Weatherall v. Fox, C/A No. 2:15-CV-2668-RMG-MGB

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtMARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
PartiesMitchell Monroe Weatherall, PLAINTIFF, v. Tom Fox, Pamela Ard, & Southern Health Partners, DEFENDANTS.
Decision Date14 April 2016
Docket NumberC/A No. 2:15-CV-2668-RMG-MGB

Mitchell Monroe Weatherall, PLAINTIFF,
v.
Tom Fox, Pamela Ard, & Southern Health Partners, DEFENDANTS.

C/A No. 2:15-CV-2668-RMG-MGB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

April 14, 2016


REPORT AND RECOMMENDATION

The Plaintiff, appearing pro se and in forma pauperis, brings this action under Title 42, United States Code, Section 1983. The Plaintiff is currently a pretrial detainee housed at the J. Reuben Long Detention Center ("JRL") in Horry County, South Carolina. This matter is before the court on Defendant Fox' Notice of Motion and Motion for Summary Judgment (Dkt. No. 23) and the Motion for Summary Judgment by Defendants Southern Health Partners, Inc. and Pamela Ard. (Dkt. No. 26.) The Plaintiff filed a letter addressed to the court in response to the Defendants' motions for summary judgment filed on January 19, 2016. (Dkt. No. 35.) Defendants Southern Health Partners and Pamela Ard replied to the Plaintiff's response on January 29, 2016. (Dkt. No. 37.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration.

ALLEGED FACTS1

On June 10, 2014, the Plaintiff bit into a rock while eating beans at JRL and lost a filling in his tooth. The Plaintiff placed a "sick call" informing JRL that he was in extreme pain. The

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Plaintiff was told he would have to pay if he wanted his tooth fixed. The Plaintiff was given two aspirin and placed on a list to have his tooth extracted. The Plaintiff was in extreme pain, and experienced vomiting, headaches, and loss of sleep. The Plaintiff was only able to eat using one side of his mouth. In July of 2014, the Plaintiff met Defendant Pamela Ard, an LPN for Southern Health Partners2. (Dkt. No. 26-2 at 2.) She told the Plaintiff he would see a dentist soon and offered him two ibuprofen. The Plaintiff told her the ibuprofen was not helping. On July 16, 2014, the Plaintiff was seen by Dr. Joshua Hudson, a dentist. Dr. Hudson determined the Plaintiff's tooth was too damaged to be repaired and removed the tooth.

The Plaintiff filed fifteen (15) grievances between June 10, 2014, when he bit the rock, and July 16, 2014, when he was seen by a dentist. The Plaintiff alleges that over 90% of his grievances went unanswered within the 72 hours required by JRL policy with some taking twenty (20) days to be answered.3

The Plaintiff alleges that Defendant Fox is liable as the director of JRL for failing to provide adequate and qualified staff to prepare food, failing to provide adequate medical care, and maintaining policies that interfere with adequate medical care. The Plaintiff alleges that Defendants Ard and Southern Health Partners are liable for being unwilling and failing to respond to his requests for treatment. The Plaintiff seeks actual and punitive damages against the Defendants.

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STANDARD OF REVIEW

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). "[A]ll evidence must be construed in the light most favorable to the party opposing summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 261 (1986). "This court is required to construe pro se complaints and petitions liberally." Stout v. Robnett, 107 F. Supp. 2d 699, 702 (D.S.C. 2000) (internal quotations and citations omitted). " [P]ro se complaints...are held to a less stringent standard than those drafted by attorneys,...and a federal district court is charged with liberally construing a complaint or petition filed by a pro se litigant to allow the development of a potentially meritorious case." Id.

