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Pennington v. Cherokee County

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

March 22, 2018

Bradley Pennington, Plaintiff,
v.
Cherokee County (Detention Center), Southern Health Partners, Inc. and Jamor Logan, Defendants.

          SUPPLEMENTAL REPORT AND RECOMMENDATION

          BRISTOWMARCHANT UNITED STATES MAGISTRATE JUDGE

         This action was originally filed in the South Carolina Court of Common Pleas, Eighth Judicial Circuit, and was thereafter removed to this Court on August 22, 2015 on the grounds that Plaintiff has asserted a federal claim for relief in his Complaint. Following removal, Plaintiff filed an Amended Complaint on February 23, 2016.

         Following the conclusion of discovery, the Defendants Cherokee County and Jamor Logan filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. Plaintiff filed a response to these Defendants' motion for summary judgment on June 13, 2017, following which Defendants filed a reply memorandum on June 28, 2017. The undersigned thereafter issued a Report and Recommendation on September 14, 2017 recommending that the Defendants Cherokee County and Jamor Logan's motion for summary judgment be granted, and that these Defendants be dismissed as party Defendants in this case. Further, as these two Defendants are the only Defendants named in Plaintiff's Second and Third Causes of Action, it was further recommended that both of those causes of action be dismissed, in toto. Plaintiff's remaining state law claims against the Defendant Southern Health Partners, Inc. as set forth in his First and Fourth Causes of Action were to then be remanded back to state court for disposition.

         Plaintiff filed an objection to the Report and Recommendation on September 25, 2017, attaching thereto new evidentiary exhibits that had not previously been presented. Thereafter, in an Order entered October 13, 2017, the Honorable Mary G. Lewis, United States District Judge, directed further briefing on the issues of: 1) whether and to what extent the Defendant Southern Health Partners, Inc.'s agreement with Cherokee County to provide health care services to inmates at the Cherokee County Detention Center has any bearing on the Court's consideration of Cherokee County and Logan's request for relief; 2) whether Cherokee County or the Sheriff of Cherokee County is liable for any of Southern Health's alleged wrongful acts; 3) whether the claims against John and Jane Doe have or should be dismissed with or without prejudice; and 4) if Plaintiff wishes to sue the Sheriff of Cherokee County, whether this Court should sua sponte assert sovereign immunity on his behalf and deny any motion to amend by Plaintiff on that basis. Judge Lewis then remanded the case back to the undersigned.[1]

         Following remand, the undersigned issued an Order granting the Defendants until Wednesday, November 15, 2017, to file a new motion for summary judgment, if they desired to do so. A new motion for summary judgment was thereafter filed by the Defendants Cherokee County and Jamor Logan on November 22, 2017. The Defendant Southern Health Partners, Inc. also filed a reply to Judge Lewis' order that same date. Plaintiff filed a response in opposition to the Defendants' renewed motion for summary judgment on December 15, 2017, following which Cherokee County and Logan filed a reply memorandum on January 10, 2018.

         The Defendants' Cherokee County and Logan's renewed motion for summary judgment is now before the Court for disposition.[2]

         Background and Evidence

         Plaintiff's allegations and the evidence in this case were previously set forth in the Report and Recommendation of September 14, 2017, as follows:

