Opinion
Civil Action 4:19-cv-2171-TMC-TER
07-30-2021
BILLY D. MORRISON, #296920, a/k/a BILLY DEVAR MORRISON, #256128, Plaintiff, v. SCDC, LEE INFIRMARY, DR. J. MCREE, DR. J. PATE, NURSE D. CAPADONIA, NURSE S. BLACKWELL, and JULIE POWELL, Nursing Supervisor, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants were deliberately indifferent to his serious medical needs. Presently before the Court is Defendants South Carolina Department of Corrections (SCDC), Dr. J. McRee, Nurse Cappadonia, Nurse S. Blackwell, and Julie Powell's Motion for Summary Judgment (ECF No. 111). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motions could result in dismissal of his Complaint. Plaintiff filed a Response (ECF No. 123). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. This report and recommendation is entered for review by the district judge.
Defendant Dr. J. Pate has been dismissed from this action. See Order (ECF No. 135).
II. FACTS
In his Amended Complaint (ECF No. 44), Plaintiff complains of the medical care he received while he was housed at Kirkland Correctional Institution between September and December of 2018 and Lee Correctional Institution between December of 2018 through December of 2019. Am. Compl. p. 12. He alleges that Defendants were deliberately indifferent to his serious medical needs by failing to provide him with proper treatment following a spinal cord injury. He alleges that he was denied proper pain management, it took one year for him to get gloves for his hands, and he has made numerous attempts for at least a year and a half to obtain a wheelchair. Am. Compl. p. 6. He alleges that Dr. McRee repeatedly refused him medication for nerve and spine damage as a result of other inmates' abuse of such medicine. Am. Compl. p. 7. He alleges that he repeatedly asked Nurse Cappadonia to aid and assist with spasms and obtaining a wheelchair and pain medication and medical care for his hands, but instead she allowed other inmates to change his catheters and urine bags. Am. Compl. p. 10. Plaintiff alleges that Nurse Blackwell was deliberately indifferent to his medical needs because he supervised the nurses and oversaw the daily operations of the infirmary. Am. Compl. p. 11. Plaintiff alleges that as a result of Defendants' failure to properly treat his pain, he suffered nerve damage which caused his hands and feet to get worse. Am. Compl. p. 17.
Plaintiff also complains that when he first arrived at Kirkland the nurses had none of his medical records and did not attempt to obtain his medical records so they were unaware of the treatment plan for his spinal cord injury. Therefore, they gave him only Tylenol for his pain. Am. Compl. pp. 13-14. However, he only specifically mentions Nurse Goins with respect to this allegation, whom he did not name as a Defendant in this action. Further, Nurse Cappadonia and Nurse Powell worked at Lee, not Kirkland, and Nurse Blackwell worked at SCDC Headquarters so this allegation would not apply to them. See Am. Compl. p. 2. In fact, none of the Defendants named in this action worked at Kirkland. Dr. Pate worked at Lee, Pate Aff. ¶ 9, and Dr. McRee was the Medical Director for SCDC, McRee Aff. ¶ 1 (ECF No. 111-3).
According to his medical records at SCDC, on December 29, 2017, while he was incarcerated at the Greenville County Detention Center, Plaintiff fell from a bunk bed and fractured his cervical spine, which resulted in paraplegia. Pate Aff. ¶ 5 (ECF No. 108-1). He was admitted to Greenville Memorial Hospital and remained there until January 19, 2018, when he was transferred to Kirkland in Columbia, South Carolina. Pate Aff. ¶ 5. On November 29, 2018, Plaintiff was transferred from Kirkland to Lee in Bishopville, SC. Pate Aff. ¶ 5. As noted in footnote 2, though Plaintiff complains of the medical treatment he received at both Kirkland and Lee, none of the Defendants named in this action worked at Kirkland. Thus, the court will address only the treatment Plaintiff received between November 29, 2018, when he arrived at Lee, and December of 2019, the date listed in Plaintiff's Amended Complaint.
