Legg v. Southern Health Partners

Filing 56

REPORT AND RECOMMENDATION It is recommended that Defendant's motion for summary judgment 35 be granted. Additionally, Plaintiff's motion to amend 35 and motion to compel 51 are denied. Objections to R&R due by 8/31/2012. Signed by Magistrate Judge Shiva V Hodges on 8/14/2012. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Ronald L. Legg,
Plaintiff,
vs.
Southern Health Partners,
Defendant.

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C/A No.: 1:12-481-MGL-SVH

REPORT AND RECOMMENDATION

Ronald L. Legg (“Plaintiff”), proceeding pro se and in forma pauperis, brought
this civil rights action against Southern Health Partners1 (“Defendant”) alleging
deliberate indifference to his serious medical needs while incarcerated at John Reuben
Long Detention Center (“JRLDC”). This matter comes before the court on the following
motions: (1) Defendant’s motion for summary judgment [Entry #37]; (2) Plaintiff’s
motion to amend [Entry #35]; and (3) Plaintiff’s motion to compel [Entry #51]. All
pretrial proceedings in this case were referred to the undersigned pursuant to the
provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.). Because
the motion for summary judgment is dispositive, this Report and Recommendation is
entered for review by the district judge.
I.

Factual Background
According to Plaintiff’s complaint, he was diagnosed with a staph infection on

December 17, 2011 and was quarantined from the general population for seven days

1

Beginning October 2, 2011, Southern Health Partners, Inc. began contracting with
Horry County to provide medical services at JRLDC.

while he received medication. [Entry #1 at 3]. On December 27, 2011, he developed a
skin rash “that grew to an extreme state within about ten days . . . .” Id. Plaintiff claims he
wrote several medical grievances and was examined by medical. Id. The nurse instructed
him not to scratch the sores and told him to apply lotion from the commissary.

Id. On

January 10, 2012, Plaintiff was provided lotion from JRLDC after he sent a request to
staff indicating that his dry skin had resulted in open sores. [Entry #43-1]. However,
according to Plaintiff’s complaint, JRLDC would not provide him with more lotion.
[Entry #1 at 4]. Plaintiff was seen by agents of Defendant again and he was provided a
small amount of antibiotic cream on his next two visits. Id. at 4–5. Plaintiff claims that
as of the date of his complaint, February 15, 2012, the rash persisted. Id. On March 13,
2012, the medical staff indicated that Plaintiff’s current medical condition was not
improving and that a dermatologist appointment was recommended, although the expense
of the appointment was Plaintiff’s responsibility. [Entry #43-4].

Plaintiff filed a

grievance about the alleged lack of medical care and the March 21, 2012 response
indicates that he was provided Benadryl, a cotton blanket, and Absorbase cream. [Entry
#43-2]. On April 20, 2012, Plaintiff completed a medical request indicating that the
steroids he was using were working and he requested more. [Entry #43-3]. As of May
2012, Plaintiff was still receiving the Absorbase cream. [Entry #41-2 at 6].
Plaintiff also claims that in August 2011, he complained to the medical staff at
JRLDC about a prostate issue that caused him to get up several times at night to go to the
bathroom and caused him to have a scratchy voice. Id. He complains that the medical
staff told him this was from old age and there was nothing they could do. Id. at 4–5.

Defendant filed its motion for summary judgment on May 8, 2012. [Entry #37].
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 Defendant’s motion. [Entry #38]. Plaintiff responded to the
motion [Entry #41, #43] and was granted additional time to file a supplement [Entry
#45].2 Having carefully considered the parties’ submissions and the record in this case,
the undersigned recommends the district judge grant Defendant’s motion for summary
judgment.
II.

Discussion
A.

Standard of Review

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

2

In his motion dated June 10, 2012, Plaintiff requested the court stay a ruling on
Defendant’s summary judgment motion for 45 days while he awaited responses to his
interrogatories. [Entry #45]. The court granted the 45-day stay, but noted that the
discovery deadline had passed. [Entry #46]. As the 45 days have passed and Plaintiff has
filed no supplemental briefing, this matter is ripe for review.

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 nonmoving 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.

