KEVIN F. McDONALD, Magistrate Judge.
This matter is before the court on the motions to dismiss of defendants Wilson, Swan, and Hickman (docs. 60, 75, 109); the motion for summary judgment of defendants Scaturo, Poholchuk, Helff, Gothard, Brown, Tross
The plaintiff, who is 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 Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section 1983 and submit findings and recommendations to the district court.
The plaintiff is currently in the custody of the South Carolina Department of Mental Health ("SCDMH") under the provisions of the South Carolina Sexually Violent Predator Act ("SVPA"). S.C. Code Ann. §§ 44-48-10 to 44-48-170. Pursuant to these statutes, the SCDMH and the South Carolina Department of Corrections ("SCDC") have entered into an interagency agreement whereby the Sexually Violent Predator Treatment Program ("SVPTP") residents are housed in a segregated location within the Broad River Correctional Institution ("BRCI"). See In re Treatment and Care of Luckabaugh, 568 S.E.2d 338, 345 (S.C. 2002). The interagency agreement provides that the Edisto and Congaree units of BRCI will be used to house SVPTP residents (doc. 101-2, Scaturo aff. ¶ 8). Under the agreement, SCDMH retains all control, care, and treatment aspects inside the Edisto and Congaree units, including internal guards, routine maintenance, and sanitation. In re Luckabaugh, 568 S.E.2d at 345. SCDC provides outside security, meals, and laundry services. Id.
The plaintiff was ordered to be committed to the SVPTP on November 10, 2009 (doc. 101-3, Scaturo aff., ex. A). The plaintiff was then admitted to the SVPTP on November 12, 2009 (id.). At the time of his admittance, the SVPTP was administered by staff employed by SCDMH; however, beginning December 1, 2016, Correct Care Recovery Solutions ("CCRS") began operating the SVPTP (doc. 101-2, Scaturo aff. ¶ 4). CCRS is required by contract to administer to the needs of the residents of the SVPTP (id.).
Fifteen people who have been civilly committed to the SVPTP initiated this civil rights action, challenging "the constitutionality of the statutes governing civil commitment and treatment of sex offenders in South Carolina" (doc. 1 at 6). However, only Jimmy E. Blessing, the named plaintiff in this case, signed the complaint. On July 25, 2016, the Honorable Bruce Howe Hendricks, United States District Judge, ruled that Blessing was the proper plaintiff in this action and that the case could not proceed as a pro se class action (doc. 39). The other potential plaintiffs were provided forms so that they could prepare and submit their own civil rights cases if they so chose (doc. 29 at 4; doc. 32).
Generally, the plaintiff identifies ten issues in the complaint: 1) interagency agreement between SCDMH and SCDC violates his First Amendment rights; 2) inadequate treatment; 3) conditions of confinement; 4) no showing of dangerousness; 5) challenge to the SVPA; 6) inadequate food service; 7) Behavioral Management Committee; 8) computer access; 9) lockdowns; and 10) implicating fundamental rights (doc. 1 at 5).
Defendants Scaturo, Poholchuk, Helff, Gothard, Brown, Tross, Gehle, Schwartz-Watts, Abney, Sanders, Alexander, and Magill, who were employees of the SCDMH at all times pertinent to the plaintiff's complaint, filed a motion for summary judgment on January 26, 2017 (doc. 101). By order issued on January 30, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately to the defendants' motion (doc. 102). The plaintiff filed his response in opposition to the SCDMH defendants' motion for summary judgment on April 3, 2017 (doc. 113). On April 10, 2017, the SCDMH defendants filed a reply (doc. 115), and on April 21, 2017, the plaintiff filed a sur-reply (doc. 116).
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.
The plaintiff alleges that the interagency agreement violates his First Amendment rights because it allows the SCDC to determine his conditions of confinement, which "adds to the punitive nature of the act" (doc. 1 at 9-11). The SVPA states "[t]he Department of Mental Health may enter into an interagency agreement with the Department of Corrections for the control, care, and treatment of [persons committed to the SVPTP]." S.C. Code Ann. § 44-48-100(A). As noted above, under the interagency agreement, SCDMH retains all control, care, and treatment aspects of its residents, while SCDC provides outside security, meals, laundry services, and chaplain services. See In re Treatment and Care of Luckabaugh, 568 S.E.2d 338, 345 (S.C. 2002).