When Plaintiff arrived at Lee, he had a complicated medical history and a multitude of medical problems, including paraplegia, hypertension, chronic obstructive pulmonary disease, left hip fracture, chronic pain, alcohol abuse, drug abuse, anxiety, depression and antisocial personality disorder. Pate Aff. ¶ 6. He had been treated, inter alia, with Coumadin (generic: warfarin) for deep vein thrombosis (“DVT”) prophylaxis, baclofen (a muscle relaxant) for muscle spasms, and prednisone (an oral corticosteroid / anti-inflammatory) and Bengay topical cream for pain in the joints of his hands. Pate Aff. ¶ 6.
Dr. Pate saw and evaluated Plaintiff in the Lee infirmary on a weekly basis from November 29, 2018 (when Plaintiff arrived at Lee) through April 5, 2019 (when his employment at Lee ended). Pate Aff. ¶ 9. As noted in Plaintiff's progress notes, Plaintiff had muscle spasms that were spontaneous and painful. Pate Aff. ¶ 10. For this condition Dr. Pate treated him with baclofen 10 mg, a prescription muscle relaxer. Dr. Pate refilled his baclofen prescription on several occasions, including December 4, 2018, and March 19, 2019. Pate Aff. ¶ 10; Pl. Med. Records pp. 7, 10 (ECF No. 108-3). After learning that the baclofen he ordered on March 19, 2019 was no longer available, on April 4, 2019, Dr. Pate prescribed Flexeril 10 mg for Plaintiff's continuing muscle spasms. Pate Aff. ¶ 10; Pl. Med. Records p. 20 (ECF No. 108-3).
Plaintiff also had some pain in his hands for which he had been treated, prior to his arrival at Lee, with BenGay, a topical pain reliever cream. Pate Aff. ¶ 11. Dr. Pate refilled his BenGay prescription on several occasions, including December 6, 2018, February 5, 2019, and March 28, 2019. Pate Aff. ¶ 11; Pl. Med. Records pp. 3, 5-6, 8. 12 (ECF No. 108-3) Plaintiff told Dr. Pate that BenGay was the “only thing that has helped.” Pate Aff. ¶ 11. A progress note dated February 7, 2019, states “got BenGay and happy.” Pl. Med. Records p. 5 (ECF No. 108-3).
Each prescription Dr. Pate ordered for the baclofen and Bengay was reviewed and approved by Dr. McRee, the Medical Director, except that the order for baclofen on March 19, 2019, was rejected because it was no longer available. Pate Aff. ¶ 12; . For this reason, Dr. Pate ordered another muscle relaxer, Flexeril, as a substitute. Pate Aff. ¶ 12; Pl. Med. Records p. 20 (ECF No. 108-3). Dr. Pate never declined to prescribe Plaintiff an appropriate muscle relaxer or pain reliever, and in his medical judgment, the medications he prescribed for Plaintiff were appropriate and within the standard of care and adequately treated his symptoms. Pate Aff. ¶ 13.
Due to his spinal injury, Plaintiff is paraplegic and cannot walk; he needs a wheelchair. Pate Aff. ¶ 18. This is noted on his initial assessment upon admission to the infirmary at Kirkland on September 20, 2018. Pate Aff. ¶ 18. A fellow inmate at Lee, Samuel Huguenin, Jr., avers that Plaintiff “has no wheelchair or one to use in the infirmary due to size and [height].” Huguenin Decl. ¶ 8 (ECF No. 123-1). Dr. Pate avers, however, that to his knowledge while Plaintiff was at Lee, a wheelchair was available to him and he used it. Pate Aff. ¶ 18. Dr. Pate does not recall him ever asking for a wheelchair or complaining that one had not been provided for him. Pate Aff. ¶ 18. Had Plaintiff ever complained to Dr. Pate or informed him that he had been denied access to a wheelchair, Dr. Pate avers that he would have taken appropriate action to ensure that a wheelchair was provided to him. Pate Aff. ¶ 18. In his progress note of January 31, 2019, Dr. Pate noted that Plaintiff had an “abrasion on right side of [his] right thigh from wheelchair - chair has been fixed - dressing to wound.” Pate Aff. ¶ 18. So, at least at that time, his medical records reflect that he had a wheelchair. Pate Aff. ¶ 18.
