Allen v. Cartlidge et al

Filing 159

REPORT AND RECOMMENDATIONS; It is recommended that the defendants' motions for summary judgment [Doc. 101, 106] should be GRANTED and all claims dismissed without prejudice for a failure to exhaust administrative remedies. To the extent the dis trict court finds that issues of fact exist as to exhaustion, the undersigned would alternatively recommend that summary judgment be GRANTED, in part, with prejudice, as to all claims except those against defendants Hawkins and Sumner for their alleged treatment of the plaintiff in the hospital, as described herein. As to those claims, the motion should be DENIED. Objections to R&R due by 3/1/2010. Signed by Magistrate Judge Bruce Howe Hendricks on 2/11/2010. (ncha, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENW OOD DIVISION David Wayne Allen, a/k/a David Allen, ) Civil Action No.: 8:08-600-HFF-BHH ) ) Plaintiff, ) ) REPORT AND RECOMMENDATION vs. ) OF MAGISTRATE JUDGE ) Associate Warden Mr. Cartlidge, et ) ) al., ) Defendants. ) The plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to Title 42, United States Code, Section 1983. This matter is before the Court on the defendants' respective motions for summary judgment. [Docs. 101, 106.]
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and L o c a l Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial m a tte rs in cases filed under Title 42, United States Code, Section 1983, and submit findings a n d recommendations to the District Court.

BACKGROUND
O n February 17, 2005, the plaintiff was injured during an altercation with another in m a te . Specifically, he was struck repeatedly by a Master lock, which was attached to a d u f f le bag. (Verified Compl. at 5.) The plaintiff was initially treated at the McCormick C o rre c tio n a l Institue ("MCI"), then transported to Self Memorial Hospital in Greenwood, S o u th Carolina, for further treatment. (Powell Aff. ¶¶ 6-12.) The plaintiff alleges that while in the emergency room, the treating physician handled him roughly while stapling his skull a n d stitching his face. (Verified Compl. at 7-8.) He further alleges that, at the same time, h e was mistreated by one of the defendant officers and a defendant nurse, both of whom w o r k e d for the South Carolina Department of Corrections ("SCDC"). Id. at 7-14. The

p la in tif f 's Complaint also alleges that the plaintiff was subsequently denied proper m e d ic a t io n for pain management. Id. at 14-24. The facts of this case will be discussed in g re a te r detail in the context of the Court's analysis. AP P L IC AB L E LAW R u le 56 of the Federal Rule of Civil Procedure states as to a party who has moved f o r summary judgment: T h e judgment sought shall be rendered forthwith if the p le a d in g s , depositions, answers to interrogatories, and a d m is s io n s on file, together with the affidavits, if any, show that th e r e is no genuine issue as to any material fact and that the m o v in g party is entitled to judgment as a matter of law. A c c o r d i n g ly, to prevail on a motion for summary judgment, the movant must demonstrate t h a t (1) there is no genuine issue as to any material fact; and (2) that he is entitled to s u m m a ry judgment as a matter of law. As to the first of these determinations, a fact is d e e m e d "material" if proof of it existence or nonexistence would affect the disposition of the c a s e under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A n issue of material fact is "genuine" if the evidence offered is such that a reasonable jury m ig h t return a verdict for the non-movant. Id. at 257. In determining whether a genuine is s u e has been raised, the court must construe all interferences and ambiguities against the m o v a n t and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 6 5 5 (1962). T h e party seeking summary judgment shoulders the initial burden of demonstrating t o the court that there is no genuine issue of m a t e r i a l fact. Celotex Corp. v. Catrett, 477 U . S . 317, 323 (1986). Once the movant has made this threshold demonstration, the nonm o v in g party, to survive the motion for summary judgment, may not rest on the allegations

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a v e rre d in his pleadings. Rather, the non-moving party must demonstrate that specific, m a t e r ia l facts exist which give rise to a genuine issue. Id. at 324. Under this standard, the e x is te n c e of a mere scintilla of evidence in support of the petitioner's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise,

c o n c lu s o ry allegations or denials, without more, are insufficient to preclude the granting of t h e summary judgment motion. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 ( 4 t h C ir . 1985). DISCUSSION A s an initial matter, one of the plaintiff's opposition memorandum [Doc. 140] violates th is District's Local Rule that briefs shall not exceed 35 pages. Local Rule 7.05(b)(1) D.S.C. 6 5 pages of handwritten material is unmanageable for the Court and not to the plaintiff's b e n e f it. To be fair, the last 20 pages, or so, appear to be a hand transcription of W e s t key n u m b e r s and/or an actual opinion. If it was the plaintiff's attempt to submit legal authority w h i c h he believed was not otherwise accessible to the undersigned, then at least that p o rtio n of the excess briefing is justified. To the extent it was simply additional legal a rg u m e n t, as it would appear, it is improvident. Regardless, the Court has generally c o n s id e re d it all, plus the plaintiff's lengthy complaint and other response memoranda s u b m it te d in this case, which are not insignificant. I.

