Clemmons v. United States of America et al

Filing 230

ORDER adopting in part and respectfully declining to adopt in part the 215 Report and Recommendation. Defendants' 130 Motion for Summary Judgment is granted in part, denied in part, and held in abeyance in part. The action is recommitted to the Magistrate Judge for further evaluation consistent with this Order. Plaintiff's 228 Motion to Supplement the Record is granted. Signed by Honorable Donald C. Coggins, Jr. on 10/15/2018. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Sean Christopher Clemmons,

)
)
Plaintiff,
)
)
v.
)
)
United States of America, Warden
)
Travis Bragg, AW Furman, Captain
)
Hicks, Health Service Administrator
)
Canada, Food Service Administrator
)
Kinnion, Lieutenant Baits, E. Negron)
Oliver, Unit Manager Holland,
)
Lieutenant Torres, Case Manager
)
Swan, Counselor Keyes, Lieutenant
)
Dunbar, Officer Strickland, Mays,
)
Mills, Doctor Berrios, MLP H.
)
Hansen, Kirkland, RN Donna Griffith,
)
K. Robinson, D. Kowszik, HIT Kimbrell, )
Jane Doe, Trust Fund Officer Leviner, )
Federal Bureau of Prisons, SIS
)
Bennett, Fortune, Officer Godbey,
)
Officer Legett, Psychologist Figuora,
)
Acting Captain Caraluzzi, Associate
)
Warden Kelly,
)
)
Defendants,
)
________________________________ )

Case No. 0:16-cv-1305-DCC

ORDER

This matter is before the Court on Defendants’ Motion for Summary Judgment.
ECF No. 130. Plaintiff filed a Response in Opposition, Defendant filed a Reply, and
Plaintiff filed a Sur-Reply. ECF Nos. 153, 155, 157. In accordance with 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this matter was referred to United
States Magistrate Judge Paige J. Gossett for pre-trial proceedings and a Report and

Recommendation (“Report”).

The Magistrate Judge ordered additional briefing on

January 24, 2018.1 ECF No. 172. Defendants filed supplemental briefing on February
26, 2018. ECF No. 184. On July 26, 2018, the Magistrate Judge issued a Report
recommending that the Motion for Summary Judgment be granted in part and denied in
part. ECF No. 215. Plaintiff filed objections to the Report and a Motion to Supplement
the Record. ECF Nos. 223, 228.
LEGAL STANDARD
The Magistrate Judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report of the
Magistrate Judge to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b).
The Court will review the Report only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating
that “in the absence of timely filed objection, a district court need not conduct a de novo

1

The Magistrate Judge requested additional briefing as a result of the recent
Supreme Court decision in Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017), whereby the
Supreme Court emphasized that expanding the Bivens remedy is disfavored, and further
highlighted the “special factors” a court must perform to determine whether a Bivens
action should be available in a new context.
2

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.” (citation omitted)).
ANALYSIS
The Court recognizes that Plaintiff filed a lengthy Second Amended Complaint and
appreciates the Magistrate Judge's attention to detail in this matter. The Magistrate Judge
provides a thorough summary of the facts and applicable law in this case, which the Court
incorporates into this Order by reference. As previously stated, the Magistrate Judge
recommends that Defendants’ Motion for Summary Judgment be granted in part and
denied in part. ECF No. 215. Plaintiff has filed objections, which the Court will address
below.

Sovereign Immunity
The Magistrate Judge recommends that Plaintiff’s claims brought pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397
(1971),2 against the United States of America and the Federal Bureau of Prisons (“BOP”)
and his claims for monetary damages against Defendants in their official capacities be
dismissed because they are entitled to sovereign immunity. ECF No. 215 at 5–6. Plaintiff
does not appear to object to these findings. The Court has reviewed this section of the
Report for clear error and agrees with the Magistrate Judge’s findings. Accordingly,
Defendant’s Motion is granted with respect to these claims.