On February 14, 2019, Dr. Pate saw Plaintiff and noted that he “needed to see Ortho[pedics] about hands and special gloves he needs.” Pate Aff. ¶ 19; Pl. Med. Records p. 14 (ECF No. 111-7). Dr. Pate ordered a consultation with the orthopedic clinic. Pate Aff. ¶ 19; Pl. Med. Records pp. 14, 17 (ECF No. 111-7). Plaintiff was seen in the orthopedic clinic on April 1, 2019, and the orthopedic consultant ordered “bilateral resting hand splints to help with his flexion contractures.” Pate Aff. ¶ 19. Plaintiff returned to the orthopedic clinic on May 2, 2019, to be fitted for the splints. Pl. Med. Records p. 20 (ECF No. 111-7). A notation in Plaintiff's Medical Records on August 5, 2019, indicates that he was wearing soft hand splints at the time. Pl. Med. Records p. 26 (ECF No. 111-7).
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 87475 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position 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.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
A. 42 U.S.C. § 1983 Generally
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, arguing that Defendants were deliberately indifferent to his serious medical needs. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A legal action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). To be successful on a claim under § 1983, a plaintiff must establish two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The parties do not dispute that they were acting under color of state law in their individual capacities at all times relevant to this action.
B. Official Capacity
Defendants all argue that they are entitled to Eleventh Amendment immunity as to any claims asserted against them in their official capacities. The Eleventh Amendment provides that “[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.” The United States Supreme Court has long held that 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 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 Defendants were agents or employees of an arm of the State of South Carolina when acting in their official capacities, they are not “persons” within the meaning of 42 U.S.C. § 1983. 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 that arises 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. S.C. Code Ann. § 15-78-20(e). Thus, Defendants, in their official capacities, are immune from suit under the Eleventh Amendment. Further, because SCDC is not a “person” within the meaning of § 1983, it is not a proper party to Plaintiff's claims under § 1983. Eleventh Amendment immunity does not, however, preclude claims for prospective injunctive relief. Frew ex. rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004).
C. Deliberate Indifference to Serious Medical Needs
Defendants argue that they were not deliberately indifferent to Plaintiff's serious medical needs. “[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain” prohibited by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). To state a claim for deliberate indifference to a serious medical need, a plaintiff must show that he had serious medical needs and that the defendant acted with deliberate indifference to those needs. Heyer v. United States Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (citing Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)). A “serious medical need” is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Iko, 535 F.3d at 241 (internal quotation marks omitted). To constitute deliberate indifference to a serious medical need, “the treatment [a prisoner receives] must be so grossly incompetent, inadequate, or excessive to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled on other grounds by Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Unless medical needs were serious or life threatening, and the defendants were deliberately and intentionally indifferent to those needs of which he was aware at the time, a plaintiff may not prevail. Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); . Farmer, 511 U.S. at 837; Sosebee v. Murphy, 797 F.2d 179 (4th Cir.1986). A claim of deliberate medical indifference requires more than a showing of mere negligence, Estelle, 429 U.S. at 105-06, and “more than ordinary lack of due care for the prisoner's interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986).
Plaintiff raises three issues with respect to his medical treatment as it pertains to these Defendants. He alleges that his pain and muscle spasms were not properly treated, he was not provided with a wheelchair for over a year and a half despite requesting one from Nurse Cappodonia, and he was not given the gloves he needed to treat his hands for a year.
