Opinion
C. A. 1:23-0007-TLW-SVH
12-06-2023
Onaje Kudura Seabrook, Plaintiff, v. LT Carter and SGT. Miles Perkins, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Onaje Kudura Seabrook (“Plaintiff'), proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights under the Eighth and Fourteenth Amendments against Lieutenant Taia Carter (“Lt. Carter”) and Sergeant Miles Perkins (“Sgt. Perkins”) (collectively “Defendants”). This matter is before the court on Defendants' motion for summary judgment.[ECF No. 55]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the summary judgment procedures and the possible consequences if he failed to respond adequately to Defendants' motion. [ECF No. 56]. The motion having been fully briefed [ECF Nos. 55, 63, 64, 66], it is ripe for disposition.
Plaintiff states in his response that Defendants served him with their memorandum, but did not serve him with a motion for summary judgment. [ECF No. 63 at 1]. The court previously noted that Defendants indicated they served Plaintiff with the entirety of the motion, though the title may have been misleading. [ECF No. 61]. That is, the filing was docketed as a motion for summary judgment [ECF No. 55], although the title only stated it was a memorandum in support.
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)(f) (D.S.C.). Because the motion is dispositive, this report and recommendation is entered for review by the district judge. For the following reasons, the undersigned recommends Defendants' motion for summary judgment [ECF No. 55] be granted.
I. Factual Background
Plaintiff is an inmate in the South Carolina Department of Corrections (“SCDC”) who was housed in the restricted housing unit (“RHU”) at Lee Correctional Institution (“LCI”) in September 2021. [ECF No. 39 at 2]. He claims he was diagnosed with hypertension in 2004 and that prior to September 9, 2021, he had a history of medical visits at LCI for elevated blood pressure that required medication. [ECF No. 39 at 7]; [ECF No. 55-2 at 3]. He further notes he was hospitalized for hypertension in April 2020. Id.
Around noon on September 9, 2021, Plaintiff lost consciousness while alone in his cell. Id. at 2; [ECF No. 63 at 4]; [ECF No. 63-3 at 1]. Upon regaining consciousness, Plaintiff started banging on his cell door to request help. Id.; [ECF No. 63 at 4]; [ECF No. 63-3 at 1]. Lt. Carter responded, and Plaintiff informed her that he needed to “[s]ee Medical” because he had passed out and had a history of hypertension. Id.; [ECF No. 63 at 4]; [ECF No. 63-3 at 1]; [ECF No. 63-3 at 2]. Plaintiff claims Lt. Carter indicated she would notify the medical department. Id.; [ECF No. 63 at 4]; [ECF No. 63-3 at 2]. He says later that day, he notified additional correctional officers, including Sgt. Perkins, of his need for medical attention. Id.; [ECF No. 63 at 4]. He states he also gave Nurse Wheeler a request to staff member (“RTSM”) form when she passed out medications that evening. Id.; [ECF No. 63 at 4]. Plaintiff filed Grievance No. 0466-21 on September 9, 2021, indicating he had passed out and had not received attention from the medical department, despite having requested medical treatment from several staff members. [ECF No. 55-10 at 9]; [ECF No. 63 at 4].
On September 10, 2021, Plaintiff filed several RTSMs through the kiosk complaining he had been denied medical attention after losing consciousness the prior day. Id. at 3.; [ECF No. 55-6 at 3 (Reference No. 2102189267), 4 (Reference No. 21-02189230), 5 (Reference No. 21-02188466), 6 (Reference No. 21-02188457)]; [ECF No. 63 at 4]. Reference No. 21-02189267 was forwarded to mental health. [ECF No. 55-6 at 3].
Plaintiff was seen by mental health counselor Rosa Privett (“Ms. Privett”) on September 11, 2021. [ECF No. 39 at 3]; [ECF No. 63 at 4]. He says he informed Ms. Privett of the September 9 incident and provided her an RTSM form to forward to the medical department. Id.; [ECF No. 63 at 4].
Plaintiff indicates he was not seen in the medical department on September 11. Id.
Plaintiff claims he used the kiosk to direct RTSMs to medical director April Clarke on September 12 and 14, 2021. Id.; [ECF No. 55-6 at 2 (Reference No. 21-02191712), 10 (Reference No. 21-02194869)]; [ECF No. 63 at 5].
Plaintiff states that on September 13, 2021, he notified Lt. Carter, Mr. Tolsonii, the medical director, and officials from mental health, programs, and security that he planned to go on a hunger strike the following day to protest having been denied medical treatment. Id. at 4; [ECF No. 55-6 at 9 (Reference No. 21-021195716), 10 (Reference No. 21-02194869)]; [ECF No. 63 at 5]; [ECF No. 63 at 5]; [ECF No. 63-3 at 2]. Plaintiff claims he threatened to go on the hunger strike because he knew prison procedure required response from the medical department to an inmate's hunger strike. Id.
Plaintiff claims he started his hunger strike on September 14, 2021, but prison staff failed to document the meals he refused. [ECF No. 39 at 4]; [ECF No. 63 at 5]. On September 14, 2021, at 3:50 PM, Sgt. Perkins filed an incident report noting he had been informed that Plaintiff began a hunger strike on September 13. [ECF No. 55-5 at 2]. He indicated he had observed Plaintiff accepting a lunch tray on September 14, 2021, while he was performing safety rounds, and had observed empty trays within Plaintiff's cell upon inspection. Id. He further stated he had confronted Plaintiff about the empty trays and Plaintiff claimed “I DIDN'T EAT THOSE TRAYS.” Id.
