Watkins v. Jones et al

Filing 150

ORDER AND REPORT AND RECOMMENDATION, granting Plaintiff leave to file a proposed Third Amended Complaint within fourteen (14) days from the date of this Order and Report and Recommendation to assert a claim of excessive force in violation of the Eighth Amendment against Lieutenant Kevin Cross and recommending that the defendants' motions to dismiss 91 and for summary judgment 112 be granted. It is further recommended that Watkins's motion 146 for the cour t to rule in his favor be denied and that Defendants Surratt, Blackwell, Taylor, and Phyall be dismissed from this action without prejudice. (Objections to R&R due by 11/14/2018. Third Amended Complaint due by 11/14/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45.) Signed by Magistrate Judge Paige J. Gossett on 10/31/2018. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Marshall Leon Watkins,

)
)
Plaintiff,
)
)
v.
)
)
Nurse Jones; Lieutenant Smith; Lieutenant
)
Surratt; Sgt Lawiss; Lieutenant Blackwell; Lt. )
Taylor; Ms. Phyall; James Simmons,
)
)
Defendants.
)
_____________________________________ )

C/A No. 0:17-135-MGL-PJG

ORDER
AND
REPORT AND RECOMMENDATION

Plaintiff Marshall Leon Watkins, a self-represented state prisoner, filed this civil rights action
against the named defendants pursuant to 42 U.S.C. § 1983. This matter is before the court pursuant
to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation
on Defendant Jones’s motion to dismiss (ECF No. 91), and a motion for summary judgment filed
by Defendants Lawless,1 Simmons, and Smith (ECF No. 112).2 Pursuant to Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975), the court advised Watkins of the summary judgment and dismissal
procedures and the possible consequences if he failed to respond adequately to the defendants’
motions. (ECF Nos. 93 & 113.) Watkins responded in opposition to the defendants’ motions (ECF

1

Defendant Lawiss is more correctly identified as “Lawless.” (See Lawless Aff., ECF No.
112-7.) The Clerk of Court is directed to amend the caption to reflect this correction.
2

It appears that Defendants Surratt, Blackwell, Taylor, and Phyall were never properly served
with process. (See ECF No. 80.) Accordingly, the court recommends that these defendants be
dismissed from this action without prejudice. See Fed. R. Civ. P. 4(m).
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Nos. 101 & 117), and the defendants replied (ECF Nos. 102 & 119).3 Having reviewed the parties’
submissions and the applicable law, the court concludes that the defendants’ motions should be
granted.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to Watkins,
to the extent they find support in the record. Watkins alleges that on or about May 20-21, 2016,
while housed in the restricted housing unit (“RHU”) of Perry Correctional Institute (“PCI”),
Defendant Nurse Jones awoke Watkins and distributed medication to him through the door flap.
Watkins swallowed the medication. (2d Am. Compl., ECF No. 53-2 at 5-6.) According to a Step
1 grievance attached to his Complaint,4 Watkins alleges that after taking the medication, he became
dizzy and had to lie down, and that his body “locked up” in a “paralytic state.” (Step 1 Grievance,
ECF No. 53-5 at 4.) Watkins further alleges that unnamed corrections officers came to his cell door
and called for him, and when he didn’t respond, the officers5 sprayed him with chemical munitions.
(Id.) The officers then entered the cell and took Watkins to shower and wash off the chemical
munitions, and they informed Watkins that he had been given the incorrect medication. (Id.)
Watkins alleges that he suffered burn marks to his face and around his eyes and that he continues to

3

Watkins also filed a sur-reply. (ECF No. 110.) The Local Civil Rules make no provision
for sur-replies. However, consideration of Watkins’s sur-reply would not change the court’s
recommendation on the defendants’ motions.
4

Although Watkins’s Complaint references an attachment that further details the facts
underlying his claims, no such attachment was provided to the court. (See 2d Am. Compl., ECF No.
53-2 at 6.) Accordingly, many of the facts summarized here are gleaned from a grievance attached
to Watkins’s Complaint.
5

