United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, Magistrate Judge.
In this action, Plaintiff alleges a 42 U.S.C. § 1983 cause of action for deliberate indifference to his serious medical needs in violation of his constitutional rights as well as a state law gross negligence claim. Presently before the Court is Defendants' Motion for Summary Judgment (Document # 27). After Defendants filed their Motion, but prior to counsel for Plaintiff filing a Response, Plaintiff on his own filed a Letter (Document # 23) asking for an update on his case because he had not heard anything from his counsel. Soon after, he filed a Motion to Terminate Counsel (Document # 26). Counsel for Plaintiff then filed an untimely Response (Document # 27) in opposition to the Motion for Summary Judgment as well as a Response (Document # 28) in support of Plaintiff's Motion to Terminate Counsel. The Motion to Terminate was granted and Plaintiff was given an extension of time to respond to the Motion for Summary Judgment in the event he wished to supplement the Response filed by his former counsel. Plaintiff filed a Response (Document # 36) indicating that a Response had already been filed. A Notice of Appearance was filed by new counsel on behalf of Plaintiff on March 31, 2014.
In the original Response (Document # 27) filed by counsel, Plaintiff dismissed his claims for negligent supervision and negligent training and all claims against Defendants Officer T. Singletary, Sergeant Jameson, Officer Audrey Thomas, Officer Barr, Officer Pernell, Officer Reed, Officer Eaddy, Officer Wolf and Officer Miles. Plaintiff did not object to this voluntary dismissal in his subsequent, pro se Response. Thus, dismissal of these Defendants and claims is appropriate.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e) and (g), DSC. Because Defendants' Motion is dispositive, this Report and Recommendation is filed for review by the district judge.
Plaintiff was a pretrial detainee at the Florence County Detention Center (FCDC) from June 9, 2011, until June 30, 2011, when he was transferred into the custody of the South Carolina Department of Corrections. Pl. Dep. 38 (Ex. 1 to Pl. Response). When Plaintiff first reported to FCDC on June 9, 2011, he was screened by a booking officer who inquired into Plaintiff's medical history for classification purposes. Brunson Aff. ¶ 6 (Ex. A to Def. Motion); Medical Questionnaire (Ex. A to Brunson Aff.). During this screening, Plaintiff indicated his left leg was still injured from when he broke it in July of 2010 and that he had diabetes. Brunson Aff. ¶ 6; Medical Questionnaire; Pl. Dep. 34-35; 38-40. Joyce Brunson, Captain at FCDC, avers that the records reveal only that Plaintiff noted he had broken his left leg in July of 2010, not that his leg had not healed from that injury. Brunson Aff. ¶ 12. Plaintiff avers that he requested a first floor cell and a bottom bunk as a result. Pl. Dep. 46-49. Brunson avers that there is no record of Plaintiff requesting a first floor cell or bottom bunk. Brunson Aff. ¶¶ 8, 12. It is undisputed that all first floor cells were occupied and at full capacity so Plaintiff was placed in C Pod, Cell C216, a second tier cell. Brunson Aff. ¶ 7.
Plaintiff completed an inmate medical request on June 13, 2011, seeking a medical evaluation due to a rash and pain in his leg. McDougal Aff. ¶ 7 (Ex. B to Def. Motion); Inmate Medical Request (Ex. C to McDougal Aff.). He was seen by Defendant Nurse McDougal the next day, who noted that his left leg was injured in July of 2010. McDougal Aff. ¶ 8; Medical Assessment (Ex. D to McDougal Aff.). Plaintiff testifies that he specifically asked the nurse to be moved to a bottom tier cell. Pl. Dep. 72. McDougal avers that he never expressed a problem with his second tier cell or requested a bottom tier cell during this evaluation. McDougal Aff. ¶ 8. Plaintiff avers that he also talked to other officers about wanting to move to a bottom tier cell and they told him that decision had to be made by someone in the "front." Pl. Dep. 71. He testifies that he spoke with "the lady who was moving people around from C Pod, D Pod, whatever" and she told him she was sorry he was in pain but she did not have any rooms available. Pl. Dep. 71.
On June 15, 2011, Plaintiff fell down the stairs while carrying a breakfast tray. Pl. Dep. 60, 62-68. He was transported from FCDC to the McLeod Emergency Department for further evaluation. McDougal Aff. ¶ 10; McLeod Emergency Department Medical Chart (Ex. F to McDougal Aff.). The Emergency Department staff observed Plaintiff as having a normal gait, no deformity, no swelling, no tenderness, a steady movement of extremities and that he was able to move all extremities without difficulty. McDougal Aff. ¶ 11; McLeod Emergency Department Medical Chart (Ex. G to McDougal Aff.). X-rays were taken of Plaintiff's lumbar spine and left leg while he was there and the radiologist noted no change in Plaintiff's condition from prior x-rays that had been taken in October of 2010. McDougal Aff. ¶ 12; Radiology Report (Ex. H to McDougal Aff.). Plaintiff was prescribed Flexeril and Motrin and discharged the same day. McDougal Aff. ¶ 13; McLeod Emergency Department Medical Chart (Ex. I to McDougal Aff.). Upon his return to FCDC, Plaintiff was moved to a lower tier cell. Brunson Aff. ¶ 11.
III. STANDARD OF REVIEW
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex , 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston , 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am. , 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp. , 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex , 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc. , 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood , 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
A. 42 U.S.C. ...