Exhaustion The defendants first contend that the plaintiff did not exhaust his administrative

remedies prior to filing this action. The Court agrees. The Prison Litigation Reform Act ("PLRA") requires that a prisoner exhaust

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administrative remedies before filing a §1983 action concerning his confinement. 42 U.S.C.A. §1997(e) states: No action shall be brought with respect to prison conditions under Section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. In Porter v. Nussle, 534 U.S. 516 (2002), the United States Supreme Court held that the exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes. In Woodford v. Ngo, 548 U.S. 81, 90-91 (2006), the United States Supreme Court held that the PLRA exhaustion requirement requires proper exhaustion. Id. The Court stated that "[a]dministrative law requires proper exhaustion of administrative remedies which means using all steps that the agency holds out, and doing so properly." Id. (Internal quotations and citations omitted). Failure to exhaust all levels of administrative review is not "proper exhaustion" and will bar actions filed by inmates under any federal law, including §1983. Id. The purpose of the exhaustion requirement is twofold. First, it gives an

administrative agency "an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court." Woodford, 126 S.Ct. at 2385 (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). Second, "[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court." Id. Any consideration of administrative remedies pursued after the commencement of the litigation would only serve to frustrate both purposes of the PLRA's exhaustion requirement.

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In order to exhaust the SCDC administrative remedies, an inmate must fill out a Form 10-5 or Step 1 grievance about the matters raised in his complaint and give the form to the Institutional Inmate Grievance Coordinator within fifteen (15) days of the alleged incident of which the inmate complains. (See generally Holmes Aff.) The Warden must respond to the Step 1 grievance in writing no later than forty (40) days from the filing of the initial grievance. Id. If the inmate is not satisfied with the Warden's response, he must file an appeal of the Step 1 grievance response by filing a Form 10-5a or Step 2 Request for Responsible Official Review with the Inmate Grievance Coordinator within five (5) days of the receipt of the response from the Warden. Id. A responsible official has sixty (60) days to respond to the Step 2 grievance. Id. The decision of the official who answers Step 2 is considered the SCDC's final response in the matter. Only after completing both Steps 1 and 2 in the SCDC grievance process has an inmate properly exhausted a claim under §1983. 42 U.S.C. § 1997e. Further, exhaustion must be completed prior to filing an action. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005). The record indicates that the plaintiff has only filed one Grievance in regards to the incident on February 17, 2005, at issue in this case. (Holmes Aff. ¶ 13, Ex.) The defendants have submitted evidence that the Grievance was returned to the plaintiff unprocessed, on April, 28, 2005, for his failure to state that he had attempted an informal resolution of the Grievance and for his failure to sign and date the Grievance form. Id. ¶ 15, Ex. The plaintiff was informed that he could refile his Grievance within 5 days. Id. The record indicates that he failed to do so. Id. The plaintiff filed no other Grievances related to any matters at issue in this case. See id. ¶¶ 17, 19, 21.

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The plaintiff summarily rejoins that he filed two relevant Grievances. He complains, however, that they were "never answered." (Pl. Resp. at 1.) The plaintiff claims, therefore, that legally speaking, no administrative remedies were available to him. The Court agrees that under certain circumstances, a substantial delay in processing of an administrative Grievance may permit the Court to characterize the remedy as unavailable. See Miller v. Norris, 247 F.3d 736, 740 (8th Cir.2001) (allegations that prison officials failed to respond to his written requests for grievance forms were sufficient to raise an inference that inmate had exhausted his available administrative remedies); Penny v. McBride, 2009 WL 1346126, at *3 (D.S.C. May 13, 2009). The plaintiff, here, however, has no evidence that he actually submitted two Grievances, as alleged. He has not produced any Grievance forms, numbers, or otherwise responded to the defendant's evidence that the only Grievance submitted was returned unprocessed and never resubmitted. His plea to the contrary cannot be enough. There must be some evidence from which a reasonable jury might find reason to agree. The plaintiff contends that he gave them to an officer on February 28, 2005. (Pl. Resp. at 7.) He speculates, "What did He do with them?" Id. This cannot be the end of the plaintiff's obligations. As stated, the defendant has already submitted evidence that at least one Grievance was received but returned. The plaintiff would make no effort to address it. And, as to the alleged second Grievance, the plaintiff has not offered evidence of any efforts on his part to determine the status of it. He has not suggested that, at any time, he either followed up to ensure it had been submitted or to inquire as to its status. The allegations are dubious in light of the record. No dispute of fact can reasonably be

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drawn from them. For these reasons, the plaintiff has failed to exhaust his administrative remedies and, therefore, his claims should be dismissed.
II. M e rits In the alternative, the Court would recommend that the plaintiff's Section 1983 claim b e dismissed for want of any issues of fact as to the substance of its merits. The plaintiff's C o m p la in t is wildly outrageous. In truth, most of it sounds implausible. It is written in h is t rio n ic prose, more reminiscent of a horror novel than any actual account of a real event. T h e plaintiff claims to have been seditiously tortured by defendant officers and nurses, while E m e rg e n c y Room medical staff literally giggled, danced, and clapped around him. Of c o u rs e , as is almost always the case, the defendants, by contrast, have essentially no re c o lle c tio n whatsoever of the plaintiff or the events. The Court is left to make some ju d g m e n t as to whether the evidence underlying the irreconcilably competing accounts w o u ld justify a jury's determination in the plaintiff's favor. T h e plaintiff's Complaint covers allegations of mistreatment over approximately a 2 -m o n th period. The allegations can be roughly broken into the following incidents of a lle g e d indifference or cruel and unusual punishment: C F e b ru a ry 17, 2005 A failure to protect him from an assault by a n o th e r inmate Mistreatment by unknown nurse after assault Failure of physician to properly treat the plaintiff's c o n d it io n A b u s e by defendant officers and SCDC nurse w h ile the plaintiff was being treated.