Watkins later amended his Complaint to specify that Defendant Lt. Taylor was the officer
who sprayed him. (2d Am. Compl., ECF No. 53-1.)
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have adverse reactions from the wrongfully-distributed medication. (2d Am. Compl., ECF No. 53-2
at 6.) The court construed Watkins’s Complaint, as amended, as bringing claims pursuant to 42
U.S.C. § 1983 alleging excessive force in violation of the Eighth Amendment against Defendants
Smith, Surratt, Lawless, Blackwell, and Taylor; for deliberate indifference to medical needs in
violation of the Eighth Amendment against Defendant Jones; and for violations of the Due Process
Clause of the Fourteen Amendment against Defendants Phyall and Simmons. (Order, ECF No. 72
at 1.) Watkins seeks monetary damages.
DISCUSSION
A.

Applicable Standards
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal

sufficiency of the facts alleged on the face of the plaintiff’s complaint. Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The “complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual
content allows the court to reasonably infer that the defendant is liable for the misconduct alleged.
Id. When considering a motion to dismiss, the court must accept as true all of the factual allegations
contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court “may also
consider documents attached to the complaint, see Fed. R. Civ. P. 10(c), as well as those attached
to the motion to dismiss, so long as they are integral to the complaint and authentic.” Philips v. Pitt

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Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523,
526 n.1 (4th Cir. 2006)).
Pursuant to Rule 56, summary judgment is appropriate only if the moving party “shows that
there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not
disputed by “citing to particular parts of materials in the record” or by “showing that the materials
cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Rule 56 mandates entry
of summary judgment “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
In deciding whether there is a genuine issue of material fact, 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.
The moving party has the burden of proving that summary judgment is appropriate. Once
the moving party makes this showing, however, the opposing party may not rest upon mere
allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth
specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); Celotex
Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a
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complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see,
e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean
that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim,
nor can the court assume the existence of a genuine issue of material fact where none exists. Weller
v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B.

Defendant Jones’s Motion to Dismiss
As summarized above, Watkins alleges that Nurse Jones was deliberately indifferent to his

medical needs in violation of the Eighth Amendment when she gave him the wrong medication,
which caused his body to “lock-up.”
1.

Eighth Amendment Generally

The Eighth Amendment to the United States Constitution expressly prohibits the infliction
of “cruel and unusual punishments.” U.S. Const. amend. VIII. To proceed with his claim under the
Eighth Amendment, Griffin must demonstrate: (1) objectively, the deprivation suffered or injury
inflicted was “sufficiently serious,” and (2) subjectively, the prison officials acted with a
“sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994); Williams v.
Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). “These requirements spring from the text of the
amendment itself; absent intentionality, a condition imposed on an inmate cannot properly be called
‘punishment,’ and absent severity, such punishment cannot be called ‘cruel and unusual.’ ” Iko v.
Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citing Wilson v. Seiter, 501 U.S. 294, 298-300 (1991)).
“What must be established with regard to each component ‘varies according to the nature of the
alleged constitutional violation.’ ” Williams, 77 F.3d at 761 (quoting Hudson v. McMillian, 503
U.S. 1, 5 (1992)).
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2.