Plaintiff states he wrote to “Security” on September 15, 2021, to inform them of his hunger strike and the fact that no one was documenting the meals he refused. Id. at 5; [ECF No. 55-6 at 7 (Reference No. 21-02198332)]; [ECF No. 63 at 5]. Plaintiff also filed Grievance No. 0473-21 on September 15, 2021, alleging that he had notified Sgt. Carter on September 13 that he was going on a hunger strike and staff had failed to document the meals he refused. [ECF No. 55-10 at 7 and 55-13 at 2]; [ECF No. 63 at 5]. On September 16, 2021, Plaintiff received a response from “Security” informing him that Lt. Carter stated he had not informed her of his hunger strike and “was eating.” Id.; ECF No. 55-6 at 15 (Reference No. 21-02198352)]; [ECF No. 63 at 6].
A nursing assistant visited Plaintiff's cell door on September 16, 2021, to monitor his temperature and pulse pursuant to quarantine protocols, but had no blood pressure cuff. Id.; [ECF No. 63-3 at 3]. He admits he declined the nurse's request to take his temperature, but disputes that he refused to have his vital signs taken. Id.; [ECF No. 63 at 6]; [ECF No. 63-3 at 3]. Plaintiff sent the nurse away. Id.
Lt. Carter filed an incident report on September 16, 2021, indicating Plaintiff was given breakfast and lunch trays on September 15, but refused his dinner tray and stated “I'M GOING ON A HUNGER STRIKE! I'M GOOD I DON'T NEED A TRAY!” [ECF No. 55-7 at 2]. She stated she had notified Mental Health Director Fox and Nurse Canty of Plaintiff's hunger strike allegation. Id. She noted that when a nurse attempted to check Plaintiff's vital signs that morning, he refused to go to his flap for a medical assessment. Id.
On September 16, 2021, Plaintiff filed multiple RTSMs disputing Lt. Carter's representation that he had been eating and indicating he had refused to have his temperature taken because it had nothing to do with his hunger strike and he should have had his weight and blood pressure checked and his blood monitored. [ECF No. 39 at 6]; ECF No. 55-6 at 12 (Reference No. 21-02200515), 13 (Reference No. 21-02200483), 15 (Reference No. 2102198352). He also filed a grievance stating he had informed Lt. Carter of his hunger strike in writing and alleging she had made a false statement with respect to his hunger strike. [ECF No. 55-10 at 5 (Grievance No. 0476-21)]; [ECF No. 63 at 6]. He requested a blood test to determine when he last ate and sought Lt. Carter's demotion. Id.
On September 17, 2021, Plaintiff wrote to “Security” to inform them that he had not eaten in three days and that no one had taken his blood to confirm as much. [ECF No. 39 at 6]; ECF No. 55-6 at 18 (Reference No. 2102201254); [ECF No. 63 at 7]. Also, on September 17, 2021, Plaintiff drank a cup of water after he attempted to take his blood pressure medication without water and nearly choked. [ECF No. 55-6 at 17 (Reference No. 2102206176)]. On September 18, Plaintiff agreed to drink two cups of water after a nurse informed him that he should drink water to limit the damage to his kidneys. Id.; ECF No. 63 at 7].
Plaintiff filed an RTSM on September 20, 2021, in which he advised “[l]egal” of his “ACTIONS SINCE FRIDAY,” which included being seen by the nurse on Saturday, after he nearly choked on Friday, and drinking water on Saturday and Sunday. Id. He asserts he never accepted a food tray between September 14 and September 20, 2021. [ECF No. 63-3 at 3].
At approximately 2:30 PM on September 20, 2021, Plaintiff was assessed by health services and a contract nurse, who determined that he required outside medical treatment. [ECF No. 55-8 at 2]; [ECF No. 63 at 7]. Plaintiff was transferred to Prisma Health Toumey (“Toumey”), and was subsequently admitted and treated for starvation ketoacidosis, acute kidney injury, and hypertension. [ECF No. 39 at 6]; [ECF No. 55-8 at 2]; [ECF No. 55-9 at 2]; [ECF No. 63 at 7]. An echocardiogram showed an ejection fraction of 25%, which was “likely related to his prior drug use and uncontrolled hypertension,” according to the hospital record. [ECF No. 55-9 at 2].
Plaintiff states that prior to September 9, 2021, his only diagnoses were hypertension, arthritis, and mental health issues and he was able to exercise, play sports, box, and “[b]asically do anything.” [ECF No. 39 at 6]. He claims after September 20, 2021, he was no longer able to do normal activities due to being sick and tired all the time. Id.
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 of Administrative Remedies
Defendants argue 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 “[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). Defendants have 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). However, “an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008); see also Ross v. Blake, 136 S.Ct. 1850 (2018).
SCDC has implemented a system for inmates to pursue complaints regarding disciplinary hearing appeals, classification appeals, departmental policies and procedures, directives, and conditions of confinement. SCDC Policy GA-01.12. Each inmate is allowed to file up to five grievances per month to include those returned unprocessed. Id. at 13.1. Prior to initiating the formal grievance process, the inmate must attempt to resolve the issue by submitting an RTSM to the appropriate supervisor or staff member within eight working days of the incident, except where informal resolution is not appropriate or possible or where the individual is appealing a disciplinary conviction or a custody reduction decision. Id. at 13.2.
