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. 90] and a cross-motion for summary judgment filed by Plaintiff [Doc. 98]. 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 February 16, 2012.
Plaintiff alleges that in 1987, before his incarceration, he fractured all bones in his left foot, resulting in the loss of an arch in his left foot. [Doc. 92 at 5 ¶ 13.] As a result, an orthopedic surgeon advised Plaintiff to wear shoes with moderate arch support to alleviate pain. [Id.] Plaintiff alleges he was later prescribed shoes with moderate arch support. [Id. at 5 ¶¶ 15-16.] From 1997 through 2011, Plaintiff satisfied his medical treatment at his own expense, and the Bureau of Prisons allowed Plaintiff to purchase boots with moderate arch support through the commissary or have the boots purchased by Plaintiff's family. [Id. at 5-6 ¶ 17.]
Plaintiff alleges Defendants Carl Dozier ("Dozier") and Dawn Allender ("Allender") prohibited Plaintiff from purchasing a pair of boots with moderate arch support on January 1, 2011, even though they had previously allowed him to purchase boots to satisfy his medical condition. [Id. at 6 ¶ 18.] Plaintiff further alleges Defendant Darlene Drew ("Drew") allowed Dozier and Allender to restrict Plaintiff's ability to purchase boots even though Drew knew Plaintiff required shoes with moderate arch support. [Id. at 6 ¶ 20.] Plaintiff alleges Defendants Luis Berrios ("Berrios"), Linda McDannold ("McDannold"), Drew, Dozier, and Allender were aware that inmates are required to wear boots and cannot wear any other shoes during normal working hours or to visitation. [Id. at 6 ¶ 20.] Further, Plaintiff alleges Drew, Berrios, and McDannold knew Plaintiff had a fallen arch in his left foot requiring boots with moderate arch support, and they failed to provide Plaintiff with boots and required Plaintiff to satisfy his medical condition at his own cost. [Id. at 6 ¶ 21.]
Plaintiff contends that, as a result of Defendants' actions, Plaintiff continues to experience pain in his left foot, along with the risk of losing mobility in his left foot. [Id. at 7 ¶ 26.] Plaintiff seeks $25,000 in compensatory damages against each defendant, punitive damages in the amount of $100,000 against each defendant, and all other relief deemed just and proper. [Id. at 7 ¶¶ 26-28.]
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.
In their motion to dismiss or, in the alternative, for summary judgment, Defendants first argue they are entitled to sovereign immunity and, accordingly, Plaintiff's claims should be dismissed for lack of subject matter jurisdiction. [Doc. 90 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 Defendants that states a constitutional violation [id. at 8-12]; Plaintiff's amended complaint fails to state a claim upon which relief can be granted under Rule 12(b)(6) [id. at 12-13]; McDannold is entitled to absolute immunity under the terms of the Public Health Service Act [id. at 13]; Defendants are entitled to qualified immunity [id. at 14-15]; Plaintiff fails to state a violation of the Eighth Amendment as it relates to his medical care [id. at 15-22]; negligence/medical malpractice does not state a valid constitutional claim [id. at 22-23]; Drew, Dozier, and Allender, as non-medical prison officials, were 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 23-26]; supervisory liability does not attach for Drew [id. at 26-27]; and Plaintiff cannot satisfy the Prison Litigation Reform Act's physical injury requirement [id. at 28-29].
As an initial matter, the Court notes Bivens claims for damages are not actionable against the United Sates, 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 the Defendants in their official capacities, those claims should be dismissed, but the Court will consider Plaintiff's claims for equitable relief and Plaintiff's damages claims to the extent he has asserted such claims against Defendants in their individual capacities.