Exhaustion of Administrative Remedies

Although Defendant claims that Plaintiff has not exhausted his administrative
remedies, it has failed to provide any details about the requirements for exhaustion at
JRLDC or Plaintiff’s attempt to exhaust, if any. [Entry #37-4 at 6–7]. “An inmate’s
failure to exhaust administrative remedies is an affirmative defense to be pleaded and
proven by the defendant.” Anderson v. XYZ Correctional Health Services, 407 F.3d 674,

683 (4th Cir. 2005). Because it has failed to meet its burden with regard to its affirmative
defense of failure to exhaust, Defendant is not entitled to summary judgment on this
ground.
2.

Fourteenth Amendment Review

Plaintiff’s claims are analyzed through the lens of the due process clause of the
Fourteenth Amendment. “[A] pretrial detainee, not yet found guilty of any crime, may
not be subjected to punishment of any description.” Hill v. Nicodemus, 979 F.2d 987, 991
(4th Cir. 1992). “However, not every hardship encountered during pretrial detention
amounts to ‘punishment’ in the constitutional sense.” Hill, 979 F.2d at 991. “And the
fact that such detention interferes with the detainee’s understandable desire to live as
comfortably as possible and with as little restraint as possible during confinement does
not convert the conditions or restrictions of detention into ‘punishment.’” Bell v. Wolfish,
441 U.S. 520, 537 (1979). “A court must decide whether the disability is imposed for the
purpose of punishment or whether it is but an incident of some other legitimate
governmental purpose.” Id. at 538. In doing so, the Bell court noted, “maintaining
institutional security and preserving internal order and discipline are essential goals that
may require limitation or retraction of the retained constitutional rights of both convicted
prisoners and pretrial detainees.” Id. at 546.
However, “pretrial detainees are entitled to at least the same protection under the
Fourteenth Amendment as are convicted prisoners under the Eighth Amendment.” Young
v. City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001) (citing City of Revere v.
Massachusetts Gen. Hosp., 463 U.S. 239, 243–44 (1983) and Hill, 979 F.2d at 991–92).

Therefore, the standards applied in Eighth Amendment conditions of confinement cases
are essentially the same as those in cases arising under the Fourteenth Amendment for
pretrial detainees. See Hill, 979 F.2d at 991; Martin v. Gentile, 849 F.2d 863, 871 (4th
Cir. 1988) (citations omitted).
3.

Deliberate Indifference to Serious Medical Needs

In the case of Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court reviewed
the Eighth Amendment prohibition of punishments which “involve the unnecessary and
wanton infliction of pain.” Id. (quoting Gregg v. Georgia, 428 U.S. 153, 169–73 (1976)).
The court stated:
An inmate must rely on prison authorities to treat his medical needs; if the
authorities fail to do so, those needs will not be met. . . . We therefore
conclude that deliberate indifference to serious medical needs of a prisoner
constitutes the “unnecessary and wanton infliction of pain,” proscribed by
the Eighth Amendment. This is true whether the indifference is manifested
by prison doctors in their response to the prisoner’s needs or by prison
guards in intentionally denying or delaying access to medical care or
intentionally interfering with the treatment once prescribed.
Estelle, 429 U.S. at 103–105 (citations and footnotes omitted). Despite finding that
“deliberate indifference to serious medical needs” was unconstitutional, the court was
careful to note, however, that “an inadvertent failure to provide adequate medical care”
does not meet the standard necessary to allege an Eighth Amendment violation:
[A] complaint that a physician has been negligent in diagnosing or treating
a medical condition does not state a valid claim of medical mistreatment
under the Eighth Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner. In order to
state a cognizable claim, a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical
needs.
Estelle, 429 U.S. at 107.

The Fourth Circuit has also considered this issue in the case of Miltier v. Beorn,
896 F.2d 848 (4th Cir. 1990). In that case, the court noted that treatment “must be so
grossly incompetent, inadequate or excessive as to shock the conscience or to be
intolerable to fundamental fairness, . . . nevertheless, mere negligence or malpractice
does not violate the Eighth Amendment.” Id. at 851 (citations omitted). Unless medical
needs were serious or life threatening, and the defendant was deliberately and
intentionally indifferent to those needs of which he was aware at the time, the plaintiff
may not prevail. Estelle, 429 U.S. at 102–103; Farmer v. Brennan, 511 U.S. 825 (1994);
Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986).
Here, Plaintiff has not demonstrated a claim of deliberate indifference to his
serious medical needs.

