Kinloch v. South Carolina Department of Corrections et al
ORDER AND OPINION adopting 167 Report and Recommendation with the exception of the Magistrate Judge's analysis of Defendant Myers' qualified immunity argument. For the reasons stated herein and in the Report an d Recommendation, Defendant Thompson's motion for summary judgment (ECF No. 116 ) is granted. Defendant Anthony's motion to dismiss (ECF No. 132 ) also is granted. Defendants Cartlige, Enloe, Harris, Holcome, Joyner, Myers, Reynolds, a nd Thompson' motion for summary judgment (ECF No. 145 ) is granted in part as to all Defendants except Defendant Myers, and denied in part as to Plaintiff's excess force allegations against Defendant Myers. Plaintiff's motion for injunctive relief (ECF No. 137 ) is denied. A notice of trial will be issued by the Clerk of Court in due course. Signed by Honorable Margaret B Seymour on 9/26/2017.(ssam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Antonio Kinloch, #219914,
) C/A No. 2:15-0702-MBS
ORDER AND OPINION
Sgt. Kelvin Myers, et al.,
Plaintiff Antonio Kinloch is an inmate in custody of the South Carolina Department of
Corrections (SCDC). He currently is housed at Lee Correctional Institution (LCI) in Bishopville,
South Carolina. On January 13, 2015, Plaintiff filed a complaint in the Court of Common Pleas for
Dorchester County, South Carolina, asserting claims for deprivation of his constitutional rights. See
42 U.S.C. § 1983. Plaintiff also asserts various state law causes of action. On February 18, 2015,
Defendants removed the case to this court. In accordance with 28 U.S.C. § 636(b) and Local Rule
73.02, D.S.C., this matter was referred to United States Magistrate Judge Mary Gordon Baker for
This matter currently is subject to a second amended complaint filed September 7, 2016,
which named as Defendants Sgt. Kelvin Myers, Assistant Warden Fred Thompson, Investigator Mr.
Trey, N.P.-Ms Holcome, M.H.-Ms. Joyner, M.H.-Ms. Harris, Warden C. Anthony, RN-Robinson,
Nurse-Ms. K. Scott, Warden Mr. Cartlige, Dr. Charlotte Thompson, Officer Ms. Smith, Warden
Reynolds, and Nurse Enloe. Defendants are employed by or medical staff associated with LCI or
Plaintiff’s prior custody terms at Lieber Correctional Institution in Ridgeville, South Carolina, and
Perry Correctional Institution in Pelzer, South Carolina.
Defendant Thompson filed a motion for summary judgment on November 14, 2016. By
order filed November 14, 2016, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Plaintiff was advised of the summary judgment procedures and the possible consequences if he failed
to respond adequately. Plaintiff filed responses in opposition to Defendant Thompson’s motion on
December 1, 2016, and December 2, 2016.
On December 28, 2016, Defendant Anthony filed a motion to dismiss or, in the alternative,
motion for summary judgment. A second Roseboro order was issued on December 29, 2016.
Plaintiff filed a response in opposition on January 11, 2016.
On January 3, 2017, Plaintiff filed a “Motion asking the Judge to stop the defendants from
sending me Back to Dr. Charlotte’s hospital for care and treatment.” Defendants Anthony, Cartlige,
Enloe, Harris, Holcome, Joyner, Myers, Reynolds, and Thompson filed a response in opposition to
Plaintiff’s motion on January 16, 2017, to which Plaintiff filed a reply on January 25, 2017.
On February 16, 2017, Defendants Cartlige, Enloe, Harris, Holcome, Joyner, Myers,
Reynolds, and Thompson filed a motion to dismiss, or, in the alternative, for summary judgment.
A third Roseboro order was issued on February 17, 2017. Plaintiff filed a response in opposition to
Defendants’ motion on March 20, 2017, to which Defendants filed a reply on March 21, 2017, and
Plaintiff filed a surreply on March 31, 2017.
On July 27, 2017, the Magistrate Judge issued a Report and Recommendation wherein she
recommended that Defendant Thompson’s motion for summary judgment be granted. The
Magistrate Judge further recommended that Defendant Anthony’s motion for summary judgment be
granted. As to the motion for summary judgment filed by Defendants Myers, Thompson, Holcome,
Joyner, Harris, Cartlige, Reynolds, and Enloe, the Magistrate Judge recommended that summary
judgment be granted as to all Defendants with the exception of an excessive force claim against
Defendant Myers. Finally, the Magistrate Judge recommended that the court deny Plaintiff’s motion
that he not be sent to “Dr. Charlotte’s Hospital” and that Defendants Trey, Robinson, Scott, and
Smith be dismissed pursuant to Fed. R. Civ. P. 4(m) because they have not been served with the
Defendant Myers filed objections to the Report and Recommendation on August 4, 2017.