C C

F e b ru a ry 17, 2005 F e b ru a ry 17, 2005

C

F e b ru a ry 17, 2005

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C

F e b ru a ry 17-20, 2005

C o n tin u in g indifference to the plaintiff's pain and in ju r ie s . M is tre a tm e n t by defendant nurse. In d if f e re n c e to continuing pain

C C

F e b ru a ry 20, 2005 F e b ru a ry 29 - March 19, 2005

(S e e generally Compl. at 3-21.) The Court will attempt to make a discussion of each of the m a n y implicated issues, in turn. A. F a ilu r e to Protect

It is undisputed that the plaintiff was brutally assaulted by another inmate on February 17. The plaintiff contends that, at the time of the assault, there "was no security in the building" in which he was housed. (Compl. at 5.) He contends that it took approximately twenty minutes for another inmate to get the attention of an officer. Id. The treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Not every injury suffered by one inmate at the hands of other inmates constitutes liability for the prison officials responsible for the victim's safety. Id. at 835. A prison official's "deliberate indifference" to a substantial risk of serious harm to an inmate, however, does violate the Eighth Amendment. Id. at 828. "[A] prison official may be held liable under the Eighth Amendment . . . only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 847. The test is not whether an official knew or should have known of the possibility of harm, but whether he did, in fact, know of it and consciously disregard that risk. "[T]he official must be both 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. Id. at 837. Further, the Eighth Amendment is not violated by the negligent

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failure to protect inmates from violence. Whitley v. Albers, 475 U.S. 312, 319 (1986). The plaintiff has neither alleged nor submitted evidence that any of the defendants named in his Complaint knew of a specific risk of harm to the plaintiff and consciously disregarded it. He does not allege that prison personnel were aware of the risk of an assault or circumstantially should have been so aware. The assault is a tragedy. And, the Court would never suggest that such things are a justifiable incidence of incarceration. But, the bad acts of the assailant inmate cannot be constitutionally imputed to any of the defendants for a failure to protect, on the facts of this case. The plaintiff would argue that Farmer would make the defendants liable for the intrinsic risk, inherent in any prison environment, left unmonitored. This is not the Court's understanding. See Farmer, 511 U.S. at 837 ("[T]he official must be both 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."). "To succeed on his claim of failure to protect, [the plaintiff] must show that Orr and Tuten had knowledge of a substantial or pervasive risk of serious harm and acted with deliberate indifference to Skeen's safety by failing to correct the situation." Skeen v. Orr, 1996 WL 460761, at *2 (4th Cir. August 15, 1996) (citing Farmer). The plaintiff has not produced any evidence or allegation that his assailant was known to be dangerous or of a particular threat to the plaintiff. If the defendants were liable, strictly, for the inherent and generalized danger every inmate reasonably poses to others, prison officials would be without any defense.
B. M i s t r e a t m e n t by Unknown Nurse After Assault

T h e plaintiff next contends that after he was assaulted he was taken to medical

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w h e re he was treated by an unidentified nurse. The plaintiff contends that, while examining h im , the nurse released him two or three times "which caused him to fall backwards, s la m m in g his head on the ceramic tiled floor." (Compl. at 6.)

The Court assumes the plaintiff means to argue that this was use of excessive force and not deliberate indifference. Regardless, the plaintiff has not demonstrated or alleged any injury. To establish an Eighth Amendment claim for cruel and unusual punishment, the plaintiff must prove: (1) objectively, the deprivation of a basic human need was sufficiently serious, and (2) subjectively, the prison officials acted with a "sufficiently culpable state of mind." Wilson v. Seiter, 501 U.S. 294, 298 (1991). The subjective component requires the inmate to show that the officers applied force not "in a good faith effort to maintain or restore discipline," but rather applied force "maliciously and sadistically for the very purpose of causing harm." Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). The objective component requires the inmate to prove that the use of force was more than de minimis or, in the alternative, that it was repugnant to the conscience of mankind. Id. at 9-10. De minimis injury can be conclusive evidence that the force used was also de minimis and, therefore, not violative of constitutional protections. See Norman v. Taylor, 25 F.3d 1259, 1264 (4th Cir.1994).
Here, there is no evidence that the plaintiff suffered any sort of injury as a result of h a vin g been dropped onto the tile, if he in fact was. His injuries at most were de minimis. T h e re is, of course, some "force [that] will cause relatively little, or perhaps no, enduring

injury, but nonetheless will result in an impermissible infliction of pain." Norman, 25 F.3d at 1264. Where the circumstances involve either force which is "repugnant to the conscience of mankind," or the pain, described, can properly be said to constitute more than de minimis injury, no specific injury need be shown. Norman, 25 F.3d at 1264. The 10

