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Ham v. Stephan

United States District Court, D. South Carolina, Greenville Division

July 22, 2019

Angelo Ham, # 315014, aka Angelo Bernard Ham, Plaintiff,
v.
M. Stephan, Colonel Wells, D. Williams, E. Williams, and John McRee, Defendants.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald United States Magistrate Judge

         The plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to Title 42, United States Code, Section 1983. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Title 42, United States Code, Section 1983, and submit findings and recommendations to the district court.

         BACKGROUND

         The plaintiff filed his complaint on June 18, 2018, against the following defendants: former Warden Michael Stephan, [1] Unit Manager Dedric Williams, Sgt. Eartha Mae Williams, Colonel Gregory Wells, Dr. John McRee, Officer Galloway, and Officer Smithtana (doc. 1-1). By order filed February 6, 2019, the Honorable J. Michelle Childs, United States District Judge, dismissed the plaintiff's complaint as to defendants Galloway and Smithtana (doc. 63).

         On December 12, 2018, the defendants filed a motion for summary judgment (doc. 47). On December 13, 2018 by order of this court pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the summary judgment and dismissal procedure and the possible consequences if he failed to respond adequately. After receiving one extension of time, the plaintiff filed his response in opposition to the motion for summary judgment (doc. 58) on January 28, 2019. On February 19, 2019, the defendants filed a reply (doc. 66).

         FACTS PRESENTED

         The plaintiff is an inmate at the McCormick Correctional Institution (“MCI”), part of the South Carolina Department of Corrections (“SCDC”). In his complaint, the plaintiff alleges claims of “use of excessive force and cruel and unusual punishment” (doc. 1 at 7). Specifically, he alleges that on October 26, 2017, at approximately 11:00 a.m., while he was inside his cell at MCI, he was struck in his right eye by a rubber bullet. He claims that two officers on the “agency search team” shot an inmate who was coming out of the shower, and a stray rubber bullet entered through the window of his cell door and struck him in the right eye. He does not allege that he was the target of that use of force or that the rubber bullet was fired deliberately at him. The plaintiff further alleges that he told defendants Unit Manager Dedric Williams and Sgt. Eartha Mae Williams about the incident and that one of them contacted medical, but he was told by Unit Manager Williams that Warden Stephan stated that no inmates were to move until count, which had already begun, was completed. He claims that there was a two-hour delay before he was seen by medical personnel (doc. 1 at 5-8; doc. 1-2). The plaintiff claims that as a result of this incident, he lost “vision in his right eye (catarac) [sic]” (doc. 1-2 at 3). In his complaint, the plaintiff makes no specific mention of or allegations against Colonel Wells. The only mention of Dr. McRee is that he prescribed the plaintiff two separate eye drops, but he received only one (id.). The plaintiff seeks monetary relief only (doc.1 at 6).

         SCDC and the staff at MCI have been unable to locate any records of a disturbance at that institution on October 26, 2017, which is the date alleged by the plaintiff and is the date he first received medical care for an eye injury. The defendants have submitted evidence showing that a similar type of incident occurred on October 24, 2017, but that incident occurred in a different unit. The plaintiff was housed in Unit F-3 in October 2017, which is the unit for which defendant Dedric Williams is the Unit Manager (doc. 47-3, Dedric Williams aff. ¶¶ 1-3 & ex. A). The Management Information Note for the October 24, 2017, incident, in which rubber bullets were used, occurred in Unit F-2, and thus Unit Manager Williams states in his affidavit that the incident could not have affected the plaintiff (id. ¶ 3 & ex. A).

         Unit Manager Williams testified in his affidavit that on October 26, 2017, MCI was on lockdown status as a result of several incidents that had occurred. On that date, the plaintiff notified Unit Manager Williams that he had a medical issue with his eye, but Unit Manager Williams does not remember the explanation for the injury that the plaintiff gave at that time (doc. 47-3, Dedric Williams aff. ¶ 3). Unit Manager Williams observed that the plaintiff's eye was red, but he saw no obvious injury (id. ¶ 4). He contacted medical and made arrangements for the plaintiff to be seen that day (id.). However, because count was in progress, the plaintiff could not be transported to medical immediately, which is what he advised the plaintiff (id.). He did not view the plaintiff's medical issue as emergent or life-threatening (id.). The plaintiff was transported to medical once count cleared, at which time he received medical attention (id.).

         Sergeant Eartha Mae Williams submitted an affidavit stating that the plaintiff was housed in Unit F-3 in October 2017, and the window in the plaintiff's cell had been broken out by the plaintiff at that time (doc. 47-4, Eartha Mae Williams aff. ¶ 2). She further testified that she had no personal knowledge of any incident where the plaintiff was struck in the eye with a rubber bullet, and he did not make a request for medical assistance to her (id.).

         Along with his response to the defendants' motion for summary judgment, the plaintiff submitted three unsworn statements of Malik Abdul Al-Shabazz, Dannie Hamilton, and Paul Busby, who state that they are inmates at MCI in Unit F-3 and that on October 26, 2017, they observed the agency search team fire a “riot gun” at an inmate (doc. 58-1 at 9-11).

         The defendants have submitted the plaintiff's medical records for October 26, 2017, through December 7, 2018 (doc. 47-5, Hiott aff, ¶ 2 & ex. A). On October 26, 2017, a nurse noted that the plaintiff right eye was red, with no drainage or edema noted, and she was unable to see any trauma to the eye (doc. 47-5 at 5). The plaintiff was given an eye patch and was rechecked a few days later, at which time anesthetic eye drops and pain medication were administered (id.). The plaintiff was treated at the KCI Opthamology Clinic on November 9 and 15, 2017; December 6, 2017; and on April 4, 2018 (id. at 3-5). At the time of the latest medical note, the plaintiff was scheduled for evaluation at the University of South Carolina Department of Ophthalmology, and he was scheduled for cataract surgery for the right eye (id.).

         APPLICABLE LAW AND ANALYSIS

         Summary Judgment Standard

         Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

         The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only 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. Summary judgment is not “a disfavored procedural shortcut” but an important mechanism for weeding out “claims and defenses [that] have no factual bases.” Celotex, 477 U.S. at 327.

         Failure to Exhaust

         The defendants first argue that the plaintiff has failed to properly and completely exhaust his administrative remedies prior to commencing this Section 1983 action. The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended at 42 U.S.C. § 1997e(a) (1996)), mandates, among other things, that prisoners exhaust their administrative remedies prior to filing civil actions concerning prison conditions under Section 1983 or any other federal law. See Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court”). “[T]he PLRA's exhaustion requirement is mandatory, ” Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), and “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002)

         The PLRA requires “proper exhaustion” of available administrative remedies prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006). As the Supreme Court noted, “[a]ggrieved parties may prefer not to exhaust administrative remedies for a variety of reasons, ” whether it be concerns about efficiency or “bad faith.” Id. at 89-90. This is especially true in a prison context. Id. at 90 n.1. Nevertheless, “[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules ...


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