United States District Court, D. South Carolina
Ricky M. Rodgers, Plaintiff,
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
V. Hodges United States Magistrate Judge.
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),
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”).
matter comes before the court on Defendants' motion to
dismiss, or in the alternative, for summary
judgment. [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
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
Factual and Procedural Background
12, 2014, Plaintiff was struck by a food service cart that
another inmate was pushing. Pl. Aff at ¶
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
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 ¶
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.
Standard on Summary Judgment
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).
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.