Simmons v. Schulze et al

Filing 100

ORDER RULING ON REPORT AND RECOMMENDATIONS. The Court adopts the Report and Recommendation. The Court grants Defendants' motion for summary judgment. (Dkt. No. 48). Further, the Court denies as moot Plaintiffs motion to dismiss (Dkt. No. 12), denies Plaintiffs motions for injunctive relief (Dkt. Nos. 14, 30), and denies Plaintiffs motions for default judgment (Dkt. Nos. 35, 57, 70).10 Signed by Honorable Richard M Gergel on 2/22/2012. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Darren S. Simmons,
Plaintiff,
v.
Nurse Shelly Stokes; MD Beinar, KCI;
DHO Annie Mae Sellars; and Officer
Timothy David,
Defendants.

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71117 EJ:'R?2 P

Civil Action No.: 8:11-cv-t0"3-IttIa

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ORDER

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In this case, Plaintiff seeks relief from Defendants pursuant to 42 U.S.c. § 1983. Plaintiff
is a prisoner in the custody of the South Carolina Department of Corrections ("SCDC") and is
proceeding in this case pro se. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Rule
73.02(B)(2)(d)&(e), DSC, this case was referred to the United States Magistrate Judge for all
pretrial proceedings. Numerous motions were filed by the parties, and on November 3,2011, the
Magistrate issued a Report and Recommendation regarding the disposition of those motions.
(Dkt. No. 91). Specifically, the Magistrate recommended the following: Plaintiffs motion to
dismiss (Dkt. No. 12) be found as moot; Plaintiffs motions for injunctive relief (Dkt. Nos. 14,
30) be denied; Defendants' motion for summary judgment (Dkt. No. 48) be denied without
prejudice with leave to refile; and Plaintiffs motions for default judgment (Dkt. Nos. 35, 57, 70)
be denied. Further, the Magistrate recommended that the Court direct Defendants to refile their
motion for summary judgment to include a discussion of whether Plaintiff has exhausted his
administrative remedies. On November 16, 2011, Plaintiff filed objections to the Report and
Recommendation. (Dkt. No. 96).

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LawlAnalysis

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and responsibility for making a final determination remains with this
Court. Mathews 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 and Recommendation to which specific
objection is made, and this Court may "accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate." 28 U.S.C. § 636(b)(l). This Court may also
"receive further evidence or recommit the matter to the magistrate with instructions." Id. Where
the plaintiff fails to file any specific objections, the Magistrate Judge's conclusions are reviewed
only for clear error, see Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005), and this Court is not required to give any explanation for adopting the
recommendation of the Magistrate. Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).
Plaintiff filed this action on February 14, 2011, in the South Carolina Court of Common
Pleas for Marlboro County. (Dkt. No. 1-1). Defendants subsequently removed the case to this
Court pursuant to the Court's federal question jurisdiction under 28 U.S.C. § 1331. (Dkt. No.1).
On April 13, 2011, Plaintiff timely filed an Amended Complaint.

(Dkt. No. 18).

In his

Amended Complaint, Plaintiff named numerous Defendants. However, on October 5, 2011,
Plaintiff requested that all Defendants be dismissed with the exception of those listed in the
caption above - i.e., Nurse Shelly Stokes, MD Michael J. Beinar, DHO Annie Mae Sellars, and
Officer Timothy David. (Dkt. No. 83). Thus, the Court only considers Plaintiffs Amended
Complaint and the parties' various motions as they pertain to Plaintiffs allegations against these
remaining Defendants.

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At the outset, the Court notes that Plaintiff has filed an inordinately large number of
documents, with various titles, with the Court since the case was removed, and the Court often
has struggled to understand the meaning of such documents and what relief Plaintiff was
requesting therein. Many of Plaintiffs filings are full of what other courts have referred to as
"buzzwords," but Plaintiffs filings rarely make reasoned legal arguments. Other courts have
discussed the difficulty of responding to such filings. See, e.g., Rochester v. McKie, No. 8:11­
797, 2011 WL 2671228, at *1 (D.S.C. July 8, 2011) (citing Yocum v. Summers, No. 91-3648,
1991 WL 171389, at *1 (N.D. Ill. Aug. 30, 1991) ("What [Plaintiff] has filed is truly
impenetrable - it sounds like a legal document in some respects, but it cannot pass muster as any
kind of reasoned filing. It is gibberish in legal tenus."». While the Court has liberally construed
Plaintiffs pleadings as required in all pro se actions, see Estelle v. Gamble, 429 U.S. 97, 106
(1976), the Court cannot construct Plaintiffs legal arguments for him. Small v. Endicot, 998
F.2d 411, 417-18 (7th Cir. 1993). As held by the Fourth Circuit, courts are not required to
"conjure up questions never squarely presented to them." Beaudett v. City ofHampton, 775 F.2d
1274, 1278 (1985). After reviewing the record, the Court finds that no genuine issue of material
fact exists as to Plaintiffs claims against Defendants, and, as discussed below, Defendants are
entitled to summary judgment.
I.

