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Budden v. United States of America Beth Drake

United States District Court, D. South Carolina

February 11, 2019

LeAndre Dion Budden, Plaintiff,
v.
United States of America Beth Drake, Mrs. Daniels, Mr. Van Sickle, Mr. Keys, Defendants.[1]

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on a motion to dismiss, or in the alternative, for summary judgment filed by Defendants Daniels, Drake, and Van Sickle (the “Federal Defendants”) [Doc. 28], and a motion for summary judgment filed by Defendant Keyes[2][Doc. 48]. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.

         Plaintiff, proceeding pro se, filed this action on April 20, 2018, [3] alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). [Doc. 1.] On August 30, 2018, the Federal Defendants filed a motion to dismiss or, in the alternative, for summary judgment. [Doc. 28.] And on November 8, 2018, Defendant Keyes filed a motion for summary judgment. [Doc. 48.] On the day after each motion was filed, the Court issued Orders in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and of the possible consequences if he failed to adequately respond to the motion. [Docs. 29; 49.] Plaintiff's responses to the motions were docketed on October 22, 2018, and January 4, 2019, respectively. [Docs. 43; 53.] Defendant Keyes filed a reply with regard to his motion on January 14, 2019. [Doc. 55.] The motions are now ripe for review.

         BACKGROUND

         At the time Plaintiff filed this action, he was a pretrial detainee housed at Lexington County Detention Center (“LCDC”) in Lexington, South Carolina. [Doc. 1 at 3.] Plaintiff filed this action pro se (1) against Defendant Keyes pursuant to 42 U.S.C. § 1983, alleging deliberate indifference to medical needs, and (2) against the Federal Defendants, pursuant to Bivens, alleging deliberate indifference to medical needs.[4] [Id. at 6.] Viewed in the light most favorable to Plaintiff, the record reveals the following facts.

         Plaintiff claims that, on August 23, 2017, he reported to his probation officer for a scheduled visit. [Id. at 9.] When Plaintiff arrived, ATF agents rushed at him, grabbed him by the arm, slammed him to the floor, and “dropped [a knee] into [his] back, all without provocation.” [Id.] Plaintiff later learned he had suffered trauma to his spleen. [Id.] He was then transferred to LCDC, and he complained about back pain upon his arrival. [Id.] One day, after about a week at LCDC, Plaintiff woke up feeling unbearable pain in his back; after complaining to an officer for nearly an hour, he was taken to be seen by a nurse. [Id.] He was told he had kidney stones, given pain medication and an antibiotic, and sent back to his dorm. [Id.] However, he was still in extreme pain for the next few days, and a nurse practitioner ordered an x-ray and ultrasound. [Id.].

         While waiting for these tests, Plaintiff once again woke up with extreme pain and asked Officer Linda Thomas, who was working with Keyes, to call for medical.[5] [Id.] Plaintiff claims that after about an hour, Thomas came and told Plaintiff that, according to Keyes, the only way Plaintiff would see a nurse would be to go to the first floor, which was lock-up. [Id. at 9-10.] Plaintiff contends that Keyes escorted Plaintiff to the first floor, [6]where he “was given a thin mattress and crammed in a cell with two other people.” [Id.] Plaintiff asserts that no nurse came to see him but that, later that day, an x-ray and ultrasound were performed on him and he was returned to regular population. [Id. at 10] Plaintiff was later informed that he had trauma to his spleen, which was the source of the pain. [Id. at 11.] He was also told that some itching he had experienced and the swelling of lymph nodes under his arm were probably due to lymphoma cancer; LCDC medical staff ordered more tests to follow up. [Id.] However, before he was able to get the tests done, United States Attorney Drake “had [Plaintiff] shipped Plaintiff to Ocilla County [J]ail and then to Atlanta [BOP], and ultimately to Butner FCI #1 Med.”[7] [Id.]

