Kelly v. Ragland et al

Filing 58

REPORT AND RECOMMENDATION recommending 28 MOTION for Summary Judgment filed by Officer Ragland, Doctor Lewis, Officer Wessinger be granted in its entirety and further recommending that any other outstanding motions be deemed MOOT. Objections to R&R due by 11/28/2008. Signed by Magistrate Judge Thomas E Rogers, III on 11/10/08. (Attachments: # 1 Notice)(swel, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA F L O R E N C E DIVISION

A L B E R T SANTENIEYO KELLY,

) Civil Action No.: 4:07-03721-TLW-TER ) P l a in tif f , ) ) vs ) ) REPORT AND RECOMMENDATION O F F IC E R RAGLAND; ) O F F IC E R WESSINGER; AND ) D O C T O R LEWIS, ) ) D e f e n d a n ts . ) _________________________________ )

T h e pro se plaintiff filed this action under 42 U.S.C. § 1983 1 on November 14, 2007. P lain tiff alleges that his constitutional rights were violated due to medical indifference while an inmate at Perry Correctional Institution ("PCI"). Defendants filed a Motion for Summary J u d g m e n t on April 24, 2008. The undersigned issued an order filed April 25, 2008, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4 th Cir. 1975), advising plaintiff of the Motion for S u m m a ry Judgment procedure and the possible consequences if he failed to respond a d e q u ate ly. Plaintiff filed a response on August 28, 2008.

All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d),DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the District Judge.
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I . DISCUSSION A . ARGUMENT OF PARTIES/ FACTUAL ALLEGATIONS T h e plaintiff alleges that his constitutional rights were violated due to a deliberate in d if f e re n c e to his medical needs. Plaintiff alleges as follows, quoted verbatim: O n are about 1-19-2007 while being transported to the Anderson Radiologist D o c to r by transportation officer Ragland and Wessinger I plaintiff Albert S. K e lly was not placed in a safety seat belt, also due to being in a level 1 re stra in t set up with 2 handcuffs, a black security box, leg irons, and a thong c h a in , I plaintiff Albert S. Kelly was not able to place myself in a safety seat b e lt. Upon returning to the institution Officer Ragland crashed the tra n sp o rta tio n ban on the back right handed side where plaintiff Albert Kelly w a s seated. Plaintiff Albert Kelly made instant complaints of back, neck, also rib b pains. Plaintiff was told by officer Wessinger and officer Ragland to step o f f the transportation van into the SMU D Dorm living area without an m e d ic a l attention. Plaintiff Albert S. Kelly asked to see medical but was d e n ie d . When plaintiff Albert S. Kelly finally saw medical weeks later, they d is c o v e re d blood in plaintiff's urine. No further medical attention was given. O v e r the past few months I plaintiff Albert S. Kelly have suffered pains in my b a c k /s p in a l area, neck area, and ribb area. No medical attention have been g iv e n after several complaint to see whats causing the pains. Doctor Lewis told p lain tiff Albert S. Kelly that "I guess you are stuck between a rock and a hard p la c e." Plaintiff tryed to do grievance but was told it was too late. Doctor L e w is also denied plaintiff medial attention needed to discover what causing p a in s . Since 1-19-2007 on the date fo the van wreck plaintiff have received no o th e r medica attention. ( C o m p l a in t ). P la in tif f seeks outside testing and $250,000 in damages. Defendants filed a motion f o r summary judgment along with affidavits, medical records, and exhibits.