Pending Motions Other Than Defendants' Motion for Summary Judgment

Before reaching Defendants' motion for summary judgment, the Court will address the
other motions currently pending in this case.' First, on March 30, 2011, Plaintiff filed a motion

1 The Court notes that Plaintiff did not file any specific objections to the Magistrate's
recommendations as to the disposition of these motions. (See Dkt. No. 96). Rather, Plaintiffs
objections appear to relate only to Defendants' motion for summary judgment and the
Magistrate's suggestion that Plaintiff may not have exhausted his administrative remedies. (See
id.). Thus, the Court is not required to give any explanation for adopting the recommendation of

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to dismiss, stating that he would like to "request that this action be dismiss [sic] as a matter of
law." (Dkt. No. 12). On April 18, 2011, Defendants filed a response in support of Plaintiffs
motion to dismiss. (Dkt. No. 24). On April 25, 2011, Plaintiff filed a reply to Defendants'
response, and Plaintiff stated that the Court should not dismiss this action. (Dkt. No. 27). Thus,
the Court now denies as moot Plaintiffs motion to dismiss.
Next, Plaintiff filed at least two motions for injunctive relief. (See Dkt. Nos. 14, 30). On
April 6, 2011, Plaintiff filed a motion for preliminary injunction, stating that "a perminent [sic]
TRO, restraining order against some of Defendants' subordinates may be needed." (Dkt. No.
14). Plaintiff identified "A. Graves" and "Goldsberg" as individuals whom the Court may need
to restrain. (Id.). Because, inter alia, these individuals are not parties to this suit, this motion is
denied? Next, on April 28, 2011, Plaintiff filed a motion for a temporary restraining order.
(Dkt. No. 30). In his motion and the documents which seem to relate to this motion,3 Plaintiff
requests various forms of injunctive relief, including: (1) to enjoin officers and others from
engaging in retaliatory conduct; (2) to enjoin officials from interfering with Plaintiff in any
"discriminatory or retali[a]tory or har[]assment way"; (3) to restrain all officials working on the
yard from any and all actions of harassment and from hindering or preventing Plaintiff access to
the education building; (4) to remove any restrictions to Plaintiff receiving medical treatment; (5)
to order that treatment only be given by particular nurses; (6) and to order that DHO hearing
the Magistrate with regard to these other pending motions. See Camby v. Davis, 718 F.2d 198
(4th Cir. 1983). Nevertheless, the Court will briefly explain the basis for its ruling.
2 On April 8 and April 13, 2011, Plaintiff filed what appears to be proposed Orders granting this
motion for injunction. (See Dkt. Nos. 15 and 17). These proposed orders provide for injunctive
relief against various individuals, including Defendants. However, neither the allegations in the
motion nor the assertions in the proposed orders establish that Plaintiff is entitled to injunctive
relief
3 This Court, like the Magistrate Judge, has reviewed the various filings submitted by Plaintiff
which seem to relate to his request for a temporary restraining order. (Dkt. Nos. 14, 15, 16, 17,
23,30,31,34).
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tapes #38 and #39 be released and to allow Plaintiff adequate time to listen to them. The Court
agrees with the Magistrate that Plaintiff has not established that he is entitled to a temporary
restraining order or to any of the injunctive relief requested.
To obtain a temporary restraining order or a preliminary injunction, a plaintiff must
establish four elements: (1) that plaintiff is likely to succeed on the merits, (2) that he is likely to
suffer irreparable harm in the absence of relief, (3) that the balance of equities tips in his favor,
and (4) that the injunction or temporary restraining order is in the public interest. See Winter v.
Natural Res. Dei Council, Inc., 555 U.S. 7, 20 (2008) (setting forth elements which must be

established to obtain a preliminary injunction); Moore v. Kempthorne, 464 F. Supp. 2d 519, 525
(E.D.Va. 2006) (holding that the standard for granting a temporary restraining order is the same
as the standard for granting a preliminary injunction).
establish any of these elements.

