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Chisolm v. Thompson

United States District Court, D. South Carolina, Florence Division

August 18, 2016

DonSurvi Chisolm, a/k/a Don-Survi Chisolm, Plaintiff,
v.
Associate Warden Thompson, Capt. Brighthart, Lt. Miller, Cpl. Hamilton, Ofc. Ackerman, Unknown Male Black Officer, and Nurse Marchelle K. Brown, Defendants.

          DonSurvi Chisolm, Plaintiff, Pro Se.

          Associate Warden Thompson, Defendant, represented by Steven Michael Pruitt, McDonald Patrick Tinsley Baggett Poston and Hemphill.

          Capt Brighhart, Defendant, represented by Steven Michael Pruitt, McDonald Patrick Tinsley Baggett Poston and Hemphill.

          Lt Miller, Defendant, represented by Steven Michael Pruitt, McDonald Patrick Tinsley Baggett Poston and Hemphill.

          Cpl Hamilton, Defendant, represented by Steven Michael Pruitt, McDonald Patrick Tinsley Baggett Poston and Hemphill.

          Officer Ackerman, Defendant, represented by Steven Michael Pruitt, McDonald Patrick Tinsley Baggett Poston and Hemphill.

          Officer Williams, Defendant, represented by Steven Michael Pruitt, McDonald Patrick Tinsley Baggett Poston and Hemphill.

          Nurse Michelle K Brown, Defendant, represented by Amy Lynn Neuschafer, Collins and Lacy & William A. Bryan, Jr., Collins and Lacy.

          ORDER

          R. BRYAN HARWELL, District Judge.

         Plaintiff DonSurvi Chisolm, a/k/a Don-Survi Chisolm ("Chisolm" or "Plaintiff"), currently incarcerated at McCormick Correctional Institution and proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983 stating that Defendants violated his constitutional rights in the administration of medical attention he sought after he allegedly fell down a flight of stairs and alleging that several defendants used excessive force against him subsequent to the injury. [ECF #1]. He further alleges a general failure to protect claim because the correctional officers allegedly left the door to the computer room open, allowing him to leave and ascend the flight of stairs unaccompanied. [ECF #1]. At all times relevant to the allegations contained in his complaint, Plaintiff was housed at Lieber Correctional Institution ("LCI").

         On October 6, 2015, Defendants Thompson, Brighthart, [1] Miller, Hamilton, Ackerman, and Williams (formerly identified as the "unknown male black officer") filed a motion for summary judgment [ECF #56], which is now before the Court. Defendant Marchelle Brown filed a motion for summary judgment on January 21, 2016 [ECF #109], which is also currently pending before this Court. Plaintiff filed his own motion for summary judgment [ECF #91] on December 9, 2015. All parties have had the opportunity to address these motions and have timely filed responses to the respective motions.

         These motions are before the Court after issuance of the Reports and Recommendations of United States Magistrate Judge Thomas E. Rogers, III, filed on February 24, 2016. [ECF #124; ECF #125]. This matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(e). The Magistrate Judge recommends granting Defendants' respective motions for summary judgment in their entirety. On March 15, 2016, Plaintiff simultaneously filed objections to both of the Magistrate Judge's Reports and Recommendations. [ECF #129]. Defendants Thompson, Brightharp, Miller, Hamilton, Ackerman, and Williams filed a reply to Plaintiff's objections on March 18, 2016. [ECF #131]. Defendant Brown filed a reply to Plaintiff's objections on April 1, 2016. [ECF #132]. After thorough review of all motions and their corresponding response briefs, this Court issues the following Order.

         Background

         On April 28, 2015, Plaintiff filed this action pursuant to 42 U.S.C. § 1983 against Defendants, alleging violations of his constitutional rights, including deliberate indifference to his serious medical needs, excessive force, wrongful use of force, retaliation and failure to protect. [ECF #1]. At all times relevant to the allegations contained within the Complaint, Plaintiff was incarcerated at LCI.

         The facts as alleged by Plaintiff are adequately set forth in the Magistrate Judge's Reports and Recommendations. Briefly, Plaintiff alleges that while restrained in belly chains and cuffs, he fell down a flight of stairs. [ECF #1, p. 3]. While on the ground, he alleges that Defendant Hamilton, along with other officers, including two unknown officers, stood by discussing "what should be done." [ECF #1, p. 3]. Defendant Brown, a nurse, came to assess Plaintiff, and according to Plaintiff, re-positioned his legs and told him he was fine. [ECF #1, p. 4]. Defendant Brown disputes Plaintiff's allegations. Defendant Brown contends that she examined Plaintiff after he complained of back pain following a fall down the stairs. [ECF #109-2, ¶ 5]. She took his vital signs, noted that his skin was warm and intact, checked his neurological signs, assessed his lower extremity range of motion and sensation, all indicating a normal lumbar exam. [ECDF #109-2, ¶ 5]. Upon request of Plaintiff, she called another nurse to discuss the results of the examination. [ECF #109-2, ¶ 9]. That nurse agreed with Defendant Brown's assessment. [ECF #109-2, ¶ 9]. Defendant Brown cleared Plaintiff to return to his cell. [ECF #109-2, ¶ 9]. Defendant Brown later contends she spoke with Plaintiff at his prison door and counseled him regarding Standing Order #27, which provides the standard treatment for lower back pain. [ECF #109-2, ¶ ¶ 11-12]. Defendant Brown denies Plaintiff ever complained of right shoulder pain. [ECF #109-2, ¶ 14]. The medical records from that day do not indicate Plaintiff complained of shoulder pain. [ECF #109-2]. Defendant Brown attached a copy of Plaintiff's medical records to her motion to support the allegations in her affidavit. [ECF #109-2].