Plaintiff filed objections to the Report and Recommendation on August 14, 2017, and August 22,
2017. Defendant Thompson filed a Reply to Plaintiff’s objections on September 7, 2017.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). This court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1).
This court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id. This court is obligated to conduct a de novo review of every portion of the
Magistrate Judge’s report to which objections have been filed. Id. 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
v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
The facts are thoroughly summarized in the Magistrate Judge’s Report and Recommendation.
Defendant Thompson’s Motion for Summary Judgment (ECF No. 116)
Defendant Thompson performed surgery on Plaintiff’s eyes in 2004. Plaintiff contends that
his eyes looked worse after the surgery and that he was disfigured. The Magistrate Judge determined
that any claim against Defendant Thompson should have been brought within three years from the
date of treatment, or three years from the date of discovery, as mandated by S.C. Code § 15-3-545(a).
However, Plaintiff did not bring an action against Defendant Thompson until 2015, eleven years
after his surgeries.
Plaintiff does not dispute the Magistrate Judge’s conclusion, but states that he was unaware
of the limitations period. As a general proposition, ignorance of the law, even for an incarcerated pro
se complainant, does not excuse prompt filing. Rodgers v. Angelone, 113 F. Supp. 2d 922, 931 n.8
(E.D. Va. 2000) (quoting Fisher v. Johnson, 174 F.3d 710, 714-15 (5th Cir. 1999)). Plaintiff further
contends that at the time he was dealing with mental and physical health issues, and that the court
should allow his claims to go forward. The court construes Plaintiff’s request as one invoking
equitable tolling. The Court of Appeals for the Fourth Circuit has stated:
The doctrine [of equitable tolling] has been applied in “two generally distinct kinds
of situations. In the first, the plaintiffs were prevented from asserting their claims by
some kind of wrongful conduct on the part of the defendant. In the second,
extraordinary circumstances beyond plaintiffs’ control made it impossible to file the
claims on time.” Alvarez-Machain v. United States, 107 F.3d 696, 700 (9th Cir.
1996) (citation omitted). But any invocation of equity to relieve the strict application
of a statute of limitations must be guarded and infrequent, lest circumstances of
individualized hardship supplant the rules of clearly drafted statutes. To apply equity
generously would loose the rule of law to whims about the adequacy of excuses,
divergent responses to claims of hardship, and subjective notions of fair
accommodation. We believe, therefore, that any resort to equity must be reserved for
those rare instances where–due to circumstances external to the party’s own conduct–
it would be unconscionable to enforce the limitation period against the party and
gross injustice would result.
Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).
In this case, there is no evidence that any Defendant prevented Plaintiff from pursuing his
claims. Moreover, Plaintiff has presented no evidence that he was incapacitated by his health issues
or other circumstances for over eleven years so that he was precluded from asserting any claims
against Defendant Thompson. Plaintiff’s objection is without merit.
Defendant Anthony’s Motion for Summary Judgment (ECF No. 132)
The Magistrate Judge observed that this Defendant was mentioned in the caption of the
second amended complaint, but that Plaintiff included no allegations against Defendant Anthony in
the body of the complaint. The Magistrate Judge further noted that Defendant Anthony, a former
warden, has not been employed by SCDC since June 29, 2004. The Magistrate Judge therefore
concluded that (1) Plaintiff failed to state a claim against this Defendant, and (2) any claims asserted
by Plaintiff are time-barred by the three year limitations period.
Plaintiff contends that his failure to name Defendant Anthony in the body of the complaint
was inadvertent. Plaintiff again argues that his failure to bring an action against Defendant Anthony
within the applicable limitations period was because he was not aware of the requirement, and
because he was suffering from health issues during the period complained of. Regardless of any
allegations Plaintiff may now wish to assert against Defendant Anthony, his claims are time-barred.
The court again finds that Plaintiff is not entitled to claim the benefit of equitable estoppel for the
eleven-year period between the time of the events and the date Plaintiff filed this action. Plaintiff’s
objection is without merit.
