REPORT AND RECOMMENDATION

WALLACE W. DIXON, Magistrate Judge.

This conditions of confinement claim brought pursuant to 42 U.S.C. § 19831 filed by the Plaintiff, Deon Hampton, proceeding pro se and in forma pauperis, is before the undersigned United States Magistrate Judge in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina for a report and recommendation on the Defendant's motion for summary judgment filed on September 2, 2014. (Dkt. 44).

On September 9, 2014, the Plaintiff was provided a copy of the Defendant's motion and was given an explanation of dismissal and summary judgment procedure, as well as pertinent extracts from Rules 12 and 56 of the Federal Rules of Civil Procedure similar to that required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). (Dkt. 45) The Plaintiff was given until October 9, 2014, to file an Opposition to the motion, but he did not do so. Hence, it appears consideration of the motion is appropriate.

SUMMARY JUDGMENT STANDARD

Pursuant to FED.R.CIV.P. 56(c), a district court must enter judgment against a party who, "after adequate time for discovery . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). Where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law," entry of summary judgment is mandated. FED.R.CIV.P. 56(c).

To avoid summary judgment on the Defendants' motion, the Plaintiff must produce evidence creating a genuine issue of material fact. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512 (1986). Though the burden of proof rests initially with the moving party, when a motion for summary judgment is made and supported as provided in Rule 56, the nonmoving party must produce "specific facts showing that there is a genuine issue for trial," rather than resting upon the bald assertions of his pleadings. FED.R.CIV.P. 56(e). See First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968).

In determining whether a genuine issue of material fact is in dispute, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson at 255, 106 S.Ct. at 2513-14. In addition, genuineness means that the evidence must create fair doubt; wholly speculative assertions will not suffice. A trial is not an entitlement; it exists to resolve what reasonable minds would recognize as real factual disputes. See Cole v. Cole, 633 F.2d 1083, 1089 (4th Cir. 1980).

PRO SE PLAINTIFF

Since the Plaintiff is proceeding pro se, this court is required to treat his filings and pleadings with some degree of liberality. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hughes v. Rowe, 449 U.S. 9 (1980) (per curiam). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam). Nevertheless, the court may not rewrite his pleadings; Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.1999), or construct legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-418 (7th Cir.1993), or "conjure up questions never squarely presented" to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985), cert. denied, 475 U.S. 1088, 106 S.Ct. 1475, 89 L.Ed.2d 729 (1986). Furthermore, while the court should afford a pro se litigant every reasonable opportunity to construct and present his side, the court cannot act as counsel for the pro se litigant or excuse a failure to comply with the rules of this court.

THE COMPLAINT

In his verified complaint,2 the Plaintiff, who was a pre-trial detainee at the Beaufort County Detention Center (BCDC) at all relevant times, alleged that the Defendant, Major Allen, "acting with malice, hate, and being vindictive," kept him "on suicide watch" after medical professionals deemed him not to be suicidal. The Plaintiff claims that this was cruel and unusual punishment because the "suicide cell" was not clean, the mattress and floor were dirty, and the room smelled of urine. While the Plaintiff was in the cell, officers verbally abused him. The Plaintiff was kept in the cell from January 14 through January 17, 2014, which caused him, "mental and emotional pain and suffering, humiliation, indignity, embarrassment, and loss of privacy. . . ." (Dkt. 1) The Plaintiff seeks damages.3

CONDITIONS OF CONFINEMENT

The Plaintiff alleges constitutional violations in that he was housed in the suicide observation cell instead of the general population for several days while a pretrial detainee at the BCDC. Confinement conditions of pretrial detainees are to be evaluated under the due process clause rather than the Eighth Amendment prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520 at 535 n. 16, 99 S.Ct. 1861 (1979).

A detainee may not be punished prior to the adjudication of guilt, however, he may be subjected to "the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment." Bell, 441 U.S. at 535-36. Due process also requires the State to provide pretrial detainees with some minimal level of food, living space, and medical care, and "the failure to provide that level of necessities violates due process-even though the conditions imposed serve some ordinarily legitimate state objective." Hamm v. Dekalb Co., 774 F.2d 1567, 1573 (11th Cir .1985), cert. denied, 475 U.S. 1096, 106 S.Ct. 1492, 89 L.Ed.2d 894 (1986).

The Plaintiff must prove that he was deprived a "basic need" and that this deprivation was attended by deliberate indifference on the part of the Defendant. Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir., cert. denied, 510 U.S. 949 (1993)). To prevail on a conditions of confinement claim, a pretrial detainee must show either (1) an expressed intent to punish, or (2) lack of a reasonable relationship to a legitimate nonpunitive governmental objective, from which a punitive intent may be inferred. Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir.1992) (citing Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988)).

The Plaintiff must also produce evidence of serious or significant physical or emotional injury resulting from challenged conditions to withstand summary judgment on conditions claims. Strickler, at 1380-1381. In addition, the Prison Litigation Reform Act (PLRA), provides "[n]o Federal civil action may be brought by a prisoner4 confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."5 42 U.S.C. § 1997e(e);,

DISCUSSION

A review of the record and relevant case law reveals that the Defendant's motion for summary judgment should be granted and this matter ended.

This is not a difficult case. The Plaintiff seeks damages for his mental or emotional injury suffered while on suicide watch. There is no evidence of a prior showing of physical injury as required by 42 U.S.C. § 1997e(e) and, furthermore, that the Plaintiff's confinement on suicide watch for several days caused Plaintiff any significant physical or mental health injury. See Strickler v. Waters, 989 F.2d 1375, 1380-81 (4th Cir. 1993). As the Bell court noted, "(T)he fact that such detention interferes with the detainee's understandable desire to live as comfortably as possible with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into `punishment.") Bell at 537. The Plaintiff is not entitled to damages for mental and/or emotional damages under § 1983.

The Defendant also asserted his entitlement to qualified immunity as set forth in Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) and its progeny. Based upon the record before the court, it appears qualified immunity is also an appropriate basis for judgment as a matter of law.

CONCLUSION

Accordingly, for the aforementioned reasons, it is recommended that the Defendant's Motion for summary judgment under Rule 56(c) be granted and the action ended, and any other outstanding motions be denied as moot.

IT IS SO RECOMMENDED.