Deliberate Indifference to Medical Needs

Deliberate indifference by prison personnel to a prisoner’s medical needs is actionable under
the Eighth Amendment to the United States Constitution. See Estelle v. Gamble, 429 U.S. 97, 10405 (1976). To satisfy the subjective prong of an Eighth Amendment claim, an inmate must show that
the prison official’s state of mind was “deliberate indifference” to the inmate’s health and safety.
Farmer, 511 U.S. at 834. A prison official is deliberately indifferent if he has actual knowledge of
a substantial risk of harm to an inmate and disregards that substantial risk. Id. at 847; Parrish v.
Cleveland, 372 F.3d 294, 302 (4th Cir. 2004). To be liable under this standard, the prison official
“must both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. However,
because even a subjective standard may be proven through circumstantial evidence, “a prison official
cannot hide behind an excuse that he was unaware of a risk, no matter how obvious.” Makdessi v.
Fields, 789 F.3d 126, 133 (4th Cir. 2015) (quoting Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105
(4th Cir. 1995)). Therefore, “a factfinder may conclude that a prison official knew of a substantial
risk from the very fact that a risk was obvious.” Makdessi, 789 F.3d at 133 (quoting Farmer, 511
U.S. at 842).
Not “every claim by a prisoner [alleging] that he has not received adequate medical treatment
states a violation of the Eighth Amendment.” Estelle, 429 U.S. at 105. To establish deliberate
indifference, the treatment “must be so grossly incompetent, inadequate or excessive as to shock the
conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th
Cir. 1990). Mere negligence, malpractice, or incorrect diagnosis is not actionable under 42 U.S.C.
§ 1983. See Estelle, 429 U.S. at 106. While the Constitution requires a prison to provide inmates
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with medical care, it does not demand that a prisoner receive the treatment of his choice. Jackson
v. Fair, 846 F.2d 811, 817 (1st Cir. 1988). “[A] prisoner’s mere difference of opinion over matters
of expert medical judgment or a course of medical treatment fail[s] to rise to the level of a
constitutional violation.” Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010) (internal quotation
marks and citation omitted) (alterations in original); see also Wright v. Collins, 766 F.2d 841, 849
(4th Cir. 1985).
Watkins has failed to provide evidence from which a reasonable jury could find deliberate
indifference to his medical needs. As argued by Defendant Jones, the United States Court of
Appeals for the Fourth Circuit as well as courts in this district have routinely held that accidentally
providing an inmate with the wrong medication does not rise to the level of a constitutional
violation. See, e.g., Brown v. Briscoe, 998 F.2d 201, 204 (4th Cir.1993) (upholding sua sponte
dismissal of an inmate’s §1983 claim where a nurse administered a vaccination even though the
inmate informed her he had already received one); Wilson v. Bodiford, No. 2:13-cv-199-RMG, 2014
WL 272238, at *1 (D.S.C. Jan. 23, 2014) (“[T]he negligent administration of the wrong medicine
does not rise to the level of an Eighth Amendment violation or constitute deliberate indifference.”);
Chestnut v. South Carolina Dep’t of Corrections, C/A No. 3:10-200-TLW-JRM, 2010 WL 1052213,
at *13 (D.S.C. Feb. 12, 2010) (finding a nurse’s actions did not rise to the level of deliberate
indifference when she erroneously gave an inmate an incorrect pill), R&R adopted by 2010 WL
1052207 (Mar. 19, 2010). At most, Watkins’s claims allege negligence or medical malpractice,
which are not actionable under § 1983. See Daniels v. Williams, 474 U.S. 327, 328-36 & n.3
(1986); Pink v. Lester, 52 F.3d 73, 78 (4th Cir. 1995) (“The district court properly held that Daniels
bars an action under § 1983 for negligent conduct.”); Ruefly v. Landon, 825 F.2d 792, 793-94 (4th
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Cir. 1987); see also Estelle, 429 U.S. at 106 (“Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.”). Accordingly, based on the record presented in
this case, no reasonable jury could find that Defendant Jones was deliberately indifferent to
Watkins’s medical needs.
C.

Motion for Summary Judgment by Defendants Lawless, Simmons, and Smith
1.