1. Medication
Plaintiff complains that Defendants refused to provide him with proper medication to address his pain and muscle spasms. He asserts in his Response that he was given only tylenol or aspirin twice daily, which offered no relief for his pain. However, the record reveals that Plaintiff was treated with BenGay for pain in his hands, and that Plaintiff requested this treatment because it was the only thing that worked. Pate Aff. ¶¶ 6, 11. In addition, Plaintiff was treated with either baclofen or flexeril for his painful muscle spasms. Pate Aff. ¶¶ 6, 10. The medical records indicate that when Dr. Pate prescribed baclofen for Plaintiff on March 19, 2019, the prescription was not approved by Dr. McRee because “baclofen no longer available.” Pl. Med. Records p. 10 (ECF No. 108-3). Plaintiff asserts in his Response that this reasoning is not true and that baclofen was available but not provided to Plaintiff because it was abused by other inmates. However, Plaintiff offers no evidentiary support other than his own statement. Nevertheless, even if the baclofen was not prescribed because it had been abused by other inmates, Plaintiff was not left without medication for his painful muscle spasms. In lieu of the baclofen, Dr. Pate prescribed flexeril, another muscle relaxer. Pl. Med. Records p. 20. Plaintiff admits in both his Amended Complaint and his Response that he received the baclofen until it was no longer available and was switched to flexeril. Am. Compl. p. 14; Pl. Resp. p. 4. Further, in a RTSM form dated April 11, 2019, Plaintiff states (and complains) that he received flexeril in place of the baclofen. RTSM Form dated Apr. 11, 2019 (ECF No. 123-1). These admissions by Plaintiff are inconsistent with his allegation that he was given only tylenol or aspirin for his pain. Plaintiff cannot create an issue of fact by presenting two conflicting versions of the facts. Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984). Plaintiff does not allege that his pain was ignored or that any Defendants failed to give him the medication he was prescribed. Rather, he complains that the medication prescribed to treat his pain was not adequate.
“Although the Constitution does require that prisoners be provided with a certain minimum level of medical treatment, it does not guarantee to a prisoner the treatment of his choice.” Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988). A prisoner's difference of opinion over matters of -10- expert medical judgment or a course of medical treatment do not rise to the level of a constitutional violation. Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985). Prison officials implement the type and amount of medical treatment at their discretion. See Allah v. Hayman, 442 Fed.Appx. 632, 635 (3d Cir. 2011) (holding that deliberate indifference standard “requires much more” than taking issue with the “amount and kind of medical care” an inmate received); Faison v. Lightsey, No. 5:09-CT-3179-D, 2011 WL 4589973, at *6 (E.D. N.C. Sept. 30, 2011) (Granting summary judgment for prison physician because prison physician's substitution of one pain medication for another recommended by consulting oral surgeon “did not rise to a level of deliberate indifference”); Yagman v. Johns, No. 5:08-CT-3089-FL, 2010 WL 7765708, at *5-6 (E.D. N.C. Mar. 29, 2010) (Prisoner's preference for alternative medication causing less severe side effects was not sufficient to state Eighth Amendment claim); Johnson v. Doughty, 433 F.3d 1001, 1014 (7th Cir. 2006) (finding that a prison doctor who prescribed non-surgical means of treating an inmate's hernia was not deliberately indifferent to the inmate's medical needs where the doctor formed a professional opinion, other doctors agreed, and the inmate continued to have associated abdominal pain); Faison v. Rosado, 129 Fed.Appx. 490, 492 (11th Cir. 2005) (noting that although a prisoner “might not agree with the method of treatment provided, matters of medical judgment do not give rise to a § 1983 claim”). Dr. Pate averred that he never declined to prescribe an appropriate muscle relaxer or pain reliever and that in his medical judgment, the medications he prescribed Plaintiff were appropriate and adequately treated his symptoms. Pate Aff. ¶ 13. Likewise, Dr. McRee averred that he and all medical providers provided treatment to Plaintiff that met or exceeded the applicable standard of care. McRee Aff. ¶ 6 (ECF No. 111-3). Because Plaintiff's pain was consistently addressed and treated, the fact that he did not receive the treatment of his choice does not give rise to a constitutional violation, and summary judgment is appropriate as to this claim.