Court has been presented with no evidence that such special circumstances exist. More significant and plainly intentional acts than those alleged here have been characterized as no more than de minimis. Cf. Norman, 25 F.3d 1259 (keys swung at an inmate's face striking his thumb was de minimis force); Gavin v. Ammons, 21 F.3d 430 (7th Cir. 1994) (guard pulling inmate's hair was de minimis force); Jackson v. Pitcher, 966 F.2d 1452 (6th Cir. 1992) (guard stomp on hand of inmate was de minimis force).
The plaintiff cannot satisfy the objective element of any excessive force (or deliberate in d if f e r e n c e , which also requires a showing of objectively sever injury) claim as to this in c id e n t . C. D e lib e ra te Indifference at Emergency Room

T h e plaintiff has also alleged that the emergency room physician was deliberately in d if f e re n t in the treatment rendered upon arrival at the emergency room. Specifically, the p la in tif f contends that the doctor refused to anesthesize the areas of his head where he was s ta p lin g and stitching the plaintiff's wounds. (Compl. at 8.) The plaintiff has also made a lle g a tio n s that the doctor was verbally sarcastic and/or unsympathetic and that he joined a c c o m p a n yin g nurses in maliciously laughing over the plaintiff's discomfort. Id. at 7-9. The p la in tif f has adamantly and expressly rejected that he has pled any state law claim, for m a lp ra c tic e or otherwise, but has insisted that he meant only a constitutional claim for d e lib e r a t e indifference. [See Doc. 128 at 16.] It is rudimentary that the government is "obligat[ed] to provide medical care for those w h o m it is punishing by incarceration." Estelle v. Gamble, 429 U.S. 97, 102 (1976). This o b lig a t io n arises from an inmate's complete dependence upon prison m e d ic a l staff to p r o v id e essential medical service. Id. The duty to attend to prisoners' medical needs, h o w e ve r, does not presuppose "that every claim by a prisoner that he has not received

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a d e q u a t e medical treatment states a violation of the Eighth Amendment." Id. at 105. In s te a d , it is only when prison officials have exhibited "deliberate indifference" to a prisoner's " s e r io u s medical needs" that the Eighth Amendment is offended. Id. at 104.

"Deliberate indifference is a very high standard ­ a showing of mere negligence will not meet it." Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.1999). In Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990), the Fourth Circuit Court of Appeals noted that treatment "must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness, nevertheless, mere negligence or malpractice does not violate the Eighth Amendment." Id. at 851. Unless medical needs were serious or life threatening, and the defendant was deliberately and intentionally indifferent to those needs of which he was aware at the time, the plaintiff may not prevail. Estelle, 429 U.S. 104; Farmer v. Brennan, 511 U.S. 825 (1994); Sosebee v. Murphy, 797 F.2d 179 (4th Cir.1986). "A medical need is `serious' if it is `one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention' or if denial of or a delay in treatment causes the inmate `to suffer a life-long handicap or permanent loss.'" Coppage v. Mann, 906 F.Supp. 1025, 1037 (E.D.Va.1995) (quoting Monmouth Co. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.1987)).
Assuming, without deciding, that the defendant doctor may be considered as having a c t e d under color of state law, see 42 U.S.C. § 1983, the plaintiff's allegations, even if true, d o not amount to a claim for deliberate indifference. First, the plaintiff has conceded that t h e defendant doctor was not indifferent. The doctor, in fact, treated him. (Compl. at 7-8.) In s te a d , the plaintiff would actually complain that the doctor treated him viciously and/or in a d e q u a t e l y. But, the allegation must fail for the plaintiff's own admission.

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S p e c if ic a lly, the plaintiff admits that the doctor explained that he could not a n e s th e s iz e him because the injuries were to the head. (Compl. at 8.) The plaintiff's d is a g r e e m e n t or unhappiness with this course of medical treatment is not sufficient to s u p p o rt a claim of deliberate indifference and questions of medical judgment are not subject t o judicial review. Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985). The plaintiff has m a d e no showing that such an explanation by the doctor was inaccurate. He certainly has n o t explained how it was grossly incompetent, even if mistaken. But even if the failure to a n e s th is iz e fell below some standard of care, mere malpractice or negligence in diagnosis o r treatment does not give rise to a constitutional claim. See Miltier v. Beorn, 896 F.2d at

851; Estelle, 429 U.S. at 105-06 (1976); Daniels v. W illia m s , 474 U.S. 327 (1986)
(in a d e q u a te treatment due to negligence, inadvertence, or differences in judgment between a n inmate and medical personnel does not rise to the level of a constitutional violation). S e c o n d , sarcastic or even malicious comments or tone do not constitute, by t h e m s e lv e s , any kind of indifference. See, e.g., Vaughn v. Mecklenburg County Jail, 2009 W L 1677242, at *2 (W .D . N . C . June 16, 2009) ("W h ile the doctor's comments about when a re [sic] the feds were coming to get the Plaintiff may have been the result of some f ru s tra tio n and should not have been directed at the Plaintiff, the comment does not e s ta b lis h deliberate indifference to Plaintiff's medical condition."). So comments delivered in a "harsh, extremely unfriendly voice," as alleged by the plaintiff, including, "I'm Stapling [s ic ] your skull back together" (Compl. at 4-5) and "Now I get to sew your face up" (Compl. a t 9) are not of constitutional dimension. For the foregoing reasons, the claim must fail as against defendant Kyle Scates, M . D ., and the Court need not formally address the parties' dispute as to whether or not

