JACQUELYN D. AUSTIN, Magistrate Judge.
This matter is before the Court on a motion to dismiss or, in the alternative, for summary judgment filed by Defendants [Doc. 53], and a motion to amend/correct the amended complaint by Plaintiff [Doc. 70]. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review all pretrial matters in pro se cases and to submit findings and recommendations to the District Court.
Plaintiff, proceeding pro se, filed this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), on October 28, 2011.
On October 4, 2012, Defendants filed a motion to dismiss or, in the alternative, for summary judgment. [Doc. 53.] On October 5, 2012, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 54.] Plaintiff filed a response in opposition to Defendants' motion on October 31, 2012. [Doc. 56.] On February 25, 2012, Plaintiff attempted to file a second amended complaint, which the Clerk of Court construed and filed as a motion to amend/correct the amended complaint. [Doc. 70.] Defendants filed a response in opposition on March 11, 2013 [Doc. 72], and Plaintiff filed a reply on March 22, 2013 [Doc. 74]. Accordingly, the motions are now ripe for consideration.
Plaintiff alleges he hurt his knee playing basketball in February 2002. [Doc. 36 at 2.] An MRI conducted a few months later revealed a torn ACL, and the doctor reviewing the MRI recommended surgery. [Id.; see also Doc. 1-2 (medical records).] Plaintiff alleges that, on several occasions, a review committee denied his requests for surgery and indicated Plaintiff would be treated conservatively. [Doc. 36 at 2.] Plaintiff alleges he was given a hinge knee brace to stabilize his knee. [Id.]
Plaintiff alleges it has been several years since the injury and since arthroscopic surgery was recommended, but he has not had surgery and the pain in his knee has become unbearable. [Id.] Plaintiff complains the prison doctors expect Plaintiff to wear the leg brace at all times rather than try to correct the problem. [Id. at 3.] Plaintiff complains that his knee has begun to grind together, buckles at times, and feels very loose. [Id.] Plaintiff alleges he has exhausted all of his administrative remedies but has consistently been denied proper treatment. [Id.] Plaintiff seeks a jury trial to demand proper and appropriate measures to repair his knee; damages for cruel and unusual punishment; damages for pain and suffering; punitive damages; a restraining order enjoining the Bureau of Prisons ("BOP") and its staff members from retaliating against Plaintiff; and any other remedy a jury may deem appropriate and just under the circumstances. [Id. at 3-4.]
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. Even under this less stringent standard, however, the pro se complaint is still subject to summary dismissal. Id. at 520-21. 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).
In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for the violation of federal constitutional rights. 403 U.S. at 389. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983
A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) "should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support [his] claim and would entitle [him] to relief. In considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). In addition to the complaint, the court "may consider documents attached to the complaint ... so long as they are integral to the complaint and authentic." Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007) (citing Fed. R. Civ. P. 10(c)).
With respect to well-pleaded allegations, the Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." (citing Twombly, 550 U.S. at 556)); E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000) (noting that court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments"); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) ("[T]he pleading must contain something more ... than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.").
Rule 56 states, as to a party who has moved for summary judgment:
Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence would affect disposition of the case under 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. When 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 court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (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. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant'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 granting the summary judgment motion. Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989). "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." Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Defendants first argue they are entitled to sovereign immunity and, accordingly, Plaintiff's claims should be dismissed for lack of subject matter jurisdiction. [Doc. 53 at 2-4.] Additionally, Defendants argue Plaintiff's amended complaint fails to comply with Rule 8(a)(2) because it fails to make specific allegations against any individual defendant [id. at 10-13]; Plaintiff's amended complaint fails to state a claim upon which relief can be granted under Rule 12(b)(6) [id. at 14]; Defendants are entitled to qualified immunity [id. at 14-16]; Plaintiff fails to state a violation of the Eighth Amendment as it relates to his medical care [id. at 16-18]; negligence/medical malpractice does not state a valid constitutional claim [id. at 18-19]; Drew, as a non-medical prison official, was entitled to rely on the professional judgment of medical staff and may not be held personally liable for decisions made by medical personnel [id. at 19-21]; supervisory liability does not attach for Drew [id. at 21-22]; and Plaintiff cannot satisfy the Prison Litigation Reform Act's physical injury requirement [id. at 22-23].
As an initial matter, the Court notes Bivens claims for damages are not actionable against the United States, federal agencies, or public officials acting in their official capacities. See FDIC v. Meyer, 510 U.S. 471, 486 (1994) (declining to extend a Bivens remedy to federal agencies); see also Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (noting "a Bivens action does not lie against either agencies or officials in their official capacity"). However, sovereign immunity does not bar damages actions against federal officials in their individual capacities for violation of an individual's constitutional rights. Gilbert v. Da Grossa, 756 F.2d 1455, 1459 (9th Cir. 1985) (citing Davis v. Passman, 442 U.S. 228 (1979)). Further, sovereign immunity is not a bar to actions seeking equitable relief. Singletary v. Fallen, No. 0:11-543-CMC-PJG, 2012 WL 368375, at *2-3 (D.S.C. Jan. 17, 2012) (discussing relevant case and statutory law), report and recommendation adopted by 2012 WL 368364 (D.S.C. Feb. 3, 2012). Accordingly, to the extent Plaintiff asserts claims for damages against Defendants in their official capacities, those claims should be dismissed, but the Court will consider Plaintiff's claims to the extent he has asserted such claims against Defendants in their individual capacities.