2

In Bivens, the Court held that even in the absence of statutory authorization, it
would enforce a damages remedy in a narrow context to compensate persons injured by
federal officers who violated the prohibition against unreasonable search and seizures
under the Fourth Amendment.
3

Exhaustion of Administrative Remedies
The Magistrate Judge recommends dismissal of several of Plaintiff’s claims for
failure to exhaust administrative remedies including: Plaintiff’s Eighth Amendment claim
against Defendant Figuora for failing to provide psychiatric services; his Fourteenth
Amendment due process claim against Defendants Caraluzzi, Kelly, and Kirkland for
failing to preserve the video footage of the excessive force incident; and his First and
Fourteenth Amendment claims against Defendants Holland, Keyes, Berrios, and Bennett
for lack of access to courts and a violation of due process by hindering his ability to file
administrative remedies. ECF No. 215 at 6–11. Plaintiff has not objected to these
findings. The Court has reviewed the Magistrate Judge's recommendation for clear error
and agrees with the findings in the Report. Accordingly, these claims are dismissed for
failure to exhaust administrative remedies.3

Bivens Claims
First Amendment Claim
The Magistrate Judge found that Plaintiff’s First Amendment claim is not
cognizable under Bivens and its progeny. ECF No. 215 at 13. Plaintiff objects to the
Magistrate Judge's finding and states that he was denied access to a telephone and to

3

The Court notes that at the end of his objections, Plaintiff provides the general
statement that, “[i]n conclusion, [he] object[s] the magistrate judge finding on any and all
claims that was dismissed on the basis of clear error of law and any other reasons . . . .”
ECF No. 223 at 21. While this is not the type of specific objection that requires de novo
review by this Court, in light of Petitioner’s pro se status, the Court has conducted a
thorough review of the record in this case and the applicable law.
4

mail in order to contact attorneys and family members to report a crime committed against
him by prison officials. ECF No. 223 at 20. He also states that he has no alternative
remedies available. Id.
The Court finds that the Magistrate Judge correctly concluded that Congress and
the courts have not expanded the Bivens remedy to include claims for denial of access
to courts under the First Amendment. As explained in Ziglar, the Supreme Court has only
recognized an implied cause of action in two other cases involving other constitutional
violations. See Davis v. Passman, 442 U.S. 228 (1979) (Fifth Amendment Due Process
Clause provided remedy for gender discrimination); Carlson v. Green, 446 U.S. 14 (1980)
(Eighth Amendment Cruel and Unusual Punishment Clause). Thus, three cases—Bivens,
Davis and Carlson—represent the only instances where the Supreme Court has approved
an implied damages remedy under the Constitution itself. Ziglar, at 1855.
The Ziglar Court expressed significant caution regarding the creation of implied
causes of action to enforce the Constitution. Ziglar, 137 S. Ct. at 1857 (internal citation
omitted). Further, the Court “has made clear that expanding the Bivens remedy is now a
‘disfavored’ judicial activity.” Id. For instance, the Court expressly declined to create an
implied damages remedy in a First Amendment suit against a federal employer in Bush
v. Lucas, 462 U.S. 367 (1983). There, the Court indicated that it was convinced that
“Congress is in a better position to decide whether or not the public interest would be
served by creating it.” Bush v. Lucas, 462 U.S. 367, 390 (1983).
Ziglar makes clear that a Bivens remedy is not available if there are “special factors
counselling hesitation in the absence of affirmative action by Congress.” Ziglar, 137 S.
5

Ct. at 1857 (quoting Carlson v. Green, 446 U.S. 14, 18 (1980) (internal quotations
omitted)). With respect to the “special factors,” the relevant inquiry “must concentrate on
whether the Judiciary is well suited, absent congressional action or instruction, to consider
and weigh the costs and benefits of allowing a damages action to proceed.” Id. at 1857–
58; see also Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017) (remanding matter to the
Court of Appeals for further proceedings in consideration of the reasoning and analysis
of Ziglar v. Abbasi and to allow the parties to brief and argue its significance).
Ziglar also sets out the test this Court must apply to analyze whether Plaintiff’s
Bivens claim may proceed. First, the Court must determine whether this case is “different
in a meaningful way from previous Bivens cases decided by [the] Court.” Ziglar, 137 S.
Ct. at 1859. If so, the context is new and the Court must then apply a “special factors
analysis” before allowing a damage suit to proceed. Id. at 1860. Ziglar provides a nonexhaustive list of differences that are meaningful enough to make a context new, i.e., “the
constitutional right at issue; the generality or specificity of the official action; . . . or the
presence of potential special factors that previous Bivens cases did not consider.” Id. at
1860.
The Court will first consider whether Plaintiff’s claim is meaningfully different from
other cases where the Supreme Court has afforded Bivens remedies. As noted above,
to date, the Supreme Court has only recognized a Bivens remedy in the context of the
Fourth, Fifth, and Eighth Amendments. Upon review, the Court finds that Plaintiff’s claim

