Jones v. Busch

• Decision Date: 22 September 2015
• Docket Number: C/A No. 9:15-722-MGL-BM
• Court: U.S. District Court — District of South Carolina
• Parties: George N. S. Jones, Sr., also known as George S. Jones, Sr., Plaintiff, v. Warden Busch, Warden Reynolds, Asso. Warden Davis, Asso. Warden Sharp, Capt. Thomas, Asso. Warden Nolan, Nurse Anderson, Nurse Bass, Nurse Jones, Nurse Hubbard, Nurse Noray, Defendants.

George N. S. Jones, Sr., also known as George S. Jones, Sr., Plaintiff, v. Warden Busch, Warden Reynolds, Asso. Warden Davis, Asso. Warden Sharp, Capt. Thomas,Asso. Warden Nolan, Nurse Anderson, Nurse Bass, Nurse Jones, Nurse Hubbard, Nurse Noray, Defendants.

C/A No. 9:15-722-MGL-BM

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

September 22, 2015

REPORT AND RECOMMENDATION

The Plaintiff, George N.S. Jones, Sr., also known as George S. Jones, Sr., proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. At the time of the alleged incidents he was an inmate at the McCormick Correctional Institution or the Lee Correctional Institution, both part of the South Carolina Department of Corrections (SCDC). He is currently housed at the Broad River Correctional Institution of SCDC.

Plaintiff alleges that he was given incorrect medications, the wrong dosage of his medication, missed a dosage of medication, or received his medication late on a few occasions; his prison job as a tutor or teacher was improperly taken from him; some of his grievances were not processed; after he saw another inmate do an improper act, the whole dorm and supervisors of the dorm "wanted to turn on him"; and he was placed in the special management unit (SMU) even though he has sleep apnea and takes at least ten pill packages a day for his various medical conditions.Complaint, ECF No. 1 at 3-6. Amended Complaint at 1-2.¹ He requests $250,000 in damages. Id. at 4.

Discussion

Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915 and § 1915A, the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a pro se complaint to allow the development of a potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972); Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).

However, even when considered pursuant to this liberal standard, for the reasons set forth herein below this case is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009) [outlining pleading requirements under the Federal Rules of Civil Procedure].

I.(Exhaustion of Administrative Remedies)

First, a plain reading of the Complaint shows that Plaintiff did not properly exhaust his available administrative remedies as to any of his alleged claims, other than possibly as to his claim that he was given the wrong medications on April 12, 2014.² Before a prisoner can proceed with a lawsuit in federal court concerning prison conditions, he must first exhaust his administrative remedies as required by the Prison Litigation Reform Act, which provides that "[n]o 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." 42 U.S.C. § 1997e(a). This requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Moreover, exhaustion is required even when a prisoner seeks remedies, such as money damages, that are not available in the administrative proceedings. See Booth v. Churner, 532 U.S. 731, 740-41 (2001).

To satisfy this requirement, a plaintiff must avail himself of every level of available administrative review, which means '"using all steps that the agency holds out, and doing so properly.'" Woodford v. Ngo, 548 U.S. 81 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Thus, "it is the prison's requirements, and not the [Prison Litigation Reform Act], that define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 218 (2007).Further, while a plaintiff's failure to exhaust administrative remedies is considered an affirmative defense, and not a jurisdictional infirmity; id. at 216; if the lack of exhaustion is apparent on the face of the prisoner's complaint, sua sponte dismissal prior to service of the complaint is appropriate. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005).