Defendants Myers, Thompson, Holcombe, Joyner, Harris, Cartlige, Reynolds, and Enloe’s
Motion for Summary Judgment (ECF No. 145)
Deliberate indifference to a serious medical need. Plaintiff contends that he has
received inadequate medical care in violation of his rights under the Eighth Amendment. To prevail
on an Eighth Amendment claim for denial of medical care, a plaintiff must demonstrate that the
actions of the defendants or their failure to act amounted to deliberate indifference to a serious
medical need. Velasquez v. Wexford Health Sources, Inc., Civil Action No. PWG-16-1807, 2017
WL 4151278, *6 (D. Md. Sept. 19, 2017) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Deliberate indifference to a serious medical need requires proof that, objectively, the prisoner
plaintiff was suffering from a serious medical need and that, subjectively, the prison staff were aware
of the need for medical attention but failed either to provide it or ensure that the needed care was
available. Id. (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The subjective component
requires “subjective recklessness” in the face of the serious medical condition. Id. (citing Farmer,
511 U.S. at 839-40). “‘True subjective recklessness requires knowledge both of the general risk, and
also that the conduct is inappropriate in light of that risk.’” Id. (quoting Rich v. Bruce, 129 F.3d 336,
340 n.2 (4th Cir. 1997)).
The Magistrate Judge noted that Plaintiff suffers from serious medical needs, including
Graves’ Disease, hypothyroidism, and mental health issues. The Magistrate Judge’s review of the
record, however, revealed that Plaintiff has consistently been treated both within SCDC and by
outside providers. Plaintiff has undergone multiple procedures and surgeries on his eyes and has
been examined by numerous physicians, nurses, and mental health professionals.
Plaintiff contends that over the years staff members stopped his medications and said they
would help him but did not. 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), overruled on other grounds by
Farmer v. Brennan, 511 U.S. 825, 840 (1994). Moreover, although the Constitution requires a
prison to provide inmates with medical care, a prisoner is not entitled to receive the treatment of his
choice. Ajaj v. United States, 479 F. Supp. 2d 501, 537 (D.S.C. 2007) (citing Jackson v. Fair, 846
F.2d 811, 817 (1st Cir. 1988). Plaintiff’s objection is without merit.
Conditions of Confinement.
Plaintiff alleges that he has been subjected to
overcrowding, bright lights, denials of protective custody, cold meals, cold cells, cells full of mace,
and being moved between cells and prisons, in violation of his rights under the Eighth Amendment.
The Fourth Circuit has stated:
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.”
This prohibition “proscribes more than physically barbarous punishments.” It also
encompasses “the treatment a prisoner receives in prison and the conditions under
which he is confined.” In particular, the Eighth Amendment imposes a duty on
prison officials to “provide humane conditions of confinement . . . [and] ensure that
inmates receive adequate food, clothing, shelter, and medical care.” To that end, a
prison official’s “deliberate indifference to serious medical needs of prisoners
constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment.” Prisoners alleging that they have been subjected to unconstitutional
conditions of confinement must satisfy the Supreme Court’s two-pronged test set
forth in Farmer v. Brennan, 511 U.S. 825  (1994).
First, Farmer’s “objective” prong requires plaintiffs to demonstrate that “the
deprivation alleged [was], objectively, ‘sufficiently serious.’” To be “sufficiently
serious,” the deprivation must be “extreme”—meaning that it poses “a serious or
significant physical or emotional injury resulting from the challenged conditions,”
or “a substantial risk of such serious harm resulting from . . . exposure to the
challenged conditions.” . . . Second, under Farmer’s “subjective” prong, plaintiffs
must show that prison officials acted with a “sufficiently culpable state of mind.” In
conditions of confinement cases, the requisite state of mind is deliberate indifference.
To prove deliberate indifference, plaintiffs must show that “the official kn[ew] of and
disregard[ed] an excessive risk to inmate health or safety.” Put differently, the
plaintiff must show that the official was “aware of facts from which the inference
could be drawn that a substantial risk of serious harm exist[ed], and . . . dr[ew] th[at]
Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (internal citations omitted).
The Magistrate Judge observed that Plaintiff’s claims regarding unconstitutional conditions
of confinement “are sprinkled throughout the Second Amended Complaint and are asserted in a
general manner with scant details.” ECF No. 167, 23. In his objections, Plaintiff states that he has
included exhibits showing that he asked for help and for someone to witness his living conditions.
The court has reviewed the attachments to Plaintiff’s filings and it appears that the concerns he set
forth in grievances were addressed by the appropriate individual. The court discerns no foundation
in the record for a finding that Plaintiff was exposed to an extreme deprivation or that any prison
official acted with a sufficiently culpable state of mind. Plaintiff’s objection is without merit.