2. Wheelchair
Plaintiff alleges that Nurse Cappadonia was deliberately indifferent for failing to provide him with a wheelchair. There are only three mentions of a wheelchair in the medical records submitted to the court. On September 20, 2018, on an intake form for the Kirkland infirmary under a section labeled “Impairments/Disabilities” it was noted that Plaintiff either had a wheelchair or needed one. Pl. Med. Records (ECF No. 114, p. 145). On November 6, 2018, a notation was made by someone with the initials “RH” that Plaintiff was a “parapalegic with good upper body strength. Able to propel self in w/c.” Pl. Med. Records (ECF No. 113, p. 39). Both of these notations were made while Plaintiff was at Kirkland. In a progress note dated January 31, 2019, Dr. Pate noted that Plaintiff had an “abrasion on right side of [his] right thigh from wheelchair - chair has been fixed - dressing to wound.” Pate Aff. ¶ 18. Plaintiff asserts that he repeatedly asked Nurse Cappodonia to obtain a wheelchair for him. Further, a fellow inmate at Lee, Samuel Huguenin, Jr., avers that Plaintiff “has no wheelchair or one to use in the infirmary due to size and [height].” Huguenin Decl. ¶ 8 (ECF No. 123-1). Plaintiff also asserts in his Response that he still does not have a wheelchair. While the medical records reveal that Plaintiff has used a wheelchair at times, there is also evidence that he did not have a wheelchair. Thus, viewing the facts in a light most favorable to Plaintiff, he did not have a wheelchair for the majority of the time period alleged in this action. Dr. Pate averred that because Plaintiff is a paraplegic and cannot walk he needs a wheelchair. Pate Aff. ¶ 18. Dr. Pate averred that if he had known that Plaintiff did not have a wheelchair he would have taken appropriate action to ensure that a wheelchair was provided to him. Pate Aff. ¶ 18. It is undisputed in the record that Plaintiff complained to Nurse Cappadonia that he needed a wheelchair.
The record includes a list of assistive devices such as walker, cane, crutches, and wheelchair. Each is marked “no” except for wheelchair, which is marked “yes.” Pl. Med. Records (ECF No. 114, p. 145).
In Plaintiff's Amended Complaint, Nurse Cappadonia is the only Defendant Plaintiff specifically mentions with respect to his requests for a wheelchair. He alleges “Nurse Capadonia . . . showed deliberate indifference by Plaintiff repeatedly asked her to aid and assist with spasms and medical assistance with wheelchair, pain meds, and to receive adequate medical care for my hands.” Am. Compl. p. 10. In his Response, Plaintiff mentions that Dr. Pate never wrote an order for him to have a wheelchair. However, Dr. Pate has already been dismissed from this action as a result of Plaintiff's failure to exhaust his administrative remedies. See Order (ECF No. 135).
“The failure to provide a wheelchair for an inmate may constitute deliberate indifference to a serious medical need in some circumstances.” Shakka v. Smith, 71 F.3d 162, 167 (4th Cir.1995). In LaFaut v. Smith, 834 F.2d 389 (4th Cir.1987), the inmate was not directly deprived the use of his wheelchair but was placed in a facility that did not allow him to navigate in the wheelchair or access a toilet in his wheelchair for approximately eight months. Id. at 393. The inmate was also not given a catheter and was forced to drag himself to the toilet. Id. at 394. On one occasion, he fell off the toilet and broke his leg. Id. The Fourth Circuit found that these actions constituted deliberate indifference and, thus, a violation of the Eighth Amendment. Id. In so holding, the Court noted that the conditions under which the inmate was confined fell far short of meeting the “‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency....' ” embodied in the Eighth Amendment. Id. (citing Estelle, 429 U.S. at 102). The Fourth Circuit's focus on the denial of the “minimal civilized measure of life's necessities” which posed “a substantial risk of serious harm” is consistent with other circuits as well. See Simmons v. Cook, 154 F.3d 805, 807 (8th Cir.1998) (upholding damages award for Eighth Amendment violation where paraplegic inmates missed four consecutive meals because their wheelchairs could not maneuver to the door where the food tray was placed in maximum security cells and because they were unable to eliminate bodily waste because they were denied assistance); Cummings v. Roberts, 628 F.2d 1065, 1068 (8th Cir.1980) (inmate with back injury who needed wheelchair