Kennedy v. South Carolina Department of Corrections et al

Filing 50

ORDER RULING ON REPORT AND RECOMMENDATION re 47 Report and Recommendation, grants Defendants' motion for summary judgment and dismisses Plaintiffs 42 U.S.C. § 1983 claims with prejudice. (Dkt. No. 38). Plaintiffs remaining state law claims are remanded to the Anderson County Court of Common Pleas pursuant to 28 U.S.C. § 1367(c)(3). Clerks Notice: Attorneys are responsible for supplementing the State Record with all documents filed in Federal Court. Signed by Honorable Richard M Gergel on 07/03/2014. (gmil)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

David J. Kennedy,

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No.0:12-cv-1847-RMG

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Plaintiff,

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South Carolina Department of Corrections, )
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Victoria O. Balogun, and Amy R. Enloe,

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Defendants.

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This matter comes before the Court on the Report and Recommendation C"R&R") of the
Magistrate Judge recommending that the Court grant Defendants' motion for summary judgment.
(Dkt. No. 47). For the reasons set forth below, the Court grants Defendants' motion for summary
judgment. (Dkt. No. 38).
Background

Plaintiff, a state prisoner represented by counsel, brings this civil action asserting violations
of42 U.S.C. § 1983 and state law arising from his medical care while detained at Perry Correctional
Institution. Plaintiff filed this action in the Anderson County Court of Common Pleas and the
Defendants timely removed it to this Court. Pursuant to 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2) DSC, this matter was automatically referred to a United States Magistrate Judge for
pretrial proceedings. Defendants then filed a motion for summary judgment asserting that Plaintiff s
§ 1983 claim for deliberate indifference to Plainti.tr s serious medical needs should be dismissed and
that all state law claims should be remanded to state court. (Dkt. No. 38). Plaintiff then filed a
response opposing the motion, (Dkt. No. 40), and Defendants filed a reply, (Dkt. No. 41). The

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Magistrate Judge then issued the present R&R. (Dkt. No. 47). Plaintiff then filed objections, (Dkt.
No. 48), and Defendants filed a reply, (Dkt. No. 49).

Legal Standards
The Magistrate Judge makes only a recommendation to this Court. The recommendation has
no presumptive weight, and the responsibility for making a final determination remains with this
Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de
novo determination ofthose portions ofthe R&R to which specific objection is made. Additionally,
the Court may "accept, reject, or modifY, in whole or in part, the findings or recommendations made
by the magistrate judge." 28 U.S.C. § 636(b )(1). This Court may also "receive further evidence or
recommit the matter to the magistrate judge with instructions." Id.
Summary judgment is appropriate if a party "shows that there is no genuine dispute as to any
material fact" and that the movant is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(a).
In other words, summary judgment should be granted "only when it is clear that there is no dispute
concerning either the facts of the controversy or the inferences to be drawn from those facts."

Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining whether
a genuine issue has been raised, the court must construe all inferences and ambiguities in favor of
the nonmoving party." HealthSouth Rehab. Hasp. v. Am. Nat 'I Red Cross, 101 F .3d 1005, 1008 (4th
Cir. 1996). The party seeking summary judgment shoulders the initial burden of demonstrating to
the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,323
(1986).
Once the moving party has made this threshold demonstration, the non-moving party, to
survive the motion for summary judgment, may not rest on the allegations averred in his pleadings.

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Id. at 324. Rather, the non-moving party must demonstrate that specific, material facts exist that give
rise to a genuine issue. Id. Under this standard, "[c ]onclusory or speculative allegations do not
suffice, nor does a 'mere scintilla of evidence'" in support of the non-moving party's case.
Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting Phillips v. CSX
Transp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).

To state a claim under the Eighth Amendment for ineffective medical assistance, the plaintiff
must show that the defendants acted with deliberate indifference to his serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). To succeed on an Eighth Amendment cruel and

unusual punishment claim, a prisoner must prove: (1) that objectively the deprivation of a basic
human need was "sufficiently serious," and (2) that subjectively the prison official acted with a
"sufficiently culpable state of mind." Wilson v. Seiter, 501 U.S. 294,298 (1991).
The subjective component of a cruel and unusual punishment claim is satisfied by showing
that the prison official acted with deliberate indifference. Wilson, 501 U.S. at 303. A finding of
deliberate indifference requires more than a showing of negligence. Farmer v. Brennan, 511 U.S.
825, 835 (1994). Rather, a prison official "must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."