In his response to the motion for summary judgment, the plaintiff argues that the Warden of BRCI controls what he can and cannot have, and SCDC violates his privacy rights by listening to and recording his telephone calls (doc. 113 at 18). The plaintiff has provided no evidence in support of his conclusory allegations. According to the testimony of defendant Holly Scaturo, who was the Director of the SVPTP prior to CCRS assuming operation of it,
The plaintiff also makes very general, vague, and conclusory allegations that his First Amendment right to freedom of religion has been violated (doc. 1 at 10). According to the testimony of Ms. Scaturo, residents of the program are given the opportunity to practice their religious faith to the extent that practice does not interfere with the security and safety of the unit, staff, or others (doc. 101-2, Scaturo aff. ¶ 21). The record shows that the plaintiff has been approved to attend two different worship services each week, and he has never made a complaint or request to staff regarding his "access to religion" or any other issues related to the practice of his religion (id. ¶¶ 21-22).
The plaintiff has failed to identify any policy that interferes with his First Amendment rights, nor does he provide factual allegations about a specific incident in which his First Amendment rights were violated. Based upon the record before the court, the undersigned recommends that the defendants be granted summary judgment on the plaintiff's First Amendment claims.
The plaintiff alleges that he has been improperly confined under the SVPA because he has not been shown to be dangerous (doc. 1 at 30-36). However, under the SVPA, to be a sexually violent predator, the person must have been convicted of a sexually violent offense and suffer from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment. S.C. Code Ann. § 44-48-30(1). Accordingly, the plaintiff's claim that there is a required "showing of dangerousness" to be committed under the SVPA fails.
Additionally, to the extent the plaintiff alleges a due process claim related to the process as provided by South Carolina Code Annotated §§ 44-48-80 and -90 for establishing that an individual qualifies as a sexually violent predator subject to civil commitment in the SVPTP, the plaintiff has waived his rights under those provisions and consented "to long-term control, care, confinement and treatment pursuant to the [SVPA]" (doc. 101-3, Scaturo aff., ex. A). In addition, on May 19, 2016, the plaintiff waived his right to an annual review hearing to review the status of his case (doc. 101-5, Gothard aff., ex. A).
Based upon the foregoing, the defendants are entitled to summary judgment on this claim.
The plaintiff alleges in a conclusory manner that the SVPA, which was written to civilly commit "extremely dangerous sexually violent predators," has been manipulated to be used to civilly commit nonviolent, nonpredatory, and nondangerous sex offenders (doc. 1 at 37-48; doc. 113 at 21). As noted above, to the extent the plaintiff alleges a due process claim related to the process for establishing that an individual qualifies as a sexually violent predator subject to civil commitment in the SVPTP, the plaintiff has waived his rights under those provisions (doc. 101-3, Scaturo aff., ex. A). The South Carolina Supreme Court has found the SVPA does not violate the Double Jeopardy Clauses of the United States and South Carolina Constitutions. See In the Matter of the Care and Treatment of Matthews, 550 S.E.2d 311, 317 (S.C. 2001). The court has also explained that the SVPA "is not intended to be punitive in nature; rather, it sets forth a civil process for the commitment and treatment of sexually violent predators." In the Matter of the Care and Treatment of Canupp, 671 S.E.2d 614, 617-18 (S.C. 2008). Moreover, as discussed herein, the record reflects that the defendants exercised their professional judgment and discretion in weighing competing considerations in light of appropriate professional standards when making decisions regarding the plaintiff. Youngberg v. Romeo, 457 U.S. 307, 324 (1982). Accordingly, this claim fails.
The plaintiff generally alleges that the conditions of his confinement are unconstitutional because they are punitive rather than therapeutic (doc. 1 at 19-29). Involuntarily-committed mental patients retain a liberty interest in conditions of reasonable care and safety and in reasonably nonrestrictive confinement conditions. Youngberg, 457 U.S. at 324. Due process requires that the conditions and duration of confinement bear some reasonable relation to the purpose for which persons are committed. See id.; Seling v. Young, 531 U.S. 250, 265 (2001). In deciding whether a civilly-institutionalized individual's constitutional rights have been violated, the courts must balance the individual's liberty interest against the relevant state interests, but deference must be given to the decisions of professionals. Youngberg, 457 U.S. at 320-21. "[T]he decision, if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. at 323. Deference to professionals ensures that federal courts do not unnecessarily interfere with the internal operations of state institutions. Id. at 322.