         Upon his arrival, on October 3, 2017, Plaintiff informed Defendant Nurse Van Sickle of his condition and complained about the itching and swollen lymph nodes. [Id.; Doc. 28-1 at 2, 4.] Nurse Van Sickle conducted Plaintiff's initial history and physical evaluation on October 5, 2017. Van Sickle noted that Plaintiff reported a recent unexplained 20-pound weight loss and that Plaintiff had “2 small pea size enlarged nodes” on his right neck and “at least 3 enlarged nodes to right axillary, ” of which the largest “felt as large as a compressed golf ball.” [Doc. 28-2 at 8, 14.] After the examination, Van Sickle ordered a CT scan of Plaintiff's chest and neck to evaluate the enlarged lymph nodes. [Id. at 15, 19.] He also ordered an EKG and prescribed triamcinolone ointment for treatment of a rash and other nonspecific skin eruption. [Id. at 15.] Van Sickle also noted that Plaintiff had had blood drawn, which would be sent to the lab for subsequent testing. [Id. at 15, 18.] Doctor Lawrence Sichel reviewed Van Sickle's notes and consultation request and cosigned the encounter. [Id. at 17.]

         On October 10, 2017, Plaintiff underwent a CT scan of his chest and neck. [Id. at 20-23.] The resulting radiologist notes indicate there was a possibility that Plaintiff was suffering from lymphoma or sarcoidosis and recommend that a biopsy should be considered. [Id. at 23.] The same day, Van Sickle made an administrative note in Plaintiff's medical records requesting a general surgical consult for a biopsy of Plaintiff's right axilla enlarged node. [Id. at 24.]

         On October 19, 2017, Plaintiff complained to Health Services of blisters on his skin. [Id. at 25.] He was seen by an nurse, who, in turn, scheduled him to see Van Sickle to address Plaintiff's plan of care. [Id. at 25-26.] Van Sickle saw Plaintiff six days later, on October 25, 2017, at which time Plaintiff complained he had been suffering from blisters and foot pain after receiving new boots. [Id. at 28.] Van Sickle noted that an exam did not reveal any blisters or erythema. [Id. at 29.] At Plaintiff's request, Van Sickle also reviewed the October 10, 2017, CT scan result himself and noted that the surgery consultation for the biopsy was still pending. [Id.] Finally, Van Sickle assessed Plaintiff's rash, which Plaintiff denied was symptomatic at that time, and Van Sickle recommended Plaintiff continue using the triamcinolone. [Id.]

         On November 2, 2017, Plaintiff was seen by a nurse, complaining of pain and itching, and he was scheduled for an appointment. [Id. at 31-32.] Five days later, on November 7, 2017, Van Sickle met with Plaintiff, who complained of back and generalized pain, “‘all over rash and itching, '” and blood in his urine. [Id. at 34.] Van Sickle discontinued the triamcinolone and replaced the topical ointment with betamethasone ointment. [Id. at 36.] He also ordered a urinalysis to determine if there was blood in Plaintiff's urine. [Id.]

         On November 13, 2017, Plaintiff reported a loss of sensation in his fingers. [Id. at 39.] He was seen by a nurse, who assessed him and addressed his complaints, and he was scheduled for a visit with a primary care provider. [Id. at 39-40.] On November 20, 2017, Van Sickle administratively renewed Plaintiff's prescription for betamethasone ointment per the nurse's request. [Id. at 44.]

         On November 29, 2017, Plaintiff was seen in the general surgery clinic by Dr. Shane Hodge. [Id. at 50-51.] After examining Plaintiff, Dr. Hodge proposed performing a biopsy of the lesions for tissue diagnosis, and Plaintiff and the surgical team agreed to that plan. [Doc. 50-51.] However, on December 4, 2017, Plaintiff's psychiatric study concluded, and Plaintiff was transferred out of FCI Butner with the biopsy not yet having been performed. [Doc. 28-1 at 2, 3.]

         Plaintiff filed this action on April 20, 2018, alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983 and Bivens. [Doc. 1.] For his injuries, Plaintiff claims that, due to the lack of medical attention, he has suffered a blistering rash all over his body, blisters on his feet, uncontrollable itching, and progression of lymphoma cancer. [Id. at 8.] Plaintiff has difficulty breathing due to swollen lymph nodes in his throat. [Id.] Also, his spleen was injured when he was arrested by ATF agents. [Id.] For his relief, Plaintiff asks for $1 million in damages. [Id.]

         APPLICABLE LAW

         Liberal Construction of Pro Se Complaint

          Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         Requirements for a Cause of Action Under § 1983

          This action is filed pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, a civil action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).

         Section 1983 provides, in relevant part,

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant “deprived [the plaintiff] of a right secured by the Constitution and laws of the United States” and (2) that the defendant “deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage.” Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).

         The under-color-of-state-law element, which is equivalent to the “state action” requirement under the Fourteenth Amendment,

reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids imposing on the State, its agencies or ...

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