Lesane v. Byers et al

Filing 100

ORDER adopting 58 Report and Recommendation; granting 35 Motion for Summary Judgment; denying as moot 44 Motion to Amend/Correct. Signed by Honorable J Michelle Childs on 11/3/2014.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Michael Bernard Lesane,

)
)
Plaintiff,
)
)
v.
)
)
William Byers, Anthony Padula, Major
)
James Dean, Capt. A. Pinkney, Lt. B.
)
Durant, Sgt. Epps, Lt. Commandeer,
)
Lt. Goodman, Officer Lighty, Dr. Stein,
)
Nurse Fulton, Nurse Scott, Nurse Floyd,
)
Nurse McCallaster,
)
)
Defendants.
)
____________________________________)

Civil Action No. 2:12-cv-00508-JMC

ORDER AND OPINION

Plaintiff Michael Bernard Lesane (“Plaintiff”) filed this pro se action pursuant to 42
U.S.C. § 1983. Plaintiff alleges excessive force, illegal detention, cruel and unusual punishment,
illegal search and seizure, and a due process violation by Defendants William Byars, former
director of the South Carolina Department of Corrections,1 Warden Anthony Padula, Major
James Dean, Capt. A. Pinkney, Lt. B. Durant, Sgt. Epps, Lt. Commander, Lt. Goodman, Officer
Lighty, Dr. Steen, Nurse Fulton, Nurse Scott, Nurse Floyd, and Nurse McCaskill2 (collectively
“Defendants”). (ECF No. 1.) This matter is before the court on Defendants’ Motion for
Summary Judgment (ECF No. 35).

1

The court takes judicial notice that Defendant Byars’ name is correctly spelled “Byars” and not
“Byers” as Plaintiff’s complaint lists him. See, http://www.doc.sc.gov/pubweb/about_scdc/
AgencyHistory5.jsp (last visited October 29, 2014). Courts have held that postings on
government websites are inherently authentic or self-authenticating. See Williams v. Long, 585
F. Supp. 2d 679, 685-89 (D. Md. 2008).
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The Magistrate Judge noted the following names had been corrected in Defendants’ Motion for
Summary Judgment from Plaintiff’s complaint: Dr. Steen (not “Stein”), Lt. Commander (not
“Comandeer”), and Nurse McCaskill (not “McCallaster”). (ECF No. 58 at 5 n.3.)
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In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to
United States Magistrate Judge Bruce Howe Hendricks for pre-trial handling. On August 2,
2013, the Magistrate Judge issued a Report and Recommendation (“Report”) recommending the
court grant Defendants’ Motion for Summary Judgment. (ECF No. 58) This review considers
Plaintiff’s Objection to Report and Recommendation (“Objections”), filed August 21, 2013.
(ECF No. 67.) For the reasons set forth herein, the court ACCEPTS the Magistrate Judge’s
Report. The court thereby GRANTS Defendants’ Motion for Summary Judgment (ECF No. 35).
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The facts viewed in the light most favorable to Plaintiff are discussed in the Report. (See
ECF No. 58.)

The court concludes, upon its own careful review of the record, that the

Magistrate Judge’s factual summation is accurate and incorporates it by reference. The court
will only recite herein facts pertinent to the analysis of Plaintiff’s Objections.
Plaintiff is incarcerated at the Wateree River Correctional Institution within the South
Carolina Department of Corrections (“SCDC”).

http://www.doc.sc.gov/pubweb/institutions/

wateree.jsp (last visited October 31, 2014). At the time of the incidents alleged in his complaint,
Plaintiff was housed at Lee Correctional Institution (“Lee CI”). (ECF No. 58 at 1-2.) Plaintiff
alleges that on May 25, 2011, he complained of a headache and was taken to the medical unit at
Lee CI. (ECF No. 16-3 at 3.) Once in the unit, two nurses, including Defendant Scott, took
Plaintiff’s vital signs, which were reported to Defendant Floyd. (Id.) Defendant Floyd then
reported Plaintiff’s vital signs to a doctor and returned to tell Plaintiff the doctor wanted a
urinalysis. (Id.) Plaintiff refused to provide the urine. (Id.) Plaintiff alleges he was then
restrained and catheterized to obtain the urine sample. (Id. at 3-4.) Defendants allege Plaintiff’s
heart rate was “extremely high” and Defendant Steen wanted to perform a urinalysis to