Eighth Amendment—Excessive Force

Although the court construed Watkins’s Complaint, as amended, as raising an Eighth
Amendment claim of excessive force against Defendants Lawless and Smith based on the incident
involving chemical munitions, Watkins does not make any specific allegations against these
defendants, alleging only that “officers” used excessive force when they sprayed him with chemical
munitions. (2d Am. Compl., ECF No. 53-5 at 4.) Watkins later clarified in an amendment to his
Complaint, that Lt. Taylor was the officer who “sprayed” him. (Id., ECF No. 53-1.) However, the
defendants provide affidavit testimony in which they aver that Defendant Smith was not even present
when the chemical munitions were used on Watkins, and Defendant Lawless was assembled as part
of an extraction team that was never utilized because Watkins became compliant after the use of
chemical munitions. (Smith Aff. ¶ 7, ECF No. 112-2 at 2; Lawless Aff. ¶¶ 5-6, ECF No. 112-7 at
2.) In fact, they also provide an affidavit from Lieutenant Kevin Cross averring that he was the
officer who deployed chemical munitions against Watkins on the date at issue. (Cross Aff. ¶¶ 6-8,
ECF No. 112-4 at 2-3.) In response to the defendants’ motion, Watkins does not dispute the
defendants’ evidence, but instead, presumably as a result of the evidence presented by the
defendants, moves to add Lieutenant Kevin Cross as a defendant in his case as the corrections officer
who deployed the chemical munitions. (Pl.’s Resp. Opp’n Summ. J., ECF No. 117 at 4.)
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Accordingly, on this record, no reasonable jury could find that Defendants Lawless and Smith used
any force, much less excessive force, against Watkins, and they are thus entitled to summary
judgment.
2.

Fourteenth Amendment—Due Process

Watkins summarily states that Defendant Simmons “violated due process on the grievance
[proceed]ings.” (2d Am. Compl., ECF No. 53 at 1.) Watkins later clarifies in response to the
defendants’ motion for summary judgment that Simmons denied his Step 1 grievances. (Pl.’s Resp.
Opp’n Summ. J., ECF No. 117 at 6.) The law is clear that a prisoner has no constitutional right to
a prison grievance procedure. See Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (“[T]he
Constitution creates no entitlement to grievance procedures or access to any such procedure
voluntarily established by the state.”). Thus, Watkins has failed to state a claim against Defendant
Simmons.
D.

Watkins’s Motion to Amend his Complaint
In response to the defendants’ motion for summary judgment, Watkins moves to add

Lieutenant Kevin Cross as a defendant in his case, as the evidence presented by the defendants
identifies Cross as the corrections officer who deployed the chemical munitions. (Pl.’s Resp. Opp’n
Summ. J., ECF No. 117 at 4.) Leave to amend a pleading generally should be denied only when the
amendment would cause undue delay, when it would be prejudicial to the opposing party, when there
has been bad faith on the part of the moving party, or when the amendment would be futile. See
Foman v. Davis, 371 U.S. 178 (1962); Johnson v. Oroweat Foods Co., 785 F.2d 503, 509-10 (4th
Cir. 1986). In this case, it is not clear that Watkins’s amendment would be futile, nor does it appear
that Watkins has acted in bad faith. The current defendants would not be prejudiced, as the court
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has recommended their motions to dismiss and for summary judgment be granted, and the delay is
not substantial. Furthermore, the court finds that justice requires leave to pursue the proposed
amendment under Rule 15(a)(2) of the Federal Rules of Civil Procedure.
Accordingly, Watkins is granted leave to file a proposed Third Amended Complaint within
fourteen (14) days from the date of this Order and Report and Recommendation to assert a claim of
excessive force in violation of the Eighth Amendment against Lieutenant Kevin Cross.6

Any

amended complaint filed by Watkins is subject to further initial review by the court pursuant to 28
U.S.C. § 1915 and § 1915A.
RECOMMENDATION
For the foregoing reasons, the court recommends that the defendants’ motions to dismiss and
for summary judgment be granted. (ECF Nos. 91 & 112.) Watkins’s motion for the court to rule
in his favor should be denied. (ECF No. 146.)

____________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
October 31, 2018
Columbia, South Carolina
The parties’ attention is directed to the important notice on the next page.

6

The plaintiff must do more than make mere conclusory statements to state a claim. See
Iqbal, 556 U.S. at 678 (outlining pleading requirements under Rule 8 of the Federal Rules of Civil
Procedure for “all civil actions”); Twombly, 550 U.S. at 555. Rather, the complaint must contain
sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Iqbal, 556
U.S. at 678; Twombly, 550 U.S. at 570. The reviewing court need only accept as true the
complaint’s factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S.
at 555.
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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).

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