If informal resolution is not possible, the inmate should file Form 10-5, which initiates a step 1 grievance, within five working days of the alleged incident. Id. If the Inmate Grievance Branch Administrator (“IGA”) declines to process the grievance, the inmate may appeal the decision by directing an RTSM to the Branch Chief within 10 days of the grievance being returned to him. Id. at § 13.3. However, if the inmate fails to sign and date the grievance or to provide necessary information, the IGA will return the grievance without processing and give the inmate five days to correct the error and refile the grievance. Id. If the inmate fails to correct the error within five days, he cannot appeal to the Branch Chief. Id.
If the step 1 grievance is processed, the warden will respond within 45 days to the inmate in writing in the space provided on SCDC Form 10-5 with the reason for the decision. Id. at 13.5. The IGC will serve a copy of the warden's response on the inmate within 10 calendar days, and the inmate will be informed of his right to appeal. Id.
To appeal the warden's decision, the inmate must initiate a step 2 grievance by completing SCDC Form 10-5a and forward it to the IGC within five calendar days of having received the warden's response to the step 1 grievance. Id. at 13.7. The IGC will then forward the step 2 grievance, a copy of the step 1 grievance, and all necessary documentation to the Inmate Grievance Branch within five calendar days. Id. The responsible official is required to respond to the step 2 grievance within 90 days of the date the IGC received it, and the IGC must serve a copy of the response on the inmate within 10 working days. Id.
The response to the step 2 grievance is considered SCDC's final response. Id. However, the inmate may pursue an additional appeal to the Administrative Law Court within 30 days. Id. at 13.9.
SCDC Policy GA-01.12 also provides for emergency procedures. Id. at 14. An “Emergency Grievance refers to any complaint, which if handled according to the regular time limits required by the inmate grievance system, would subject an inmate to substantial risk of personal injury or to other serious and irreparable harm.” Id. at 19. “An emergency will encompass, but is not limited to, situations, actions, or conditions in which any person's health, safety, or welfare is threatened or in serious danger.” Id. at 14.1. “It is the responsibility of the grievant to demonstrate the factors creating the substantial risk of personal injury or other serious and irreparable harm.” Id. “The IGC will fax or scan and email a copy of the grievance to the Chief/Designee, Inmate Grievance Branch, to determine if a substantial risk o[f] serious harm is present and warrants the grievance being processed as an ‘emergency.'” Id. It further provides for an expedited process “[o]nce it is determined that the grievance is an emergency.” Id. at 14.2. “If the grievance is not determined to be an emergency, the IGC will be notified, who will note it his/her response that the grievance was not deemed to be an emergency, and the grievance will then be routinely processed through the system as if it were a normal grievance.” Id. at 14.4.
Plaintiff filed Grievance Nos. 0466-21 (September 9, 2021) and 0473-21 (September 15, 2021) as emergency grievances. [ECF No. 55-17 at 7, 9]; [ECF No. 55-19 at 2]; [ECF No. 63-4 at 22]. The Inmate Grievance Branch Chief reviewed Plaintiff's grievances and determined they were not emergencies. [ECF No. 55-19 at 3]; [ECF No. 63-4 at 23]. Grievance Nos. 0466-21 and 0473-21 were then routinely processed through the system in accordance with SCDC Policy GA-01.12, 14.4. Because Plaintiff had failed to attach proof that he attempted to engage in the informal resolution process by filing RTSMs,he was given five days make the corrections and refile step 1 grievances, but failed to do so. [ECF No. 63-4 at 8, 23]. Grievance No. 0476-21 was returned to Plaintiff without processing because he had exceeded the number of grievances he could file within the month. [ECF No. 55-17 at 3].
Pursuant to SCDC Policy GA-01.12 § 13.2, “A copy of the RTSM must be attached to the step 1 grievance form.” In Al-Haqq v. Bryant, C/A No. 2:14-0008-TMC-MGB, 2016 WL 769121, at *3 (D.S.C. Feb. 8, 2016), report and recommendation adopted by 2016 WL 759167 (Feb. 26, 2016), the court, relying on McFadden v. Reynolds, C/A No. 3:13-439-JMC-JRM, 2013 WL 1838656, at *3 n.2 (D.S.C. Apr. 11, 2013), report and recommendation adopted by 2013 WL 1828644 (May 1, 2013) determined a genuine issue of material fact existed as to whether the plaintiff had exhausted the grievance process because “SCDC Policy GA-01.12 does not require a Request to Staff Member form. However, the undersigned's review of the current policy, effective May 12, 2014, shows that it expressly requires attachment of the RTSM to the step 1 grievance.
Plaintiff filed additional grievances over the period from September 9, through September 20, 2021, that were unrelated to his allegations against Defendants, including Grievance No. 0464-21 (September 9, 2021), requesting he be allowed to participate in a drug treatment program, and Grievance No. 0474-21 (September 15, 2021), complaining inmates in the RHU had been intentionally setting fires that had made it difficult for him to breathe. [ECF NO. 55-17 at 6, 8]. He had also filed a grievance on August 16, 2021. See id. at 2.
