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Tyler v. Coe

United States District Court, D. South Carolina

March 9, 2017

Larry James Tyler. #27980, Plaintiff,
v.
Wadell Coe and Diann Wilks, Defendants.

          REPORT AND RECOMMENDATION

          Bristow Marchant United States Magistrate Judge.

         This is a civil action filed by the Plaintiff, Larry James Tyler, pro se. Plaintiff, who at the time this case was filed was detained at the Darlington County Detention Center while awaiting civil commitment proceedings pursuant to the South Carolina Sexually Violent Predator (SVP) Act, SC Code Ann. §§ 44-48-10 through 44-48-170, seeks relief under 42 U.S.C. § 1983.[1]Plaintiff is a frequent filer of litigation in this Court, having filed at least sixteen (16) prior cases in which he has asserted a variety of claims. Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970)[a federal court may take judicial notice of the contents of its own records].

         The Defendants filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. on December 22, 2016. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on January 3, 2017, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to respond to the Defendants' motion, his case could be dismissed. However, notwithstanding having been granted an extension on January 25, 2017 to file his response to the motion for summary judgment to February 17, 2017, Plaintiff failed to file a timely response to the Defendants' motion. Plaintiff did, however, eventually file a response on March 6, 2017, some two and a half months after the filing of the motion for summary judgment.

         The Defendants' motion is now before the Court for disposition.[2]

         Background and Evidence

         Plaintiff alleges in his complaint that he is a vegetarian, and that starting around November 2, 2015 “the meals I have been getting from the Darlington Detention Center has been short in the area of a balanced meal, or lacking the required portion, or not serving me the same as the other prisoners”. Plaintiff's specific complaint is that he gets “one kind of protein, peanut butter at all three meals, [while] the other prisoners [are given] a different kind of protein at every meal. They get 3 and 4 different kinds, and I get one or two of the same kind at all meals”. Plaintiff further alleges that he is a vegetarian who can eat dairy products, not a “vegan” who does not eat dairy products, and that he does not need to be restricted from foods that have dairy products in them. Even so, Plaintiff complains that he gets “no breads, eggs, butter, cakes, cobblers, or cheeses”. Plaintiff alleges that he made this complaint to the Defendant Coe, “Warden” at the Detention Center, and that Coe “cut my desserts in half as a punishment because he said I was stock piling when he found three whole apples in my cell I had from my previous meals”. As a result, Plaintiff alleges he only gets “½ fruit for dessert”, whereas the other inmates “get all kinds of desserts”. Plaintiff alleges that at the time Coe ordered the kitchen staff to cut his fruit serving in half, “medical” had him on an appetite suppression medication (Topamax), which Plaintiff apparently contends he only found out about a couple of weeks later.[3] Plaintiff alleges he told Coe that he was not eating his fruit due to the medication, but that Coe “gave me no reply” and kept him on the half dessert restriction.

         Plaintiff further alleges that he notified “medical” that he was getting diarrhea from eating peanut butter three times a day, and also notified Coe that he was having this problem, but that “nothing changed” and he got “no reply”. Plaintiff alleges that he has written a “plethora” of grievances to the kitchen supervisor and Coe about the “countless shortages of either the vegetables, or the protein, and serving me the same protein at every meal”, and also that he has made two requests to be taken off the peanut butter vegetarian diet, but that Coe is “forcing me to remain on it against my will” even though Plaintiff wants to be put on the “regular diet meals”. Plaintiff complains that he has lost between five and twelve pounds.

         Plaintiff seeks monetary damages from Coe for the treatment he has received, that Coe be required to admit his wrongdoing, and that he be taken off the vegetarian diet. Plaintiff also seeks compensation from the Defendant Wilks (Medical Department Supervisor) for “not doing anything to prevent me from getting diarrhea”. Plaintiff has attached to his Complaint copies of some handwritten notes that he purportedly sent to Coe and the kitchen supervisor, as well as copies of some grievances he filed. See generally, Plaintiff's Verified Complaint, with attached exhibits.

         In support of summary judgment the Defendant Wadell Coe has submitted an affidavit wherein he attests that at all times relevant hereto he was the Director of the Darlington County Detention Center. Coe attests that medical services for inmates at the Detention Center are provided by HMES, an independent contractor, and that while he is often made aware of an inmate's medical complaints and/or treatment by HMES, he never undertakes the duty to treat inmates himself since he is not a medical doctor. Even so, Coe attests that he is aware that Plaintiff was never denied any required medical attention by anyone, including himself. To the contrary, Plaintiff has been provided medical care by HMES on multiple occasions upon his request, and Coe attests that he relies upon the medical personnel at the jail to provide and make decisions concerning Plaintiff's medical care.