Plaintiff alleges in his Amended Complaint[3] that on or about July 24, 2014 he was arrested on a trespass charge and was thereafter placed in the Cherokee County Detention Center by law enforcement officers, including the Defendant Logan, because he had an outstanding warrant related to child support. Plaintiff alleges that he was initially placed in an unsanitary and cold room with wet clothes, and was later placed fully restrained in a chair with foot and hand cuffs in addition to other restraints for approximately eight hours. Plaintiff alleges that the handcuffs were so tight, on his left arm especially, that they cut into his skin.
Plaintiff further alleges that following his release from restraints, the Defendants' “agents” pulled on his left arm to take a print, at which time Plaintiff “pulled away abruptly and yelled and/or screamed” because of the pain in his left wrist. Plaintiff alleges that he was then knocked to the ground, kneed and kicked, and that a taser was used on him “numerous times”, even though (when allowed) he explained that his wrist was painful to the touch. Plaintiff alleges that he was then placed with the general population, and that by early the following week (July 28thand 29th) the pain had become “extreme”, with swelling and fluids draining from the wrist area. Plaintiff alleges that a nurse saw him during this time period, but took no action related to his wrist.
Plaintiff alleges that he was not provided with a form to request to be seen by the nurse even though he repeatedly asked for one, so other inmates had to assist him in getting a form. Plaintiff alleges that he was thereafter eventually seen by a nurse for his wrist complaint after approximately four or five more days had elapsed, at which time he was prescribed some pain medication and an antibiotic, which was to be taken orally twice a day. Plaintiff alleges that although this treatment continued for approximately three days, he also asked to be seen by a physician, but was never allowed to see one. Plaintiff alleges that he was ultimately released from the Detention Center on or about August 4, 2014, at which time his parents took him to the hospital, where he was diagnosed with an advanced infection/MRSA.
Plaintiff asserts three state law causes of action in his Complaint. In his First Cause of Action he asserts a claim for negligence/assault and battery against all of the Defendants, in his Second Cause of Action he asserts a claim for assault and battery against the “County defendants”, and in his Fourth Cause of Action (mislabeled “Third Cause of Action”) Plaintiff asserts a claim for medical negligence against the Defendant Southern Health Partners, Inc. Plaintiff also asserts a federal claim in his Third Cause of Action against the Defendant Jamore Logan for violating his constitutional rights by “intentionally subjecting the Plaintiff to abuse, assault, battery, restraint, and violation of his civil rights . . . .”. Amended Complaint, ¶ 24. Although not named in the heading for this cause of action, Plaintiff also apparently has intended to assert a federal constitutional claim against the Defendant Cherokee County for failing to “properly supervise law enforcement officers they employ and [by its] failure to properly implement and enforce procedures to prevent such conduct by their law enforcement officers . . . .”. Id. Plaintiff seeks monetary damages. See generally, Plaintiff's Amended Complaint.
In support of their motion for summary judgment, the Defendants Cherokee County and Logan have submitted an affidavit from Stephen Anderson, who attests that he is the Director of the Cherokee County Detention Center. Anderson attests that the Sheriff of Cherokee County controls all of the day to day operations and personnel that staff the Detention Center, that the Detention Center officers are deputies who serve at the leisure of the Sheriff, and that the Detention Center is run by the Sheriff and not by the County. Anderson further attests that Southern Health Partners is a contract medical provider providing medical services to inmates at the Detention Center, and that their employees are not employees or agents of the Sheriff of Cherokee County. Anderson has also submitted as attachments to his affidavit numerous documents relating to Plaintiff's period of incarceration at the Detention Center from July 24, 2014 to August 4, 2014, including Incident Reports and documents related to the medical care Plaintiff received at the Detention Center. See generally, Anderson Affidavit, with attached exhibits. The Defendants have also submitted excerpts from Plaintiff's deposition, as well as excerpts from the deposition of Cathy Locke, a licensed practical nurse.
In opposition to the Defendants' motion, Plaintiff has provided an affidavit wherein he attests that he was arrested for breech of the peace on July 24, 2014, at which time Plaintiff attests he was drunk but did not resist. Plaintiff attests that when he was arrested he was in shorts with tennis shoes and no shirt, and that when he was put in a cell at the Detention Center he was wet and the room was cold. Plaintiff also attests that the cell was “a mess - very nasty”, and that even though he asked for some toilet paper, none was provided. Plaintiff admits that he banged on the window and the door of his cell because (Plaintiff says) no one would provide him with any toilet paper or “a blanket or something”. Plaintiff attests that after he continued banging on the door and yelling, a “black officer”[4] came to the cell and threw him to the ground, putting his knee in his back. Plaintiff also attests that he was tased, following which he was put into a restraint chair. Plaintiff attests that his feet and arms were cuffed, with the left wrist cuff being “real tight”. Plaintiff attests that he complained about it being too tight and hurting his arm, but that neither the “black officer” nor anyone else did anything. Plaintiff attests that he was in the chair for “a long time”, and that “maybe I was too loud because [the correctional officers] were real mad on that day afterwards”. Plaintiff attests that he was eventually released from the restraint chair by a “female officer”, who told him he had been in the chair for eight hours.
