United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, Magistrate Judge.
This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. § 1983. Plaintiff, an inmate with the South Carolina Department of Corrections (SCDC), alleges violations of his constitutional rights by the named Defendants.
The Defendants filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. on October 12, 2015. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on October 14, 2015, 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 Defendants' motion may be granted, thereby ending his case. Defendants thereafter supplemented their motion with an affidavit filed October 22, 2015, following which Plaintiff filed a memorandum in opposition to the Defendants' motion on November 30, 2015. Plaintiff has also filed some "declarations" with attachments (on December 9, 2015, January 20, 2016, and February 26, 2016), while the Defendants filed a reply memorandum on December 11, 2015.
The Defendants' motion is now before the Court for disposition.
Background and Evidence
Plaintiff alleges in his verified Complaint that in August 2014, while housed at the Lee Correctional Institution (LCI), he was transported to medical where he was seen by the Defendant Montgomery, a nurse. Plaintiff alleges he complained to Montgomery that his toe was infected and that she "basically did not respond properly as needed...". Plaintiff alleges that Montgomery told him that he could be put on a list to see a physician, but that he "never seen any doctor at all". Plaintiff alleges that this was Montgomery's response even though she "openly stated on the day of sick call that my toe [infection] was the worst she has seen in her entire life". Plaintiff alleges that as of the date of his Complaint (around the first of January 2015),  he had still "not yet seen the doctor". Plaintiff alleges that he has therefore been denied treatment for his serious medical needs. Plaintiff further alleges that he wrote a grievance concerning this matter, but got no reply.
Plaintiff also alleges that the prison guards on his Unit (disciplinary segregation) "willfully disregarded" Plaintiff yelling for medical attention even though he was in pain due to a bacterial infection. Plaintiff alleges that Montgomery failed to give him an "anti-bacterial" pill and failed to even note his condition on the "CRT notes", which Plaintiff alleges are mandatory for sick call procedure. Plaintiff alleges that all of the correctional officers at the institution need to be held accountable, including the Defendant Warden Davis, who Plaintiff wrote to but who failed to provide him any relief. Plaintiff seeks monetary damages and to be "seen by [an] outside doctor". See generally, Plaintiff's Verified Complaint.
In support of summary judgment in the case, the Defendant Elouise Montgomery has submitted an affidavit wherein she attests that she is a licensed registered Nurse at the Lee Correctional Institution, and that after reviewing Plaintiff's treatment records she believes that he has received appropriate and timely care for his medical complaints. Specifically with respect to Plaintiff's claim that on or around August 2014 she denied or delayed Plaintiff medical treatment or improperly documented same, Montgomery attests that the first time she ever saw the Plaintiff was on January 8, 2015, at which time he was complaining of weight loss, constipation, and discoloration of his toenails on his right and left feet. Montgomery attests that she had not seen the Plaintiff before that date.
Montgomery further attests that upon physical examination she noted some discoloration of Plaintiff's toenails, but that there was no indication of any infection, cracked skin, redness or irritation, nor did Plaintiff express any complaints of pain upon assessment of his toes. Montgomery attests that she noted her findings in addition to Plaintiff's request to be seen by a doctor, and that this encounter was signed off on by a doctor. Montgomery attests that Plaintiff's medical summary notes reflect that Plaintiff was seen again regarding complaints about his toes four months later, on May 4, 2015, when he presented with athletes foot and was prescribed some cream to help resolve the redness and cracked skin noted between his toes. However, Montgomery attests that there was no cracked skin, redness, or irritation noted on Plaintiff's feet during his visit with her on January 8, 2015. Additionally, Plaintiff's medical summary notes reflect that he was seen by a physician on June 10, 2015 and was informed that there was no effective treatment for the discoloration of his toenails.
Montgomery attests that she followed proper procedures with regard to notification to the doctor or nurse practitioner following Plaintiff's visit on January 8, 2015, and that in addition to this encounter being signed off on by a doctor it was also signed off on by Nurse Practitioner Elizabeth Holcomb. See generally, Montgomery Affidavit.
The Defendant Willie Davis has submitted an affidavit wherein he attests that he is the Associate Warden at the Lee Correctional Institution, and that in this position he is not aware of any attempts to deprive Plaintiff of medical care. Davis attests that he does not provide medical treatment to inmates, but that if an inmate requests medical treatment, they are referred to the appropriate medical personnel. Davis attests that all non-emergency medical issues are addressed by inmates completing Request to Staff forms which are then referred to the medical department. The medical department then issues an order to report, and while appointments can be cancelled if an inmate's unit is on lock down, if it is an emergency the medical department is contacted to obtain further instructions. Additionally, inmates can also sign up for sick call, and if an inmate signs up for sick call they are seen by medical personnel and then charged Five Dollars from their inmate account. Davis attests that this is similar to a co-pay amount. See generally, Davis Affidavit.
The Defendants have also submitted an affidavit from Matthew Harper, who attests that he is a regional nurse coordinator for the Department of Corrections, and that in this position he is in charge of the medical administration regarding nurses at the Lee Correctional Institution. Harper attests that he is also a licensed registered nurse.
With respect to Plaintiff's allegations, Harper attests that he has attached a copy of Plaintiff's relevant medical summaries to his affidavit as Exhibit A. Harper attests that these medical summaries show that on April 4, 2014, Plaintiff was seen in sick call, where he complained that he was not getting enough fiber and was having trouble going to the bathroom. Plaintiff was provided with some fiber tablets. Plaintiff's next medical encounter record is not until September 3, 2014, which is a note signed by the Defendant Montgomery indicating that Plaintiff's scheduled visit to sick call had been canceled "per security", and that Plaintiff would be "rescheduled for sick call". This encounter was signed off on by Dr. Richard Bearden. An apparent attempt to reschedule Plaintiff's sick call visit for the following day was also canceled "per security". When Plaintiff was finally seen in sick call on September 8, 2014, it was by Nurse Elizabeth Brown, not the Defendant Montgomery. Further, Plaintiff's complaints on that day included a rash on his head, constipation, and he was requesting a different diet. There is nothing in this medical encounter note to indicate that Plaintiff was having any problems with his toes.
Plaintiff's medical records show that he was thereafter seen again in sick call on January 8, 2015, this time by the Defendant Montgomery. Plaintiff's complaints on that day included weight loss, constipation, having been "gassed" which was causing him to cough, and that his toenails on his feet were discolored. With respect to this last complaint, the medical notes reflect that upon examination some of Plaintiff's toenails were discolored, but there was no active or dry drainage noted and Plaintiff had no complaints of pain when his toes were assessed. Plaintiff was advised that the encounter notes for this visit would be sent to the "MD/NP" for review, and in fact this ...