6

is unlike the Fourth Amendment unreasonable seizure claim at issue in Bivens, the
gender discrimination claim in Davis, or the deliberate indifference claim in Carlson.4
Turning to the “special factors analysis,” the Court must consider whether “the
Judiciary is well suited, absent congressional action or instruction, to consider and weigh
the costs and benefits of allowing a damages action to proceed.” Ziglar, 137 S. Ct. at
1857–58. The “decision to recognize a damages remedy requires an assessment of its
impact on governmental operations systemwide” and the “projected costs and
consequences to the Government itself” when the legal system is used to “bring about
the proper formulation and implementation of public policies.” Id. at 1858. To that end,
“if there is an alternative remedial structure present in a certain case, that alone may limit
the power of the Judiciary to infer a new Bivens cause of action.” Id. The Supreme Court
has clearly expressed its “general reluctance to extend judicially created private rights of
action.” Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1389 (2018).
In his objections, Plaintiff argues that he has no alternative remedy for a violation
of his constitutional rights; however, Plaintiff’s alternative remedies include the BOP
administrative grievance process and the Federal Tort Claims Act (“FTCA”). Moreover,
“legislative action suggesting that Congress does not want a damages remedy is itself a

4

The Court notes that the Supreme Court has assumed in some instances that a
Bivens remedy is available in a First Amendment claim. See Wood v. Moss, 134 S. Ct.
2056, 2066 (2014) (acknowledging that the Supreme Court has “several times assumed
without deciding that Bivens extends to First Amendment claims.”). However, it has not
taken the affirmative step of recognizing one and has indicated that “[it] has never held
that Bivens extends to First Amendment claims.” Reichle v. Howards, 566 U.S. 658, 663
(2012).
7

factor counseling hesitation.” See Ziglar, 137 S. Ct. at 1865. Congress’s action in this
area in light of the Prison Litigation Reform Act and otherwise not only demonstrates the
existence of alternative remedies, but also causes pause for the judicial creation of
additional damage remedies. Id. “In sum, if there are sound reasons to think that
Congress might doubt the efficacy or necessity of a damages remedy as part of the
system for enforcing the law and correcting a wrong, the courts must refrain from creating
the remedy in order to respect the role of Congress in determining the nature and extent
of federal-court jurisdiction under Article III.” Id. at 1858.
Having conducted the “special factors analysis,” the Court concludes that Plaintiff
does have other avenues for relief, and there are significant economic and governmental
concerns with recognizing an implied cause of action in this instance. For these reasons,
the Court overrules Plaintiff’s objections and declines to find an implied Bivens cause of
action for Plaintiff’s claim of denial of access to courts under the First Amendment.
Sixth Amendment Claim
The Magistrate Judge found that Plaintiff’s claim fails on the merits without a
discussion of Ziglar. ECF No. 215 at 13–14. Plaintiff objects to the Magistrate Judge's
finding. ECF No. 223 at 20–21.
The Magistrate Judge correctly points out that an inmate is not entitled to
communicate confidentially or otherwise with an attorney in a civil case. ECF No. 215 at
13. Plaintiff states that he was pursuing a civil and criminal matter but he does not indicate
that there was an active criminal case at the time. See ECF No. 223 at 20; see also Wolff
v. McDonnell, 418 U.S. 539, 576 (1974) (“As to the Sixth Amendment, its reach is only to
8

protect the attorney-client relationship from intrusion in the criminal setting.”).
Accordingly, Plaintiff’s objection is overruled.
Fifth and Fourteenth Amendment Claims
The Magistrate Judge recommends dismissal of Plaintiff’s Fifth and Fourteenth
Amendment claims regarding the loss of his good time credits and his access to the
telephone. ECF No. 215 at 14–17. She found that, to the extent Plaintiff seeks the return
of his good time credits, the exclusive remedy available to him is through habeas corpus.
Further, any claim for damages arising from the loss of credits in a disciplinary hearing is
barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994). She also concluded that
Plaintiff’s allegations concerning his access to the telephone do not implicate a due
process liberty interest. Plaintiff has not specifically objected to these findings. The Court
has thoroughly reviewed the Magistrate Judge's Report, the record in this case, and the
applicable law. The Court agrees with the Magistrate Judge's findings; accordingly,
summary judgment is granted with respect to these claims.
Eight Amendment Claims
Deliberate Indifference to Serious Medical Needs
The Magistrate Judge recommends that summary judgment be granted on
Plaintiff’s claims that he was subjected to deliberate indifference with regard to his serious
medical needs. She grouped Plaintiff’s complaints into two categories: Plaintiff’s medical
care prior to his placement in the SHU and his medical care in the SHU, where he was
housed from January 2015 through March 2015. With respect to his treatment before his
placement in the SHU, she found that Plaintiff offered no relevant expert support of his
9