Use of Excessive Force. Plaintiff alleges that Defendant Myers applied excessive
force in violation of the Eighth Amendment. To prove the use of excessive force in violation of the
Eighth Amendment, Plaintiff is required to demonstrate that the prison official acted with a
sufficiently culpable state of mind (subjective component) and the injury inflicted was sufficiently
serious (objective component). See Robinson v. Gilliard, Civil Action No.: 5:16-01635-JMC, 2017
WL 3634071, *2 (D.S.C. Aug. 24, 2017) (citing Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008)).
“‘[T]he core judicial inquiry [for excessive force claims] is . . . whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.’”
Id. (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). In determining whether constitutionally
excessive force was used, the court must consider (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.” Id. (quoting Iko, 535 F.3d at 239).
Plaintiff alleges that on or about April 18, 2013, he was eating a meal in the cafeteria at
Lieber Correctional Institution when he noticed Defendant Myers, a correctional officer, moving
toward him in a threatening manner. Plaintiff contends that, while eating a piece of cake, he got up
from the table to leave because he did not like the “looks, vibe and body language” from Defendant
Myers. Plaintiff contends that Defendant Myers bumped into him and was provoking and taunting
him. Plaintiff attempted to leave the cafeteria but was instructed by other correctional officers to
finish his cake in the cafeteria. According to Plaintiff, Defendant Myers rushed toward him and
yelled into his face. Plaintiff ran out of the cafeteria and got in line to be released back to his
dormitory. Plaintiff asserts Defendant Myers came up “with a very mean and ugly look on his face,”
cornered Plaintiff, “and then picked up the Plaintiff under both arms into the air above his head and
slam the Plaintiff down to the cement repeatedly on my head and face.” ECF No. 89, 7. Plaintiff
alleges that when he was on the ground Defendant Myers began punching his body. According to
Plaintiff, two other officers held him down while Defendant Myers “punch Plaintiff in the body
repeatedly and then took Plaintiff’s head and bash his face, Plaintiff’s face into the concrete,
repeatedly.” Id at 8. Plaintiff alleges he suffered injuries to his forehead, knee, eyes, left thumb,
nose, and body, and was required to have surgery to his eyes after the incident. Id. at 9.
The Magistrate Judge observed that Defendant Myers presented evidence that Plaintiff
refused to obey orders and that the use of force was justified under the circumstances. However, the
Magistrate Judge found that, viewing the facts in the light most favorable to Plaintiff, genuine issues
of material fact exist as to whether Defendant Myers used excessive force to subdue Plaintiff.
Accordingly, the Magistrate Judge recommended that these Defendants’ motion for summary
judgment be denied as to this issue.
In his objections, Defendant Myers argues that (1) Plaintiff attempted to evade him; (2) the
fact that several officers were needed to restrain Plaintiff supports both the need and amount of force
used; (3) Plaintiff’s attempts to evade Defendant Myers posed an actual threat to officers, inmates,
and institutional security and integrity, and thus Defendant Myers’ use of force was employed as a
good-faith effort to maintain or restore order; (4) Plaintiff initially disregarded two levels of
deterrence, officer presence and verbal commands; and (5) the medical evidence does not support
Plaintiff’s claims. It is not for the court at the summary judgment stage to weigh the evidence or
determine the credibility of the parties with respect to their differing recitation of the facts. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). The court agrees with the Magistrate
Judge that this is an issue for the jury.
Plaintiff objects to the Magistrate Judge’s recommendation that summary judgment be
granted to Defendant Thompson with respect to this issue. Plaintiff contends that Defendant
Thompson, as assistant warden, knew Defendant Myers “was going around being involve in any
illegal activities and targeting inmate to beat up or have beaten up, etc.” ECF No. 173, 11. The
court has located no allegations in Plaintiff’s amended complaint to the effect that Defendant
Thompson was deliberately indifferent to the allegedly known threat to Plaintiff posed by Defendant
Myers. Plaintiff’s objection is without merit.
Qualified Immunity. Defendant Myers contends that the Magistrate Judge erred in
failing to find he is entitled to qualified immunity. Defendant Myers asserts that he did not violate
Plaintiff’s constitutional rights. “[E]ven when an officer’s conduct runs afoul of the Fourth
Amendment, ‘[q]ualified immunity shields government officials from liability for civil damages,
provided that their conduct does not violate clearly established statutory or constitutional rights
within the knowledge of a reasonable person.’” Gunsay v. Mozayeni, No. 16-1131, 2017 WL
2684015, *3 (4th Cir. June 21, 2017) (quoting Estate of Armstrong ex rel. Armstrong v. Vill. of
Pinehurst, 810 F.3d 892, 907 (4th Cir. 2016)). In determining whether a law enforcement officer is
entitled to qualified immunity, the court must ask whether the facts, viewed in the light most
favorable to the plaintiff, show that the officer’s conduct violated a federal right. Id. (citing Smith
v. Ray, 781 F.3d 95, 100 (4th Cir. 2015)). The court also must ask whether the right was “clearly
established” at the time of the alleged violation. Id. (citing Ray, 781 F.3d at 100).