This Court can take judicial notice from previous cases filed in this Court that, under the SCDC Grievance Procedure, all inmate grievances must be filed within fifteen (15) days of the alleged incident, and if a grievance is denied by the Warden (Step 1), the inmate may then appeal the Warden's decision by filing a Step 2 appeal with the Division Director of Operations. See Aloe Creme Laboratories, Inc. v. Francine Co, 425 F.2d 1295, 1296 (5th Cir. 1970); see also Branton v. Ozmint, No. 08-2306, 2009 WL 1457144 at * 2 (D.S.C. May 22, 2009); Jenkins v. South Carolina Dept. of Corrections, No. 05-2800, 2006 WL 1083563 at * 5 (D.S.C. Apr. 18, 2006). Here, Plaintiff wrote that he filed his grievance on April 12, 2014, and checked a box on the Complaint form indicating he received a final determination regarding the matters alleged. However, although Plaintiff's allegation involving having been given the wrong medications occurred on April 12, 2014, the other alleged incidents all occurred after this date (with the exception of an incident concerning his prison job, which occurred in 2008).³ Therefore, Plaintiff's claims concerning incidents other than that which allegedly occurred on April 12, 2014 are subject to summary dismissal for Plaintiff's failure to exhaust his available administrative remedies. Hyde v. South Carolina Dep't of Mental Health, 442 S.E.2d 582, 583 (S.C. 1994) ["Where an adequate administrative remedy is available to determine a question of fact, one must pursue the administrative remedy or be precluded from seekingrelief in the courts"]; Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000)["It is beyond the power of this court - or any other to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis."](quoting Beeson v. Fishkill Corr. Facility, 28 F.Supp. 2d 884, 894-895 (S.D.N.Y. 1998)); Cannon v. Washington, 418 F.3d 714, 719 (7th Cir. 2005) [Prisoner may not file a lawsuit before exhausting his administrative remedies]; Malik v. Sligh, No. 11-1064, 2012 WL 3834850, at * 4 (D.S.C. Sept. 4, 2012) ["A court may not consider, and must dismiss, unexhausted claims"].

II.(Medical Claims)

Even if Plaintiff could show that he exhausted his available administrative remedies as to the incidents that allegedly occurred after April 12, 2014 (the only date on which Plaintiff alleges he filed a grievance), those claims (as well as his possibly exhausted claim from April 12, 2014) would still be subject to dismissal for the reasons discussed below.

Plaintiff alleges that on a few occasions he was given the wrong medications, the wrong dosage of medication, or that his receipt of his prescribed medication was delayed. Specifically, he claims that on the mornings of April 12 and 13, 2014, he was given the wrong medicine (Dilantin to which he was allergic); on an unspecified day (which might have been April 12 or 13, 2014) Benadryl "spilled all over" his 8:00 p.m. medications; on May 21, 2014, Neurontin (which he was not prescribed) was given to him and that he had to wait on Nurse Jones and Nurse Hubbard in order to return the medication and obtain his correct medications; on the mornings of April 30 and May 1, 2014, Nurses Andersen and Nohay did not bring him the correct or full amount of his medications; on April 30, 2014, he had to wait until 4:00 to get his Phenobarbitol (usuallybrought to him in the morning); on May 1, 2014, Ms. Nohay did not bring his Tegretol 4:00 p.m.; on June 11, 2014, Nurse Hubbard gave Plaintiff too many Phenobarbitol and Tegretol tablets (Plaintiff had to call the error to the attention of Captain Graham and the excess medication was returned); and on July 26, 2014, Nurse Bass did not bring Plaintiff any Phenobarbitol. ECF No. 1 at 3-4, ECF No. 11.

A prisoner in a § 1983 case "must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs to proceed with a claim under this statute." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Errors in judgment or mistakes do not state a constitutional claim for deliberate indifference. Levy v. State of Ill. Dept. of Corrections, No. 96-4705, 1997 WL 112833 (N.D.Ill. March 11, 1997) ["A defendant acts with deliberate indifference only if he or she 'knows of and disregards' an excessive risk to inmate health or safety.'"]. Here, Plaintiff alleges that, on a few occasions, his medications were distributed at the wrong time of day, he was provided the wrong medication and/or had to wait to obtain the correct medication; he was given the wrong dosage of medication, or he missed a dose of his medication. He has not asserted that he suffered any harm or negative effects from these alleged actions. It is well settled that negligent or incorrect medical treatment (medical malpractice) is not...