Here, the Plaintiff's filings do not

This Court, like the Magistrate Judge, finds no evidence

supporting Plaintiff's claims for retaliation, discriminatory treatment, or medical exigency.
Plaintiff's requests for injunctive relief constitute an improper attempt by Plaintiff to substitute
his judgment for that of the prison officials and prison medical staff. Because Plaintiff has failed
to establish any of the prerequisites for a temporary restraining order, Plaintiff's motion (Dkt.
No. 30) is denied.
Plaintiff also filed three motions for default judgment. (See Dkt. Nos. 35, 57, 70). As
explained in the Magistrate's Report and Recommendation, Defendants timely removed
Plaintiff's original Complaint and then timely filed an answer. (Dkt. No. 91 at 12-13). Further,
Defendants timely filed an answer to Plaintiff's Amended Complaint. (See Dkt. No. 32). Thus,
Plaintiff is not entitled to a default judgment, and Plaintiff's motions (Dkt. Nos. 35, 57, 70) are
denied.

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II.

Defendants' Motion for Summary Judgment

On June 13, 2011, Defendants filed a motion for summary judgment, arguing that
Defendants are entitled to judgment as a matter of law on all of Plaintiffs claims against them in
the Amended Complaint. (Dkt. No. 28). In her Report and Recommendation, the Magistrate
Judge points out that Defendants raised a defense based on Plaintiffs failure to exhaust his
administrative remedies in their answer but did not address this issue in the motion for summary
judgment. (Dkt. No. 91 at 11-12). Thus, the Magistrate Judge recommended that the Court deny
Defendants' motion for summary judgment without prejudice and with leave to refile to provide
the parties an opportunity to address the issue of exhaustion. (Id.). However, the Court, as
discussed below, finds that Defendants are entitled to summary judgment based on their existing
arguments. Thus, the Court finds it unnecessary to request further briefing on the exhaustion
issue.
a. Summary Judgment Standard

Summary judgment is appropriate if a party "shows that there is no genuine dispute as to
any material fact" and the movant is entitled to judgment as a matter of law.

FED.

R. CIV. P.

56(a). In other words, summary judgment should be granted "only when it is clear that there is
no dispute concerning either the facts of the controversy or the inferences to be drawn from those
facts." Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987). "When
detemlining whether the movant has met its burden, the court must assess the documentary
materials submitted by the parties in the light most favorable to the nonmoving party." Id. The
party seeking summary judgment shoulders the initial burden of demonstrating to the court that
there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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Once the moving party has made this threshold demonstration, the non-moving party, to
survive the motion for summary judgment, may not rest on the allegations averred in his
pleadings. Id. at 324. Rather, the non-moving party must demonstrate that specific, material
facts exist that give rise to a genuine issue. Id. Under this standard, "[ c]onc1usory or speculative
allegations do not suffice, nor does a 'mere scintilla of evidence'" in support of the nonmoving
party's case. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). Rule
56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
FED. R. Cry. P. 56(c)(I).
b. Discussion

Many of the allegations in Plaintiffs Amended Complaint relate to individuals who are
no longer Defendants in this suit. (See generally Dkt. No. 18). With regard to the Defendants in
this suit, the Amended Complaint alleges that that Plaintiff "was unlawfully confined by
[Defendant] Sellars due to a falsified incident report of [Defendants] T-David and Nurse Shelly
Stokes as a retaliation due to [Plaintiff] seeking redress because of [Defendant] Stokes depriving
him of his certain minimum level of medical treatment." (Jd. at 4). Specifically, Plaintiff alleges
that he was confined to "punitive segregation." (Jd.). Plaintiff also alleges that his due process
rights were violated during the disciplinary proceeding that resulted from the allegedly falsified
incident report.

(Jd. at 5).

Finally, Plaintiff alleges that he suffers from various medical

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problems and symptoms Cid. at 7-9), and that Defendants have shown deliberate indifference to
his serious medical needs, going so far as to allege: "I have not been given any medical treatment

...." (Id. at 7). Plaintiff also alleges that he has been "deprived of sick call attention on many
occassions [sic]." (Id. at 11). While apparently not alleged in the Amended Complaint, Plaintiff
has alleged in other filings that Defendant Stokes has deprived Plaintiff of certain medication.
(See, e.g., Dkt. No. 31 at 1). After considering all of Plaintiffs allegations and the applicable

law, the Court finds that Defendants are entitled to summary judgment.

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First, Plaintiff is barred from pursuing his claim that his disciplinary proceeding was
based on a falsified report and violated his due process rights. Although Plaintiff has significant
appellate rights with regard to an inmate disciplinary action pursuant to AI-Shabazz v. State, 527
S.E2d 742 (S.C. 2000) and Furtick v. South Carolina Dep't a/Carr., 649 S.E.2d 35 (S.C. 2007),
Plaintiff apparently has not taken advantage of such rights with regard to the relevant
disciplinary proceeding. In Edwards v. Balisok, 520 U.S. 641 (1997), the United States Supreme
Court held that Heck v. Humphrey, 512 U.S. 477 (1994), applies to challenges to the procedures
utilized in inmate disciplinary proceedings. In Heck, the Court held that, "in order to recover
damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ of habeas corpus." fd.