Id. at 837. "[O]fficials evince deliberate indifference to a serious medical need by completely failing
to consider an inmate's complaints or by acting intentionally to delay or deny the prisoner access to
adequate medical care." Bridges v. Keller, 519 Fed. App'x 786, 787 (4th Cir. 2013) (internal
citations omitted). "[A]ny negligence or malpractice on the part of ... doctors in missing [a]
diagnosis does not, by itself, support an inference ofdeliberate indifference." Johnson v. Quinones,
145 F.3d 164, 166 (4th Cir. 1998).

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Discussion
Plaintiff originally filed this action in the Anderson County Court of Common Pleas and
asserted claims ofgross negligence against the South Carolina Department ofCorrections under the
South Carolina Tort Claims Act, S.C. Code § 15-78-10-220, and deliberate indifference to Plaintiffs
known medical needs in violation of Plaintiff's rights under the Eighth Amendment of the United
States Constitution and 42 U.S.c. § 1983 against Defendants Amy R. Enloe, a nurse practitioner,
and Victoria O. Balogun, a registered nurse. l (Dkt. No. 1-1 at 10-11). Defendants removed the
action to federal court on the basis of Plaintiffs assertion of the federal cause of action, and
Defendants subsequently moved for summary judgment on this federal claim. (Dkt. Nos. 1, 38).
At all times relevant to this action, Plaintiffwas incarcerated at Perry Correctional Institution
and was rendered medical and nursing care during the period in question, May 25 to June 4,2010,
from a variety of licensed medical professionals at the prison's medical clinic, including a licensed
practical nurse, two registered nurses, a nurse practitioner, and three medical doctors. Only
Defendants Enloe and Balogun are named defendants in the § 1983 claim. It is important to note at
the outset that these various health care providers operated within defined scopes of practice under
South Carolina law and there is a hierarchy of authority, with medical doctors at the top of the
treatment pyramid. Only medical doctors are authorized to engage in the "practice ofmedicine" and
their orders and treatment plans must be implemented by lower level medical providers. S.C. Code
§ 40-47-20(36). Nurse practitioners are authorized to perform certain delegated medical acts

The Complaint also named as Defendants Katherine W. Burgess, Dr. Sadia Rafi, and
Dr. Benjamin F. Lewis, but Plaintiff subsequently dismissed these Defendants as parties to this
action. (Dkt. No. 19).
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pursuant to written protocols and under the supervision of a medical doctor. S.C. Code §§ 40-33­
20(3), (5), (10); 40-47-20(13), (14); 40-47-195. Registered nurses have a more limited scope of
practice than nurse practitioners, particularly in regard to the diagnosing of illnesses and the
prescribing of medications. S.C. Code § 40-33-20(48).
Plaintiff's medical record indicates that he was first seen on May 25, 2010, by a licensed
practical nurse, Madeline Ryan, at 12:02 hours with complaints of nausea and vomiting. (Dkt. No.
40-2 at 5). Plaintiff gave a history of having developed these symptoms after eating food provided
by an outside vendor. Ms. Ryan documented checking the patient's bowel sounds and confirmed
they were present. Id. She then implemented a standing order for the treatment of OJ. distress,
which included ordering a liquid diet and providing the patient Phenergan, an anti-nausea
medication. She also directed the inmate to follow up in the morning ifthe vomiting was continuing.
(Dkt. Nos. 38-2 at 3; 40-2 at 5). This note was reviewed by a registered nurse, Katherine W.
Burgess, at 12:24 hours and she indicated she would route the note to a physician or nurse
practitioner for review. At 13:10 hours, Defendant Enloe, a nurse practitioner, documented her
review of the note. (Dkt. No. 40-2 at 5).2
On the following day, May 26,2010, the medical clinic received a call at 16:25 hours from
a correctional officer that Plaintiff was throwing up and having lower abdominal pain. Defendant
Balogun, a registered nurse, directed the officer to bring Plaintiff to the medical clinic. The inmate

2 Plaintiff testified in his deposition that he thought the nurse who treated him in the
medical clinic on May 25, 2010, was Defendant Balogun "ifI'm not mistaken" and he was able
to recall few details about this encounter. (Dkt. No. 40-1 at 4-5). The contemporaneously
prepared medical records indicate Plaintiff was treated by Nurse Practitioner Ryan in this initial
visit. (Dkt. No. 40-2 at 5). Regardless, no specific evidence of deliberate indifference by
Defendant Balogun has been provided regarding Plaintiff s May 25, 2010 office visit.

