United States District Court, D. South Carolina
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE.
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[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
proceeding pro se, filed this action on April 20, 2018,
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.
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. [Id. at 6.] Viewed in
the light most favorable to Plaintiff, the record reveals the
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.].
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. [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, 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
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.]
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.]
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
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.
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.]
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
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.]
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).
for a Cause of Action Under § 1983
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).
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
under-color-of-state-law element, which is equivalent to the
“state action” requirement under the Fourteenth
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 ...