However, notwithstanding the statements just recounted, Plaintiff also essentially states in his affidavit that he cannot really remember exactly what happened during the time period following his arrest, including during his time in the restraint chair. He does attest that after he was released from the restraint chair his body was real stiff and his back hurt. He also states that his left wrist hurt as well as his eyes, and that during his time in the restraint chair blisters he already had on his feet busted, so his feet also hurt “real bad”. Plaintiff then attests that he “must have written a sick call slip”, although again he really does not remember, but he did see a nurse the next day. Plaintiff attests that the “most painful thing was my feet”, and that the nurse put something on them. Plaintiff attests that he remembers telling the nurse about the taser and showing her his left wrist, which “was red and cut a little on each side from the cuffs”, and that the nurse put something on his wrists “like a small wrap”.
Plaintiff attests that “after a while” his left wrist began hurting worse, although it was not until Sunday (which would have been July 27) that he asked the weekend nurse to look at it. Plaintiff attests that the nurse told him he needed a sick call first, so he started asking the guards for a sick call slip. Plaintiff attests that an officer “Scruggs” told him “they would bring one back”, but that no one came back with one. Plaintiff attests that he also talked to his mom on either Sunday or Monday, during which he told her that his wrist was hurting “pretty bad”, and that his parents told him they would come to visit him on visitation day, which was Tuesday. Plaintiff attests that after his parents' visit, he continued to ask for a sick call slip, but that no guard would get him one. Plaintiff attests that by this time his wrist and hand were swollen, and that sometimes pus would drain from the cuts in his wrist. Plaintiff alleges that he took showers “all the time” to keep it clean, and that he also obtained an ace type bandage from another inmate that he used to wrap it.
Plaintiff attests that on Thursday he was able to obtain a sick call form from another inmate (Inmate Cobb), and that later that evening (after he showed his wrist to a guard) the guard got him some ice and some pain killer pills (apparently Tylenol) which helped with this pain. Plaintiff attests that the following day he was taken to medical, where he was seen by the weekday nurse. After showing his wrist to the nurse, Plaintiff attests that she prescribed him some antibiotics and pain medicine, which he received that evening. Even so, Plaintiff attests that his hand and wrist continued to get worse each day, but after seeing a nurse again on Friday, he does “not remember” seeing a nurse for the next two days, although he did get medicine each day. Plaintiff attests that by the following Monday, his wrist was “still real bad”, and he saw a nurse and (he believes) got a TB shot. Plaintiff attests that he was subsequently bonded out and his mom took him to the hospital that evening. See generally, Plaintiff's Affidavit.
Plaintiff has also submitted an affidavit from his mother, Dolores Pennington, who attests that when she and her husband visited the Plaintiff on Tuesday July 29, he showed them his wrist and that she recalls that it “did look bad to me”. Dolores Pennington attests that Plaintiff told her that he had been trying to see the nurse but that the guards would not bring him a form. Dolores Pennington further attests that after talking with her son on Thursday July 31, by phone, she called the jail and spoke with an officer about her son needing medical attention, and was told that Plaintiff needed to fill out a form. Dolores Pennington attests that when she told the officer that Plaintiff had not been able to get a form, the officer said that all he had to do was ask. Dolores Pennington attests that following Plaintiff's release, they went directly to the emergency room, and that Plaintiff was admitted to the hospital and stayed there several days. See generally, Dolores Pennington Affidavit.
Plaintiff has also submitted an affidavit from Tracy Cobb, a fellow inmate who attests that he first met the Plaintiff at the Cherokee County Detention Center in July 2014. Cobb attests that he noticed that Plaintiff had a problem with his hand/arm within the first couple of days of his arrival, that he told Plaintiff he needed to get the infection out of his arm, and that even though he and several other inmates pressed the emergency button and asked guards to come look at Plaintiff's arm, no one ever came, with the guards telling them to stay off the emergency button or they would be taken to lockup. Cobb further attests that he heard Plaintiff ask for a sick call sheet, and that after he did not receive one, he (Cobb) gave Plaintiff one the next day. Cobb attests that he had to help Plaintiff fill out the sheet because his hand was “so swollen”, and that Plaintiff was finally seen by the nurse the night after he filled out the sick call sheet. See generally, Cobb Affidavit.
Plaintiff has also provided an affidavit from James Hawley, who attests that he is a nurse licensed to practice nursing in the State of Tennessee. Hawley attests that he was asked to review medical records and other evidence in this matter, and was deposed in April 2017. Hawley attests that in his opinion the nursing staff (Southern Health Partners) failed to follow the proper standard of care when they did not send Plaintiff to an emergency room or other facility which could IV antibiotics and/or take surgical steps for his wound. Hawley further attests that if the nurses on staff at the time were not trained to evaluate such an infection, they breached the standard of care by not seeking a higher medical evaluation. Hawley attests that, as a result, the injuries to Plaintiff's wrist and hand were more likely than not significantly worse than would have been the case if they had not breached the standard of care. Hawley attests that, based on the evidence he has reviewed, including affidavits, photos and records, as well as his knowledge of infections and the progression of infection, that Plaintiff's infection was first noticeable at least on or about Sunday, July 27, if not a day or two earlier, that Plaintiff did not receive ...

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