         Plaintiff next alleges that upon conversing with Defendant Hamilton and Defendant Miller, Defendant Brightharp gave instructions to move Plaintiff back to his cell. [ECF #1, p. 4]. Plaintiff alleges Defendant Ackerman and Defendant Williams (identified previously as an "unknown black male officer") picked him up by the arms and dragged him up the steps to his cell. [ECF #1, p. 4]. Plaintiff alleges that despite the efforts of other inmates attempting to aid Plaintiff in receiving medical attention, Defendant Hamilton and Defendant Brightharp ignored these requests. [ECF #1, p. 5]. Plaintiff alleges that Defendant Nurse Brown did check on him during "pill pass" and she told him to sign up for sick call. [ECF #1, p. 5]. However, Plaintiff contends that when he requested the required forms from Defendant Simmons, his request was denied. [ECF #1, p. 5]. Plaintiff contends that he requested the use of a phone to report the staff's actions but was denied this request by Defendant Hamilton and Defendant Miller. [ECF #1, p. 5]. Plaintiff contends that Defendant Thompson informed his family members that he was fine and his medical needs were taken care of at LCI. [ECF #1, p. 5]. Finally, Plaintiff contends that upon transfer to McCormick Correctional Institute, he was given a "proper regimen" of treatment, and x-rays and an MRI, performed on October 6, 2014, revealed a dislocated shoulder. [ECF #1, p. 6]; [ECF #50-1, p. 4]. Plaintiff contends his shoulder was dislocated during the July 3, 2014 fall down the stairs at LCI. [ECF #1]. In the medical records provided to the Court, it appears Plaintiff first complained on shoulder pain on July 24, 2014, after he was transferred to McCormick Correctional Institute. [ECF #50-1, p. 4].

         The Defendants attached affidavits setting forth their version of events to their motion for summary judgment. [ECF #56 and ECF #109]. Defendant Brown provided an affidavit wherein she explained that on July 3, 2014, she responded to a call to assess Plaintiff subsequent to a fall down a flight of stairs. [ECF #109-2]. She then assessed his lower extremity range of motion, sensation in his legs, and performed a lumbar exam though Plaintiff would not move, so she could not visually assess his back. [ECF #109-2]. She assessed him as having lower back pain and cleared him to return to his cell. [ECF #109-2].

         Defendant Ackerman states that he arrived shortly after he heard other inmates yelling, "man down." [ECF #56-3, ¶ 3]. Defendant Ackerman further states that Plaintiff did not appear to be in any apparent distress while being examined by Defendant Brown, who arrived shortly after the responding officers found Plaintiff on the ground. [ECF #56-3, ¶ 4]. Defendant Ackerman states that Plaintiff refused to cooperate when Defendant Brown examined him, and further, refused to stand up and return to his cell after he was examined. [ECF #56-3, ¶ 4]. Defendant Miller states that he responded to the scene when he heard a call for First Responders, officers designated to respond to this type of situation. [ECF #56-4, ¶ 4]. Defendant Miller said he spoke with Plaintiff and he had no apparent injury, nor did he appear to be in distress. [ECF #56-4, ¶ 5]. Defendant Miller states that while Plaintiff was examined by Defendant Brown, he was smiling and did not appear to be in any discomfort. [ECF #56-3, ¶ 5]. Defendant Brightharp states in his affidavit that Plaintiff had apparently fallen down the stairs after leaving the computer room where he was performing legal research unescorted by an officer. [ECF #56-4, ¶ 5]. Defendant Brightharp states he personally spoke with Plaintiff who did not appear to be in any distress; however, he still contacted medical personnel to arrive on the scene. [ECF #56-6, ¶ 6]. Defendant Brightharp states that Plaintiff did not appear to be in any distress. [ECF #56-3, ¶ 7]. Defendant Brightharp states that when Plaintiff returned to his room, he was able to stand at the door to have his restraints removed and lift his legs so that the leg irons could be removed, as well. [ECF #56-6, ¶ 6]. Two other employees corroborated the Defendants' version of events, including Andre Powell [ECF #56-2] and Thomas Hamilton. [ECF #56-5]. Finally, Defendant Thompson, the associate warden at LCI, provided an affidavit stating that he had no personal knowledge of the events that occurred when Plaintiff fell. [ECF #56-7, ¶ 3]. He also stated that while he does speak to the parents of many inmates, he does not recall speaking with Plaintiff's mother regarding his care. [ECF #56-7, ¶ 2].

         As part of his response to the motions for summary judgment, Plaintiff filed a motion for late entry on January 4, 2016, requesting permission to file interrogatory responses he received from Defendants that he alleges "shed light on the uncontested facts of the case and overall circumstances of events on July 3, 2014." [ECF #107]. This motion has not been ruled upon at this point. While this motion is now technically moot, this Court in its discretion ...


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