Plaintiff failed to appeal any of these decisions. See id. at 5, 7, 9. Plaintiff does not dispute Defendants' argument that he failed to exhaust administrative remedies, but challenges SCDC's failure to characterize his September 9 grievance an “emergency” as addressed in S.C.D.C. Policy GA 01.12, Sections 14, 14.1, and 19.
In Moore, 517 F.3d at 729-30, the court considered a prisoner's challenge to the North Carolina Department of Corrections' failure to classify his grievance as an emergency. The court wrote:
We nevertheless conclude that this grievance was properly returned and did not serve to exhaust Moore's remedies. The “emergency” label notwithstanding, Moore's grievance did not indicate that his inability to receive prompt relief would “present a substantial risk of physical injury or other serious and irreparable harm,” . . . as the [policy] requires for a grievance to constitute an emergency.
Review of Grievance Nos. 0466-21 and 0473-21 supports the Inmate Grievance Branch Chief's conclusion that Plaintiff failed to include sufficient allegations for the grievances to be classified as emergency grievances. In Grievance No. 0466-21, Plaintiff wrote: “I have a history of high blood and at the very least these employee[s] had a duty to document this incident and have medical see me to check my blood pressure.” [ECF No. 55-19 at 2]. In Grievance No. 0473-21, Plaintiff indicated he had informed Lt. Carter on September 13 that he was going on a hunger strike. [ECF No. 55-13 at 2]. He complained that staff were refusing to document the meals he was refusing and his failure to drink water and medical and mental health had failed to visit him, despite his having notified them of his hunger strike. Id. In neither grievance did Plaintiff fulfill his “responsibility . . . to demonstrate the factors creating the substantial risk of personal injury or other serious and irreparable harm” required for an emergency grievance. GA 01-12 § 14.1.
Plaintiff appears to be arguing that exhaustion of administrative remedies should not have applied to his emergency situation because application of the time periods in the Inmate Grievance System subjected him “to substantial risk of personal injury or to other serious and irreparable harm.” [ECF No. 63 at 18]. This court recently considered a similar argument and explained:
[E]ven if the Court assumes Plaintiff did file an emergency grievance, it is nevertheless undisputed that Plaintiff failed to exhaust his administrative remedies. Although Plaintiff avers that he filed an emergency grievance concerning the issues raised in this action . . . Plaintiff has not shown, much less argued, that an inmate fully exhausts his administrative remedies by merely filing an emergency grievance. To the contrary, SCDC's Inmate Grievance System still has an appeals process, which Plaintiff never completed .... Thus, even taking Plaintiff's sworn statement in the Amended Complaint as true, Plaintiff concedes he did not fully exhaust his administrative remedies.Singleton v. Stirling, C/A No. 9:21-3820-RMG-MHC, 2023 WL 4163262, at *4 (D.S.C. Mar. 31, 2023), report and recommendation adopted by 2023 WL 4161176 (Jun. 23, 2023).
Once the Inmate Grievance Branch Chief concluded Grievance Nos. 0466-21 and 0473-21 did not meet the criteria for consideration of emergency grievances, Plaintiff had the opportunity to refile step 1 grievances with an attached RTSM and pursue the subsequent steps in the grievance process. See GA-01.12 § 14.4. He declined to do so. Plaintiff has offered no evidence to show that he was prevented, through no fault of his own, from availing himself of the grievance process with respect to Grievance Nos. 0466-21 and 0473-21. See Moore, 517 F.3d at 725. Therefore, Plaintiff failed to exhaust administrative remedies that were available to him with respect to these grievances.
Plaintiff also argues he could not exhaust administrative remedies with respect to Grievance No. 0476-21, as it was considered to be prohibited by S.C.D.C. Policy Section 13.1 and was not processed. [ECF No. 63 at 21]. However, SCDC Policy provides that an inmate may appeal a decision not to process a grievance “by directing an RTSM to the Branch Chief within 10 days of the grievance being returned to him.” GA-01.12 at § 13.3. Plaintiff declined to do so. Plaintiff has offered no evidence to suggest he was prevented from availing himself of the grievance process with respect to Grievance No. 0476-21. See Moore, 517 F.3d at 725. Therefore, he failed to exhaust available administrative remedies with respect to this grievance, as well.
Defendants have demonstrated Plaintiff failed to exhaust administrative remedies, and Plaintiff has produced no evidence to support a finding that the administrative remedies were unavailable to him, through no fault of his own. Therefore, the undersigned recommends Defendants be granted summary judgment based on Plaintiff's failure to exhaust administrative remedies.
2. Eighth Amendment Claim
Out of an abundance of caution, the undersigned has proceeded to consider Defendants' argument that Plaintiff has failed to state claims under the Eighth and Fourteenth Amendments.
Plaintiff alleges Lt. Carter's failure to contact the medical department on September 9, 2021, despite her knowledge of his loss of consciousness and history of hypertension and her allegedly-false statements that interfered with his medical treatment on September 9 and 16, 2021, demonstrated her deliberate indifference to his medical need and resulted in his cruel and unusual punishment. [ECF No. 39 at 7-8]. He claims Lt. Carter's actions were wanton and reckless, placed his life in danger, and caused him to experience pain and suffering in violation of the Eighth Amendment. Id. at 8. He maintains Sgt Perkins interfered with his access to medical attention by falsely stating that he observed Plaintiff eating during the period he was on a hunger strike. Id. He alleges Lt. Carter and Sgt. Perkins conspired to deprive him of his civil rights and to cause him harm by writing false reports, lying to their superiors, and interfering with his access to medical treatment. Id.
