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Simon v. Page

United States District Court, D. South Carolina

February 11, 2015

Jovan Cornelius Simon, #XXXXX-XXX, Plaintiff,
v.
L/CPL Kevin Page, [1] SCHP; Trooper Bucky Geddings, SCHP; L/Cpl Mark Jennings, SCHP; Agent H. Eric Cohoon, ATF; and South Carolina Dept. Of Public Safety, Defendants.

REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge.

This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. ยง 1983, [2] and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971), [3] against the named natural Defendants. The Defendant South Carolina Dept. of Public Safety(SCDPS) is being sued pursuant to the South Carolina Tort Claims Act (SCTCA). Plaintiff is currently an inmate with the Federal Bureau of Prisons, but at the time this action was filed he was a pretrial detainee at the Horry County Detention Center in Conway, South Carolina. Plaintiff claims that the Defendants were deliberately indifferent and/or negligent with regard to his personal safety and medical needs while in their custody as a pretrial detainee.

The Defendants Geddings, Jennings, Page, and South Carolina Department of Public Safety (SCDPS) filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on October 21, 2014. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on October 22, 2014, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to respond adequately, the Defendant's motion may be granted. Plaintiff filed a memorandum in opposition to these Defendants' motion on December 1, 2014. Thereafter, the Defendant Cohoon filed a motion for summary judgment on December 4, 2014, and following the issuance of the second Roseboro order, Plaintiff filed a response in opposition to Cohoon's motion on January 8, 2015.

These motions are now before the Court for disposition.[4]

Background and Evidence

Plaintiff alleges in his verified Complaint[5] that on May 9, 2013 he was arrested by the Defendant Geddings, who was assisted by Defendants Jennings and Page. Plaintiff alleges that Geddings asked Page to transport him to the Horry County Detention Center and Plaintiff was put into Page's cruiser in the front seat with his hands cuffed behind his back. Plaintiff alleges that he asked Page to allow him to use his inhaler, but the request was denied. Plaintiff alleges that, while en route to the Detention Center, Page was texting on his cell phone and Plaintiff fell asleep, but as they approached the Detention Center driveway entrance, Page ran into a metal pole. Plaintiff alleges that he suffered a whiplash injury and was startled awake by the collision. Plaintiff alleges that Page quickly reversed the cruiser away from the pole and drove on into the sally port of the Detention Center, ignoring Plaintiff's well being, and hurriedly hustled Plaintiff inside and turned him over to jail staff, telling them to strip search Plaintiff. Plaintiff alleges that a staff member remarked that Plaintiff appeared disoriented and Plaintiff told him about the collision and that Plaintiff had hurt his neck.

Plaintiff alleges that staff then checked a video recorder and that a "Corporal Jones" confirmed that Page's cruiser had hit the metal pole, but Jones told Plaintiff that he should have said something before Page left and the Detention Center would not have accepted Plaintiff into custody until he had been medically cleared. Plaintiff alleges that he was seen by Detention Center medical staff to whom he complained that his neck was injured and painful, and that he was given Ibuprofen by the nurse and, as he was sitting in her office, he noticed a yellow sticky note on his file with the name Trooper Causey and telephone number XXX-XXX-XXXX. Plaintiff alleges that he was placed in a holding cell after intake and, when he complained that his neck still hurt, was told to make a medical request in the morning if it still hurt. Plaintiff alleges that he was later moved to the detox unit, as if staff thought he was "on something" and, when he asked again about medical attention for his neck, he was told to make an electronic request at the kiosk the next day. Plaintiff alleges that he had trouble resting that night due to the neck pain.

Plaintiff alleges that, the next day after breakfast, he was called to be transferred into federal custody and never got the chance to use the kiosk to request medical attention. Plaintiff alleges that he was placed in a holding cell where he again complained of his neck pain. Plaintiff alleges that, after a while, Defendant Cohoon arrived and took custody of Plaintiff and transported him to the McMillan Federal Building in Florence, where Plaintiff continued to complain about his neck pain. Plaintiff alleges that a white female U.S. Marshal stated "we're not going to be able to take him if he's complaining about his injuries, " and moments later a bald white male U.S. Marshal wearing glasses came out screaming and cursing at Plaintiff about how there was nothing wrong with him and that Plaintiff was not going to get any money out of the government. Plaintiff alleges that he was crying and trying to explain what happened to him the day before, but Cohoon and another agent just joked and laughed that they should take Plaintiff to Dillon County where "they'll take real good care of him there."