opinion that he was improperly treated. ECF No. 15 at 24–25. Regarding his medical
treatment in the SHU, the Magistrate Judge determined that Plaintiff’s medical condition
was not sufficiently serious. Id. at 24–30.
With respect to his medical treatment before he was placed in the SHU, Plaintiff
makes various objections that essentially boil down to the fact that he believes that he
was provided better medical care in other federal correctional institutions and he believes
that the medical staff at Federal Correctional Institution (“FCI”) Bennettsville should have
performed their duties differently. Significantly, he provides no support for his medical
conclusions beyond his own conclusory statements. He provides excuses for why he did
not appear at sick call on various dates, but does not object to the veracity of the
Magistrate Judge's statement that he did not request medical treatment for a period of
time. Further, as evidenced by Plaintiff’s medical records, he was treated for various
ailments, including hemorrhoids, many times during his incarceration at FCI Bennettsville.
See ECF No. 132.
The Constitution requires only that prisoners receive adequate medical care; a
prisoner is not guaranteed his choice of treatment. Jackson v. Fair, 846 F.2d 811, 817
(1st Cir. 1988) (citing Layne v. Vinzant, 657 F.2d 468, 471 (1st Cir. 1981)). To establish
deliberate indifference to serious medical needs, a prisoner must demonstrate (1) his
medical condition was a sufficiently serious one and (2) subjectively, the prison officials
acted with a sufficiently culpable state of mind, which is satisfied by showing deliberate
indifference by the prison officials. Goodman v. Wexford Health Sources, Inc., No. 096996, 2011 WL 1594915, at *1 (4th Cir. 2011). Deliberate indifference exists when prison
10

officials know of a substantial risk to a prisoner's health or safety and consciously
disregard that risk. See Farmer v. Brennan, 511 U.S. 825, 836 (1994); Miltier v. Beorn,
896 F.2d 848, 851–52 (4th Cir. 1990) (“Deliberate indifference may be demonstrated by
either actual intent or reckless disregard. A defendant acts recklessly by disregarding a
substantial risk of danger that is either known to the defendant or which would be apparent
to a reasonable person in the defendant's position.” (citation omitted)). Within the United
States Court of Appeals for the Fourth Circuit, “the treatment must be so grossly
incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to
fundamental fairness” to violate a prisoner's Eighth Amendment rights. Miltier, 896 F.2d
at 851. Here, Plaintiff has failed to establish that his treatment was insufficient. He merely
states that he should have received different care. Moreover, as evidenced by his
extensive medical records, Plaintiff was regularly treated for his conditions. Accordingly,
his objections are overruled and Defendant’s Motion is granted with respect to this claim.
Regarding his claim that he was denied appropriate medical care while in the SHU,
the Court respectfully declines to adopt the recommendation of the Magistrate Judge and
finds that a genuine issue of material fact remains with respect to this claim. The Court
notes that Plaintiff provides a sworn statement wherein he states that he requested
medical care from Defendants several times over the course of his time in the SHU. ECF
No. 153-1 at 21–26. Defendants provided sworn declarations from Defendants Berrios
and Hansen that if Plaintiff had made more requests than the two they have record of,
they would have pursued the request.

ECF Nos. 131-12 at 14–16; 132-4 at 6.