McDannold is entitled to absolute immunity under the terms of the Public Health Service Act, 42 U.S.C. § 233(a). Section 233(a) makes the Federal Tort Claims Act the exclusive remedy for legal actions against members of Public Health Service "for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions . . ., by any commissioned officer or employee of the Public Health Service while acting within the scope of his office of employment." Hui v. Castaneda, 559 U.S. 799 (2010). As the Supreme Court observed in Hui, "proof of scope is in most § 233(a) cases established by a declaration affirming that the defendant was a PHS official during the relevant time period." Id. at 1854. McDannold avers she is a registered nurse in the United States Public Health Service. [Doc. 90-9 at 1 ¶ 1.] Accordingly, McDannold is entitled to absolute immunity.
Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment and states a cause of action under Bivens because deliberate indifference constitutes "the `unnecessary and wanton infliction of pain.'" Estelle, 429 U.S. at 104-05 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)). Deliberate indifference exists when prison officials know of a substantial risk to a prisoner's health or safety and consciously disregard that risk. See Farmer v. Brennan, 511 U.S. 825, 836 (1994); Miltier v. Beorn, 896 F.2d 848, 851-52 (4th Cir. 1990) ("Deliberate indifference may be demonstrated by either actual intent or reckless disregard. A defendant acts recklessly by disregarding a substantial risk of danger that is either known to the defendant or which would be apparent to a reasonable person in the defendant's position." (citation omitted)). Within the United States Court of Appeals for the Fourth Circuit, "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. Miltier, 896 F.2d at 851.
To prevail on an Eighth Amendment claim, the prisoner must demonstrate (1) his medical condition was a sufficiently serious one and (2) subjectively, the prison officials acted with a sufficiently culpable state of mind, which is satisfied by showing deliberate indifference by the prison officials. Goodman v. Wexford Health Sources, Inc., No. 09-6996, 2011 WL 1594915, at *1 (4th Cir. Apr. 28, 2011) (quoting Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998)). As the United States Supreme Court has explained,
Wilson v. Seiter, 501 U.S. 294, 297 (1991) (emphasis and alteration in original) (citations omitted). Further, 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."); see also, e.g., 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.
Assuming without deciding that Plaintiff can establish his medical needs are sufficiently serious, he has failed to establish a genuine issue of material fact remains as to whether Defendants acted with a sufficiently culpable state of mind. With respect to Plaintiff's allegation that he was not provided boots with proper arch support, the evidence indicates Plaintiff was offered a pair of shoes to purchase that provided the medically necessary arch support but Plaintiff declined to purchase those shoes. Plaintiff admits that Berrios and McDannold "identified athletic shoes in the commissary for Plaintiff to satisfy his medical condition." [Doc. 97-1 at 2 ¶ 7.] Likewise, the evidence confirms Defendants made available to Plaintiff shoes with moderate arch support, as recommended by the specialist, for purchase from the institution's commissary. [Docs. 90-5; 90-6; 90-7 at 4 ¶ 14; 90-13.] Plaintiff, however, complains he was not allowed to purchase the boots he was previously allowed to purchase and that the athletic shoes he was permitted to purchase did not meet the facility dress code unless Plaintiff had a soft shoe pass. [Doc. 97-1 at 2 ¶¶ 4-5 (indicating FCI Bennettsville's dress code prohibits athletic shoes at certain times unless the inmate possesses a soft shoe pass, which Plaintiff did not possess).] However, Plaintiff has not alleged he requested and was denied a soft shoe pass, and Defendants aver he would have been allowed to wear soft shoes if the shoes were selected for medical reasons. [Docs. 90-8 at 3 ¶ 8; 97-25 at 7; 97-26 at 6.]
Defendants have adequately addressed Plaintiff's medical need for a shoe with moderate arch support; however, the shoe is not the boot Plaintiff desires. Plaintiff's disappointment in the suggested shoe, however, does not translate to deliberate indifference on the part of any Defendant. As explained above, the Constitution requires only that a prisoner receive adequate medical care; the Constitution does not mandate that a prisoner receive the medical treatment of his choice. See, e.g., Jackson, 846 F.2d at 817. Plaintiff has failed to demonstrate a genuine issue of material fact remains as to whether Defendants acted with deliberate indifference.