The Magistrate Judge observed that it is well established the use of excessive force by
correctional officers violates the Eighth Amendment’s prohibition against cruel and unusual
punishment. However, the Magistrate Judge concluded that a genuine issue of material fact exists
as to whether Defendant Myers’ conduct violated Plaintiff’s constitutional rights. The court agrees
that the right asserted is clearly established and finds that, viewing the facts in the light most
favorable to Plaintiff, Defendant Myers is not entitled to qualified immunity. Defendant Myers’
objection is without merit.1
The Magistrate Judge found that a genuine issue of material fact exists as to whether qualified
immunity applies. Qualified immunity “protects law enforcement officers from bad guesses in gray
areas and ensures that they are liable only for transgressing bright lines.” Wilson v. Layne, 141 F.3d
111, 114 (4th Cir. 1998). The court concludes that, viewing the facts in the light most favorable to
Plaintiff, Defendant Myers’ conduct, if proven, would not constitute a bad guess in a gray area.
Accordingly, the court finds as a matter of law that Defendant Myers is not entitled to qualified
Plaintiff’s Motion to Not be Sent to Defendant Thompson’s Hospital (ECF No. 137)
Plaintiff contends that he was being treated by physicians at the Medical University of South
Carolina, but that SCDC physician in charge of medical scheduling now is requiring Plaintiff to be
treated at “the same hospital and place that defendant Dr. Charlotte Thompson perform the surgeries
that went wrong in her care.” ECF No. 137, 2. The Magistrate Judge construed Plaintiff’s motion
as one for a preliminary injunction.
The Magistrate Judge determined that Plaintiff had not met the factors set forth in Winter v.
Natural Res. Defense Council, Inc., 550 U.S. 7, 20 (2008) (holding that a moving party must make
a clear showing that he will succeed on the merits and is likely to be irreparably harmed absent
injunctive relief; that the equities must tip in the moving party’s favor; and that the public interest
is protected). In his objections, Plaintiff asserts that it would be “a huge conflict of interest to send
me back to Dr. Charlotte Thompson for any type of care or treatment after all of this abuse she
afflicted upon me and the filing of this lawsuit upon or against her.” ECF No. 174, 3.
The district court need not conduct a de novo review when a party makes only general and
conclusory objections that do not direct the court to a specific error in the Magistrate Judge’s
proposed findings and recommendations. Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982).
Nevertheless, the court has reviewed the Magistrate Judge’s application of the Winter factors and
concurs in her analysis. Plaintiff’s objections are without merit.
Dismissal of Unserved Defendants
The Magistrate Judge recommended that Defendants Trey, Robinson, Scott, and Smith be
dismissed pursuant to Fed. R. Civ. P. 4(m), which provides that a court must dismiss an action
against a defendant who is not served within 90 days after the complaint is filed, absent a showing
of good cause by the plaintiff. In his objections, Plaintiff asks for additional time to obtain the
addresses of the unserved Defendants. The amended complaint was filed over one year ago. The
Magistrate Judge cautioned Plaintiff by order filed October 3, 2016, that any unserved Defendants
were subject to dismissal pursuant to Rule 4(m). Accordingly, Plaintiff’s request is denied.
With the exception of the Magistrate Judge’s analysis of Defendant Myers’ qualified
immunity argument, the court adopts and incorporates herein the Magistrate Judge’s Report and
Recommendation. For the reasons stated herein and in the Report and Recommendation, Defendant
Thompson’s motion for summary judgment (ECF No. 116) is granted. Defendant Anthony’s
motion to dismiss (ECF No. 132) also is granted. Defendants Cartlige, Enloe, Harris, Holcome,
Joyner, Myers, Reynolds, and Thompson’ motion for summary judgment (ECF No. 145) is granted
in part as to all Defendants except Defendant Myers, and denied in part as to Plaintiff’s excess
force allegations against Defendant Myers. Plaintiff’s motion for injunctive relief (ECF No. 137)
is denied. A notice of trial will be issued by the Clerk of Court in due course.
IT IS SO ORDERED.
/s/ Margaret B. Seymour
Senior United States District Judge
Charleston, South Carolina
September 26, 2017
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