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arrived by wheel chair and complained of lower abdominal pain. (Dkt. No. 40-2 at 4). Nurse
Balogun documented the patient appeared to be "bending, with facial grimacing." (Id.). Plaintiff
reported he had not urinated or had a bowel movement for several days and thought he was
dehydrated. (Id.). Nurse Balogun conducted a physical examination of the patient and noted that
his abdomen was soft and non-distended but was tender. No vital signs were then recorded. Nurse
Balogun asked Plaintiff why he had not returned that morning as instructed the prior day, and he
indicated that he had felt fine that morning. (Dkt. No. 40-2 at 5). Nurse Balogun then ordered a shot
ofPhenergan and a clear liquid diet and authorized Plaintiff to receive mUltiple does ofTylenol over
the next several days. Plaintiff was also directed by Nurse Balogun to return to the medical clinic
in the morning for follow up. (Id.). Nurse Balogun signed off the note at 16:59 hours, thirty-four
minutes after the encounter with Plaintiff began. Id.
This note was reviewed by Defendant Enloe, in her capacity as a nurse practitioner, the
following morning, May 27, 2010, at 07:34 hours. Nurse Practitioner Enloe directed that the
patient's vital signs be taken, and at 08:47 hours Nurse Burgess called Plaintiffs dorm to send the
inmate to the medical clinic to get his vital signs taken. (ld.).
Plaintiff arrived at the medical clinic at 10:43 hours on May 27, 2010, and was evaluated by
Nurse Burgess. Plaintiff arrived in a wheel chair and now complained ofnausea, vomiting, diarrhea,
and abdominal cramping. (Id. at 4). Plaintiff informed Nurse Burgess that his symptoms began after
he had eaten something that had come from Hardees.

Nurse Burgess conducted a physical

examination ofPlaintiff and noted that his skin turgor was delayed and his mucous membranes were
dry, which were consistent with dehydration.

(ld.).

She also documented that he appeared

"sluggish" but his abdomen remained soft and non-distended. (Id.). Plaintiffs bowel sounds were

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noted to be hypoactive and his lower abdominal quadrants were tender to palpation. His vital signs
indicated that he was tachycardic (elevated pulse of 120), had a slightly elevated temperature (99.4)
and his blood pressure was hypotensive (90/60). (ld.).
The record documents that Nurse Burgess then consulted Nurse Practitioner Enloe.
Defendant Enloe ordered IV saline to address suspected dehydration and Phenergan to address
nausea. (ld.). Plaintiff refused the Phenergan and received the intravenous fluids administered by
Nurse Burgess. Once the fluids were infused, Nurse Burgess documented that Plaintiffs blood
pressure and pulse had returned to normal and his color and skin turgor had improved. (fd.). Nurse
Burgess then documented that she gave a report ofthe case to Dr. Benjamin Lewis, a physician, who
gave an order that the N be discontinued, Plaintiff be returned to his dorm, and he be placed on a
liquid diet for twenty-four hours. Nurse Burgess then documented that she implemented Dr. Lewis'
orders. (ld.).
According to Plaintiffs medical record, no further complaints or reports were provided to
the medical clinic until 10: 18 hours on May 31, 2010, four days later, when a correctional officer
called and stated that the inmate was having severe abdominal pain. (ld.). Nurse Balogun was
informed by the correctional officer that the inmate had been eatingjunk food. (fd.). Nurse Balogun
directed the correctional officer to provide Plaintiff Maalox and to observe him further. (fd.).
Later that same day, at 15: 11 hours, the medical clinic was called again and told that Plaintiff
was "down in his dorm." (ld. at 3). The officer was directed to bring the inmate to the medical
clinic and he arrived shortly thereafter in a wheel chair. He was seen by Defendant Balogun and
reported abdominal pain across the entire abdominal region and was noted to have facial grimacing
and squatting. Defendant Balogun documented that Plaintiff "appeared in distress" and "constantly