To the extent Plaintiff attempts to raise a claim of medical deliberate indifference against any non-medical personnel defendant, his claim must fail. To establish a claim for denial of medical care against non-medical personnel, a prisoner must show that the nonmedical personnel failed to promptly provide needed medical treatment, deliberately interfered with prison doctors' treatment, or tacitly authorized or were indifferent to the prison physicians' misconduct. Miltier, 896 F.2d at 854. Moreover, because most prison officials are not trained medical personnel, they are entitled to rely on the opinions, judgment, and expertise of medical personnel concerning the course of treatment that the medical personnel deemed necessary and appropriate for the prisoner. See id. Plaintiff has made no showing that any non-medical personnel defendant engaged in the type of conduct required by controlling case law to establish an Eighth Amendment medical claim of deliberate indifference.
To the extent Plaintiff bases his claims against Drew on the theory of supervisory liability, his claims are without merit. First, the Supreme Court may have entirely abrogated supervisory liability in Bivens actions. See Iqbal, 556 U.S. at 693 (Souter, J., dissenting) ("Lest there be any mistake, . . . the majority is not narrowing the scope of supervisory liability; it is eliminating Bivens supervisory liability entirely. The nature of a supervisory liability theory is that the supervisor may be liable, under certain conditions, for the wrongdoing of his subordinates, and it is this very principle that the majority rejects."). Moreover, even if supervisory liability remains in Bivens actions, because there is no doctrine of respondeat superior in Bivens and § 1983 claims, id. at 676-84, a defendant is liable in his individual capacity only for his personal wrongdoing or supervisory actions that violated constitutional norms, see Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (setting forth elements necessary to establish supervisory liability under § 1983). A plaintiff must establish three elements to prevail under Bivens or § 1983 on a theory of supervisory liability:
Id. (citations omitted).
In this case, Plaintiff has failed to establish a claim based on a theory of supervisory liability. Plaintiff has failed to show Drew acted with deliberate indifference with respect to Plaintiff's medical needs. Further, as discussed above, Plaintiff's medical needs were addressed and, although Plaintiff may disagree with the treatment he received, Defendants were not deliberately indifferent to his medical needs. Moreover, Plaintiff has failed to establish a causal link between any action or inaction on the part of Drew and the alleged violation of Plaintiff's constitutional rights because Plaintiff failed to demonstrate Drew's subordinates were deliberately indifferent to Plaintiff's medical needs. Therefore, Plaintiff has failed to state a claim under a theory of supervisory liability.
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 does not protect an official who 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. Further, qualified immunity is "an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
To determine whether qualified immunity applies, a court must determine "`whether the plaintiff has alleged the deprivation of an actual constitutional right at all[] and . . . whether that right was clearly established at the time of the alleged violation.'" Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, 290 (1999)). "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action[,] assessed in light of the legal rules that were `clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citing Harlow, 457 U.S. at 819). For purposes of this analysis, a right is "clearly established" if "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 640.
District court and court of appeals judges are "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). If a court decides in the negative the first prong it considers—i.e., the court decides the plaintiff has not alleged the deprivation of an actual constitutional right or the right was not clearly established at the time of the alleged violation—the court need not consider the other prong of the qualified immunity analysis. See id. at 243-45; Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991) (holding the court "need not formally resolve" the constitutional question of "whether the [plaintiffs] were arrested without probable cause" to address the plaintiffs' § 1983 claim; the court stated that it "need only determine whether [the defendant]—a deputy sheriff performing within the normal course of his employment—acted with the objective reasonableness necessary to entitle him to qualified immunity").
As discussed above, Plaintiff's allegations fail to demonstrate Defendants violated Plaintiff's constitutional rights. Therefore, Defendants are entitled to qualified immunity.
Wherefore, based upon the foregoing, the Court recommends Defendants' motion to dismiss or, in the alternative, for summary judgment be GRANTED and Plaintiff's crossmotion for summary judgment be DENIED.
IT IS SO ORDERED.