         Coe further attests that during the course of Plaintiff's incarceration, and consistent with the allegation in his Complaint that he is a “vegetarian”, Plaintiff was provided a vegetarian diet “at his request”. Coe attests that Plaintiff was provided a healthy medical diet that was consistent with appropriate medical/prison standards, that his meals were varied and his diet was not nutritionally deficient, that Plaintiff was never malnourished in any way, nor were his meals ever dangerous to him. Coe attests that all jail menus are evaluated and certified as nutritionally sound by a registered dietician, and that all menus provide adequate nutritional value based on the recommended dietary allowances. Coe attests that he is not aware of any statutory provision, case law, or common law which would clearly establish a violation of Plaintiff's rights under the facts and circumstances of this case, nor is he aware of any court decision which has concluded under facts similar to this case that the complained of acts, conduct, and/or omissions were/are unconstitutional. See generally Coe Affidavit.

         The Defendant Diane Wilkes (correct spelling) has also submitted an affidavit wherein she attests that she is employed by Hartsville Medical Enrichment Services, LLC (HMES), a South Carolina limited liability company which serves as an independent contractor providing medical services for inmates at the Darlington County Detention Center. Wilkes has attached to her affidavit a copy of Plaintiff's medical/inmate records, totaling one hundred sixty-one (161) pages of records and documents. Wilkes attests that these records reflect that Plaintiff has sought and obtained extensive medical treatment from HMES during the period of his incarceration, and that he has never been denied required medical attention by anyone, including herself. Wilkes also attests that during the course of Plaintiff's incarceration, and consistent with his allegation that he is a “vegetarian”, Plaintiff was provided a vegetarian diet at his request. Wilkes attests that she has no reason to believe that Plaintiff was not provided with a healthy diet consistent with appropriate medical/prison standards, that Plaintiff was never malnourished in any way, that no medically significant weight gains/losses were ever present, nor did Plaintiff ever suffer from any serious medical conditions related to his diet.

         A review of the medical/inmate records attached to Wilkes' Affidavit confirms that during his medical intake review upon entering the Detention Center in October 2015 Plaintiff requested a “special diet”. See Exhibit (Court Docket No. 19-4, p. 3). When asked if he had any special dietary needs, Plaintiff answered “yes”, and that he was a “vegetarian”. See Exhibit (Court Docket No. 19-4, p. 8). Plaintiff's main medical complaint since entering the Detention Center appears to have been migraines, and the medical evidence reflects that he has been treated and received medications for this condition throughout his period of incarceration. He has also been treated for athletes foot. In July 2016, Plaintiff threatened to file a lawsuit because medical staff was purportedly not giving him medication for kidney stones, bleeding in his urine, and severe back pain, although he references no medical findings for this claim. See Exhibit (Court Docket No. 19-4, p. 29). Indeed, Plaintiff apparently sent in a second grievance shortly thereafter that read “scratch that last message. It was not for you. Sorry”. See Exhibit (Court Docket No. 19-4, p. 30). These exhibits also reflect that Plaintiff has complained about his teeth and dental care, including a demand that he have a tooth extracted “immediately”, and about receiving an antifungal creme that he contended was not working properly to “rid my hand of this flesh eating fungus”. See Exhibit (Court Docket No. 19-4, pp. 52-53).[4]

         With respect to the claims at issue in this lawsuit, these records include a nurses note dated February 18, 2016, wherein it was noted that medical had been called after an officer had confiscated uneaten fruit from Plaintiff's cell. The nurses note indicates that the kitchen staff wanted to start portioning Plaintiff's fruit in the future to prevent him from hoarding food after eleven apples were taken out of his cell. See Exhibit (Court Docket No. 19-4, p. 86). In a grievance filed June 15, 2016, Plaintiff complains about being provided “peanut butter every day” and that he is not “receiving my protein that I should get daily”. See Exhibit (Court Docket No. 19-4, p. 44). Earlier, on June 5, 2016, he had complained to medical that he was experiencing diarrhea due to “eating six or more oz. of peanut butter a day for my protein. See Exhibit (Court Docket No. 19-4, p. 45). However, in a previous complaint to medical about his diet on May 24, 2016, the medical office had responded that “vegetarian diets are handled through Admin. not medical, please contact Admin. Medical only handle[s] diets due to allergies”. See Exhibit (Court Docket No. 19-4, p. 47).

         These records also show that Plaintiff's food complaint often centered around him wanting more food, or increased calories. For example, on April 2, 2016, Plaintiff wrote: “Did the Dr. have my meal intake increased? If so, how much more? They don't seem to increase it at every meal. At lunch today I was given one-half ear of corn, a cup and a half of white rice, and a cup and a half of collards. That's it. Oh and not even a half of an orange” See Exhibit (Court Docket No. 19-4, p. 64). Plaintiff's complaint about the difference between being a vegetarian and a vegan is evident in a grievance submitted to medical on March 17, 2016, wherein he wrote: “I would like to talk to the doctor about my loss of weight tomorrow. I have been trying to get the kitchen to give me breads and butters in my diets, but he says vegetarians don't eat this. I tell him I am not a vegan. He does not understand the difference”. See Exhibit (Court Docket No. 19-4, p. 68).[5] Even so, on March 21, ...


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