None of the Defendants named in the caption of Plaintiff's amended complaint are even mentioned in the text of the amended complaint. The absence of any allegation of personal involvement by Defendants means Plaintiff has failed to allege that any action or inaction on the part of these Defendants resulted in the alleged deliberate indifference of Plaintiff's medical needs in violation of the Eighth Amendment.
Wherefore, based upon the foregoing, the Court recommends Defendants' motion to dismiss or, in the alternative, for summary judgment be GRANTED, and Plaintiff's motion to amend/correct the amended complaint DENIED.
IT IS SO RECOMMENDED.
Id. (citations omitted).
Here, Plaintiff has failed to demonstrate sufficient facts to establish any of the three necessary parts of a supervisory liability claim. As previously stated, Plaintiff has failed to even mention Drew in the text of the amended complaint. Therefore, Plaintiff has failed to state a claim against Drew under a theory of supervisory liability.
First, Plaintiff has failed to allege or show that Defendants were both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and that they had drawn the inference. See Young v. City of Mount Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001) ("Deliberate indifference requires a showing that the defendants actually knew of and disregarded a substantial risk of serious injury to the detainee or that they actually knew of and ignored a detainee's serious need for medical care."); see also Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988) ("The due process rights of a pretrial detainee are at least as great as the eighth amendment protections available to the convicted prisoner; while the convicted prisoner is entitled to protection only against punishment that is cruel and unusual, the pretrial detainee, who has yet to be adjudicated guilty of any crime, may not be subjected to any form of punishment." (citations and internal quotations omitted)). Defendants have provided the declaration of J. Berrios in which she avers that on October 5, 2006, the Utilization Review Committee approved an orthotic evaluation and forwarded it to the Region. [Doc. 53-2 ¶ 7.] X-rays were taken on October 25, 2006, and the study was negative for recent fracture or significant bony abnormality. [Id.¶ 8.] Plaintiff did not return to medical sick call in 2006 or 2007 for any complaints related to his right knee. [Id.¶¶ 9-10.] In February, March, November, and December 2008, Plaintiff complained of knee pain. [Id. ¶¶ 12-15]. In February 2009, another x-ray was negative. [Id. ¶ 16.] In September 2009, a physical assessment on Plaintiff's knee was benign except for crepitus, which is a medical term to describe the grating, crackling, or popping sounds and sensations experienced under the skin and joints, or a crackling sensation due to the presence of air in the subcutaneous tissue. [Id. ¶ 17-18.] In July 2010, Plaintiff was assessed with a full range of motion in his knee and some crepitus, no swelling, and no pain to touch. [Id. ¶ 19.] Plaintiff made no visits to sick call with complaints related to his knee in 2011. [Id. ¶ 20.] In September 2012, Plaintiff's knee was evaluated, and he had no specific complaints, indicating he walked, ran, and jogged daily without any knee problems. [Id. ¶ 22.] He was assessed as having full range of motion and no tenderness and was able to ambulate with no limp. [Id.] On September 20, 2012, the Utilization Review Committee approved an orthopedic consult for Plaintiff. [Id. ¶ 23.] Plaintiff was examined on November 5, 2012, and an MRI of the right knee was recommended. [Doc. 61-1.] The MRI was performed on January 22, 2013. [Doc. 77-1.] Based on these facts, the Court finds Plaintiff has failed to allege Defendants were both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and that they had drawn the inference.
Second, Plaintiff's allegations have not shown that any conduct by these defendants shocks the conscience or is intolerable to fundamental fairness. See Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990) (stating "the treatment must be so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness" to violate a prisoner's Eighth Amendment rights). Plaintiff has shown nothing more than a disagreement with the medical treatment provided, not that he was denied medical treatment. In the context of prisoner medical care, the Constitution requires only that prisoners receive adequate medical care; a prisoner is not guaranteed his choice of treatment. Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988) (citing Layne v. Vinzant, 657 F.2d 468, 471 (1st Cir. 1981)); see Russell v. Sheffer, 528 F.2d 318, 318 (4th Cir. 1975) (citing Blanks v. Cunningham, 409 F.2d 220 (4th Cir. 1969); Hirons v. Director, 351 F.2d 613 (4th Cir. 1965)) ("Prisoners are entitled to reasonable medical care."); Barton v. Dorriety, No. 9:10-cv-1362, 2011 WL 1049510, at *2 (D.S.C. Mar. 21, 2011) (citing Jackson, 846 F.2d at 817). The fact that a prisoner believed he had a more serious injury or that he required better treatment does not establish a constitutional violation. See, e.g., Russell, 528 F.2d at 319. Further, negligent or incorrect medical treatment is not actionable under 42 U.S.C. § 1983 or Bivens. Gamble, 429 U.S. at 106. Similarly, medical malpractice is not actionable under 42 U.S.C. § 1983 or Bivens. Id. ("Medical malpractice does not become a constitutional, violation merely because the victim is a prisoner."). Thus, even if the Court allowed Plaintiff to amend his amended complaint, his second amended complaint would fail to state a claim.