stated claim for cruel and unusual punishment in violation of the Eighth Amendment where prison officials denied access to wheelchair, thereby forcing him to crawl on the floor, and refused to assist inmate with cleaning himself). Courts have also found an issue of fact regarding deliberate indifference where an inmate in need of a wheelchair was deprived of the use of one for extended periods of time or in the absence of an adequate justification. Beckford v. Irvin, 49 F.Supp.2d 170, 180 (W.D.N.Y. 1999) (finding an issue of fact where the inmate was “regularly deprived use of his wheelchair for extended periods of time”); Vanzant v. Wilcox, No. 115CV00118BLWCWD, 2018 WL 1468585, at *4 (D. Idaho Mar. 26, 2018) (finding an issue of fact where nurse stripped an inmate of his use of a wheelchair without first conducting a medical assessment to determine his need for one); Lavender v. Lampert, 242 F.Supp.2d 821, 849 (D.Or.2002) (indicating that to unnecessarily deny a wheelchair to someone with an obvious injury and who lacks mobility without it, would constitute deliberate indifference to a serious medical need).
As stated above, Dr. Pate opined that Plaintiff needed a wheelchair and had he known that Plaintiff did not have one, he would have taken appropriate action to ensure that he did. In addition, although his basic needs were not completely ignored, Plaintiff presents evidence in the record that another inmate had to change him and clean his bed sheets when he had fecal matter on him. Huguenin Decl. ¶¶ 1-3. There is also evidence in the record that Plaintiff has strong upper body strength and could propel himself in a wheelchair if he had one, Pl. Med. Records (ECF No. 113, p. 39), which, in the light most favorable to Plaintiff, may have allowed him to use the toilet and avoid defecating on himself in his bed. It is undisputed that Plaintiff repeatedly asked Nurse Cappadonia for a wheelchair for over a year, and there is no evidence in the record as to why Plaintiff was not provided with a wheelchair. Therefore, an issue of fact exists as to whether Nurse Cappadonia was deliberately indifferent to Plaintiff's medical needs.
Defendants argue that even if an issue of fact exists as to whether a constitutional violation occurred, they are entitled to qualified immunity. Qualified immunity “shields government officials from liability for civil damages, provided that their conduct does not violate clearly established statutory or constitutional rights within the knowledge of a reasonable person.” Meyers v. Baltimore County, 713 F.3d 723, 731 (4th Cir. 2013). “Not all constitutional violations are violations of clearly established ... constitutional rights, so a plaintiff may prove that an official has violated his rights, but an official may still be entitled to qualified immunity.” Estate of Armstrong ex rel. Armstrong v. Village of Pinehurst, 810 F.3d 892, 907 (4th Cir. 2016) (citing Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991) (internal citations and quotations omitted)). Qualified immunity turns on the “objective reasonableness of an official's conduct, as measured by reference to clearly established law.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When evaluating a qualified immunity defense, the court must determine (1) whether the facts presented, taken in the light most favorable to the plaintiff, show that the defendant's conduct violated a constitutional right, and (2) whether that right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 230-33 (2009). The question at issue here is whether the right violated here, failing to provide Plaintiff with a wheelchair, was clearly established law at the time the violation occurred.
“Even when the facts in the record establish that the officer's conduct violated a plaintiff's constitutional rights, the officer still is entitled to immunity from suit ‘if a reasonable person in the [officer's] position could have failed to appreciate that his conduct would violate those rights.'” Wilson v. Prince George's Cty., 893 F.3d 213, 219 (4th Cir. 2018) (quoting Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991)); see also Williams v. Strickland, 917 F.3d 763, 768 (4th Cir. 2019); Greene v. Feaster, 733 Fed.Appx. 80, 82 (4th Cir. 2018) (per curiam) (“Even when a prison official [is shown to have violated a constitutional right of a plaintiff], qualified immunity will shield him from liability as long as his ‘conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' ”).
