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Lisenby v. Riley

United States District Court, D. South Carolina

April 2, 2015

Billy Lee Lisenby, #200273, Plaintiff,
v.
Warden Tim Riley, Assoc. Warden G. Lane, Assoc. Caldwell, Major J. Parish, Captain B. Tucker, Doctor Bearden, Nurse A. Spencer, Dir. William Byars, C/O Bobo, Lt. Copeland, Mrs. Janice Phillips, Warden Celia Reynolds, Assoc. Warden Washington, Assoc. McKay, Major Seward, Captain Dubois, Lt. Huntley, Mrs. Lecompt, Mrs. Powe and Mrs. Hough, Defendants.

REPORT RECOMMENDATION

KAYMANI D. WEST, Magistrate Judge.

Plaintiff, an inmate with the South Carolina Department of Corrections ("SCDC"), filed this 42 U.S.C. § 1983 action alleging Defendants violated his constitutional rights. This matter is before the court on Defendants' Motion for Summary Judgment. ECF No. 103. As Plaintiff is proceeding pro se, the court entered a Roseboro order[1] on September 29, 2014, advising Plaintiff of the importance of such a motion and of the need for him to file an adequate response. ECF No. 104. Plaintiff filed a Response in Opposition to Defendants' Motion for Summary Judgment on November 17, 2014, ECF No. 115, to which Defendants replied on December 15, 2014, ECF No. 121. On December 31, 2014, Plaintiff filed a Sur Reply to Defendants' Motion. ECF No. 123. This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) and (e), D.S.C. Because the Motion is dispositive, a Report and Recommendation is entered for the court's review.

I. Background

Plaintiff Billy Lisenby is currently incarcerated at SCDC's Lee Correctional Institution ("LCI"). ECF No. 1 at 2. When Plaintiff first entered SCDC, he was incarcerated at MacDougall Correctional Institution ("MCI") where Plaintiff alleges he informed SCDC staff that he was diagnosed with narcolepsy and suffered from mental health issues. ECF No. 1-1 at 4. Later Plaintiff alleges he was moved to Kershaw Correctional Institution ("KCI"), where he was housed from June 8, 2012 until August 2, 2012. Id. In August of 2012, Plaintiff maintains he was transferred to Tyger River Correctional Institution ("TCI").

While at KCI, Plaintiff maintains he was denied recreation and outdoor exercise from June 8, 2012, to August 2, 2012 because he was unable to stand for "all four counts."[2] ECF No. 1-1 at 4. While at TCI, Plaintiff maintains he was denied meals, recreation, showers, and cleaning supplies because officers refused to wake him up. Id. at 5. Plaintiff contends that "in order to receive recreation, the only requirement is to stand for (4) counts, [but] Plaintiff is often asleep for these counts and does not hear the call. So just like a man in a wheelchair he cannot stand." Id. Furthermore, Plaintiff alleges that his psychiatric medications cause excessive sleeping. Id. Plaintiff maintains that medical staff should have put a note on Plaintiff's door so that SCDC officers know he has narcolepsy so that he is not passed over for meals, recreation, showers, and cleaning supplies. Id. Plaintiff also alleges that his recreation was taken from him for "not shaving, not cutting [his] fingernails, being under the covers, talking during count, not having [his] jumpsuit button[ed] up, or [his] sideburns being to[o] long." Id. Overall, Plaintiff maintains that he "was afforded recreation (3) times in (15) months." Id. Plaintiff maintains that he was denied meals for failing to shave when SCDC's policy does not support this practice. Id. at 6. Plaintiff alleges that he has lost weight from being denied meals. Id. at 7. Plaintiff alleges that he asked medical staff to put a note on his door to alert SCDC officers of his narcolepsy and wake him for meals and count, but his request was denied because staff advised Plaintiff that he did not have narcolepsy. Id. Plaintiff maintains that he was denied meals over 15 times since August of 2012. Id.

Plaintiff maintains that SCDC staff turned down a nurse practitioner's request that he be placed on Provigil[3] in July of 2008. ECF No. 1-1 at 5. Additionally, he maintains he has reported to medical services for a variety of ailments, and he has received medications to treat constipation and migraines. Id. Plaintiff alleges that "Nurse Spencer and Dr. Bearden refused to order Plaintiff's medical records from society to better treat him for his disabilities and mental health issues." Id. at 7. Plaintiff contends that Dr. Bearden saw "no indication of narcolepsy" in Plaintiff even though Dr. Ford of SCDC noted Plaintiff's narcolepsy. Id.