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determine the proper medical treatment. (ECF No. 35-1 at 3.) Defendants allege Plaintiff was
placed in handcuffs pursuant to security mandates. (Id.) Defendants further allege that Plaintiff
did not voice any opposition to the catheterization. (Id.)
Plaintiff filed his complaint on February 23, 2012, (ECF No. 1) and was granted leave to
amend on March 23, 2012 (ECF No. 13). Plaintiff filed his amended complaint on April 6, 2012.
(ECF No. 16.) Defendants filed a Motion for Summary Judgment on September 24, 2012. (ECF
No. 35.) On August 2, 2013, the Magistrate Judge issued the Report, recommending the court
grant Defendants’ Motion for Summary Judgment. (ECF No. 58.)
In the Report, the Magistrate Judge first recommended granting summary judgment as to
Defendants Byars and Padula. (Id. at 14.) As Plaintiff has not alleged any facts of personal
involvement by these supervisory Defendants, the Magistrate Judge reasoned, Plaintiff could not
establish liability by these Defendants under § 1983. (Id. at 13.) In addition, the Magistrate Judge
noted that as to all remaining Defendants in their official capacities, the Eleventh Amendment
bars monetary damages. (Id. at 15.) The Magistrate Judge recommended declining to grant
summary judgment for Defendants in their individual capacities on the ground of failure to
exhaust administrative remedies. (Id. at 18.) The Magistrate Judge reasoned that although
Plaintiff had not specifically alleged in his grievance all of the specific causes of actions he
alleges in his complaint, his grievance provided “sufficient detail to alert Defendants to the
claims Plaintiff now asserts.” (Id.) The Magistrate Judge also recommended granting summary
judgment for the Defendants, as they are entitled to qualified immunity. (Id. at 25.) Finally, the
Magistrate Judge recommended dismissing Plaintiff’s requests for declaratory and injunctive
relief as moot, as Plaintiff is no longer housed at Lee CI. (Id. at 27.)
Plaintiff timely filed his Objections on August 21, 2013. (ECF No. 67.) Plaintiff also

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filed an Amended Response to Defendants’ Motion for Summary Judgment on September 9,
2013. (ECF No. 69.)
II. LEGAL STANDARD AND ANALYSIS
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court.

The recommendation has no presumptive weight.

The

responsibility to make a final determination remains with this court. See Matthews v. Weber, 423
U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those
portions of the Report to which specific objections are made, and the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge’s recommendation, or recommit the matter
with instructions. See 28 U.S.C. § 636 (b)(1).
Objections to a Report and Recommendation must specifically identify portions of the
Report and the basis for those objections. Fed. R. Civ. P. 72(b). “[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, 316 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note). Failure to timely file specific written
objections to a Report will result in a waiver of the right to appeal from an Order from the court
based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright
v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984).

If the plaintiff fails to properly object because the objections lack the requisite

specificity, then de novo review by the court is not required.

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As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments
that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
A. Supervisory liability, monetary damages for actions by Defendants in their official
capacities, failure to exhaust, and declaratory and injunctive relief
Plaintiff offers no objection to the portions of the Report recommending summary
judgment be granted to Defendants Byars and Padula for failure to establish personal
involvement by these supervisory Defendants; noting monetary damages for Defendants’ actions
in their official capacities are barred by the Eleventh Amendment; recommending not granting
summary judgment due to failure of Plaintiff to properly exhaust his administrative remedies;
and recommending dismissing Plaintiff’s requests for declaratory and injunctive relief as moot.
In the absence of objections to the Magistrate Judge’s Report, this court is not required to
provide an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198,
199 (4th Cir. 1983). Rather, “in 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, 416 F.3d at 315.

