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Rodgers v. Glenn

United States District Court, D. South Carolina

February 2, 2017

Ricky M. Rodgers, Plaintiff,
v.
FNU Glenn, Health Services Administrator; Ivan Negron, M.D./R.M.D., Clinical Director, Health Services Department; Albert Crosby, R.N., Health Services Department; Jeffery Eiben, EMT, Health Services Department; D. Garcia, MLP/P.A., Health Services Department; FNU Hood, Correctional Officer, Health Services Department; and United States of America, Defendants.

          REPORT AND RECOMMENDATION

          Shiva V. Hodges United States Magistrate Judge.

         Ricky M. Rodgers (“Plaintiff”), proceeding pro se and in forma pauperis, filed this action seeking compensatory damages pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), [1] and the Federal Tort Claims Act, 18 U.S.C. § 1346(b) (“FTCA”). Plaintiff is incarcerated at the Federal Correctional Institution in Estill, South Carolina (“FCI-Estill”), a facility of the Bureau of Prisons (“BOP”). Plaintiff alleges negligence and deliberate indifference to his serious medical needs against the following defendants: Health Services Administrator Glenn; Clinical Director Ivan Negron (“Negron”); Nurse Albert Crosby; EMT Jeffery Eiben; Physician Assistant Garcia, Correctional Officer Hood (“Hood”); and the United States (collectively “Defendants”).

         This matter comes before the court on Defendants' motion to dismiss, or in the alternative, for summary judgment.[2] [ECF No. 25]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the summary judgment procedures and the possible consequences if he failed to respond adequately to Defendants' motion. [ECF No. 26]. The motion having been fully briefed [ECF Nos. 46, 50, 55], it is ripe for disposition.

         Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this case has been referred to the undersigned for all pretrial proceedings. Because the motion is dispositive, this report and recommendation is entered for review by the district judge. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that the district judge grant Defendants' motion for summary judgment.

         I. Factual and Procedural Background

         On June 12, 2014, Plaintiff was struck by a food service cart that another inmate was pushing. Pl. Aff at ¶ 3.[3] Plaintiff alleges his right ankle, foot, and leg were run over. Id. Plaintiff claims that despite Hood having witnessed the event, he failed to report the incident and ignored his complaints, but that another officer took him to medical for evaluation. Id. at ¶¶ 4-5. He was examined, x-rays were requested, and he was provided ibuprofen. Id. Plaintiff reported to medical the next day, but was told he must sign up for sick call. Id. at ¶ 7. On June 16, 2014, x-rays of his right ankle, foot, and leg were taken. Id. at ¶ 9. Although the medical staff and Plaintiff disagree about the results of the x-rays, the crutches he had been using were taken away from him after the x-rays. Id.; ECF No. 25-8.

         Plaintiff alleges that over the following months, he returned to medical regularly complaining of pain and that his reports of pain were documented incorrectly. Pl. Aff. at ¶¶ 10-19. Plaintiff alleges he should have been provided surgery and that he has been in constant pain. Id. at ¶ 20

         On June 27, 2014, Plaintiff filed an informal resolution (“BP-8”) requesting “a copy of the accident report, medical report, and any other information that is available and a follow up to my medical needs since the pain in my leg, ankle, and knee has not gone away.” [ECF No. 25-8]. He did not receive a response and did not file any subsequent administrative remedy. He timely filed this action within six months of the denial of his tort claim.

         II. Discussion

         A. Standard on Summary Judgment

         The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

         In considering a motion for summary judgment, 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. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         B. Analysis

         1. B ...


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