Defendants argue Plaintiff has failed to establish the elements required to support a claim of cruel and unusual punishment under the Eighth Amendment.
“A prison official's deliberate indifference to an inmate's serious medical needs constitutes cruel and unusual punishment under the Eighth Amendment.” Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). To state a claim that conditions of confinement, including inadequate access to medical care, 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).
An Eighth Amendment claim for deliberate indifference is only supported if the prisoner “establishes] a serious deprivation of his rights in the form of a ‘serious or significant physical or emotional injury.'” Danser v. Stansberry, 772 F.3d 340, 346 (4th Cir. 2014) (quoting Brown v. N.C. Dept of Corr., 612 F.3d 720, 723 (4th Cir. 2010); DeIonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013)). An injury or “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 of a doctor's attention.'” Gordon v. Schilling, 937 F.3d 348, 356 (4th Cir. 2019) (quoting Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)). “[O]nly extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim.” Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (citing Hudson v. McMillan, 503 U.S. 1, 8-9 (1992).
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). “Deliberate indifference requires, at a minimum, that the defendant thought about the matter and chose to ignore it.” Clinkscales v. Pamlico Facility Medical Dept., 2000 WL 411 (Table) (4th Cir. 2000). “It may appear when prison officials deny, delay, or intentionally interfere with medical treatment.” Id. (citing McGuckin v. Smith, 974 F.3d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997)). “[A] defendant ‘acts with deliberate indifference if he had actual knowledge of the [plaintiffs] serious medical needs and the related risks, but nevertheless disregarded them.'” Gordon, 927 F.3d at 357 (quoting DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018)). “[O]nce prison officials are aware of a serious medical need, they only need to ‘respond[] reasonably to the risk.'” Hxson v. Moran, 1 F.4th 297, 302 (4th Cir. 2021) (quoting Farmer v. Brennan, 511 U.S. 824, 844 (1994)).
Plaintiff appears to argue Defendants' actions resulted in his delayed access to medical treatment. “To establish liability based on a delay in medical treatment, a plaintiff must show deliberate indifference to serious medical needs that resulted in substantial harm,” Lowe v. Johnson, 2023 WL 7179461, at *3 (4th Cir. Nov. 1, 2023) (quoting Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 422 (5th Cir. 2017)), or that “created a substantial risk of serious harm of which Defendant was aware.” Deans v. Wadman, C/A No. 2:12-662-MGL-JRM, 2013 WL 6054481, at *9 (D.S.C. May 14, 2013), report and recommendation adopted by 2013 WL 6050348 (Nov. 15, 2013).
Although there are genuine disputes of fact between Plaintiff's allegations, Sgt. Perkins's incident report, and Lt. Carter's incident report and affidavit, these are not “genuine disputes of material fact” under Fed.R.Civ.P. 56 that would foreclose summary judgment. The undersigned has construed all evidence in controversy in the light most favorable to Plaintiff, and the court's consideration of the motion for summary judgment does not turn on these issues.
Viewing the disputed evidence regarding the September 9 incident in the light most favorable to Plaintiff, the undersigned assumes that: (1) Plaintiff informed Lt. Carter that he had a history of hypertension, had passed out some time around noon, and needed to see “medical” on September 9, 2021; (2) Lt. Carter told Plaintiff she would contact “medical”; (3) Plaintiff indicated to Sgt. Perkins, among others, that he had passed out earlier and needed to see “medical”; and (4) neither Lt. Carter nor Sgt. Perkins informed the medical department of Plaintiff's request on September 9, 2021.
Plaintiff argues SCDC's denial of his requests for inmate correspondence privileges and the parole office's failure to provide contact information for Gerald Fripp's (“Mr. Fripp's”) supervising agent has compromised his ability to obtain statements to support his allegations of inconsistencies in Lt. Carter's and Sgt. Perkins' affidavits and reports. [ECF No. 63 at 19-20]. Plaintiff's mother also notified the court of her contact with Travis Jackson, Plaintiff's roommate at the time of the incident, and her unsuccessful effort to obtain contact information for Mr. Fripp. [ECF No. 67]. The undersigned appreciates the difficulties Plaintiff has faced in contacting these current and former prisoners and recognizes that they may provide statements that support his allegations that Lt. Carter indicated she would contact the medical department on September 9, 2021, that he informed Lt. Carter of his intention to go on a hunger strike on September 13, and that he did not receive meal trays from September 14 through September 20, 2021. However, these statements are not necessary in light of the undersigned having assumed, without deciding, that his allegations as to these matters were true.