Furthermore, failure to file specific written objections to the Report results in a party’s waiver of
the right to appeal from the judgment of the District Court based upon such recommendation. 28
U.S.C. § 636(b)(1); Thomas, 474 U.S. 140; Wright, 766 F.2d 841; Schronce, 727 F.2d 91.
Therefore, after a thorough and careful review of the Report and the record, the court finds the
Report provides an accurate summary of the facts and law and adopts the Magistrate Judge’s
recommendation on these issues.

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B. Qualified Immunity
Plaintiff offers several objections to the Magistrate Judge’s recommendation regarding
qualified immunity. Plaintiff first objects that the Magistrate Judge “seems to have based his
decision on the credibility of Dr. Steen’s version” of the facts. (ECF No. 67 at 1.) Although the
Magistrate Judge did discuss Defendants’ version of the facts, he specifically noted he based his
recommendation, as required under summary judgment analysis, on Plaintiff’s (the non-moving
party) version of events. (See ECF No. 58 at 18-19, 25.)
Plaintiff also objects to the case law used by the Magistrate Judge in his reasoning. (ECF
No. 67 at 4.) “These cases involved the Plaintiff’s inability to urinate, not refusal, and they
involved the officers presenting the problem to medical for their interest.” (Id.)

However,

Plaintiff himself does not cite to any cases that are directly on point. Although Plaintiff cites to
cases to bolster his argument that a prisoner has a right to refuse medical treatment, these cases
involve mental health, psychotropic medication, and competency to stand trial issues involving
prisoners. None of the cases to which Plaintiff cites present a factual scenario similar to his case
to establish that he had a right under these circumstances to refuse this procedure such that
Defendants would be aware of that right.
A public official is entitled to summary judgment under a defense of qualified immunity
if either: “(1) the facts, taken in the light most favorable to the plaintiff, do not present the
elements necessary to state a violation of a constitutional right, or (2) the right was not clearly
established, such that it would not have been clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” (ECF no. 58 at 20, citing Pearson v. Callahan, 555
U.S. 223 (2009).)

Plaintiff refers to this second element in his Amended Response to

Defendants’ Motion for Summary Judgment, noting that under qualified immunity analysis, “the

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law must be sufficiently clear that a reasonable official would understand what he is doing
violates that right.” (ECF No. 60 at 10.) Plaintiff cites to the Ninth Circuit case of Newell v.
Sauser, 79 F.3d 115 (9th Cir. 1996), for this point, which quotes the Supreme Court case of
Anderson v. Creighton, 483 U.S. 635 (1987). Although Plaintiff states this point correctly, it is
further clarified with a more complete excerpt: “[T]he right the official is alleged to have
violated must have been ‘clearly established’ in a more particularized, and hence more relevant,
sense: The contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right. This is not to say that an official action is
protected by qualified immunity unless the very action in question has previously been held
unlawful… but it is to say that in the light of pre-existing law the unlawfulness must be
apparent.” Anderson, 483 U.S. at 640 (internal citation omitted).
The Magistrate Judge’s inability, and this court’s inability as well, to find a case on
point—particularly from the United States Supreme Court or the United States Court of Appeals
for the Fourth Circuit—only serves to illustrate the point: there is no “bright line” rule regarding
forced catheterization on prisoners in this jurisdiction. The Magistrate Judge was able to find
guidance from other districts and circuits that, although not directly on point, does address the
issues in this case more closely: Miller v. Idaho State Patrol, 252 P.3d 1274, 1285 (Idaho 2011)
(“[A] forced catheterization performed on arrestees solely for medical screening or treatment,
and not for investigatory reasons, is constitutional.” (internal citations omitted)); and Meyer v.
Woodward, 617 F. Supp. 2d 554, 565-66 (E.D. Mich. 2008) (“Even assuming Plaintiff did not
consent to the catheterization, it is not clearly established that he had a right to refuse. As
discussed above, the state has an interest in ensuring the medical stability of its detainees. It is
undisputed that Plaintiff was detained at the time the procedure was performed. A doctor

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determined that a catheterization was a medically necessary procedure. Thus, it is not clear that
Plaintiff had a right to refuse the treatment.”)

