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Kennedy v. South Carolina Department of Corrections

United States District Court, D. South Carolina

July 3, 2014

David J. Kennedy, Plaintiff,
South Carolina Department of Corrections, Victoria O. Balogun, and Amy R. Enloe, Defendants.



This matter comes before the Court on the Report and Recommendation ("R&R") of the Magistrate Judge recommending that the Court grant Defendants' motion for summary judgment. (Dkt. No. 47). For the reasons set forth below, the Court grants Defendants' motion for summary judgment. (Dkt. No. 38).


Plaintiff, a state prisoner represented by counsel, brings this civil action asserting violations of 42 U.S.C. § 1983 and state law arising from his medical care while detained at Perry Correctional Institution. Plaintiff filed this action in the Anderson County Court of Common Pleas and the Defendants timely removed it to this Court. Pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC, this matter was automatically referred to a United States Magistrate Judge for pretrial proceedings. Defendants then filed a motion for summary judgment asserting that Plaintiff's § 1983 claim for deliberate indifference to Plaintiff's serious medical needs should be dismissed and that all state law claims should be remanded to state court. (Dkt. No. 38). Plaintiff then filed a response opposing the motion, (Dkt. No. 40), and Defendants filed a reply, (Dkt. No. 41). The Magistrate Judge then issued the present R&R. (Dkt. No. 47). Plaintiff then filed objections, (Dkt. No. 48), and Defendants filed a reply, (Dkt. No. 49).

Legal Standards

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the R&R to which specific objection is made. Additionally, the Court may "accept, reject, ormodify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate judge with instructions." Id.

Summary judgment is appropriate if a party "shows that there is no genuine dispute as to any material fact" and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In other words, summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities in favor of the nonmoving party." HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996). 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 moving party 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 that specific, material facts exist that give rise to a genuine issue. Id. Under this standard, "[c]onclusory or speculative allegations do not suffice, nor does a mere scintilla of evidence' in support of the non-moving party's case. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting Phillips v. CSX Transp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).

To state a claim under the Eighth Amendment for ineffective medical assistance, the plaintiff must show that the defendants acted with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). To succeed on an Eighth Amendment cruel and unusual punishment claim, a prisoner must prove: (1) that objectively the deprivation of a basic human need was "sufficiently serious, " and (2) that subjectively the prison official acted with a "sufficiently culpable state of mind." Wilson v. Seiter, 501 U.S. 294, 298 (1991).

The subjective component of a cruel and unusual punishment claim is satisfied by showing that the prison official acted with deliberate indifference. Wilson, 501 U.S. at 303. A finding of deliberate indifference requires more than a showing of negligence. Farmer v. Brennan, 511 U.S. 825, 835 (1994). Rather, a prison official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837. "[O]fficials evince deliberate indifference to a serious medical need by completely failing to consider an inmate's complaints or by acting intentionally to delay or deny the prisoner access to adequate medical care." Bridges v. Keller, 519 Fed.App'x 786, 787 (4th Cir. 2013) (internal citations omitted). "[A]ny negligence or malpractice on the part of... doctors in missing [a] diagnosis does not, by itself, support an inference of deliberate indifference." Johnson v. Quinones, 145 F.3d 164, 166 (4th Cir. 1998).


Plaintiff originally filed this action in the Anderson County Court of Common Pleas and asserted claims of gross negligence against the South Carolina Department of Corrections under the South Carolina Tort Claims Act, S.C. Code § 15-78-10-220, and deliberate indifference to Plaintiff's known medical needs in violation of Plaintiff's rights under the Eighth Amendment of the United States Constitution and 42 U.S.C. § 1983 against Defendants Amy IL Enloe, a nurse practitioner, and Victoria O. Balogun, a registered nurse.[1] (Dkt. No, 1-1 at 10-11). Defendants removed the action to federal court on the basis of Plaintiff's assertion of the federal cause of action, and Defendants subsequently moved for summary judgment on this federal claim. (Dkt. Nos. 1, 38).

At all times relevant to this action, Plaintiff was incarcerated at Perry Correctional Institution and was rendered medical and nursing care during the period in question, May 25 to June 4, 2010, from a variety of licensed medical professionals at the prison's medical clinic, including a licensed practical nurse, two registered nurses, a nurse practitioner, and three medical doctors. Only Defendants Enloe and Balogun are named defendants in the § 1983 claim. It is important to note at the outset that these various health care providers operated within defined scopes of practice under South Carolina law and there is a hierarchy of authority, with medical doctors at the top of the treatment pyramid. Only medical doctors are authorized to engage in the "practice ofmedicine" and their orders and treatment plans must be implemented by lower level medical providers. S.C. Code § 40-47-20(36). Nurse practitioners are authorized to perform certain delegated medical acts pursuant to written protocols and under the supervision of a medical doctor. S.C. Code §§ 40-33-20(3), (5), (10); 40-47-20(13), (14); 40-47495. Registered nurses have a more limited scope of practice than nurse practitioners, particularly in regard to the diagnosing of illnesses and the prescribing of medications. S.C. Code § 40-33-20(48).

Plaintiff's medical record indicates that he was first seen on May 25, 2010, by a licensed practical nurse, Madeline Ryan, at 12:02 hours with complaints of nausea and vomiting. (Dkt. No. 40-2 at 5). Plaintiff gave a history of having developed these symptoms after eating food provided by an outside vendor. Ms. Ryan documented checking the patient's bowel sounds and confirmed they were present. Id. She then implemented a standing order for the treatment of G.I. distress, which included ordering a liquid diet and providing the patient Phenergan, an anti-nausea medication. She also directed the inmate to follow up in the morning if the vomiting was continuing. (Dkt. Nos. 38-2 at 3; 40-2 at 5). This note was reviewed by a registered nurse, Katherine W. Burgess, at 12:24 hours and ...

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