United States District Court, D. South Carolina, Rock Hill Division
David J. Kennedy, Plaintiff,
South Carolina Department of Corrections; Victoria O. Balogun; and Amy R. Enloe, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, Magistrate Judge.
The plaintiff, David J. Kennedy ("Kennedy"), a state inmate who is represented by counsel, filed this civil action against the named defendants. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC for a Report and Recommendation on the defendants' motion for summary judgment. (ECF No. 38.) Kennedy filed a response in opposition (ECF No. 40), and the defendants replied (ECF No. 41). Having reviewed the parties' submissions and the applicable law, the court finds that the defendants' motion should be granted.
The following facts are undisputed unless otherwise indicated and, where disputed, are taken in the light most favorable to Kennedy. During the events at issue in the Complaint, Kennedy was housed at the Perry Correctional Institution ("Perry"), a facility of the South Carolina Department of Corrections ("SCDC"). Kennedy was first seen by the medical staff at Perry during sick call on May 25, 2010 for complaints of nausea and vomiting. During his visit, Kennedy indicated that he had vomited four times since the previous evening. Kennedy's examination notes state that bowel sounds were present and that Kennedy did not suffer from diarrhea. Kennedy was instructed to remain on clear liquids for the rest of the day, was given a dose of Phernergan and three additional doses to be taken over the next twenty-four hours, and was instructed to follow up with the medical department the next morning if his vomiting had not stopped.
The next afternoon, May 26, 2010, Kennedy returned to the medical department with continued complaints of vomiting and severe left lower abdominal pain. Defendant Balogun's medical encounter record indicates that Kennedy was "bending, with facial grimacing" and complained of pain all over his abdomen to his "private part." Kennedy further informed Balogun that he had been on a clear liquid diet, that he had not urinated in two days, and that he had not had a bowel movement in three days except for a watery stool after taking Epson salt the previous night for his constipation. Kennedy requested a laxative. Balogun advised Kennedy to drink fluids, but Kennedy complained that he could not swallow and that he was dehydrated. Balogun noted that Kennedy's abdomen was soft and not distended but was tender and, per Defendant Enloe's instruction, gave Kennedy a shot of Phenergan. Kennedy was also given an initial dose of Tylenol, which he swallowed, and was prescribed two doses a day for three days. According to the medical encounter notes, when asked by Balogun why he had not followed up with the medical department that morning, Kennedy said that had been fine that morning and did not need to come. Balogun placed Kennedy on a clear liquid diet for twenty-four hours and advised him to come to the medical department the next morning. Enloe signed off on the encounter the next morning at 7:34 a.m.
Kennedy presented to the medical department at 10:43 a.m. on May 27, 2010 in a wheelchair, complaining of nausea, vomiting, diarrhea, and abdominal cramping for the past three days. The encounter record notes that Kennedy was sluggish when changing positions and walking, that his abdomen was soft and not distended, that his bowel sounds were hypoactive, that no masses were palpable, and that his right and left lower quadrants were tender to palpation. Kennedy was also noted to have a fever of 99.4 degrees. Defendant Enloe directed that Kennedy be given a Phenergan shot and intravenous ("IV") fluids; however, Kennedy declined the shot of Phenergan and signed a "refusal of medical advice" form. Following his IV treatment, Kennedy's blood pressure and pulse was found to be within normal limits, and his color and skin turgor had improved. A report on Kennedy's condition was given to Dr. Benjamin Lewis, and Dr. Lewis directed that Kennedy be returned to his dormitory and be given a clear liquid diet for twenty-four hours and an oral dose of Phenergan. Defendant Enloe signed off on this encounter at 10:55 a.m.
According to Kennedy, Kennedy was incapacitated in his dormitory and was unable to leave for more sick-call visits over the next several days. On May 31, 2010, the medical department received a call from a correctional officer that Kennedy was complaining of severe abdominal pain after eating junk food. Defendant Balogun instructed the correctional officer to give Kennedy Maalox and observe him further. At 3:11 p.m. that afternoon, the dormitory officer telephoned the medical department that Kennedy was "down in his dorm." Defendant Balogun directed the officer to bring Kennedy to the medical department via wheelchair. When Kennedy arrived, he complained of severe abdominal cramping all over his abdomen radiating to his private parts. The medical encounter notes that Kennedy reported he had eaten three burritos the day before. Kennedy later testified that he had no recollection of eating any solid food during the eleven days he was feeling poorly, but that it was possible that he had. Balogun observed that Kennedy exhibited facial grimacing, was squatting, appeared in distress, and was constantly telling the nurse to send him to the hospital because he needed medical attention. Balogun also noted that Kennedy's abdomen was soft and undistended, and that Kennedy later reported that his neck also hurt. No vital signs were obtained during this visit. Balogun contacted the SCDC on-call physician, Dr. Sadia Rafi, by telephone. Dr. Rafi prescribed Cipro and Flagyl and a laxative for constipation, and ordered Kennedy to continue with a clear liquid diet. Balogun advised Kennedy to take his medicine as directed and drink plenty of fluids, and that a follow-up appointment would be scheduled. Defendant Enloe signed off on this encounter the following morning on June 1, 2010.
Kennedy returned to the medical department four days later on June 4, 2010 in a wheelchair and complained to Defendant Enloe that he felt awful, that he had severe abdominal pain, that he had no appetite and could not drink much fluid due to feeling full, and that he was nauseated and felt feverish. Enloe noted that Kennedy appeared ill, that he had a temperature of 98.3 degrees and a pulse of 103, that his bowel sounds were hypoactive, that he had diffuse abdominal pain, and that he had lost eleven pounds in two weeks. Enloe consulted with the SCDC on-call physician, Dr. Moore, who directed that Kennedy be given IV fluids and be sent to the emergency room.
Kennedy was admitted to the Greenville Memorial Hospital emergency room where a CT scan of Kennedy's abdomen revealed a high grade partial or complete small bowel obstruction and an extensive inflammatory process in the right lower quadrant. Kennedy underwent an exploratory laparotomy that revealed a perforated appendix resulting in intra-abdominal sepsis and small bowel obstruction. Kennedy underwent surgery and treatment and remained in the hospital until his release on June 19, 2010, when he was transferred to the infirmary at Kirkland Correctional Institutional. Kennedy was returned to Perry Correctional Institution on July 2, 2010.
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). However, "[o]nly 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 . at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a ...