Plaintiff alleges that he was placed in a holding cell and was later taken into a room where he went through an intake-like process conducted by the same white female Marshal and another white female. Plaintiff alleges that he complained again about his neck injury and pain, and was told that he should tell the jail staff when he got there, and they would get him some medical attention. Plaintiff alleges that he was then taken to the Florence County Detention center in Effingham by Defendant Cohoon and, when he arrived, he made the jail staff aware of his neck injury and his asthmatic wheezing. Plaintiff alleges that he was given a breathing treatment immediately and then given Motrin 800 for his neck pain and was told that, if it continued to hurt over the weekend, he should fill out a medical request and they would see him again.

Plaintiff alleges that, over the weekend of May 11-12, 2013, his neck continued to hurt and he was seen by medical staff on May 13, 2013, at which time he was given more Motrin 800 and a two-week supply of pain-relieving gel. Plaintiff alleges that his neck pain persisted and, when he ran out of the gel, he filled out more medical request forms on June 1 and 3, 2013. Plaintiff alleges that he was seen by medical staff again on June 11, 2013 and was informed that he would have to purchase additional pain-relieving gel through the commissary as they were no longer giving it out. Plaintiff alleges that, because his funds were limited, for months he had to make deals with other inmates to purchase pain medication and pain-relieving gel from the commissary.

Plaintiff alleges that, on August 8, 2013, he was transferred to the Dillon County Detention Center, where there were no medical request forms and where any medical care was scare. Plaintiff alleges that, on November 2, 2013, during a suppression hearing at the McMillan Federal Building, Plaintiff was able to view the dashcam video from Page's cruiser of Plaintiff's May 9, 2013 trip to the Horry County Detention Center in which Page can be seen and heard texting while driving. Plaintiff alleges that his neck injury still troubles him occasionally. Plaintiff seeks $100, 000 for pain and suffering, $100, 000 for possible future medical treatment, and $50, 000 in punitive damages from each named Defendant.

In an amendment to his complaint filed March 26, 2014, Plaintiff further alleged that on May 9, 2013, after observing him being placed in the front seat of Page's cruiser with his hands cuffed behind his back, the Defendants Geddings and Jennings failed to instruct Page in the proper procedure and/or customary practices of the South Carolina Highway Patrol, and further failed to bring Page's errors to his attention even though they were aware of Page's errors. See generally, Amendment filed March 26, 2014.

In a Second Amendment to his Complaint filed April 15, 2014, Plaintiff alleges that Page was deliberately indifferent to his safety by placing him in the front seat of the patrol car with his hands cuffed behind his back even though Page was aware that this was unsafe and against Highway Patrol customs and procedures, and that Page further demonstrated his deliberate indifference to Plaintiff's safety by his continuous acts of texting while driving. Plaintiff also repeats his allegations against Geddings and Jennings from his first Amendment, and alleges that because of these Defendants deliberate indifference to his safety he sustained significant physical injury, as well as "severe emotional distress and mental anguish....". Plaintiff further alleges that Page failed to inquire as to his physical condition after he sustained an injury in the automobile collision, and failed to see that he obtained adequate medical attention and care even though Plaintiff "exhibited obvious signs of distress, disorientation, discomfort, and pain". Plaintiff further alleges that the Defendant Cohoon also failed to see that he obtained medical attention after Plaintiff had made him aware that he had been injured and complained of pain. See generally, Plaintiff's Second Amendment filed April 15, 2014.

In a third Amendment to his Complaint filed June 2, 2014, Plaintiff added the South Carolina Department of Public Safety as a party defendant for purposes of asserting a claim of negligence under the South Carolina Tort ...


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