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S c a te s was actually the doctor who treated the plaintiff at the emergency room.1 Even if he w e r e , there is no evidence from which a reasonable jury could find him indifferent, d e lib e r a t e ly or otherwise, as the law would define that term. D. Ab u s e by defendant officer and SCDC nurse while the plaintiff was being t r e a te d

T h e plaintiff further contends that while the defendant doctor was treating him, d e f e n d a n t officer Hawkins, defendant nurse Sumner, and two emergency room nurses were to rtu rin g him in various respects. The plaintiff's allegations in this respect are numerous a n d dramatic. The Court will attempt to address them chronologically. The plaintiff first alleges that defendant officer Hawkins forcibly restrained him while t h e defendant doctor sutured his wounds. (Compl. at 8.) The plaintiff contends that d e f e n d a n t Hawkins painfully pressed his fist and forearm into the plaintiff's chest, cocked b a c k his other arm as if to strike the plaintiff, and repeatedly yelled, "BE STILL! BE F U C K I N G STILL!!" Id. The plaintiff concedes that defendant Hawkins did so as a result of t h e plaintiff's inability, albeit justifiably so, to remain still during the procedure. Id. It appears th a t the plaintiff would allege that some version of this exchange occurred two or three t im e s . Id. U n d e r the excessive force analysis described above, the plaintiff's claim would fail a s to this portion of the incident for two reasons. First, the plaintiff has not indicated what in ju ry he suffered as a result of defendant Hawkins' actions. If anything, it was to his

The Court would note that the plaintiff has not, in fact, produced any adm is s ib le evidence to the p o in t. He claim s to have seen Scates nam e on a prison com p u te r but he has not actually produced any d o c u m e n ta tio n or other affiant's sworn statem e n t, m a d e on personal knowledge, that Scates was the d o c t o r that rendered aid on February 17. Scates denies any knowledge of the plaintiff or any of the events in this case. (Scates Aff. ¶ 3.) This fact, therefore, would seem to qualify as an alternative basis for d is m is s a l as to defendant Scates.

1

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b e n e f it, insofar as the doctor was able to actually provide the necessary treatment. The p la in tif f 's injuries, therefore, are de minimis at best. Any pain the plaintiff suffered was p ro x im a te ly caused by the doctor's independent medical decision not to anesthesize the p la in tif f during the procedure, which the Court has no basis to second guess. The plaintiff h a s not alleged any additional injury from the actions of Hawkins. Second, the defendant was permitted to use proportional force to restrain a r e c a lc it ra n t inmate. See Iko v. Shreve, 535 F.3d 225, 238 (4th Cir.2008). Applying the

f a c to rs recommended in Whitley v. Albers, 475 U.S. 312, 322 (1986), 2 it seems that the f o r c e used was reasonably commensurate with the need to restore the discipline necessary t o provide the plaintiff with proper treatment. See also Hudson v. McMillian, 503 U.S. 1, 7 ( 1 9 9 2 ) (finding no excessive force if amount of force commensurate with need therefor).

The Complaint, however, continues in its description of increasingly atrocious and o u tra g e o u s behavior by the defendant officer and nurses. After requesting something for th e pain, the plaintiff indicated that he needed to go to the bathroom. (Compl. at 9.) He c o n t e n d s that the doctor replied, in a "hateful" tone, "PISS ON YOUR DAMN SELF!" Id. The p la in t if f alleges that the ER nurses, Sumner, Hawkins, and the doctor then "erupted" into la u g h t e r , as they had been allegedly doing throughout the treatment. Id. The plaintiff a c t u a lly attempted to urinate in his clothes but could not. Id. He then requested a bedpan, t o which defendant Sumner allegedly replied, in "a loud, hateful, demoralizing, blood-thirsty v o ic e , . . . If you have to piss that bad, I can catheterize you!" Id. The plaintiff declined the o f f e r but Sumner allegedly persisted by declaring, in a "menacing" voice and while "weilding [ s i c ] some clear rubber tubing" that "If you want to piss, You're [sic] going to have to let me