11

Defendants further contend that there is no documented evidence that Plaintiff requested
medical care or that any of the Defendants refused to treat him. ECF No. 130 at 84.
The Magistrate Judge concluded that, regardless of whether Plaintiff can
demonstrate the subjective component of his deliberate indifference to serious medical
needs claim, he fails to meet to objective component. ECF No. 215 at 27. The Court
disagrees. The Magistrate Judge provides a recitation of the relevant caselaw with
respect to when a hemorrhoid condition is considered a “serious medical need.” She
specifically cites to a case out of the Western District of Virginia where the court found
that the plaintiff had not alleged a sufficiently serious condition because he merely alleged
that he bled when defecating but did not note any discomfort or pain. Hopkins v. BRRJA
Med. Servs., C/A No. 7:12-cv-536, 2012 WL 6677670, at *2 (W.D. Va. Dec. 21, 2012).
The Magistrate Judge further cites to Plaintiff’s medical records from March 24, 2015,
wherein Dr. Berrios noted that Plaintiff had “one small internal hemorrhoid” with slight
swelling and no bleeding. ECF No. 215 at 28; see also ECF No. 132 at 78. However,
upon review, the Court finds that Plaintiff’s allegations that he was experiencing pain are
not inconsistent with Dr. Berrios’s notes from her examination, particularly in light of the
Magistrate Judge's notation that Plaintiff underwent a hemorrhoidectomy shortly after he
was transferred from FCI Bennettsville on April 9, 2015. See ECF Nos. 80-1 at 133; 215
at 29; 132 at 81–82. Accordingly, the Court finds a genuine issue of material fact exists
with respect to whether Plaintiff’s condition was sufficiently serious and whether some
Defendants were aware of Plaintiff’s condition.

12

The Magistrate Judge recommends finding that Defendants Bragg, Hicks, and
Canada are not subject to supervisory liability because Plaintiff has not demonstrated that
he suffered a constitutional violation. ECF No. 215 at 30–31. Because the Court finds
that Plaintiff has created a genuine issue of material fact with respect to part of his
deliberate indifference to serious medical needs claim, the Court recommits the question
of supervisory liability to Magistrate Judge for further evaluation.5
Conditions of Confinement
The Magistrate Judge determined that Plaintiff’s allegations that he was subjected
to unconstitutional conditions of confinement present a new context, thus requiring a
special factors analysis. ECF No. 215 at 31–33. She then concluded the special factors
cautioned against creating a new Bivens remedy. Id. Plaintiff does not specifically object
to the Magistrate Judge's recommendation. The Court has performed a thorough review
of the record in this case and the applicable law and agrees with the Magistrate Judge
that these claims represent a new context and that it would be improper to create a new

5

The Court notes that the Magistrate Judge included a footnote in her Report
wherein she explains that she did not address a possible challenge to a BOP policy. ECF
No. 215 at 26 n. 11. She states that she did not construe the Complaint or its amendments
as alleging a challenge to this BOP policy; accordingly, she concluded that it is not
properly before the Court. Id. After an independent assessment of the Second Amended
Complaint and considering Plaintiff’s assertion in his objections that he raised a challenge
to BOP policy in his Response in Opposition to the Motion for Summary Judgement, the
Court concludes that Plaintiff does not bring a claim challenging the BOP policy and that
the statements referenced by the Magistrate Judge are a part of his claim for deliberate
indifference to serious medical needs. See White v. Roche Biomed. Labs., Inc., 807 F.
Supp. 1212, 1216 (D.S.C. 1992) (holding that “a party is generally not permitted to raise
a new claim in response to a motion for summary judgment”).
13

remedy under Bivens. Accordingly, summary judgment is granted with respect to this
claim.
Excessive Force
The Magistrate Judge determined that summary judgment should be denied with
respect to Plaintiff’s excessive force claim against Defendants Dunbar, May, Mills,
Strickland, Legett, and Godbey.

ECF No. 215 34–43.

She then found that these

Defendants were not entitled to qualified immunity. Id. at 43–44. In Plaintiff’s objections,
he attempts to correct certain details with respect to the Magistrate Judge's factual
recitation that do not change the outcome of his claim. ECF No. 223 at 18–19.
As the Supreme Court recognized in Ziglar, the Court has approved of an implied
damages remedy for claims arising under the Eighth Amendment. 137 S. Ct. at 1848
(citing Carlson, 446 U.S. 14). In order to recover on an Eighth Amendment excessive
force claim, a plaintiff must establish that the “prison official acted with a sufficiently
culpable state of mind (subjective component); and [that] the deprivation suffered or injury
inflicted on the inmate was sufficiently serious (objective component).” Iko v. Shreve, 535
F.3d 225, 238 (4th Cir. 2008) (citing Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.
1996)). Thus, courts must analyze both subjective and objective components.
“[T]he ‘core judicial inquiry’ regarding the subjective component of an excessive
force claim is ‘whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.’” Parker v. Stevenson, 625 F.
App’x. 196, 198 (4th Cir. 2015) (quoting Iko, 535 F.3d at 239). The Fourth Circuit has