In the case of Treece v. McGill, the Honorable David C. Norton, United States District Judge, concluded that the plaintiff's various complaints about conditions of confinement, including, but not limited to, inadequate food, substandard medical care, and insufficient sex offender treatment programs within the SVPTP "do not demonstrate any deprivation of a constitutional magnitude." C.A. No. 3:08-3909-DCN-JRM, 2010 WL 3781695, at *5 (D.S.C. Sept. 21, 2010). The court noted that the plaintiff's claims were governed under the Due Process Clause of the Fourteenth Amendment, and the plaintiff's rights were at least as great as the Eighth Amendment protections available to a convicted prisoner. Id. at *4 (citation omitted). The court further explained:
Id. at *5
The court's analysis in Treece is also dispositive in the present case. As indicated herein, the plaintiff complains in only a conclusory manner that he is subjected to conditions of confinement that are punitive in nature. However, he has not demonstrated that the conditions are not warranted in the operation of "a secure facility for long-term control, care, and treatment." S.C. Code Ann. § 44-48-20. Moreover, like the plaintiff in Treece, the plaintiff fails to show either injury or a substantial risk of serious harm based upon any of the challenged conditions. The plaintiff's specific allegations will be addressed below.
The plaintiff alleges that the SVPA requires that SVPTP residents receive treatment, but no one-on-one therapy is provided; rather, all that is provided is group therapy by social workers who have not been trained in treating sexual disorders (doc. 1 at 12-18).
According to the testimony of Ms. Scaturo, the goal of the SVPTP is that the resident will participate in his treatment to the best of his ability so that he can be discharged to lead a productive and meaningful life within the community when he is determined to be safe to be at large and not likely to sexually re-offend. Participation in the program is encouraged through a treatment incentive system, which rewards for participating in the program and treatment, as well as for good behavior within the unit. A resident is not punished or disciplined for refusing treatment; rather, if a resident of the SVPTP chooses not to participate in therapy or in the rehabilitative program, the impact is on the resident's additional privileges. Residents can withdraw from active treatment at any time, but the plaintiff has never done so. Once the SCDMH evaluator opines that the resident's mental abnormality or personality disorder has changed so that the resident is safe to be at large and, if released, is not likely to commit acts of sexual violence, the Director of the SCDMH authorizes the resident to petition the court for release from the SVPTP (doc. 101-2, Scaturo aff. ¶¶ 9-12).
According to the testimony of defendant Kelly D. Gothard, who was the Chief Clinical Psychologist for the SVPTP program from October 2014 to December 1, 2016,
The plaintiff's responses to the pending dispositive motions and attached exhibits are filled with conclusory allegations regarding deficiencies in his mental treatment (see generally docs. 78, 86, 113). Mere disagreement with his course of treatment will not support a constitutional claim. See Sharpe v. SCDC, 621 F. App'x 732, 733 (4th Cir. 2015). Further, there are no alleged acts or omissions on the part of the defendants that represent such a "substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such a judgment." Youngberg, 457 U.S. at 323.
The SVPA provides that a person committed under the Act must have an annual examination of his mental condition, and the court must conduct an annual hearing to review the committed person's status. S.C. Code Ann. § 44-48-110. A committed person may petition the court for release from the SCDMH at the annual hearing. Id. The SVPA further provides: "If the court determines that probable cause exists to believe that the person's mental abnormality or personality disorder has so changed that the person is safe to be at large and, if released, is not likely to commit acts of sexual violence, the court shall schedule a trial on the issue." Id. See In the Matter of the Care & Treatment of Corley, 616 S.E.2d 441, 442-43 (S.C. Ct. App.2005). In South Carolina, the committed person bears the "burden of showing the hearing court that probable cause exists to believe that his mental health condition has so changed that he is safe to be released." In the Matter of the Care & Treatment of Tucker, 578 S.E.2d 719, 721 (S.C. 2003). "On review, the appellate court will not disturb the hearing court's finding on probable cause unless found to be without evidence that reasonably supports the hearing court's finding." Id. at 722. See also Corley, 616 S.E.2d at 444.