B . STANDARD FOR SUMMARY JUDGMENT A federal court must liberally construe pleadings filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972),

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a n d Haines v. Kerner, 404 U.S. 519 (1972). In considering a motion for summary judgment, th e court's function is not to decide issues of fact, but to decide whether there is an issue of f a c t to be tried. The requirement of liberal construction does not mean that the court can ig n o re a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v . Department of Social Services, 901 F.2d 387 (4th Cir. 1990), nor can the court assume the e x is te n c e of a genuine issue of material fact where none exists. If none can be shown, the m o tio n should be granted. Fed. R. Civ. P. 56(c). The movant has the burden of proving that a judgment on the pleadings is appropriate. Once the moving party makes this showing, h o w e v e r, the opposing party must respond to the motion with "specific facts showing that th e re is a genuine issue for trial." The opposing party may not rest on the mere assertions co n tain ed in the pleadings. Fed. R. Civ. P. 56(e) and Celotex v. Catrett, 477 U.S. 317 (1986). T h e Federal Rules of Civil Procedure encourage the entry of summary judgment w h e re both parties have had ample opportunity to explore the merits of their cases and e x a m in a tio n of the case makes it clear that one party has failed to establish the existence of a n essential element in the case, on which that party will bear the burden of proof at trial. S e e Fed. R. Civ. P. 56(c). Where the movant can show a complete failure of proof c o n c e rn in g an essential element of the non-moving party's case, all other facts become im m a te ria l because there can be "no genuine issue of material fact." In the Celotex case, the c o u rt held that defendants were "entitled to judgment as a matter of law" under Rule 56(c) b e c a u s e the plaintiff failed to make a sufficient showing on essential elements of his case w ith respect to which he has the burden of proof. Celotex, 477 U.S. at 322-323.

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C . DEFENDANT WESSINGER I t is recommended that defendant Wessinger be dismissed as a defendant in this case a s she had no personal involvement with the allegations raised in the complaint based on the e v id e n c e presented and based on plaintiff's own admissions. Plaintiff filed a document on M a y 5, 2008, in which he requested that this case be dismissed without prejudice and that he b e protected against any limitations period. Plaintiff further stated that defendant Wessinger w a s the "wrong defendant, it should be defendant West." (Doc. 334). On August 14, 2008, p l a in t if f filed a motion to continue with the case that he no longer wished to have the case d is m is s e d . Therefore, an order was issued on August 18, 2008, granting plaintiff's motion to continue the case and the motion to dismiss without prejudice was deemed moot. (Doc. # 4 1 ) .2

D . MEDICAL INDIFFERENCE A s previously discussed, plaintiff asserts that defendants were deliberately indifferent to his medical needs by failing to give him medical care and testing after the PCI van he was rid in g in had an accident. D e f e n d a n ts argue that plaintiff suffered no injury as a result of the automobile a c c id e n c e and that plaintiff has received and continues to receive extensive and adequate m e d ic a l care from defendant Lewis and the medical staff at PCI. Defendants submitted the affidavit of Donna Wessinger who attests that she never

Even if plaintiff had filed a motion to amend the complaint to substitute defendant Officer West's name for that of defendant Officer Wessinger, it would still be recommended that defendant Officer West be dismissed based on the reasoning in this report and recommendation. 4

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w o rk e d transportation with Sergeant Ragland, did not work transportation on January 19, 2 0 0 7 , and was not involved in the medical care of plaintiff or any inmate housed at PCI. D e f e n d a n ts also submitted the affidavit of Thomas Ragland who attests that he is a M a x Sergeant at PCR and has worked for the SCDC since March 2005 and is familiar with p la in tif f and the accident he references in his complaint. Ragland attests that in early 2007, h e worked primarily as a transportation officer and his duties were to transport inmates from P C I to doctor's appointments, court appearances, and other matters. During transportation, h e attests he is responsible for the custody and control of the inmates but has never worked tra n sp o rta tio n with Donna Wessinger. Ragland avers that he was instructed to take plaintiff to Anderson Radiology for a doctor's appointment on January 19, 2007. Upon arrival, R a g la n d asserts that he was informed that x-ray machine was malfunctioning and the a p p o in tm e n t would have to be rescheduled. Therefore, plaintiff was not seen and was tra n sp o rte d back to PCI. (Affidavit). Ragland attests that plaintiff was secured in Level One s e c u rity restraints which consists of a belly chain, feet and wrist restraints and a black box re stra in t which prevents the inmate from being able to raise his arms to create space between h is wrists. Ragland avers that the purpose of these restraints is to maintain security and to p ro te c t the officers, other inmates, and individuals, and the inmate himself from harm. R a g la n d attests that upon entering the van, plaintiff was instructed to sit in the back of the v a n and was secured by the shoulder harness safety belt. Ragland asserts that "when we re tu rn e d from the doctor's appointment, the inmate was antagonizing my partner, a female o f f ic e r, and trying to masturbate, the inmate's behavior was a distraction to both myself and m y partner." Ragland attests that as he was backing the transportation van into the inmate