2

See discussion, infra, at 18. 15

c a t h e t e r iz e you!" Id. at 10. T h e plaintiff was eventually offered a plastic bottle but was allegedly required to u rin a te in front of everyone in the room. He contends that Sumner then belittled him by p o in tin g at his penis and saying, "Look, I wouldn't have been able to catheterize that little t h i n g . " Id. T h e plaintiff next contends that upon asking for more water, Sumner looked at him w ith "a wild, contorted, crazed expression on her face and a blood thirsty look in her eyes" a n d screamed, "ONE MORE W O R D OUT OF YOU AND I W IL L SHOOT YOU FULL OF T H O R A Z I N E ! " Id. The plaintiff claims that she then "produced a huge syringe" and added, " A N D I CAN DO IT!!" while wielding the "syringe high up in the air." Id. at 11. The plaintiff c o n te n d s that he simply reiterated his request for water, whereupon Sumner "her face tw is te d with rage and madness/insanity," screamed, "I TOLD YOU, YOU SON OF A B I T C H ! !" Id. Sumner allegedly lunged towards the Intravenous line ("IV"), crashing into the p la in t if f 's bed. Id. (It should be noted that the plaintiff does not allege any sort of direct in je c tio n . It seems plain that Sumner injected, if at all, the Thorazine directly into the IV line. S e e id.) The plaintiff then contends that he began "gagging, caughing [sic], and dry-heaving a s a reaction to the drug." Id. He claims that, in response, Hawkins pressed his forearm m o r e deeply into the plaintiff's chest. Id. Hawkins allegedly accused the plaintiff of trying t o spit on him and then threatened him with a raised fist as if to strike the plaintiff. Id. The p la in tif f contends that, as a result, he was forced to "swallow his own vomit" for fear of r e t r ib u t io n from Hawkins. Id. The plaintiff, as he does throughout the account, contends th a t Sumner, the doctor, and the ER nurses were "shrieking" with laughter and "cackling like a pack of wild hyenas" over his distress. Id.

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S u b s e q u e n t ly, Hawkins, again accuses the plaintiff of spitting on him. Id. at 12. The p la in tif f alleges that Sumner then "lept onto the bed with her left knee ground" into his crotch a n d began "jamming a hard plastic tube into his mouth attempting to force the tube down h is throat, literally ramming it into the back of his throat, choking him." Id. Again, the p la in t if f claims that all the observers "burst out laughing." Id. Sumner ostensibly continued to try and jam the tube down the plaintiff's throat, while she and Hawkins repeatedly yelled, " O P E N YOUR FUCKING MOUTH!!" and other obscenities. Id. The plaintiff contends that H a w k in s again physically struck him; that Sumner, another time, fiercely forced the tube as "a weapon" down the plaintiff's throat; and that, all the while, he was swallowing vomit and th e defendants were shrieking with laughter. (Compl. at 13.) The doctor then continued t re a t in g the plaintiff. Id. at 13-14. The defendants allegedly "were whooping and cackling" e a c h time he "yelped out in pain. . . ." Id. at 14. O f course, Hawkins and Sumner have no recollection whatsoever of even a c c o m p a n yin g the plaintiff to the hospital much less any of the events alleged. 3 (See H a w k in s Aff., Sumner Aff ¶ 5, 6.) They contend that under no circumstances would SCDC m e d ic a l personnel even accompany an inmate to the hospital. (Sumner Aff. ¶¶ 13, 14.)
This case is prototypical of everything that is im p o s s ib le for the Courts concerning litig a tio n brought by m e m b e r s of our incarcerated population. Som e o n e is being flatly dishonest with the C o u r t. The situation arises far too often. Prisoners and correctional system defendants do not argue, typ ic a lly, over shades of variations of the events at issue. These com p la in ts do not involve dissim ila r v ie w s which m ig h t, nonetheless, be reasonably of the sam e event. Rather, one side swears that they w e r e m a c e d in the eyes until they bled, while the other side claim s that no evidence of any kind of injury w a s noted; one side says a grievance was absolutely filed the other side adam a n t ly declares it never was. The Court is confident that both sides of this eternal dispute have been flatly untruthful on various o c c a s io n s . It is not one side or the other. And, yet the undersigned, and on occasion a jury of this c o m m u n ity's citizens, is required to sort out a dispute that would not m e r it consideration but for what is s u r e ly, in certain instances, the bald faced lie of one party or the other. It is the undersigned's honor and p r iv ile g e to consider and resolve all m a n n e r of cases before her, including those serious m a tte r s brought b y m e m b e r s of the prison population. Lies, however, are unacceptable in our system of justice. The u n d e rs ig n e d , therefore, would not hesitate to recom m e n d that the district court, in the event any portion of th is case is tried to its conclusion, give serious consideration to sanctioning the failing party, plaintiff or d e f e n d a n ts , for any perjurious account, which has put the tim e and resources of our court system to such u n ju s tif ie d length.
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T h e plaintiff's account on its face strains credulity. But, the Fourth Circuit has r e m in d e d that a prisoner's account of events is probative even when it recounts events w h ic h are hard to believe. Gray v. Spillman, 925 F.2d 90, 95 (4th Cir.1991). Just like in any o th e r case, a jury, in fact, may find the inmate more credible than the officers. And, to the e x te n t the plaintiff is telling the truth in all material respects, the Court would agree that such a c t s would be beyond the bounds of human decency and likely constitutionally effective to s u p p o r t a claim of cruel and unusual punishment. To that end, the Court would recommend that the plaintiff has adduced sufficient e v id e n c e from which a jury could find that he satisfied both the subjective and objective c o m p o n e n t s of an excessive force claim. To prove the subjective component of his claim,

the plaintiff must show that an officer acted with a "sufficiently culpable state of mind." Wilson v. Seiter, 501 U.S. 294, 298 (1991). The state of mind required in excessive force claims is "wantonness in the infliction of pain." Whitley v. Albers, 475 U.S. 312, 322 (1986). "Put differently, the 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." Iko v. Shreve, 535 F.3d 225, 238 (4th Cir.2008) (internal quotations and citation omitted). In Whitley, the Supreme Court set forth four non-exclusive factors to assist courts in assessing whether an officer has acted with "wantonness": (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." Whitley, 475 U.S. at 321 (internal quotations omitted) (applying these factors in a prison riot case); see Hudson, 503 U.S. at 7 (extending the Whitley standard "to all 18