The most recent annual review performed on the plaintiff pursuant to the above statute was completed on May 8, 2016, and the evaluator was defendant Amy C. Swan, Psy.D. (doc. 101-4, Gothard aff. ¶ 13; doc. 101-6, Gothard aff., ex. B). Dr. Swan concluded that the plaintiff continues to meet the definition of a sexually violent predator, his present mental condition seriously impairs his ability to control his sexually violent behavior, and there is insufficient basis to opine that his mental abnormality or personality disorder has so changed that he is now safe to be at large and no longer likely to engage in acts of sexual violence (doc. 101-6, Gothard aff., ex. B). On May 19, 2016, the plaintiff waived his right to an annual review hearing to review the status of his case (doc. 101-5, Gothard aff., ex. A).
In his response to the SCDMH defendants' motion for summary judgment and Dr. Swan's motion to dismiss, the plaintiff argues that his complaint against the SCDMH evaluators, including defendants Drs. Swan and Gehle,
Here, set forth above, the plaintiff waived his right to his most recent annual hearing, and it is apparent from his pleadings that the plaintiff is attempting to collaterally attack his initial commitment and subsequent annual reviews with the filing of this lawsuit. As argued by the defendants, the plaintiff may make these very same arguments at his annual review hearings pursuant to the SVPA, but he has chosen not to participate in those hearings. Moreover, as argued by the defendants, any claims arising prior to three years before the complaint in this case was filed (June 3, 2016), like the claims against Drs. Gehle and Schwartz-Watts, are barred by the applicable statute of limitations. See Wilson v. Garcia, 471 U.S. 261, 276 (1985); S.C. Code Ann. § 15-3-530(5). Based upon the foregoing, any claims related to his initial commitment or annual reviews completed by any of the defendants should be dismissed.
The plaintiff alleges that the Behavioral Management Committee ("BMC"), uses punitive means rather than therapeutic means to deal with inappropriate behavior (doc. 1 at 51-56). He contends that "Therapeutic Room Restriction," "Segregated Management Security," and "Long Term Segregated Management Security," as well as the issuance of orange and green jumpsuits are unacceptable punitive policies (id.).
The SVPTP has adopted a Behavioral Management Policy to address the management of violent and inappropriate behaviors by residents of the program (doc. 101-2, Scaturo aff. ¶ 13). The policy provides for the establishment of the Behavioral Management Committee ("BMC") to address referrals of allegations of inappropriate behavior (id.). An SVPTP employee first completes a Behavioral Observation Note which describes the behavioral issue and further makes a recommendation of the referral to the BMC. Once a referral to the BMC is made, the resident is given written notice of the referral by the charge nurse. The resident is notified of the date that the BMC will be considering the referral and is encouraged to provide any information in writing that he wishes for the BMC to consider, and he is also given the opportunity to identify potential witnesses that may have further information (id.). By policy, the BMC is comprised of multiple disciplines and is appointed by the SVPTP director (id. ¶ 14). A quorum of the BMC for any meeting is four members from at least three different disciplines. Disciplines include management staff, licensed nursing staff, unlicensed nursing staff, public safety officers, activity therapy, and mental health professionals (id.). The BMC reviews the referral and any additional information provided by the resident and other witnesses and then makes therapeutic recommendations and determines the consequences for the resident, if such are determined as being warranted (id. ¶ 15). The resident is given written notice of the outcome of the BMC meeting including any consequences that have been determined (id. ¶ 16). If the resident does not agree with the results of the BMC, he can file a grievance to the Resident Advisor. If the resident does not agree with the decision of the Grievance Committee in regards to his grievance, the resident can then appeal the grievance to the Deputy Director of SCDMH Inpatient Services (id.).
The plaintiff has failed to show that the BMC did not provide him with all the process that he was due regarding any referral for inappropriate behavior, and he has failed to established that his constitutional rights have been violated under the standard set forth in Seling and Youngberg. He simply voices his displeasure with the restrictions the BMC may employ. Accordingly, the plaintiff has not stated a claim of constitutional magnitude regarding the BMC.
The plaintiff alleges that because the food is prepared by BRCI inmates who do not like the SVPTP residents, the inmates "do what they can to affect the quality of the food, including tampering with the food itself" (doc. 1 at 49-50). He further alleges that the eating schedule is punitive and the food quality and nutrition are low (id.). He does not allege a specific incident of contaminated food nor does he allege that any of the named defendants have any responsibility for food preparation.