telling the nurse to send him out to hospital because he needs medical attention." (Id.). Nurse
Balogun examined Plaintiff and noted his abdomen remained soft and non-distended. (Id.).
Nurse Balogun documented that she then consulted a medical doctor, Dr. Sadia Rafi. Dr.
Rafi ordered Plaintiff be placed on two antibiotics, Cipro and Flagyl, milk of magnesia for
constipation, and an oral diet, with specific instructions to drink plenty of fluids. (Id.). Nurse
Balogun also entered a request for further follow up for the patient, and Nurse Practitioner Enloe
directed the following morning, June 1,2010, at 06:44 hours, that a follow up appointment be given
to Plaintiff that week. (ld.). The appointment was scheduled for June 2, 2010, but Plaintiff did not
appear for his appointment. (Id.).
The medical clinic was next contacted about Plaintiff on June 4, 2010, at 10:43 hours when
he arrived in a wheel chair complaining of severe abdominal pain. He was seen by Nurse
Practitioner Enloe, who documented that the inmate "appears ill," had rebound tenderness, was
"guarded" when she attempted to examined his abdomen, had lost eleven pounds in the last two
weeks and felt feverish. Defendant Enloe consulted with a medical doctor, Dr. Moore, who ordered
the inmate to be sent to the emergency room at Greenville Memorial Hospital for evaluation. (Id.
at 2). Plaintiff was then transported to Greenville Memorial Hospital and was evaluated by an
emergency room physician, who ordered a CT scan to evaluate the inmate's abdomen. The results
of the CT scan demonstrated the presence of some acute process and Plaintiff underwent
laparoscopic surgery, which then revealed the presence ofa perforated appendix. (Dkt. No. 40-4 at
5).

While the record before this Court reflects a disagreement among medical experts concerning
the course oftreatment provided to Plaintiff in his various office visits in the prison's medical clinic
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prior to his referral to Greenville Memorial Hospital on June 4, 2010, which may provide the basis
for a state tort claim, the record fails to provide a basis upon which a reasonable jury could find that
Nurse Balogun and Nurse Practitioner Enloe "evince [d] deliberate indifference ... by completely
failing to consider an inmate's complaints or by acting intentionally to delay or deny the prisoner
access to adequate medical care." Bridges v. Keller, 519 Fed. App'x at 787. When Nurse Balogun
first encountered Plaintiff on May 26,2010, regarding his complaint oflower abdominal pain, she
obviously listened to the inmate because she documented a history and then conducted a physical
exam. (Okt. No. 40-2 at 4). Based upon her findings, Nurse Balogun then provided Plaintiff
medication to address his pain and nausea and she directed Plaintiff to return to the clinic the next
day for follow up. (fd). The record documents attention to Plaintiffs complaints and a treatment
plan implemented by Nurse Balogun, not deliberate indifference to the patient's condition.
Nurse Balogun's May 26, 2010 note, completed at 16:59 hours, was reviewed the next
morning at 07:34 hours by Nurse Practitioner Enloe, who noted that vital signs had not been taken
at the office visit the next day. She ordered that this oversight be corrected and arrangements were
made to bring the patient back to the medical clinic to document his vital signs. (Id). This record
documents Nurse Practitioner Enloe's careful attention to the treatment rendered to Plaintiff, not
deliberate indifference to his suffering.
When Plaintiff returned on the morning ofMay 27,2010, to have his vital signs checked, he
was again assessed by Nurse Balogun, and findings consistent with dehydration were noted.
Plaintiffs vital signs were taken and reflected some abnormalities in pulse, blood pressure, and
temperature. (fd). Nurse Balogun then consulted a higher skilled professional, Nurse Practitioner
Enloe, who gave orders to address Plaintiff s dehydration and nausea. Nurse Balogun monitored this
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treatment and documented that Plaintiffs skin color, pulse, and blood pressure improved with the
receipt oflV fluids. (Id.). Despite this evidence of improvement in the patient's condition, she
nonetheless consulted an even higher level ofmedical professional, Dr. Benjamin Lewis, who issued
treatment orders for the patient that included having him return to his dorm. (Id.). Both Defendants
Enloe and Balogun were documented being attentive to Plaintiffs condition during the May 27,
2010 office visit, and the ultimate disposition of Plaintiff s treatment was determined by Dr. Lewis
and not the named Defendants. Defendants Enloe and Balogun were clearly not indifferent to
Plaintiff s suffering and under South Carolina law had no authority to countermand the orders of a
medical doctor.
Plaintiffhad no documented contact with the prison medical clinic until May 31, 2010, when
a correctional officer reported to Nurse Balogun that Plaintiff was having severe abdominal pain
after eating junk food. (Id.). She directed the correctional officer provide Plaintiff Maalox and to
observe him further. Later that day, when another officer informed the clinic that Plaintiff was
"down in the dorm," Nurse Balogun directed that he be brought to the medical clinic, where she
carefully documented his distress and desire for a hospital referral. (Dkt. No. 40-2 at 3). She
conducted a physical examination and then consulted a higher medical authority, Dr. Sadia Rafi. Dr.
Rafi then issued a plan oftreatment, including two antibiotics, anti-diarrhea medication, and an oral
diet. (Id.). Nurse Balogun implemented this order and supplemented it with a request that the
patient be seen in follow up, which Nurse Practitioner Enloe received at 06:44 hours on June I and
ordered an appointment for Plaintiff for June 2. (ld.). Again, Defendants Balogun and Enloe
showed attention and concern for Plaintiff in regard to the May 31 encounter and the ultimate