allegations of excessive force"). There are numerous allegations regarding this particular altercation at the ER. Most of them would likely not independently qualify as actionable. For instance, and as discussed, the taunting and language allegedly used, while deplorable if true, would not be violative, in and of itself. Moreover, the Thorazine element is probably not effectively established by the record as to its relevance to an excessive force claim. Thorazine appears to be an antipsychotic, see

http://mental-health.emedtv.com/thorazine/thorazine.html, but the plaintiff has not put forward any evidence to that end. So the appropriateness of its usage is not readily apparent. Moreover, the plaintiff contends that he adversely reacted to it, but there is no actual reason for a jury to believe that Thorazine was not medically appropriate at that time, as to need or administration. He has not submitted any evidence which would suggest that it was grossly incompetent to so administer the drug under the circumstances, even if the plaintiff ultimately experienced negative side effects. Sumner's alleged

aggressiveness would not seem to alter that view. As far as the Court can tell, she did not actually assault the plaintiff with Thorazine but rather administered it through the IV. (Compl. at 11.) The Court, therefore, would conclude that these elements, like the

language and taunts, therefore, do not justify, independently, submission of any claim to the jury. That does not mean they are irrelevant. The Court believes that all these facts might reasonably and commulatively be interpreted as accoutrements of wantonness. Coupled with the allegations related to the forcible insertion of the plastic tube, the Court believes that the plaintiff has created issues of fact as to the subjective element of his claim. Specifically, if the plaintiff's version of the facts are believed, then a reasonable jury 19

would be justified in concluding that there was no reason for the defendants to violently force a plastic tube down his throat to the point of gagging and vomiting; that the force was, thus, disproportionate to any perceived threat; and, therefore, was applied sadistically and maliciously and not in a "good-faith effort to maintain . . . discipline" and security, Iko, 535 F.3d at 238. As stated, the plaintiff claims that all of the defendants present apparently delighted in the plaintiff's pain and agony. The Court does not believe it, but a jury might, once live testimony is pitted and considered. And, actions "totally without penological justification" can constitute "unnecessary and wanton inflictions of pain." Hope v. Pelzer, 536 U.S. 730, 737 (2002) (quotations omitted). Accordingly, issues of fact exist as to the subjective element. As to the objective component, the plaintiff has not precisely articulated any enduring or significant injury as a result of the alleged actions, such that they could be considered more than de minimis. But, some "force will cause relatively little, or perhaps no, enduring injury, but nonetheless will result in an impermissible infliction of pain." Norman, 25 F.3d at 1264. Where the circumstances involve either force which is

"repugnant to the conscience of mankind," or the pain, described, can properly be said to constitute more than de minimis injury, no specific injury need be shown. Norman, 25 F.3d at 1264. The Court believes that a seditious, spirited, and unjustified physical assault on the plaintiff, whereby a plastic tube is inserted to the point of vomiting, constitutes an act "repugnant to the conscience of mankind," regardless of the extent of damage inflicted. The defendant officer and nurse would not enjoy qualified immunity for such actions, as alleged. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). At all times relevant to this case, the defendants would have been fully aware that the plaintiff's right to be free from force employed "maliciously and sadistically for the very purpose of causing harm" 20

was clearly established and that they could not physically assault the plaintiff without cause. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). Thus, if the district court declines to adopt the undersigned's recommendation regarding exhaustion, the Court would not be able to recommend dismissal of the Section 1983 claim, to the extent it is based upon the alleged and unprovoked assault by defendants Sumner and Hawkins. The claim would not survive as to the nurses or the doctor who had no supervisory role or alleged physical participation therewith.
E. M is tr e a tm e n t by defendant nurses

T h e plaintiff contends that upon his return to the prison, he was dumped back into h is cell where he lay for three days, drifting in and out of consciousness, dry-heaving, g a g g in g , and urinating on himself.4 (Compl. at 17.) The plaintiff contends that on February 2 0 , a Sergeant Gibson expressed concern for the plaintiff and took him to medical for e x a m in a t io n . Id. at 17-18. The plaintiff complains that an unidentified nurse scrubbed his w o u n d s vigorously, in an attempt to clean the blood. Id. at 18. The plaintiff asked her to s to p scrubbing so hard, to which the nurse allegedly said, "If you want me to clean you, you a r e going to have to remain in this chair!" Id. at 19. The plaintiff contends that he was

o f f e re d some Motrin for the pain, to which he admits to calling them "crazy" and questioning t h e ir medical credentials. Id. There is more to the account but it need not be all recited h e re . T o the Court, the entire incident, as the plaintiff alleges, sounds permissive. The p la in tif f was not commanded to be cleaned. Rather, the nurse indicated that if he desired

The plaintiff actually describes a number of events between the time he left the hospital and was returned to his cell. As far as the Court can determine, non of them are of any constitutional import. 21