The defendants state that food is provided to SVPTP residents through BRCI, and residents are served the same food served to SCDC inmates (doc. 101-7, Poholchuk aff. ¶ 9). The nutritional staff at BRCI makes all efforts to ensure that the food served is free from contamination (id.). Further, if a resident is served contaminated food, they are to report it (id.). The plaintiff made one request to staff regarding alleged issues with food; that request was submitted on August 1, 2010, regarding another resident finding a razor blade in his food and the plaintiff finding hair and "other strange matter in [his] personal food" (id.; doc. 101-9). The staff of the SVPTP responded to the plaintiff on August 3, 2010, stating that they had brought the matter to the Warden's attention, and it was under investigation (id.).
Any claim regarding the August 2010 matter is barred by the applicable statute of limitations (three years). See Wilson v. Garcia, 471 U.S. 261, 276 (1985); S.C. Code Ann. § 15-3-530(5). The plaintiff has provided no evidence that he has been served contaminated food at any other time. Further, there is no evidence that any of the named defendants are involved in the preparation of the plaintiff's food. Accordingly, the defendants are entitled to summary judgment on this claim.
The plaintiff alleges that around October 2014 all of the computers were removed along with all computer disks because two SVPTP residents used the computers to exchange letters containing sexually explicit material (doc. 1 at 57-58). The plaintiff alleges that the removal of computers "has created a major inconvenience and slows down [his] legal work" (id.). He further alleges that "up until just recently," SVPTP residents "had no access to anything legal," but now he has "very limited access" to Westlaw (id.). He contends that the limits on access to Westlaw "greatly hinders its full value for research" (id.). He claims that computer disks are being replaced with flash drives, which will have to be checked out allowing the defendants "illegal access to [his] legal work" (id.). The plaintiff requests that the court order the return of the computers and printer and order that the scheduling policy for use of Westlaw be changed (id.).
According to the testimony of Kimberly Poholchuk, who is currently a Program Coordinator for the SCDMH and was previously assigned to the SVPTP assisting with the day-to-day operations of the units, all residents have access to Westlaw on the computers in the Edisto and Congaree Units (doc. 101-7, Poholchuk aff. ¶¶ 1, 5). Residents must submit a request to staff to gain access to the computers, and each resident is allowed two hours per week to utilize Westlaw (id. ¶¶ 5-6). Prior to October 2014, both units had computers that could be utilized by residents for purposes other than research, but those computers were removed because sexually explicit material was being stored on the hard drive and was being shared among residents. Residents were also previously allowed to use floppy disks to copy any material they chose, but those were confiscated due to the discovery of the sexually explicit material being shared by residents (id. ¶ 7). Residents were then informed that they could submit a request for printing of any materials they needed from their disks (id. ¶ 8).
To the extent the plaintiff alleges he has been denied access to the courts, the plaintiff has failed to identify any injury the alleged lack of computers has caused him, such as a specific lawsuit he was unable to bring without a computer. Lewis v. Casey, 518 U.S. 343, 351-52 (1996); Cochran v. Morris, 73 F.3d 1310 (4th Cir. 1996); see also Christopher v. Harbury, 536 U.S. 403, 414-15 (2002) (stating that "the very point of recognizing any access claim is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong"). Notably, a review of the docket in this case reveals that the plaintiff has filed numerous documents, including a 60-page response in opposition to the motion for summary judgment, that include legal arguments and citations to cases (see docs. 1, 113). The plaintiff has failed to establish that this claim otherwise rises to the level of a constitutional deprivation. Accordingly, the defendants are entitled to summary judgment on this claim.
The plaintiff alleges that frequent lockdowns at BRCI "are used as a means of total control and dominating behavior," which "further demonstrate just how punitive this environment is" (doc. 1 at 59-60). In an exhibit to his complaint, the plaintiff purportedly details the days and times of the lockdowns that occurred in the Edisto Unit for 2015 (doc. 1-10). A review of the attachments shows that, assuming the lockdowns occurred as outlined by the plaintiff, they occurred due to fights among residents, residents being transported to the hospital, work and painting being done on the units, and alleged staff shortages (id.). Ms. Scaturo states in her affidavit that lockdowns sometimes occur due to staff shortages when numerous staff are off site because of transports of residents to outside medical or court appointments (doc. 101-2, Scaturo aff. ¶ 23). An increase of lockdowns occurred in March to April 2015 due to construction and painting of the Edisto Unit, which necessitated locking the unit down for the safety of the residents and workers (id.). There is no evidence that any of the lockdowns were punitive in nature.