Plaintiff lists 14 "ways" in which Defendants have violated his Fourteenth and Eighth Amendment rights. Id. at 14. Plaintiff seeks a "declaration that the acts and omissions described herein violated Plaintiff's rights under the Constitution and laws of the United States." Id. at 16. Additionally, Plaintiff seeks a preliminary and permanent injunction ordering Defendants to stop retaliating against him for his alleged disability and provide him medical treatment for his alleged disability. Id. Plaintiff seeks $75, 000 in compensatory damages, $300, 000 in punitive damages, a jury trial, costs, and any additional relief the court deems proper. Id.

II. Standard of Review

In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

III. Analysis

A. Failure to State a Claim

Defendants maintain that Plaintiff's Complaint should be dismissed because it fails to state a claim upon which relief can be granted. ECF No. 103-1 at 6-8. Specifically, Defendants maintain that Plaintiff's allegations fail to comply with the requirements of Rule 8 of the Federal Rules of Civil Procedure. Id. at 6.

Rule 8 of the Federal Rules of Civil Procedure requires that complaints shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The purpose behind Rule 8 is to give the defendant fair notice of the claims and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Further, the plaintiff is obligated to provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do...." Id. The factual allegations must be enough to raise a right to relief above the speculative level. Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Twombly Court noted that defendants will not know how to respond to conclusory allegations, especially when "the pleadings mentioned no specific time, place, or person involved in the alleged conspiracies." Twombly, 550 U.S. at 565 n.10. However, Twombly did not expressly hold that a plaintiff must assert specific time, place, and persons involved in order to comply with Rule 8. See Ashcroft, 556 U.S. at 678 (internal Twombly citation omitted) ("As the Court held in Twombly, [] the pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation."); Starr v. Sony BMG Music Entm't, 592 F.3d 314, 325 (2d Cir. 2010) (finding the Twombly court noted, in dicta, that the pleadings there mentioned no specific time, place, or person involved in the alleged conspiracies and rejected defendants' argument that Twombly requires a plaintiff identify the specific time, place, or person related to each conspiracy allegation); Milliken & Co. v. CNA Holdings, Inc., 3:08-CV-578-RV, 2011 WL 3444013, at *5 (W.D. N.C. Aug. 8, 2011) (finding other courts have held a plaintiff can survive a motion to dismiss even though he fails to answer who, what, when and where).

Plaintiff is proceeding pro se in this case. Pro se complaints should be construed liberally by this court and are held to a less stringent standard than those drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 105 (1976). Dismissal of a pro se complaint for failure to state a valid claim is only appropriate when, after applying this liberal construction, it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519 (1972). The requirement of liberal construction, however, does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller, 901 F.2d at 390-91. Defendants argue Plaintiff's Complaint should be dismissed in its entirety for failure to satisfy Rule 8's pleading requirements. The undersigned will address Plaintiff's purported causes of action in turn.

1. Medical Indifference

The undersigned finds that Plaintiff's allegations of medical indifference fail as a matter of law. In his Complaint, Plaintiff alleges that he was diagnosed with narcolepsy in 2006, and since he entered SCDC staff has tried to get his Provigil but Dr. Wood denied the request. ECF No. 1-1 at 4. Additionally, Plaintiff alleges that he has been to "medical complaining and is being treated for migraines, heartburn, stomach cramps, neck pains, constipation, lethargy, and depression." Id. at 5. Plaintiff further maintains that he is receiving medications for his constipation and Imitrex for his migraines. Id. Plaintiff alleges that "Nurse Spencer and Doctor Bearden refused to order Plaintiff's medical records from society to better treat him for his disabilities and mental health issues." Id. at 7. However, Plaintiff contends that Dr. Bearden saw "no indication for treatment of narcolepsy at present." Id. Plaintiff alleges that in a medical note, Dr. Ford of SCDC noted that Plaintiff was prescribed Remeron and Risperdal in October of 2012 "for his intermediate (sic) explosive disorder. These two meds. (sic) cause excessive sleeping." Id.

Deliberate indifference to a serious medical need requires proof that each defendant knew of and disregarded the risk posed by the plaintiff's objectively serious medical needs. Farmer v. Brennan, 511 U.S. 825, 846 (1994). An assertion of mere negligence or malpractice is not enough to state a constitutional violation, plaintiff must allege and demonstrate "[d]eliberate indifference... by either actual intent or reckless disregard." Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled in part on other grounds by Farmer, 511 U.S. at 837. In other words, a plaintiff must allege facts demonstrating that defendant's actions were "[s]o grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness." Id. The Fourth Circuit Court of Appeals defines a serious medical need as "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." Iko ...


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