4

t o be so cleaned, he would need to sit still while she attempted to do so. See id. Second, a s far as the Court can determine, he suffered no injury as a result and the Court does not b e lie v e a jury could find that the pain inflicted would somehow "shock the conscience." L a s tly, in light of all that the plaintiff has alleged in this remarkable Complaint, the u n d e rs ig n e d finds it somewhat insulting and damaging to the overall credibility and force of h is accusations that he would also complain about a nurse's legitimate attempts to tend to h im , even to the extent it caused him some discomfort and pain. No matter, he has not o f f e re d evidence of any actionable wrongdoing by the nurse defendants. F. C o n tin u in g indifference to the plaintiff's pain and injuries

T h e plaintiff also contends that he went a significant period of time without effective p a in medication. (Compl. at 19-23.) He contends that he was prescribed it by defendant D r . Lovice on multiple occassions but that the SCDC would not actually give the plaintiff any m e d ic in e , other than Motrin. (Compl. at 19, 21.) The plaintiff has alleged that he went until M a rc h 12, 2005 and after reconstructive surgery, before receiving an injection of Toradol, w h ic h he contends was not his prescription nor was it effective to relieve his pain. (Compl. a t 21.) The plaintiff has not actually produced any evidence in support of his contentions a b o u t the medication he was allegedly prescribed. In contrast, the defendants have submitted evidence that the medical records in d ic a te that he was prescribed only 800 mg of ibuprofen, to be taken three times per day, b y a Dr. Mcree. (Sumner Aff. ¶ 46.) T h e Court finds these allegations to be of a fairly serious kind. It is not disputed that th e plaintiff suffered a severe attack and concomitant injuries. In fact, the injuries were so s ig n if ic a n t that they required constructive surgery, which occurred on or about March 11, 2 0 0 5 . To the extent he was actually without substantial pain medication for essentially three

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w e e k s would seem to create reasonable inferences regarding deliberate indifference. But th e record is not developed in his favor. The record before the Court suggests a mild p r e s c r ip t io n , id., and that the plaintiff was, in fact, given Motrin, by his own admission. It is a close call, but there is no evidence that any of the defendants failed to follow th e prescribing instructions of any physician. III. M is c e lla n e o u s The plaintiff has made some stray accusations about his continued incarceration in t h e Special Management Unit (SMU), even after the assault and injury. As the defendants a rg u e , however, that claim cannot survive because "[a]n inmate has no liberty interest in r e m a in in g in the general prison population because administrative segregation is `the sort o f confinement that inmates should reasonably anticipate receiving at some point in their in c a r c e r a t io n . " Keeler v. Pea, 782 F. Supp. 42, 44 (D.S.C. 1992) (quoting Hewitt v. Helms, 4 5 9 U.S. 460 (1983)). S u m m a ry judgment is also requested for the plaintiff's alleged failure to serve various d e f e n d a n ts . The plaintiff complains about reasons why he has been impeded in that p ro c e s s . [Doc. 140 at 3.] The undersigned does not believe the matter needs any

re s o lu tio n . As to any of the yet unserved defendants, all claims would still be dismissed w ith o u t prejudice, for the plaintiff's failure to exhaust, which would be the same outcome w e re they dismissed for failure of service. Alternatively, all implicated claims should be d is m is s e d with prejudice because no evidence exists as to any constitutional violations, w h e th e r committed by served or unserved defendants. The only exception is the alleged c o n d u c t of defendants Sumner and Hawkins, which would warrant denial of summary ju d g m e n t as to the one incident, insofar as the district court rejects the exhaustion r e c o m m e n d a tio n .

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IV .

S ta te Law Claims A s discussed, the plaintiff has expressly and emphatically disavowed whatever state

la w claims he might have for the same alleged conduct. [Doc. 128 at 16.] To the extent any w e r e still intended, however, the undersigned would recommend that the district court

decline to exercise supplemental jurisdiction over whatever state law claims the plaintiff may have against the defendants, having already recommended dismissal of the plaintiff's federal claims. See 28 U.S.C. § 1367(c); Tripp v. Charlie Falk's Auto Wholesale Inc., 290 Fed. Appx. 622, 632 (4th Cir. 2008); see, e.g., Patterson v. City of Columbia, 2003 WL 23901761, at *5 (D.S.C. Dec 29, 2003) ("Patterson has raised various state law claims against all Defendants. Because the federal claims must be dismissed, the court declines to exercise jurisdiction over the remaining state law claims.") Thus, the state law claims, if any, are dismissed without prejudice for refiling in state court.

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CONCLUSION W herefore, based upon the foregoing, it is recommended that the defendants' motions for summary judgment [Doc. 101, 106] should be GRANTED and all claims dismissed without prejudice for a failure to exhaust administrative remedies. To the extent the district court finds that issues of fact exist as to exhaustion, the undersigned would alternatively recommend that summary judgment be GRANTED, in part, with prejudice, as to all claims except those against defendants Hawkins and Sumner for their alleged treatment of the plaintiff in the hospital, as described herein. As to those claims, the motion should be DENIED. s/Bruce Howe Hendricks United States Magistrate Judge February 11, 2010 Greenville, South Carolina

The plaintiff's attention is directed to the important notice on the next page. 25

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 Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. 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) (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: Larry W. Propes, Clerk United States District Court P.O. Box 10768 Greenville, South Carolina 29603 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); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).

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