But perhaps it is Lockhard v. City of

Lawrenceburg, Ind., that most clearly illustrates the key point in this case: “[T]he existence
and/or direction of any discernable trend in the law concerning forcible catheterizations is far
from clear.” 815 F. Supp. 2d 1034, 1051 (S.D. Ind. 2011). In the Fourth Circuit and the District
of South Carolina, the jurisdictions under which the right must be established to give these
Defendants proper notice, the law regarding forced catheterizations is, at best, unclear. Thus, as
the Magistrate Judge noted, Defendants cannot be said to have “transgress[ed] bright lines.”
(ECF No. 58 at 24, citing Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992).) Therefore,
Defendants are entitled to qualified immunity.
Plaintiff further insists that SCDC policies regarding prisoners’ rights to refuse medical
treatment (see ECF No. 67-1 at 1-2, SCDC Policy/Procedure HS-18.19 “Refusal of Medical
Care”) and regarding informed consent (see ECF No. 67-1 at 3-4, SCDC Policy/Procedure HS18.12 “Informed Consent”) establish that Defendants knew Plaintiff had a right to refuse the
procedure, and therefore violated his rights by conducting the procedure without his consent.
(ECF No. 67 at 2.) These policies, however, do not establish a constitutional right, thereby
putting Defendants on notice. Plaintiff cites to the Ninth Circuit case of Allen v. Sakai to assert
that a prison policy can establish officials were aware of a prisoner’s rights. (ECF No. 67 at 2,
citing 48 F.3d 1082, 1088 (9th Cir. 1994).) Plaintiff’s reliance on Allen is misplaced. The Ninth
Circuit found that the prison’s policy goal of providing five hours of exercise a week to prisoners
established a subjective state of mind of deliberate indifference by prison officials when they
deprived a prisoner of outdoor recreation. 48 F.3d at 1088. However, the court found under the
objective prong of its analysis that the prisoner’s right was established by case law. Id. at 1087.

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As noted, case law in the Fourth Circuit does not establish a right for Plaintiff in this case.
Further, documents Plaintiff himself cites indicate a policy that specifically addressed
catheterization of prisoners on which Defendants seemed to rely. In his Motion to Amend
Response to Summary Judgment (ECF No. 44), Plaintiff attached an “Investigative Report” of
the incident at issue. (ECF No. 44-1 at 2-4.) The report references a memorandum distributed at
Lee CI by Medical Director Dr. Thomas Moore stating, “Inmates will not be given passes to
avoid observed drug screens. Inmates who are unable to urinate will be cathed.” (ECF No. 44-1
at 4.) The report indicates the memorandum had been distributed approximately a year before
the incident. (Id.) In the Incident Report, which Plaintiff attached to his Amended Response to
Defendants’ Motion for Summary Judgment (ECF No. 69), Defendant Fulton stated she thought
prison policy indicated officials could force catheterization on prisoners. (ECF No. 69-1 at 1.)
Inasmuch as Plaintiff wishes to rely on prison policy to establish Defendants’ notice or
awareness of his rights, the facts presented, even in the light most favorable to Plaintiff, do not
support such a finding. As such, Defendants are entitled to qualified immunity.
III. CONCLUSION
Based on the aforementioned reasons and a thorough review of the Report and
Recommendation of the Magistrate Judge and the record in this case, the court ACCEPTS the
Report and Recommendation of the Magistrate Judge (ECF No. 58). It is therefore ordered that
Defendants’ Motion for Summary Judgment (ECF No. 35) is GRANTED. It is further ordered
that Plaintiff’s Motion to Amend (ECF No. 44) is DENIED as moot.
IT IS SO ORDERED.

United States District Judge
November 3, 2014
Columbia, South Carolina
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