With respect to the September 9 incident, Plaintiff has failed to demonstrate the existence of a “sufficiently serious” medical need, as required to meet the objective requirement in an Eighth Amendment deliberate indifference claim. Plaintiff represents he informed Nurse Wheeler, a member of the medical staff, of the incident while she was administering evening medicationson September 9, 2021, and handed her an RTSM describing the incident. [ECF No. 63 at 4]. Given Plaintiff's representation that he was prescribed blood pressure medication, Nurse Wheeler presumably administered that medication to him and did not consider further evaluation of his blood pressure to be medically necessary at that time. See ECF No. 55-6 at 17 (indicating Plaintiff was administered blood pressure medication). “The fact that a prisoner believed he had a more serious injury or that he required better treatment does not establish a constitutional violation. Smith v. James, C/A No. 8:13-1270-RMG, 2014 WL 2804609, at *9 (D.S.C. Jun. 20, 2014) (citing Russell v. Sheffer, 528 F.2d 318, 318 (4th Cir. 1975)). Defendants have not explained their delay in contacting the medical department regarding Plaintiff's allegation that he had lost consciousness. see generally ECF No. 55, but their presumed assessment that he was not in need of immediate medical attention was affirmed by Nurse Wheeler's actions. Once Plaintiff informed Nurse Wheeler of having passed out and handed her the RTSM, it was no longer incumbent upon Defendants to contact the medical department, as Plaintiff had made that contact and been assessed.
An activity log that appears to be dated September 9, 2021, indicates Nurse Wheeler entered to pass medications at 2:30 PM and 3:20 PM. [ECF No. 63-4 at 78]. The undersigned's review of the activity log does not indicate any later time in which Nurse Wheeler entered to administer medications, but acknowledges her entry and exit may not have been recorded on the activity log.
Although Plaintiff claims “even a layperson would easily recognize the necessity for a doctor's attention,” given his having passed out and his history of hypertension, the necessity of medical attention was not as obvious as Plaintiff alleges, and he has not established that Defendants acted with the requisite state of mind to support the subjective element of an Eighth log.
Amendment claim for deliberate indifference to a serious medical need. “[U]nless medical needs were serious or life threatening, and the defendants were deliberately and intentionally indifferent to those needs of which they were aware at that time, a plaintiff may not prevail.” Brockington v. McDougal C/A No. 9:05-2217-CMC-GCJ, 2006 WL 1328789, at *4 (D.S.C. Apr. 3, 2006) (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976); Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986)), report and recommendation adopted by 2006 WL 1345032 (May 10, 2006). “[T]he failure to treat a medical condition does not constitute punishment within the meaning of the Eighth Amendment unless prison officials knew that the condition created an excessive risk to the inmate's health and then failed to act on that knowledge.” Long v. NX, 86 F.3d 761, 765 (8th Cir. 1996).
Plaintiff fails to show a delay of several hours in Lt. Carter's and Sgt. Perkins's conveying a request to the medical department created a substantial risk of serious harm to which Defendants were aware. It was not unreasonable for Defendants to have concluded that Plaintiff did not require immediate medical attention in light of his ability to effectively report the incident and the fact that no one had observed him in an unconscious state. Because Defendants are non-medical officials, it would not have been unreasonable for them to fail to appreciate a possible connection between Plaintiffs having passed out and his need for blood pressure monitoring.
To the extent Defendants failed to appreciate a need for Plaintiff to be evaluated quickly by the medical department, their failure may amount to negligence, but not to deliberate indifference. See Freeman v. Warden, C/A No. 8:21-cv-JMC-JDA, 2022 WL 17418249, at *8 (D.S.C. May 31, 2022) (“However, even assuming that a reasonable person would have known that Plaintiff needed to receive immediate medical care, a non-medical official's failure to appreciate that fact at most amounts to mere negligence, which is not sufficient to show deliberate indifference.”) (citing Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) (“Deliberate indifference is a very high standard-a showing of mere negligence will not meet it.”); Foxworthy v. Sluss, No. 2:18-cv-00040, 2019 WL 2996924, at *3 (W.D. Va. July 9, 2019) (dismissing cause of action for failure to state a claim for deliberate indifference to medical needs when the plaintiff alleged that prison guards found a prisoner unconscious and injured yet allowed approximately 30 minutes to pass before they called an ambulance; reasoning that “the sole fact of the 30-minute delay is insufficient to show that the conditions posed a substantial risk of serious harm to [the injured prisoner], that the defendants recognized any risk, or that the defendants subjectively recognized that their acts or failures to act were inappropriate”); Small v. Eagleton, No. 2:16-cv-2553-HMH-MGB, 2017 WL 2373206, at *1, 5 (D.S.C. May 12, 2017) (granting summary judgment against a prisoner in his claim for deliberate indifference to medical needs when the prisoner alleged that he was being transported in a van without a seatbelt when the van struck a deer; the prisoner told the defendant-guards he had hurt his head, back, and neck, and needed to go to the hospital; but no ambulance was called to the scene and instead the prisoner was transported back to the prison where he was seen by medical personnel the following morning), report and recommendation adopted by 2017 WL 2362385 (May 31, 2017), affd, 699 Fed.Appx. 206 (4th Cir. 2017)), report and recommendation adopted by 2022 WL 17261401 (Nov. 29, 2022)).
The undersigned has also viewed the evidence regarding Defendants' role in Plaintiff's receipt of medical monitoring during his hunger strike in the light most favorable to Plaintiff. Accordingly, the undersigned has assumed arguendo the following: (1) Plaintiff advised Lt. Carter, among others, of his plan to initiate a hunger strike on September 14; (2) Sgt. Perkins incorrectly reported that he had observed Plaintiff accepting a tray and had noticed empty trays in Plaintiffs cell on September 14; and (3) Lt. Carter falsely claimed she learned of Plaintiff's allegation that he was on a hunger strike and his continued acceptance of meals on September 16, 2021.