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i n t a k e area, the sun was shining directly into his mirrors, his vison was affected, and, as a re su lt, he struck a wall on the rear passenger side of the van which resulted in a broken taillig h t and dented bumper. Ragland avers that the airbag did not release and he would e stim a te his speed at less than five miles per hour. Ragland attests that plaintiff laughed after h e hit the wall with the van, made no complaints about an injury to him and remained secure in his seat at all times. Ragland attests that based on the incident report, plaintiff was seen b y Nurse Neal directly after the accident and had no injury. Ragland attests that he was not d is c ip lin e d for the incident, plaintiff never requested a grievance form from him, and he n e v e r treated plaintiff with deliberate indifference to his medical needs. (Ragland affidavit, d o c . 28-4). Defendants attached a copy of the accident information form, the incident report, m a n a g em e n t notes, and pictures of the vehicle. D e f e n d a n ts also submitted the affidavit of Dr. Benjamin Lewis who attests that he is a physician employed by the SCDC to administer care to inmates at PCI and has been with th e SCDC since December 2004. Lewis attests that he has reviewed the allegations in p la in tif f 's complaint and his medical records. Lewis attests that it is clear from the medical rec o rds that plaintiff has received medical attention numerous times while housed at PCI, inclu d ing before the accident, shortly after the accident, and through the present. Lewis avers th a t plaintiff complained about back pain at least as early as October 2, 2006, roughly four m o n th s prior to the accident and the records reflect plaintiff was seen and treated by medical. L e w is avers that it is his medical opinion that plaintiff's back problems were not the result o f the automobile accident, as he complained about and received treatment to his back m o n th s prior to the accident. Based on the medical records, Lewis attests that plaintiff was

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s e e n by Nurse Neal on January 19, 2007, and the notes indicate plaintiff evidenced no e x ter n a l injury and denied any pain. Plaintiff was seen again on January 22, 2007. Lewis a v e rs that the medical records reflect plaintiff complained about blood in his urine on March 1 , 2007, and it is his opinion that it is not likely related to the accident as plaintiff evidenced n o trauma from the accident and the condition did not arise until several weeks later. Lewis a tte sts that as a result of the blood in plaintiff's urine, a urinalysis was ordered to determine th e cause. A urinalysis was order on March 6, 2007, and plaintiff was placed on antibiotics f o r prostatitis on March 8, 2007, as blood in the urine is a common symptom of prostatitis. P la in tif f continued on the antibiotics through April 2007, and a urinalysis order on April 16, 2 0 0 7 , was negative for blood in the urine. (Lewis' Affidavit, p. 3). As to the allegations by plaintiff that he suffered pain in his back, spine, neck, and rib a re a , to which he did not receive medical attention, Lewis attests that the medical records re f u te this claim. Lewis avers that the pain plaintiff described led to an outside consultation a t Anderson radiology clinic where plaintiff was ordered to have an x-ray taken of the upper g a stro in te stin a l tract to determine if he had gall stones or kidney stones. Lewis asserts that p la in tif f also had an EKG as a result of complaints of chest pain, despite the fact that his age, h e ig h t, and weight suggest he is not at risk for heart problems. Lewis attests that based on h is review of the record, plaintiff has received and continues to receive adequate medical c a re for each of his complaints. Lewis avers that he has not refused to see plaintiff, has not d e n ie d him medical treatment, has never been deliberately indifferent to any serious medical n ee d , and has never found plaintiff to have a serious medical need. (Id.). T h e undersigned finds that the plaintiff fails to show that defendants were deliberately

