United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge.
Plaintiff, Fernandus Allen, proceeding pro se and m forma
pauperis, brings this action pursuant to 42 U.S.C.
§ 1983. He is a pretrial detainee at the Greenville
County Detention Center.
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
§ 1915 A, 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 Com, 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); Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-56 (2007)).
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].
brings this action pursuant to § 1983 for a deprivation
of his medical rights and for medical malpractice, because in
the month of August 2018 he was prescribed a medication to
which he is allergic. Complaint, ECF No. 1 at 4-5. In the
statement of the claim, he states that he was given
medication to which he has a known allergy. In the
"Injuries" portion of the complaint, he states:
I was given Bactrim that I have a severe allergy I was
prescribed this medic[i]ne because the boils and sores on my
ECF No. 1 at 6 [errors in original]. He requests that he be
awarded $350, 000. Id.
it should be noted that Plaintiff fails to mention the sole
Defendant, Marty Lutz, in the body of his Complaint. As such,
the Defendant is entitled to summary dismissal as Plaintiff
has not made any specific allegations against the Defendant
and has not provided any specific factual information to
support a claim that the Defendant violated his
constitutional rights. See Bell Atlantic Corp. v.
Twombly, 550 U.S. at 555 [requiring, in order to avoid
dismissal, '"a short and plain statement of the
claim showing that the pleader is entitled to relief,' in
order to 'give the defendant fair notice of what the ...
claim is and the grounds upon which it rests'"
(quoting Fed.R.Civ.P. 8(a)(2)). In order to proceed under
§ 1983, a plaintiff must affirmatively show that a
defendant acted personally in the deprivation of his
constitutional rights; Vinnedge v. Gibbs, 550 F.2d
926, 928 (4th Cir. 1977); and when a complaint contains no
personal allegations against a defendant, that defendant is
properly dismissed. See Karafiat v. O'Mally, 54
Fed.Appx. 192, 195 (6th Cir. 2002); Curtis v.
Ozmint, C/A No. 3:10-3053-CMC-JRM, 2011 WL 635302 at *4
n. 5 (D.S.C. Jan. 5, 2011); Whalev v. Hatcher, No.
1:08CV 125-01-MU, 2008 WL 1806124, at *1 (W.D. N.C. Apr. 18,
2008). Here, Plaintiff fails to allege any facts about the
Defendant that would show that he was personally involved in
any purported constitutional deprivation. See Ashcroft v.
Iqbal, 556 U.S. at 676 [providing that a plaintiff in a
§ 1983 action must plead that the defendant, through his
own individual actions, violated the Constitution];
Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985)
["In order for an individual to be liable under §
1983, it must be 'affirmatively shown that the official
charged acted personally in the deprivation of the plaintiffs
rights. The doctrine of respondeat superior has no
application under this section.'"](quoting
Vinnedge v. Gibbs, 550 F.2d at 928).
even if Plaintiff had named a proper party Defendant, his
claim is still subject to dismissal. Since he is a pretrial
detainee, his claim is evaluated under the due process clause
of the Fourteenth Amendment; Bell v. Wolfish, 441
U.S. 520, 535 (1979); but, for purposes of consideration of
Plaintiff s claim, the standard of whether he received
constitutionally adequate medical care is essentially the
same as that of a convicted prisoner. See Martin v.
Gentile, 849 F.2d 863, 870 (4th Cir. 1988) [holding that
the Fourteenth Amendment guarantees at least Eighth Amendment
protections]; Estate of Miller, ex. Rel. Bertram v.
Tobiasz, 680 F.3d 984, 989 (7th Cir.2012) ["The
same standard applies for determining claims of deliberate
indifference to the serious medical conditions of pretrial
detainees and incarcerated individuals, though pursuant to
the Fourteenth Amendment for pretrial detainees rather than
the Eight Amendment."]; but see Kingsley v.
Hendrickson, 135 S.Ct. 2466, 2473, 2475 (2015)[holding
that the test for excessive force claims brought by pretrial
detainees under the Fourteenth Amendment differs from the
test for excessive force claims brought by convicted
prisoners under the Eighth Amendment].' Generally, to
establish a claim based on alleged deliberate indifference,
an inmate must establish two requirements: (1) objectively,
the deprivation suffered or injury inflicted was
"sufficiently serious," and (2) subjectively, the
prison officials acted with a "sufficiently culpable
state of mind." Farmer v. Brennan, 511 U.S.
825, 834 (1994); Williams v. Benjamin, 77 F.3d 756,
761 (4th Cir. 1996). "What must be established with
regard to each component 'varies according to the nature
of the alleged constitutional violation.'"
Williams. 77 F.3d at 761 f quoting Hudson v.
McMillian, 503 U.S. 1, 5 'The United States Supreme
Court has held that for a pretrial detainee to establish an
excessive force claim under the Fourteenth Amendment, he need
not show that the officer was subjectively aware that the use
of force was excessive; rather, he need only show that the
force purposely, knowingly, or possibly recklessly used
against him was objectively unreasonable. Kingsley v.
Hendrickson, 135 S.Ct. at 2472. However,
Kingsley did not address whether this standard
applies to other claims by pretrial detainees pursuant to the
Fourteenth Amendment, and, to date, the Fourth Circuit has
not considered this issue. Cf. Darnell v. Pineiro.