Although the undersigned assumes arguendo that Sgt. Perkins was incorrect in relating that he had observed Plaintiff accepting a lunch tray and had seen empty trays in his cell, the evidence refutes Plaintiff's argument that Sgt. Perkins was not in the area at the time. Sgt. Perkins filed an incident report “FOR INFORMATIONAL PURPOSES ONLY” on September 14, 2021 at 3:50 PM. [ECF No. 63-4 at 87]. He noted he had been informed Plaintiff was on a hunger strike that “started on 9/13/21.” Id. Although Sgt. Perkins was not in Plaintiff's cellblock when the food cart entered at 11:13 AM on September 14, 2021, he could have reasonably observed Plaintiff accepting a lunch tray when he retrieved an inmate from the area at 11:46 AM or after he returned from transporting the inmate to mental health. See id. at 62, 63. An activity record reflects that Sgt. Perkins observed Plaintiff in his cell and indicated “YES” with respect to “MEAL-LUNCH” on September 14, 2021, at 12:17 PM. See id. at 80, 83. While the time of incident of “[a]pprox. 2:15pm” was several hours after the food cart entered Plaintiff's cellblock, it is reasonable to assume Sgt. Perkins observed Plaintiff accepting a lunch tray at one time and later saw empty food trays from breakfast and lunch in his cell. See id. at 87.
The undersigned agrees with Plaintiff's assertion that Lt. Carter's incident report and affidavit are not wholly consistent with each other or with Sgt. Perkins's incident report. Lt. Carter indicated in her affidavit that Sgt. Perkins informed her on September 15 that Plaintiff had accepted breakfast and lunch trays that day that “[o]n the same day, these trays were observed to be empty in his cell.” [ECF No. 55-14 at 3]. However, Sgt. Perkins had reported these observations on September 14. See ECF No. 63-4 at 87. Lt. Carter attested in her affidavit that she filed an incident report and contacted medical staff on September 15, but her incident report is dated September 16, 2021. Compare ECF No. 55-7 at 2, with 55-14 at 3.
Defendants have provided a hard copy of SCDC's hunger strike policy for in-camera review, but validly cite concerns that producing this confidential policy to Plaintiff and filing it on the public docket would compromise security. [ECF No. 55 at 15]. The undersigned has reviewed the policy. Assuming arguendo that Plaintiff notified Lt. Carter on September 13 of his plan to initiate a hunger strike the following day, the policy imposed a reporting requirement on Lt. Carter. However, because Plaintiff directly notified several additional parties of his plan, including those to whom Lt. Carter was required to report, her presumed failure to report Plaintiff's statement was harmless. In other words, Plaintiff directly notified those Lt.
Carter's report would have been passed along to, rendering her report unnecessary to provide notification to them. Sgt. Perkins prepared the September 14 incident report and Lt. Carter prepared the September 16 report in accordance with SCDC Policy OP-22.33. Once Defendants prepared and distributed the incident reports, they fulfilled their duties under the policy.
Plaintiff cannot support a cause of action for deliberate indifference against Defendants based on any action that occurred after Lt. Carter informed the medical department of Plaintiffs hunger strike on September 16, 2021. See Whitehead v Wetzel, 720 Fed.Appx. 657, 663 (3d Cir. 2017) (“A ‘non-medical prison official cannot be charge[d] with the Eighth Amendment scienter requirement of deliberate indifference when the prisoner is under the care of medical experts and the official does not have a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner.” (quoting Pearson v. Prison Health Svc. 850 F.3d 526, 543 (3d Cir. 2017) (internal quotations omitted)). The record reflects that the medical department attempted to monitor Plaintiffs health beginning September 16, 2021, four days before his condition deteriorated to the point that he required hospitalization. Although Plaintiff maintains he declined to cooperate with the nursing assistant on September 16 because she was only attempting to check his temperature pursuant to a COVID lockdown and did not have a blood pressure cuff, [ECF No. 63-3 at 3], the nursing assistant was not required to monitor Plaintiffs vital signs in the manner Plaintiff chose. See Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988) (“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.”). Plaintiffs September 20 RTSM reflects that he was seen by a nurse on September 18, who warned him that he needed to drink water to limit damage to his kidneys. [ECF No. 55-6 at 17]. Plaintiff was subsequently seen by a doctor and a nurse on September 20, who referred him to the hospital for treatment. [ECF No. 55-8 at 2].