ANALYSIS

1. 42 U.S.C. § 1983 Claims

The Complaint seeks to bring claims for "personal injury, negligence, and deliberate indifference.4" (Dkt. No. 1 at 2.) In order to state a claim pursuant to 42 U.S.C. § 1983, a

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plaintiff must allege (1) that he or she "has been deprived of a right, privilege or immunity secured by the Constitution or laws of the United States," and (2) "that the conduct complained of was committed by a person acting under color of state law." Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983); see also Gomez v. Toledo, 446 U.S. 635, 540 (1983); Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980). In a § 1983 action, "liability is personal, based upon each defendant's own constitutional violations." Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001).

As a pretrial detainee, the protections given by the Due Process Clause of the Fourteenth Amendment, not the Eighth Amendment, apply to the Plaintiff's case. Slade v. Hampton Roads Reg'l Jail, 407 F.3d 243, 250 (4th Cir. 2005). Deliberate indifference towards a pretrial detainee's serious medical need violates the Due Process clause of the Fourteenth Amendment. Young v. City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001); Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.1999) (applying deliberate indifference standard to pretrial detainee's claim that he was denied needed medical treatment), cert. denied, 529 U.S. 1067, 120 S.Ct. 1673, 146 L.Ed.2d 482 (2000). "The Fourteenth Amendment right of pretrial detainees, like the Eighth Amendment right of convicted prisoners, requires that government officials not be deliberately indifferent to any serious medical needs of the detainee." Belcher v. Oliver, 898 F.2d 32, 34 (4th Cir. 1990) (citations omitted). "The test for deliberate indifference has two parts. First, whether the deprivation of medical care was sufficiently serious (objective component) and second, whether there existed a culpable state of mind (subjective component)." Harden v. Green, 27 F. App'x 173, 176 (4th Cir. 2001) (citing Wilson, 501 U.S. at 298).

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a. Section 1983 Claims against Defendant Fox

No genuine issue of material fact exists as to the Plaintiff's §1983 claim against Defendant Fox, and this court recommends that summary judgment be granted in favor of the Defendant. The Plaintiff does not allege that Defendant Fox was personally responsible for diagnosing and treating the Plaintiff's medical needs. (See Dkt. No. 1.) Rather, the Plaintiff alleges Defendant Fox is liable as the supervisor of JRL and his implementation of jail policies. The Plaintiff alleges that Defendant Fox is liable for failing to provide adequate and qualified staff leading to a rock being in his beans. (Dkt. No. 1 at 4.) Additionally the Plaintiff alleges Defendant Fox maintained policies that interfered with the Plaintiff receiving adequate medical care and failed carry out his responsibility to make adequate medical care available. (Id.) The Plaintiff seeks actual and punitive damages against all the Defendants. (Id. at 5.)

In a § 1983 action, "liability is personal, based upon each defendant's own constitutional violations." Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001). "Supervisory officials may be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates." Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984). In such a case, liability "is not premised on respondeat superior, but on a recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care." Id. (citations omitted). The Fourth Circuit has stated a Plaintiff must show the following three elements to establish supervisor liability under section 1983:

(1) that the supervisor had actual or constructive knowledge that h[er] subordinate was engaged in conduct that posed "a pervasive and unreasonable risk" of constitutional injury to citizens like the plaintiff;

(2) that the supervisor's response to that knowledge was so inadequate as to show "deliberate indifference to or tacit authorization of the alleged offensive practices,"; and

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(3) that there was an "affirmative causal link" between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.

Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.1994)). A plaintiff in a supervisory liability case "assumes a heavy burden of proof," Slakan, 737 F.2d at 373 (internal quotation marks and citations omitted). Generally speaking, a plaintiff cannot satisfy this heavy burden of proof "by pointing to a single incident or isolated incidents," but "[a] supervisor's continued inaction in the face of documented widespread abuses...provides an independent basis for finding he either was deliberately indifferent or acquiesced in the constitutionally offensive conduct of his subordinates." Id. (citations omitted). "Establishing a 'pervasive' and 'unreasonable' risk of harm requires evidence that the conduct is widespread, or at least has been used on several different occasions and that the conduct engaged in by the subordinate poses an unreasonable risk of harm of constitutional injury." Wilkins, 751 F.3d at 226 (quoting ...

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