In addition, the plaintiff alleges that his constitutional rights have been violated because he has been subject to search of his person and/or his room (doc. 1 at 25). However, such searches are necessary to ensure the safety and security of the unit and the institution as well as the residents and employees of the SVPTP (doc. 101-2, Scaturo aff. ¶ 24). All residents of the SVPTP are subject to random searches by Public Safety Officers or any SVPTP staff to determine if the resident is in possession of any contraband (doc. 101-7, Poholchuk aff. ¶ 2). Contraband includes any items that are hazardous, dangerous, or interfere with the treatment goals of the SVPTP (id. ¶ 3). Anytime that the plaintiff's room was searched it was only to ensure that he was not in possession of any contraband that might compromise the safety of the unit and the treatment of the residents of the unit (id. ¶ 4). As argued by the defendants, there is an obvious interest in keeping dangerous and unauthorized materials out of the unit where the residents of the SVPTP are housed in a maximum security prison. In deciding whether a civilly-institutionalized individual's constitutional rights have been violated, the courts must balance the individual's liberty interest against "the demands of an organized society," but deference must be given to the decisions of professionals. Youngberg, 457 U.S. at 320. Moreover, the Supreme Court specifically stated that the State also has an "unquestionable duty to provide reasonable safety for all residents and personnel within the institution." Id. at 324.
The plaintiff has failed to show that the policies of the SVPTP substantially depart from accepted professional judgment. As the plaintiff has not and cannot demonstrate that his due process rights as guaranteed by the Fourteenth Amendment have been violated, the defendants should be granted summary judgment.
The plaintiff alleges that the conditions of confinement for the SVPTP places restrictions on the fundamental right to live in a non-punitive environment (doc. 1 at 61-66). The plaintiff fails to make any specific allegations under this heading and simply reiterates the allegations addressed above (id.). Accordingly, summary judgment is appropriate on this claim.
The SCDMH defendants argue that, to the extent the plaintiff sues them for monetary damages in their official capacities, they are immune from suit (doc. 101-1 at 4-5) The undersigned agrees. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The Supreme Court has long held that the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Educ., 242 F.3d 219, 222 (4th Cir. 2001). These defendants were all employed by the SCDMH, which is an arm of the state, during all times relevant to the plaintiff's complaint (doc. 101-2, Scaturo aff. ¶¶ 2, 6-7). Accordingly, the SCDMH defendants are immune from suit for monetary damages in their official capacities.
To the extent the plaintiff alleges that any of the defendants are liable under a theory of respondeat superior for the actions of other employees, that doctrine is generally inapplicable to Section 1983 claims. See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) ("Section 1983 will not support a claim based on a respondeat superior theory of liability.") (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)); Vinnedge v. Gibbs, 550 F.2d 926, 928-29 (4th Cir. 1977) (doctrine of respondeat superior has no application under § 1983). In order to proceed on a supervisory liability theory, the plaintiff must show: (1) the supervisor had actual or constructive knowledge that a subordinate was engaged in conduct that posed "a pervasive and unreasonable risk" of constitutional injury to people like the plaintiff; (2) the supervisor's response was so inadequate as to constitute deliberate indifference or tacit authorization of the subordinate's conduct; and (3) there is an "affirmative causal link" between the supervisor's inaction and the plaintiff's constitutional injury. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). The plaintiff has made no such showing here.
The law is clear that personal participation of a defendant is a necessary element of a Section 1983 claim against government officials in their individual capacities. Trulock v. Free, 275 F.3d 391, 402 (4th Cir. 2001). "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff . . . must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (citation omitted). In order for an individual to be liable under Section 1983, it must be "affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights, [and the defendant] must have had personal knowledge of and involvement in the alleged deprivation of [the plaintiff's] rights. . . ." Harbeck v. Smith, 814 F.Supp.2d 608, 627 (E.D. Va. 2011) (internal quotation marks and citations omitted). The Fourth Circuit further described this requirement as "designed to ensure that the serious burdens of defending against this sort of lawsuit are vested upon a department supervisor only when the complaint plausibly suggests that the supervisor engaged in his or her own misconduct." Evans v. Chalmers, 703 F.3d 636, 661 (4th Cir. 2012).