Thus,

"punishment for infractions [of the inmate disciplinary system] cannot be reviewed by this Court
under 42 U.S.C. § 1983 until the plaintiff has won a reversal or expungement of the
Apparently Plaintiff did not make any specific allegations against Defendant Beinar in the
Amended Complaint. (See generally Dkt. No. 18). Thus, Defendant Beinar is certainly entitled
to summary judgment.

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administrative decision. This Court cannot indulge in collateral attacks on facially valid prison
disciplinary proceedings." Nicholas v. Cann, No. 9:01-4480, 2002 WL 31996019, at *3 (D.S.C.
June 24,2002); see also Nicholas v. White, No. 8:05-1232,2006 WL 2583765, at *4-5 (D.S.C.
Sept. 7,2006); Kerr v. Orellana, 969 F.Supp. 357,358 (E.D.Va.l997). Because Plaintiff has not
won a reversal or expungement of the disciplinary decision which he now challenges, Plaintiffs
claims regarding this disciplinary proceeding are barred.

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Next, Defendants are entitled to summary judgment on Plaintiffs claims relating to his
confinement to punitive segregation. A reclassification of a prisoner's confinement status does
not give rise to a claim of a constitutional violation unless it "imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life." See Sandin v. Conner,
515 U.S. 472, 472 (1995). The Fourth Circuit has held that "[a]dministrative segregation is not
an 'atypical and significant hardship' relative to the ordinary incidents of prison life that would
give rise to a liberty interest protected by any procedure." Joseph v. Gillespie, 73 F.3d 357 (4th
Cir. 1995) (Table). Here, Plaintiff has not alleged any facts which would establish that his
punitive segregation implicated due process rights. Further, even if Plaintiff could establish that
the punitive confinement imposed "atypical and significant hardship," Plaintiff has not
established that any of his due process rights, as set forth in Wolffv. McDonnell, 418 U.S. 539
(1974), were violated.
Finally, Defendants are entitled to summary judgment on Plaintiffs claim that
Defendants were deliberately indifferent to a serious medical need. Plaintiffs allegations make
it clear that Plaintiff disagrees with the decisions of the prison medical staff regarding his
5 Further, there is no evidence in the record that Plaintiffs due process rights were violated
during the disciplinary proceeding. To the contrary, documents filed by Defendants indicate that
all of the due process protections required by the Supreme Court in Wolffv. McDonnell, 418 U.S.
539 (1974), were observed for purposes of Plaintiffs disciplinary proceeding. (See Dkt. No. 48­

6).
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treatment, but this is insufficient to establish a constitutional violation.

"Although the

Constitution does require that prisoners be provided with a certain minimum level of medical
treatment, it does not guarantee to a prisoner the treatment of his choice." Jackson v. Fair, 846
F.2d 811, 817 (1 st Cir. 1988). A disagreement as to the proper treatment to be received does not
in and of itself state a constitutional violation. See Smart v. Villar, 547 F.2d 112, 114 (10th Cir.
1976). A health care provider's method of diagnosis and choice of treatment of an inmate is not
subject to judicial review. Peterson v. Davis, 551 F. Supp. 137, 146 (D.Md. 1982), aff'd by 729
F.2d 1453 (4th Cir. 1984). Also, deliberate indifference is a very high standard, and a showing
of mere negligence will not meet it.

Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999).

Plaintiff s allegations regarding his medical treatment do not meet the very high standard of
deliberate indifference.

Furthermore, the affidavits and medical records submitted by

Defendants in support of their motion for summary judgment demonstrate that Plaintiff has
received continuous and frequent medical treatment during his incarceration. (See Dkt. Nos. 48­
2 through 48-5). In determining whether a prisoner has received adequate medical treatment,
this Court is entitled to rely on the affidavits of medical personnel. Bennett v. Reed, 534 F. Supp.
83,87 (E.D.N.C. 1981), aff'd by 676 F.2d 690 (4th Cir. 1982).
Conclusion

For the foregoing reasons, the Court grants Defendants' motion for summary judgment.
(Dkt. No. 48). Further, the Court denies as moot Plaintiffs motion to dismiss (Dkt. No. 12),
denies Plaintiffs motions for injunctive relief (Dkt. Nos. 14, 30), and denies Plaintiffs motions
for default judgment (Dkt. Nos. 35, 57, 70).

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Richard Mark Gc
United States District C urt Judge
February '2'<- 2012
-'
Charleston, South Carolina

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