Plaintiff's allegation that Defendants intentionally interfered with his receipt of medical treatment by falsely reporting he had eaten and accepted meals on September 14 and 15, 2021, fails because he has not shown that the resulting two-day delay caused him injury. “A [d]elay in medical care, with no resulting injury, does not support a claim for deliberate indifference.” Nelson v. Caswell, C/A No. 8:05-874-HMH-BHH, 2006 WL 1432084, at *4 (D.S.C. May 23, 2006) (citing Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir.1993); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir.1985) (holding that delay must result in harm). Plaintiff asserts the medical problems discovered at Tuomey were the result of Defendants' deliberate indifference to his serious medical needs, but the medical evidence suggests otherwise. Plaintiff's diagnoses of starvation ketoacidosis and acute kidney injury resulted from the duration of his hunger strike-not Defendants' statements that he had eaten on September 14 and 15 or their failures to report the hunger strike in accordance with SCDC policy. [ECF No. 55-9 at 2]. Despite having been warned by a nurse that kidney damage was likely if he did not drink adequate water, Plaintiff admitted during his hospitalization that he only had about 24 ounces of water over the prior three days. id.; [ECF No. 55-6 at 17]. The hospital record indicates Plaintiff's ejection fraction of 25% was “likely related to his prior drug use and uncontrolled hypertension,” but it was a product of “longstanding hypertension,” not a singular hypertensive episode. [ECF No. 55-9 at 2]. Thus, Plaintiff has not presented medical evidence that supports his claim of injury as a result of Defendants' initial alleged interference with his medical treatment.
In his most recent filing, Plaintiff acknowledges he “may not have stated that damage was done as a result of lt. carters actions, but that doesnt mean that her action didn't violate the 8th amend. her actions were reckless, wanton, and served no penological interest.” [ECF No. 66 at 2].
Because Plaintiff has failed to support a claim for deliberate indifference to a serious medical need, Defendants' should be granted summary judgment on Plaintiffs Eighth Amendment claim.
3. Fourteenth Amendment Claim
Plaintiff argues Lt. Carter's and Sgt. Perkins's intentional failure to follow SCDC policy with respect to hunger strikes led to a deprivation of his due process rights and his injury through damage to his kidneys, heart, and body. [ECF No. 39 at 8]. The Fourteenth Amendment's due process clause prohibits a state from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV.
Plaintiff does not specify whether he is alleging Defendants actions violated his substantive or procedural due process rights. However, Plaintiff cannot state a substantive due process claim because the Supreme Court has only recognized such a claim in the context of “deliberate indifference to the medical needs of pretrial detainees.” See City of Sacramento v. Lewis, 523 U.S. 833, 834 (1998) (citing City of Revere v. Massachusetts Gen. Hospital, 463 U.S. 239, 244 (1983); Estelle, 429 U.S. at 104 (emphasis added). Therefore, the undersigned assumes Defendant is attempting to assert a claim for violation of his procedural due process rights.
“To state a procedural due process violation [under the Fourteenth Amendment], a plaintiff must (1) identify a protected liberty or property interest and (2) demonstrate deprivation of that interest without due process of law.” Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015).
Plaintiff cites 28 U.S.C. § 549.60, et seq., in arguing Defendants failed to follow policy with respect to hunger strikes. [ECF No. 63 at 12]. However, this policy applies to the Federal Bureau of Prisons. As an SCDC inmate, Plaintiff cannot plausibly allege he had a liberty interest in this policy.
Plaintiff also claims Defendants violated SCDC Policy OP-22.33 regarding hunger strikes and extended fasts. id. For Plaintiff to raise a valid Fourteenth Amendment claim for Defendants' alleged violation of this policy, he must show the policy created a protected liberty interest. However, SCDC's creation of confidential internal hunger strike policy did not create a protected liberty interest for Plaintiff. “Section 1983 provides relief from a violation of federal constitutional rights, not from a violation of prison-created policies or procedures.” Joyner v. Patterson, C/A No. 0:13-2675-DCN-PJG, 2014 WL 897121, at *4 (D.S.C. Mar. 6, 2014), report and recommendation adopted by 2014 WL 3909531 (Aug. 11, 2014). “[A]ny violation of an SCDC policy (even assuming any such violation in fact occurred), standing alone, does not constitute a violation of Plaintiff's constitutional rights, and is therefore not assertable in a § 1983 action.” Khan v. Stirling, C/A No. 9:18-3130-BHH-VM, 2019 WL 3976626, at *3 (D.S.C. July 24, 2019), report and recommendation adopted by 2019 WL 3973708 (D.S.C. Aug. 22, 2019); see also Johnson v. SCDC, C/A No. 3:06-2062-CMC-JRM, 2007 WL 9048826, at *12 (D.S.C. Mar. 21, 2007) (“[T]he failure of prison officials to follow their own policies or procedures, standing alone, does not amount to a constitutional violation.”).
Plaintiff has failed to plead facts sufficient to show Defendants violated his rights under the Fourteenth Amendment's due process clause. Therefore, Defendants are entitled to summary judgment on the Fourteenth Amendment claim.
4. Qualified Immunity
“To determine whether qualified immunity applies, a court must determine ‘whether the plaintiff has alleged the deprivation of an actual constitutional right at all [] and . . . whether that right was clearly established at the time of the alleged violation.'” Smith v. James, 2014 WL 2804609, at *9 (quoting Wilson v. Layne, 526 U.S. 603, 609 (1999) (internal quotation omitted)). Given the undersigned's recommendation that the court find Defendants did not violate any of Plaintiff's actual constitutional rights, summary judgment is appropriate on the ground of qualified immunity. See id. (If “the court decides the plaintiff has not alleged the deprivation of an actual constitutional right or the right was not clearly established at the time of the alleged violation-the court need not consider the other prong of the qualified immunity analysis.”) (citing Pearson v. Callahan, 555 U.S. 223, 243-45 (2009) (additional citations omitted)).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Defendants' motion for summary judgment [ECF No. 55] be granted and Plaintiff's claims be dismissed without leave for further amendment.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).