To determine whether the right was clearly established, the court first must define the right at issue. Scinto v. Stansberry, 841 F.3d 219, 235 (4th Cir. 2016); see Occupy Columbia v. Haley, 738 F.3d 107, 118 (4th Cir. 2013). “A right is clearly established only if its contours are sufficiently clear that ‘a reasonable official would understand that what he is doing violates that right.' ” Carroll v. Carman, 574 U.S. 13, 16 (2014) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Generally, to “determine whether a right is clearly established, ” courts “assess whether the law has ‘been authoritatively decided by the Supreme Court, [ ] the appropriate United States Court of Appeals, or the highest court of the state.' ” Wilson, 893 F.3d at 221 (citation omitted); see Doe ex rel. Johnson v. S.C. Dep't of Soc. Servs., 597 F.3d 163, 176 (4th Cir. 2010) (stating that “ ‘ordinarily [courts] need not look beyond the decisions of the Supreme Court, [the Fourth Circuit], and the highest court of the state in which the case arose' ” as of the date of the conduct at issue), cert. denied, 562 U.S. 890 (2010).
However, “[a] right need not be recognized by a court in a specific factual context before such right may be considered ‘clearly established' for purposes of qualified immunity.” Wilson, 893 F.3d at 221; see Thompson v. Virginia, 878 F.3d 89, 98 (4th Cir. 2017) (“[A] ‘general constitutional rule...may apply with obvious clarity...even though the very action in question has not previously been held unlawful.'”) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)); Booker v. S.C. Dep't of Corr., 855 F.3d 533, 544 (4th Cir. 2017)). Indeed, the Supreme Court has never required a “ ‘case directly on point for a right to be clearly established.'” Kisela v. Hughes, __U.S.__, 138 S.Ct. 1148, 1152 (2018) (quoting White v. Pauly, __U.S.__, 137 S.Ct. 548, 551 (2017)). Thus, “even without ‘directly on-point, binding authority,' qualified immunity is inappropriate if ‘the right was clearly established based on general constitutional principles or a consensus of persuasive authority.' ” Ray v. Roane, 948 F.3d 222, 229-30 (4th Cir. 2020)(quoting Booker, 855 F.3d at 543).
As stated above, the Fourth Circuit has long held that in certain circumstances the deprivation of a wheelchair or the inability to use a wheelchair violates an inmate's constitutional rights. See LaFaut, 834 F.2d at 394. Based on the general constitutional principles established in LaFaut and the facts in the present case, viewed in the light most favorable to Plaintiff, a reasonable person in Nurse Cappadonia's position should have known that not providing Plaintiff with a wheelchair would violate Plaintiff's right to be free from cruel and unusual punishment. Wilson, 893 F.3d at 219. Viewing the facts in the light most favorable to Plaintiff, despite Plaintiff's need for a wheelchair as stated by his doctor, he was denied a wheelchair by Nurse Cappadonia for over a year without justification despite his numerous requests. Dr. Pate averred that he would have ensured that Plaintiff had a wheelchair had he known he did not have one. Thus, because Nurse Cappadonia did not inform Dr. Pate of Plaintiff's need for a wheelchair, he was forced to defecate himself such that another inmate had to clean him and his bed. Therefore, issues of fact preclude summary judgment on this issue on qualified immunity grounds.