As argued by the SCDMH defendants, the plaintiff makes no specific allegations in his complaint against any of these defendants (see generally doc. 1). Only the names of defendants Helff, Poholchuk, and Scaturo are mentioned in the body of the complaint (doc. 1 at 51, BMC Issue). However, even then, the plaintiff does not supply any specifics as to why they are named (id. at 51-56). In response in opposition to the motion for summary judgment, the plaintiff only refers to three defendants, Drs. Schwartz-Watts, Gehle, and Swan (doc. 113 at 5, 8-12). Those claims have been addressed above. In his reply, the plaintiff states that the issues he has "raised are not just against a few individuals but rather against the entire system of how the SVP statute is implemented. The issues must be seen as a whole and not to be torn apart as individual issues" (doc. 116 at 2). As discussed above, however, such general allegations are insufficient. As the plaintiff has failed to state specifically how the defendants, through their own individual actions, violated the Constitution, they are entitled to dismissal from this action. Iqbal, 556 U.S. at 676.
The defendants further argue that they are entitled to qualified immunity. The undersigned agrees. Qualified immunity protects government officials performing discretionary functions from civil damage suits as long as the conduct in question does not "violate clearly established rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, qualified immunity is lost if an official violates a constitutional or statutory right of a plaintiff that was clearly established at the time of the alleged violation such that an objectively reasonable official in the official's position would have known of the right. Id.
To determine whether qualified immunity applies, a district court must determine a plaintiff has alleged the deprivation of an actual constitutional right at all and whether the particular right was clearly established at the time of the alleged violation. See Tolan v. Cotton, 134 S.Ct. 1861, 1865-66 (2014) (per curiam); and Wilson v. Layne, 526 U.S. 603, 609 (1999). "The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009). Here, as discussed above, the plaintiff's allegations fail to demonstrate that the defendants violated his constitutional rights. Therefore, the undersigned finds the SCDMH defendants are entitled to qualified immunity.
"The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint." Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a "`short and plain statement of the claim showing 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.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "[T]he facts alleged `must be enough to raise a right to relief above the speculative level' and must provide `enough facts to state a claim to relief that is plausible on its face.'" Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 569). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). The court must liberally construe pro se complaints to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), and such 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).
"In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if the document "was integral to and explicitly relied on in the complaint," and there is no authenticity challenge. Id. at 448 (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). See also Int'l Ass'n of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) ("In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also `consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'") (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)). Rule 12(d) states: "If on a motion under Rule 12(b)(6). . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion."
On September 9, 2016, defendant Alan Wilson, who is the South Carolina Attorney General, filed a motion to dismiss for failure to state a claim (doc. 60). A Roseboro order was issued the same date, advising the plaintiff of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately (doc. 61). The plaintiff filed his response in opposition to the motion on October 11, 2016 (doc. 78), and defendant Wilson filed a reply on October 21, 2016 (doc. 82).
The only portion of the plaintiff's 68-page complaint that references defendant Wilson is in the "Parties" portion (doc. 1 at 1-3). The plaintiff has failed to state specifically how defendant Wilson, through his own individual actions, violated the Constitution. Iqbal, 556 U.S. at 676. Moreover, the plaintiff has failed to allege or show that defendant Wilson is liable under a supervisory liability theory. Shaw, 13 F.3d at 799. Further, defendant Wilson is entitled to Eleventh Amendment immunity and qualified immunity as discussed above with regard to the SCDMH defendants. In addition, "[i]n South Carolina, the Attorney General and his assistants function as prosecutors in criminal appeals, post-conviction relief actions, and in proceedings under the SVPA. As prosecutors, . . . Wilson [has] absolute immunity for [his] prosecution-related activities in or connected with judicial proceedings." Hendricks v. Bogle, 3:13-CV-2733-DCN, 2013 WL 6183982, at *2 (D.S.C. Nov. 25, 2013). Accordingly, defendant Wilson has absolute immunity from a suit for damages for his prosecution or detention of the plaintiff under the SVPA. Based upon the foregoing, defendant Wilson's motion to dismiss (doc. 60) should be granted.
On October 6, 2016, defendant Dr. Swan filed a motion to dismiss for failure to state a claim (doc. 75). A Roseboro order was issued the same date, again advising the plaintiff of the motion to dismiss procedure and the possible consequences if he failed to respond adequately (doc. 76). The plaintiff filed his response in opposition to the motion on October 28, 2016 (doc. 86).