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in d if f ere n t to his medical needs. In the case of Estelle v. Gamble, 429 U.S. 97 (1976), the S u p r e m e Court reviewed the Eighth Amendment prohibition of punishments which "involve th e unnecessary and wanton infliction of pain," Id., quoting Gregg v. Georgia, 428 U.S. 153, 1 6 9 -7 3 (1976). The court stated: A n inmate must rely on prison authorities to treat his medical n e e d s; if the authorities fail to do so, those needs will not be m e t. . . . We therefore conclude that deliberate indifference to serio u s medical needs of a prisoner constitutes the "unnecessary a n d wanton infliction of pain," Gregg v. Georgia, supra, at 173, (jo in t opinion), proscribed by the Eighth Amendment. This is tru e whether the indifference is manifested by prison doctors in th e ir response to the prisoner's needs or by prison guards in i n t e n tio n a lly denying or delaying access to medical care or in te n tio n a lly interfering with the treatment once prescribed. R e g a rd le ss of how evidenced, deliberate indifference to a p ris o n e r's serious illness or injury states a cause of action under § 1983. E s te lle , 429 U.S. at 103-105. (Footnotes omitted) D e sp ite finding that "deliberate indifference to serious medical needs" was u n c o n stitu tio n a l, the court was careful to note, however, that "an inadvertent failure to p ro v id e adequate medical care" does not meet the standard necessary to allege an Eighth A m e n d m e n t violation: . . . a complaint that a physician has been n e g lig e n t in diagnosing or treating a medical c o n d itio n does not state a valid claim of medical m is tre a tm e n t under the Eighth Amendment. M e d i c a l malpractice does not become a c o n stitu tio n a l violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions su f f icie n tly harmful to evidence deliberate in d if f e r e n c e to serious medical needs. E s te lle , 429 U.S. at 107. 8

T h e Court of Appeals for the Fourth Circuit has also considered this issue in the case o f Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990). In that case, the court noted that treatment " m u st be so grossly incompetent, inadequate or excessive as to shock the conscience or to b e intolerable to fundamental fairness (citation omitted), . . . nevertheless, mere negligence o r malpractice does not violate the Eighth Amendment." Id. at 851. Unless medical needs w e r e serious or life threatening, and the defendant was deliberately and intentionally in d if f e re n t to those needs of which he was aware at the time, the plaintiff may not prevail. E s te lle , supra; Farmer v. Brennan, 511 U.S. 825 (1994); Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986). F u rth e r, incorrect medical treatment, such as an incorrect diagnosis, is not actionable u n d e r 42 U.S.C. § 1983. Estelle v. Gamble, supra. Negligence, in general, is not actionable u n d er 42 U.S.C. § 1983. See Daniels v. Williams, 474 U.S. 327, 328-36 & n. 3 (1986); D a v id s o n v. Cannon, 474 U.S. 344, 345-48 (1986); Ruefly v. Landon, 825 F.2d 792, 793-94 ( 4 t h Cir.1987); and Pink v. Lester, 52 F.3d 73, 78 (4th Cir. 1995) (applying Daniels vs. W illia m s and Ruefly v. Landon: "The district court properly held that Daniels bars an action u n d e r § 1983 for negligent conduct."). Secondly, 42 U.S.C. § 1983 does not impose liability f o r violations of duties of care arising under state law. DeShaney v. Winnebago County D e p a rtm e n t of Social Services, 489 U.S. 189, 200-03 (1989). Similarly, medical malpractice is not actionable under 42 U.S.C. § 1983. Estelle v. Gamble, supra, at 106 ("Medical m a lp r a c tic e does not become a constitutional violation merely because the victim is a p riso n e r.") See also Brooks v. Celeste, F. 3d 125 (6th Cir. 1994) (Although several courts p rio r to the Supreme Court's decision in Farmer v. Brennan, supra, held that "repeated acts