3. Gloves
Plaintiff alleges that it took him one year to get the gloves he needed for his hands. The record reveals that on February 14, 2019, Dr. Pate saw Plaintiff and noted that he “needed to see Ortho[pedics] about hands and special gloves he needs.” Pate Aff. ¶ 19; Pl. Med. Records p. 14 (ECF No. 111-7). Dr. Pate ordered a consultation with the orthopedic clinic. Pate Aff. ¶ 19; Pl. Med. Records pp. 14, 17 (ECF No. 111-7). Plaintiff was seen in the orthopedic clinic on April 1, 2019, and the orthopedic consultant ordered “bilateral resting hand splints to help with his flexion contractures.” Pate Aff. ¶ 19. Plaintiff returned to the orthopedic clinic on May 2, 2019, to be fitted for the splints. Pl. Med. Records p. 20 (ECF No. 111-7). A notation in Plaintiff's Medical Records on August 5, 2019, indicates that he was wearing soft hand splints at the time. Pl. Med. Records p. 26 (ECF No. 111-7). Thus, at least by August of 2019, Plaintiff had received the gloves. It is not clear whether Plaintiff is complaining that it took him one year to get an appointment with a specialist who then ordered the gloves, or that it took one year for him to receive the gloves after they were ordered by the specialist. Nevertheless, while a delay in medical treatment can give rise to a constitutional claim for deliberate indifference, “[a]n Eighth Amendment violation only occurs [ ] if the delay results in some substantial harm to the patient.” Webb v. Hamidullah, 281 Fed.Appx. 159, 166 (4th Cir. 2008). A plaintiff alleging deliberate indifference as a result of a delay in medical treatment must show that any alleged delay caused further injury. See Kane v. Hargis, 987 F.2d 1005, 1009 (4th Cir. 1993) (holding that alleged delays in providing adequate care also do not rise to the level of deliberate indifference where the delay does not cause further injury); Hill v. Dekalb Regional Y outh Detention Center, 40 F.3d 1176, 1188 (11th Cir. 1994)(“An inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of a delay in medical treatment to succeed.”). Although Plaintiff alleges that he suffered additional nerve damage as a result of the delay in receiving the gloves, he has presented no competent evidence in the record to support this allegation. Therefore, summary judgment is appropriate as to any claim arising out of the delay in receiving specialized gloves for Plaintiff's hands.
In a Request to Staff Member Form dated September 23, 2020, (after this action was filed), Plaintiff complained that his gloves had come apart and they needed to be replaced. RTSM Form Dated 9-23-2020 (ECF No. 123-1, p. 12).
4. Supervisory Liability
Further, with respect to Nurse Blackwell, Plaintiff alleges only that he supervised the nurses and oversaw the daily operations of the infirmary. Plaintiff does not allege that Nurse Blackwell had any personal involvement in his medical treatment. In addition, the only allegation in the Amended Complaint regarding Nursing Supervisor Julie Powell is with respect to his exhaustion of administrative remedies. He alleges only that he spoke with her about his concerns. Plaintiff does not allege that Julie Powell had any personal involvement in his medical treatment. Vicarious liability or respondeat superior is generally not available to a § 1983 plaintiff as a method to create liability of a state-actor supervisor for the acts of his subordinate. Monell v. Dep't Soc. Servs., 436 U.S. 658, 694 (1978). There is a limited exception to the prohibition as long as the facts alleged meet the Fourth Circuit Court of Appeal's three-part test for supervisor liability under § 1983: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) that there was an “affirmative causal link” between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)(citations omitted). As discussed above, the evidence in the record is insufficient to show that any of the medical personnel were engaged in conduct that posed a pervasive and unreasonable risk of a constitutional injury with respect to Plaintiff's medication or his gloves. Further, as to the wheelchair, there is insufficient evidence in the record that either Nurse Blackwell or Julie Powell were aware of Plaintiff's lack of a wheelchair. Thus, neither Nurse Blackwell nor Julie Powell can be liable under a supervisory liability theory, and summary judgment is appropriate.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants South Carolina Department of Corrections (SCDC), Dr. J. McRee, Nurse Cappadonia, Nurse S. Blackwell, and Julie Powell's Motion for Summary Judgment (ECF No. 111) be denied in part and granted in part. Specifically, it is recommended that the motion be denied as to Plaintiff's claim regarding the denial of a wheelchair against Nurse Cappadonia only and granted in all other respects and as to all other Defendants.