4th Cir. 1987) (actual injury required of city jail inmate who received books after delay and was allowed one hour of library time a week). Other circuits also have required a showing of injury or prejudice in cases involving minor or indirect restrictions on access to materials and assistance. See, e.g., Mann v. Smith, 796 F.2d 79 (5th Cir. 1986) (no denial of access to county jail inmate with access to legal assistance but not library who nevertheless was able to file legally sufficient claim); Cookish v. Cunningham, 787 F.2d 1 (1st Cir. 1986) (denial of access to law library, except for emergency matters, during two-week quarantine period does not state violation); Hudson v. Robinson, 678 F.2d 462 (3d Cir. 1982) (actual injury must be shown; that library is noisy, open at inconvenient times, with no free supplies, and with notary not always available does not state claim); Twyman v. Crisp, 584 F.2d 352 (10th Cir. 1978) (use of library restricted to two hours a week did not lead to any prejudice, so no denial of access); cf. Peterkin v. Jeffes, 855 F.2d 1021 (3d Cir. 1988) (summary judgment not appropriate in systemic challenge of death row prisoners to denial of access to libraries and inmate law clinic workers).

Moreover, Plaintiff's Answers to the Court's Special Interrogatories disclose that he was offered counsel to represent him on his pending charge, but he declined representation. ECF No. 12. Longstanding case law in this circuit provides that if a pre-trial detainee alleging denial of access to courts due to inadequacy of the jail law library has an attorney or is offered counsel but waives his or her right to counsel, he or she has no constitutional right of access to a law library or to legal materials when he or she is a pre-trial detainee. See United States v. Chatman, 584 F.2d 1358, 1360 (4th Cir. 1978); see also United States v. Byrd, 208 F.3d 592, 593 (7th Cir. 2000); United States v. Taylor, 183 F.3d 1199, 1204 (10th Cir. 1999); Greene v. Brigano, 123 F.3d 917, 921 (6th Cir. 1997); Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir. 1996). In Chatman, the court concluded that Bounds v. Smith, 430 U.S. 817 (1977) (explained and limited by the United States Supreme Court in 1996 in Lewis v. Casey to circumstances involving actual injury) was not applicable to a pre-trial detainee.

The Fourth Circuit Court of Appeals has also ruled that the Constitution of the United States does not require every local jail even to have a law library. See Magee v. Waters, 810 F.2d at 452. The holding in Magee is based on the knowledge that county jails, such as the CCDC, are generally short-term facilities, wherein "'the brevity of confinement does not permit sufficient time for prisoners to petition the courts.'" Id. at 452 (quoting from Cruz v. Hauck, 515 F.2d 322, 333 (5th Cir. 1975)). In Cruz, the court noted that "access to the courts may be satisfied either by availability of legal materials, by counsel, or by any other appropriate device of the State." 515 F.2d at 331 (emphasis added). Also on point are Hause v. Vaught, 993 F.2d 1079 (4th Cir. 1993); Strickler v. Waters, 989 F.2d 1375 (4th Cir. 1993); Peterkin v. Jeffes, 855 F.2d 1021, 1040-41 & nn. 24-25 (3d Cir. 1988); Sands v. Lewis, 886 F.2d 1166, 1170-71 (9th Cir. 1989) (collecting cases). Without any arguable allegation to the effect that he has personally suffered actual injury (such as dismissal of a lawsuit or entry of sanctions) from his restricted access to a library and his acknowledgement of having been offered appointed counsel, it is clear that Plaintiff fails to state a claim under 28 U.S.C. § 1983 upon which relief may be granted. III. Recommendation

Accordingly, because Plaintiff has failed to cure the deficiencies in his pleading despite being given specific opportunity to do so through amendment, it is recommended that the district court dismiss the Complaint in this case with prejudice. See Brown v. Briscoe, 998 F.2d 201, 202-04 (4th Cir. 1993); see also 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).

IT IS SO RECOMMENDED. July 23, 2018
Florence, South Carolina

/s/


Kaymani D. West


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

Post Office Box 2317

Florence, South Carolina 29503

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).