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treatment orders were issued by a medical doctor that the Defendants had no authority as lesser
medical licensees to countermand.
Plaintiff returned to the medical clinic four days later, on June 4, 2010, and was seen by
Defendant Enloe, who documented in some detail the patient's worsening condition. (Dkt. No. 40-2
at 2). Defendant Enloe consulted a higher authority, Dr. Moore, who ordered Plaintiff transferred
to Greenville Memorial Hospital. Defendant Enloe began an IV for Plaintiff pending his transport
to the hospital. (/d.). A work up was conducted at Greenville Memorial Hospital with the facility's
far superior diagnostic resources but a definitive diagnoses still was not made until Plaintiff was
taken to surgery. The record does not suggest any deliberate indifference in Plaintiffs treatment by
Defendant Enloe during the June 4, 2010 encounter.
In sum, Plaintiff has failed to bring forth evidence, even when viewed in a light most
favorable to Plaintiff as the non-moving party, upon which a reasonable jury could find that acts or
omissions by Defendants Balogun or Enloe reflected a deliberate indifference to serious medical
needs in their treatment of Plaintiff. Estelle, 429 U.S. at 104-06; Bridges, 519 Fed. App'x at 787.
The record documents these Defendants' efforts to assess and treat Plaintiff's condition and to
monitor the efficacy of the treatment provided. Indeed, the treatment plans actually adopted and
implemented in the office encounters of May 27 and 31 and June 4,2010, were issued by medical
doctors, rather than these Defendants. In light ofthe foregoing, the Court hereby grants Defendant
Enloe's and Balogun's motions for summary judgment in regard to the § 1983 claim.
Because the Court has dismissed Plaintiff's federal claim, only Plaintiff's state law claims
remain. When a federal court dismisses the federal claim in an action and diversity does not exist,
the Court may in its discretion choose not to exercise its supplemental jurisdiction and dismiss the
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pendant state law claims. 28 U.S.C. § 1367(c)(3); Clinton v. Cnty. of York, 893 F. Supp. 581, 588
(D.S.C. 1995). The Court exercises its discretion here and dismisses the remaining state law claims
pursuant to 28 U.S.C. § 1367(c)(3).

Conclusion
For the reasons set forth above, the Court grants Defendants' motion for summary judgment
and dismisses Plaintiffs 42 U.S.C. § 1983 claims with prejudice. (Dkt. No. 38). Plaintiffs
remaining state law claims are remanded to the Anderson County Court ofCommon Pleas pursuant
to 28 U.S.C. § 1367(c)(3).

AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Judge

July~, 2014
Charleston, South Carolina

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