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o f negligence could by themselves constitute deliberate indifference, Farmer teaches o th e rw is e ." ); Sellers v. Henman, 41 F.3d 1100, 1103 (7th Cir. 1994) ("If act A committed b y the X prison shows negligence but not deliberate indifference, and B the same, and lik e w is e C, the prison is not guilty of deliberate indifference."); White v. Napoleon, 897 F.2d 1 0 3 , 108-109 (3rd Cir. 1990); and Smart v. Villar, 547 F.2d 114 (10th Cir. 1976) (affirming s u m m a ry dismissal). The plaintiff has failed to show that he was denied medical treatment. Plaintiff was s e e n in medical after the accident by Nurse Neal and was seen in medical again two days la te r . Further, the medical records reveal plaintiff complained of blood in his urine almost t w o months after the accident. Also, plaintiff's complaints of back pain proceeded the a c cid e n t by several months. Plaintiff has received x-rays, urinalysis tests, outside evaluations f o r kidney stones and gall stones, and antibiotics for prostatitis which was considered to be c a u sin g the blood in the urine. Subsequent urinalysis was negative for blood. As held in E s te lle , 429 U.S. at 107, a complaint that a physician has been negligent in diagnosing or tre a tin g a medical condition does not state a valid claim of medical mistreatment under the E ig h th Amendment. Even if plaintiff's allegations are true, he has shown nothing more than a disagreement with the medical treatment provided, not that he was completely denied m e d ic a l treatment. Additionally, plaintiff has failed to show that he had a serious medical n e e d of which defendant knew about and consciously ignored. Plaintiff has not shown that a n y conduct by this defendant "shocks the conscious" as required by Miltier v. Beorn, supra. " A lth o u g h the Constitution does require that prisoners be provided with a certain minimum le v e l of medical treatment, it does not guarantee to a prisoner the treatment of his choice"

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J a c k so n v. Fair, supra. The type and amount of medical care is left to the discretion of prison o f f ic ia ls as long as medical care is provided. Brown v. Thompson, supra. Any disagreement b e tw e e n an inmate and medical personnel fails to state a claim unless exceptional c irc u m s ta n c es are alleged . . . Although there is nothing to indicate that there were mistakes o f medical judgment, even if shown, mistakes of medical judgement are not subject to ju d ic ia l review in a § 1983 action. Russell v. Sheffer, supra. Thus, although plaintiff did not a g re e with the type of treatment or the timing of treatment he received, the fact is plaintiff w a s provided treatment. As previously stated, a disagreement as to the proper treatment to b e received does not in and of itself state a constitutional violation. Negligent or incorrect m e d ic a l treatment is not actionable under 42 U.S.C. § 1983. Negligence, in general, is not a c tio n a b le under 42 U.S.C. § 1983. If this claim could be construed as asserting medical m a lp ra c tic e , it must also fail. Medical malpractice is not actionable under 42 U.S.C. § 1983. S e e Estelle v. Gamble, 429 U.S. at 106 ("Medical malpractice does not become a c o n stitu tio n a l violation merely because the victim is a prisoner."). In addition, plaintiff has fa iled to provide any expert testimony to show that any actions of defendant did not conform to the applicable standard of care, much less, indifference to his serious medical needs. Based on the evidence presented, there has been no deliberate indifference shown to th e overall medical needs of the plaintiff. For the above stated reasons, summary judgment s h o u ld be granted in favor of defendants on this issue. A d d itio n a lly, any claims of medical indifference as to defendant Ragland should be d ism iss e d as he is not medical personnel and plaintiff has not shown that he interfered with h is medical care. The Fourth Circuit has held that to bring a claim alleging the denial of