14

identified the following four factors to consider when determining whether a prison
official’s actions were carried out “maliciously and sadistically” to cause harm:
(1) the need for the application of force; (2) the relationship
between the need and the amount of force that was used; (3)
the extent of any reasonably perceived threat that the
application of force was intended to quell; and (4) any efforts
made to temper the severity of a forceful response.
Parker, 625 F. App’x. at 198 (quoting Iko, 535 F.3d at 239); see also Whitley v. Albers,
475 U.S. 312, 321 (1986) (identifying the four factors as (1) “the need for the application
of force”; (2) “the relationship between the need and the amount of force” used; (3) “the
extent of the injury inflicted”; and (4) “the extent of the threat to the safety of staff and
inmates[ ] as reasonably perceived by the responsible officials on the basis of the facts
known to them”).
To establish the objective component, a plaintiff must show “that the alleged
wrongdoing is objectively ‘harmful enough’ to establish a constitutional violation” in the
context of “contemporary standards of decency.” Hudson v. McMillian, 503 U.S. 1, 8
(1992) (quoting Wilson v. Seiter, 501 U.S. 294, 303 (1991)). When prison officials
maliciously and sadistically use force to cause harm, there always exists a constitutional
violation regardless of how significant a plaintiff’s injury may be. Id. at 9; see also Wilkins
v. Gaddy, 559 U.S. 34, 37 (2010).
Based on the evidence before the Court at this procedural posture, the Court finds
that there exists a genuine issue of material fact with respect to whether Plaintiff was
subjected to excessive force in violation of the Eighth Amendment. Summary judgment is
denied with respect to this claim.
15

FTCA Claims
The FTCA “waive[s] the sovereign immunity of the United States for certain torts
committed by federal employees.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). Plaintiff
makes several claims pursuant to this statute, which the Court will address in turn.
Assault and Battery
With respect to Plaintiff’s claim under the FTCA for assault and battery, the
Magistrate Judge recommends that summary judgment be denied. ECF No. 215 at 46–
49.

Upon review of the record and the applicable law, the Court agrees with the

Magistrate Judge's recommendation. Accordingly, summary judgment is denied with
respect to this claim.
Medical Malpractice
The Magistrate Judge recommends finding summary judgment is appropriate with
respect Plaintiff’s medical malpractice claims because he fails to provide an affidavit of
an expert witness specifying at least one negligent act or omission and the factual basis
for each claim. ECF No. 171 at 22–23; see also 28 U.S.C. § 1346(b)(1) (whether a
government employee was negligent is to be determined “in accordance with the law of
the place where the act or omission occurred”); Millmine v. Harris, C/A No. 3:10-1595CMC, 2011 WL 317643 (D.S.C. Jan. 31, 2011) (holding that the expert affidavit
requirement in S.C. Code Ann. § 15-36-100 is the substantive law in South Carolina).
Plaintiff provides various reasons for his failure to provide the requisite affidavit, including

16

the Magistrate Judge's denial of his motions for appointment of counsel.6 ECF No. 223
at 15–17. However, because it is undisputed that Plaintiff has not provided the requisite
affidavit, summary judgment is appropriate with respect to this claim.
Ordinary Negligence
The Magistrate Judge correctly construes most of Plaintiff’s negligence claims as
medical malpractice claims. ECF No. 215 at 49–53. However, she found that to the
extent Plaintiff’s claims could be construed as alleging that he requested and was denied
medical care while in the SHU, this allegation would raise a claim for regular negligence.
Id. at 52–53. The Court agrees that Plaintiff raises this claim and that the Magistrate
Judge properly construed it.
The Magistrate Judge continues that summary judgment is appropriate with
respect to this claim because Plaintiff has indisputably failed to show that his condition
was serious. Id. at 53. The Court has previously declined to adopt this conclusion and
does so again here. Accordingly, because Plaintiff has demonstrated a duty of care, the
Court finds that there remains a genuine issue of material fact with respect to whether
Defendants breached that duty and whether the breach proximately caused Plaintiff’s
injury. See Bloom v. Ravoira, 529 S.E. 2d 710, 712 (S.C. 2000) (requiring a plaintiff to
prove by a preponderance of the evidence that (1) the defendant had a legal duty of care;