849 F.3d 17, 35 (2d Cir. 2017) [extending Kingsley
to conditions of confinement claims by pretrial detainees
pursuant to the Fourteenth Amendmentl: Castro v. Cty. of
Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en
banc) [extending Kingsley to failure-to-protect
claims by pretrial detainees pursuant to the Fourteenth
Amendment]. In an unpublished case, the Fourth Circuit
applied the Kingsley standard to a detainee's
excessive force claim but not the detainee's medical need
claim. Duff v. Potter, 665 Fed.Appx. 242, 244-45
(4th Cir. 2016); see also Lanier v. Henderson Cnty. Pet.
Ctr., No. 1:15-cv-262-FDW, 2016 WL 7007537, at *2, n. 3
(W.D. N.C. Nov. 29, 2016)[noting that the Supreme Court in
Kingsley did not explicitly extend the objective
reasonableness standard outside the excessive force context].
Here, however, it is unnecessary to address whether the
Kingsley standard extends to a pretrial
detainee's Fourteenth Amendment claim asserting
deliberate indifference to a serious need because, as
discussed below, Plaintiff has not alleged that he meets the
first objective prong of his deliberate indifference case
such that it is unnecessary to determine if he meets the
subjective prong. (1992)). Objectively, the court must assess
"whether society considers the risk that the prisoner
complains of to be so grave that it violates contemporary
standards of decency to expose anyone unwillingly to such a
risk. In other words, the prisoner must show that the risk of
which he complains is not one that today's society
chooses to tolerate." Helling v. McKinney, 509
U.S. 25, 36 (1993).
Plaintiff does not assert that he even took or used the
medication prescribed (Bactrim), nor has he alleged that he
suffered any injury as a result of allegedly being prescribed
the wrong medication. Further, to the extent that Plaintiffs
claim is a disagreement as to the proper treatment to be
received, such an allegation does not in and of itself state
a constitutional violation. See Smart v. Villar, 547
F.2d 112 (10th Cir.1976); Lamb v. Maschner, 633
F.Supp. 351, 353 (D.Kan. 1986). Thus, Plaintiff fails to
allege sufficient facts to indicate that he meets the first
prong of his medical deliberate indifference claim.
Additionally, to the extent Plaintiff alleges claims for
medical malpractice, such claims are subject to summary
dismissal because it is well settled that negligent or
incorrect medical treatment (medical malpractice) is not
actionable under 42 U.S.C. § 1983. Estelle. 429
U.S. at 106; Daniels v. Williams, 474 U.S. 327,
328-36 (1986); Davidson v. Cannon, 474 U.S. 344,
345-48 (1986); Ruefly v. Landon, 825 F.2d 792,
793-94 (4th Cir. 1987); see Pink v. Lester, 52 F.3d
73 (4th Cir. 1995)[applying Daniels and
Ruefly: "The district court properly held that
Daniels bars an action under § 1983 for
negligent conduct[.]"]. A medical malpractice claim
"does not become a constitutional violation merely
because the victim is a prisoner." Estelle, at
106; Gravson v. Peed, 195 F.3d 692, 695-96 (4th Cir.
to the extent Plaintiff may be attempting to bring claims for
malpractice or negligence under South Carolina law, since
Plaintiff fails to state any federal claim, only these state
law claim(s) would remain, and federal courts are allowed to
hear and decide state-law claims only in conjunction with
federal-law claims, through the exercise of
"supplemental jurisdiction." See 28 U.S.C.
§1367; Wisconsin Dep't of Corrs. v.
Schacht, 524 U.S. 381, 387 (1998). While a district
court may have jurisdiction over a state law civil action
"where the matter in controversy exceeds the sum or
value of $75, 000...and is between-(1) citizens of different
States...". 28 U.S.C. § 1332; in order to maintain
an action based upon diversity jurisdiction, complete
diversity between the plaintiffs and defendants must exist at
the time the complaint is filed. Martinez v. Duke Energy
Corp., 130 Fed.Appx. 629, 634 (4th Cir. 2005). Plaintiff
has not alleged complete diversity of the parties, nor has he
alleged an amount in controversy exceeding $75, 000. See
Owen Equipment & Erection Co. v. Kroger. 437
U.S. 365, 372-374 (1978) [Complete diversity of parties means
that no party on one side may be a citizen of the same State
as any party on the other side]. Therefore, as Plaintiff has
asserted no valid federal claim and there is no diversity
jurisdiction, this Court should not exercise supplemental
jurisdiction over any state law claims Plaintiff may be
asserting. See 28 U.S.C. § 1367: see also United
Mine Workers v. Gibbs. 383 U.S. 715, 726 (1966);
Tigrett v. Rector and Visitors of the Univ. of Va.,
290 F.3d 620, 626 (4th Cir. 2002)[affirming district
court's dismissal of state law claims when no federal
claims remained in the case]; Lovern v. Edwards, 190
F.3d 648, 655 (4th Cir. 1999) ["[T]he Constitution does
not contemplate the federal judiciary deciding issues of
state law among non-diverse litigants"].