Plaintiff does not dispute that his staph infection healed.

Plaintiff’s medical records reveal that he was seen by Defendant and treated for his rash
on multiple occasions. Although Plaintiff claims that the medical staff told him that there
was nothing else they could do and he could seek additional treatment at his own
expense, the medical records show that Defendant continued to provide Plaintiff with
treatment. [Entry #43].
Although the Constitution requires that prisoners be provided with a certain
minimum level of medical treatment, it does not guarantee to a prisoner the treatment of
his choice. Thomas v. Anderson City Jail, No. 6:10-3270-RMG-KFM, 2011 WL 442053,
at *3 (D.S.C. Jan. 19, 2011); Jackson v. Fair, 846 F. 2d 811, 817 (1st Cir. 1988).
Although the provision of medical care by prison officials is not discretionary, the type
and amount of medical care is discretionary. See Brown v. Thompson, 868 F. Supp. 326

(S.D. Ga. 1994). Here, although Plaintiff may disagree with the amount of treatment he
received or object to the medical staff’s attitude towards him, such allegations do not
constitute a constitutional deprivation under these circumstances. Therefore, the
undersigned recommends that Defendant be granted summary judgment.
C.

Remaining Motions
1.

Plaintiff’s Motion to Amend

Plaintiff’s motion to amend seeks only to add members of the medical staff at
JRLDC as individual defendants to the suit. “[L]eave [to amend] shall be freely given
when justice so requires.” Fed. R. Civ. P. 15(a). “A motion to amend should be denied
only when the amendment would be prejudicial to the opposing party, there has been bad
faith on the part of the moving party, or the amendment would be futile.” HCMF Corp. v.
Allen, 238 F.3d 273, 276 (4th Cir. 2001) (internal quotation marks omitted). Here,
Plaintiff’s amendment is futile for the reasons discussed above. Specifically, Plaintiff is
unable to prove a claim for deliberate indifference to his serious medical needs.
Therefore, Plaintiff’s motion to amend is denied as futile.
2.

Plaintiff’s Motion to Compel

Additionally, Plaintiff’s motion to compel [Entry #51] responses to discovery
requests he served on or about June 10, 2012 is denied as untimely.

Defendant’s

response indicates the discovery requests were sent after the deadline for the completion
of discovery on May 29, 2012 and were not responded to on this basis. The March 30,
2012 scheduling order in this matter states: “Discovery shall be completed no later than
May 29, 2012. All discovery requests, including subpoenas duces tecum, shall be served

in time for the responses thereto to be served by this date.” [Entry #19] (emphasis in
original). On April 16, 2012, the undersigned advised Plaintiff that “the proper procedure
for requesting documents from Defendant is contained in Federal Rule of Civil Procedure
34” and “requests for documents should be served on counsel for Defendant. . . .” [Entry
#30]. Additionally, while the undersigned granted Plaintiff an extension of time in which
to respond to Defendant’s summary judgment motion on June 13, 2012, the order noted
that deadline for discovery had expired. [Entry #46]. Nevertheless, Plaintiff filed the
instant motion to compel on July 17, 2012. A scheduling order is “not a frivolous piece
of paper, idly entered, which can be cavalierly disregarded by counsel without peril.”
Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C. 1987). As Plaintiff was advised of the
deadline and procedure for obtaining discovery and nevertheless failed to timely serve his
discovery requests, his motion to compel is denied.
III.

Conclusion
For the foregoing reasons, Plaintiff’s motion to amend [Entry #35] and motion to

compel [Entry #51] are denied. Additionally, it is recommended that Defendant’s motion
for summary judgment [Entry #37] be granted.
IT IS SO RECOMMENDED.

August 14, 2012
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

The parties are directed to note the important information in the attached
“Notice of Right to File Objections to Report and Recommendation.”

Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report
and Recommendation with the District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections are made and the basis
for such objections. “[I]n the absence of a timely filed objection, a district court need not
conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation.’” Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory
committee’s note).
Specific written objections must be filed within fourteen (14) days of the date of
service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil
Procedure 5 may be accomplished by mailing objections to:
Larry W. Propes, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and
Recommendation will result in waiver of the right to appeal from a judgment of the
District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v.
Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States
v. Schronce, 727 F.2d 91 (4th Cir. 1984).