6

The Court notes that Plaintiff repeatedly asserts that the Magistrate Judge
abused her discretion in failing to grant his motions for appointment of counsel. The Court
disagrees with Plaintiff’s argument and overrules any such objection. See Cook v.
Bounds, 518 F.2d 779 (4th Cir. 1975) (holding that courts have discretionary authority to
appoint counsel “in exceptional cases,” in a civil action brought by a litigant proceeding in
forma pauperis); see also 28 U.S.C. § 1915(d).
17

(2) the defendant failed to discharge that duty; and (3) the defendant’s breach proximately
caused him injury); see also 18 U.S.C. § 4042(a)(2) (listing the duties of the BOP, which
include providing for an inmate’s care). Accordingly, summary judgment is denied with
respect to this claim.
The Magistrate Judge concludes that, for the same reasons, Defendants are
entitled to summary judgment with respect to Plaintiff’s claim for gross negligence. ECF
No. 215 at 53. Given that the Court has found a genuine issue at material fact exists as
to whether Defendants exhibited deliberate indifference and negligence regarding
Plaintiff’s medical care while housed in the SHU, the Court also finds that a genuine issue
of material fact remains with respect to gross negligence. See Clyburn v. Sumter Cty.
Sch. Dist. No. 17, 451 S.E.2d 885, 887 (S.C. 1994) (recognizing that “[n]egligence is the
failure to exercise due care, while gross negligence is the failure to exercise slight care”).
Supervisory Liability
The Magistrate Judge concludes that Plaintiff cannot survive a motion for summary
judgment with respect to negligent supervision regarding his medical care while housed
in the SHU because Defendants are entitled to summary judgment with respect to
Plaintiff’s claims for negligence, medical malpractice, and gross negligence. ECF No.
215 53–54. Because the Court disagrees with the premise for the Magistrate Judge’s
conclusion as to negligence and gross negligence, the Court recommits this issue to the
Magistrate Judge for further consideration.

18

Intentional Infliction of Emotional Distress
The Magistrate Judge found that Defendants are entitled to summary judgment
with respect to this claim because Plaintiff fails to demonstrate that he has suffered an
extreme emotional injury. ECF No. 215 at 54–55. She cites to portions of Plaintiff’s
psychology records and the testimony from Defendant Figuora, Chief of Psychology
Services at FCI Bennettsville, who determined that Plaintiff’s mental health status was
within normal limits. Id. at 55 (citing ECF Nos. 131-9, 131-10). Plaintiff objects and states
that he has suffered sleepless nights, worry, anxiety, and nervous shock as a result of the
physical attack against him. ECF No. 223 at 19–20. In light of the medical evidence
provided by Defendants and the conclusory nature of Plaintiff’s allegations, the Court
agrees with the finding of the Magistrate Judge and overrules this objection.

See

Bergstrom v. Palmetto Health Alliance, 596 S.E.2d 42, 48 (S.C. 2004) (listing the
requirements to state a claim for intentional infliction of emotional distress in South
Carolina); See Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985)
(holding that a plaintiff's conclusory allegations, without more, are insufficient to preclude
granting the summary judgment motion).
CONCLUSION
Therefore, based on the foregoing, the Court adopts in part and respectfully
declines to adopt in part the recommendations of the Magistrate Judge.

Defendants’

Motion for Summary Judgement [130] is GRANTED in part, DENIED in part, and HELD
in ABEYANCE in part. The Motion is denied with respect to Plaintiff’s claim for deliberate
indifference to serious medical needs during his time in the SHU in violation of the Eight
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Amendment against Defendants Berrios, Canada, Bragg, Hansen, and Robinson; his
claim for excessive force in violation of the Eight Amendment against Defendants Dunbar,
May, Mills, Strickland, Legett, and Godbey; and his claims under the FTCA for assault
and battery, ordinary negligence, and gross negligence. Plaintiff’s claim for supervisory
liability with respect to his claim for deliberate indifference to serious medical needs
against Defendants Bragg, Hicks, and Canada and his claim for supervisory liability under
the FTCA are recommitted to the Magistrate Judge for further evaluation consistent with
this Order. Summary judgment is granted as to Plaintiff’s remaining claims. The Court
considered Plaintiff’s additional filings in its Order; accordingly, his Motion to Supplement
the Record [228] is GRANTED.
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
October 15, 2018
Spartanburg, South Carolina

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.

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