Dr. Swan, who is a licensed clinical psychologist, argues that any state law claim for medical malpractice against her should be dismissed because the plaintiff failed to file the requisite expert affidavit with his complaint. To pursue a medical malpractice claim under South Carolina law, a plaintiff must file "as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim . . . ." S.C. Code Ann. § 15-36-100(B). In his response to Dr. Swan's motion, the plaintiff states that he is "not filing a malpractice suit, but rather I am addressing the punitive conditions of confinement which includes the unacceptable policies and procedures being perpetuated in this entire SVPTP by all responsible persons including evaluators such as Dr. Amy C. Swan" (doc. 86 at 1). Any such claim fails for the reasons discussed above with regard to the SCDMH defendants' motion for summary judgment. Accordingly, the undersigned recommends that Dr. Swan be dismissed from this case.
On March 23, 2017, defendant Hickman filed a motion to dismiss for failure to state a claim (doc. 109). On March 24, 2017, a Roseboro order was issued, again advising the plaintiff of the motion to dismiss procedure and the possible consequences if he failed to respond adequately to Hickman's motion (doc. 111). When the plaintiff failed to timely respond, the undersigned issued an order giving the plaintiff through June 28, 2017, to file his response to defendant Hickman's motion to dismiss (doc. 119). The plaintiff filed his response on June 21, 2017, and defendant Hickman filed a reply on June 27, 2017 (doc. 124).
Defendant Hickman is a registered nurse employed by ATC Healthcare, a private entity contracting with the SCDMH to provide medical care to residents in the SVPTP (doc. 109-1 at 2). The plaintiff has made no specific factual allegations in his complaint to show that defendant Hickman violated any of his constitutional rights. Accordingly, she is entitled to dismissal pursuant to Iqbal, 556 U.S. at 676.
In his response to the motion to dismiss, the plaintiff alleges that defendant Hickman "would always come off with a callous-inhumane attitude toward [him]" and that she would give him his medication "when she saw fit" (doc. 122 at 2). He claims that defendant Hickman never acted "in any manner that would be considered professional, or in [his] best interest" (id.). The plaintiff's vague, conclusory allegations fail to state an actionable claim for deliberate indifference to a serious medical need as he has failed to identify and prove a serious medical need and that defendant Hickman was deliberately indifferent to it. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Accordingly, the motion to dismiss should be granted.
On June 30, 2017, the plaintiff filed a motion to amend his complaint (doc. 125). The SCDMH defendants filed a response in opposition on July 14, 2017 (doc. 126), and the plaintiff filed additional documents in support of his motion on July 19, 2017 (doc. 128).
Federal Rule of Civil Procedure 15 states that, as pertinent here, "[A] party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. Rule 15(a)(2). Amendments under Rule 15 are generally freely given unless doing so would be prejudicial to the opposing party, have been made in bad faith, or would be futile. Jones v. Lexington County Det. Ctr., 586 F.Supp.2d 444, 450 (D.S.C. 2008) (denying motion to amend as futile). If the proposed amended complaint fails to state a claim under Rule 12(b)(6), amendment would be futile, and denial of a motion to amend is appropriate. See United States v. Kellogg Brown & Root Inc., 525 F.3d 370, 376 (4th Cir. 2008).
It appears that the plaintiff is attempting to add an additional narrative describing how "civil commitment was built upon a foundation that was not solid and never been" (doc. 125 at 7). As in his original complaint, the plaintiff makes no specific allegations in the proposed complaint regarding any defendant (see docs. 125, 128). The plaintiff's general allegations regarding the SVPA and the SVPTP have been addressed on the merits above, and the plaintiff's proposed amendments do nothing to rectify the deficiencies identified herein. Accordingly, amendment of the complaint would be futile. Moreover, the plaintiff's motion to amend was filed over a year after the complaint was filed and after full briefing on each of the defendants' dispositive motions. He has provided no justification for the delay. Allowing amendment at this time would certainly be prejudicial to the defendants. Based upon the foregoing, the motion to amend (doc. 125) should be denied.
Wherefore, based upon the foregoing, the undersigned recommends that the motions to dismiss of defendants Wilson, Swan, and Hickman (docs. 60, 75, 109) and the motion for summary judgment of the SCDMH defendants (doc. 101) be granted and the plaintiff's motion to amend (doc. 125) be denied.
IT IS SO RECOMMENDED.
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must `only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