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m e d ic a l treatment against non-medical prison personnel, an inmate must show that such o f f icia ls were personally involved with a denial of treatment, deliberately interfered with p r is o n doctors' treatment, or tacitly authorized or were indifferent to the prison physicians' m is c o n d u c t. Miltier v. Beorn, 896 F.2d 848 (4th Cir.1990). Prison personnel may rely on th e opinion of the medical staff as to the proper course of treatment. Id. Under these p rin ciples, the plaintiff has not alleged sufficient facts stating any claim actionable under § 1 9 8 3 regarding his medical treatment against the defendants who are non-medical personnel. P la in tif f has failed to show that defendant Ragland was personally involved with any alleged d e n ia l or delay of treatment or that he deliberately interfered with plaintiff's medical tr e a tm e n t . Therefore, any claims against the defendants for medical indifference fails.3

E. QUALIFIED IMMUNITY Defendants argue that they are entitled to qualified immunity. When a person is sued in his individual capacity, the court may consider whether that p e rs o n is entitled to immunity from suit. Immunity is a defense to be asserted by the d e f en d a n t and the burden of proving entitlement to immunity rests with the defendant a ss e rtin g it. Once asserted, however, the court should carefully consider whether the person is entitled to either absolute immunity (judicial and quasi-judicial, legislative) or qualified im m u n ity. Once raised, immunity is a threshold issue, which should be addressed early in

Viewing the claim in the light most favorable to the plaintiff, there may be an issue of fact as to whether or not defendant Ragland secured plaintiff in his seat by a safety belt as asserted in defendant Ragland's affidavit. However, summary judgment is still recommended in that plaintiff cannot state a constitutional claim as a result of negligent acts of state actors. Negligence, in general, is not actionable under 42 U.S.C. § 1983. 12

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th e action because if it can be shown to be a valid defense, the defendant is entitled to d is m is s a l or summary judgment. For that reason, the issue of immunity should be addressed b e f o re discovery is allowed. T h e doctrine of qualified immunity attempts to reconcile two p o te n tia lly conflicting principles: the need to deter government o f f i c ia ls from violating an individual's federal civil rights and th e need for government officials to act decisively without u n d u e fear of judicial second guessing. A k e rs v. Caperton, 998 F.2d 220, 225-26 (4th Cir. 1993). The Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982), established the sta n d a rd which the court is to follow in determining whether defendant is protected by this im m u n ity. Government officials performing discretionary functions g e n e ra lly are shielded from liability for civil damages insofar as th e ir conduct does not violate clearly established statutory or c o n stitu tio n a l rights of which a reasonable person would have know n. H a rlo w , 457 U.S. at 818. In a discussion of qualified immunity, the Court of Appeals for the Fourth Circuit s ta te d : Q u a lif ie d immunity shields a governmental official from lia b ility for civil monetary damages if the officer's "conduct d o e s not violate clearly established statutory or constitutional rig h ts of which a reasonable person would have known." "In d e te rm in in g whether the specific right allegedly violated was 'c lea rly established,' the proper focus is not upon the right at its m o s t general or abstract level, but at the level of its application to the specific conduct being challenged." Moreover, "the m a n n e r in which this [clearly established] right applies to the ac tio n s of the official must also be apparent." As such, if there is a "legitimate question" as to whether an official's conduct c o n stitu tes a constitutional violation, the official is entitled to 13

q u a lif ie d immunity. W ile y v. Doory, 14 F.3d 993 (4th Cir. 1994) (internal citations omitted), cert. denied, 516 U .S . 824 (1995). As discussed above, the plaintiff fails to show that the defendants violated an y of his clearly established constitutional or statutory rights. Therefore, defendants are e n ti tle d to qualified immunity in their individual capacity. Thus, the undersigned

re c o m m e n d s that the defendants' motion for summary judgment be granted on this issue.

F . PENDENT JURISDICTION A s s u m in g plaintiff's § 1983 claim is dismissed by this Court and plaintiffs' complaint s o m e h o w can be conceived to state an additional claim for relief under any state common law th e o ry, the undersigned concludes that such claim(s), if any, ought to be dismissed as well f o r want of jurisdiction. Specifically, this Court can decline to continue the action as to the p e n d e n t claims if "the district court has dismissed all claims over which it has original jurisd iction ." 28 U.S.C. § 1367(c).

I I I . CONCLUSION T h e plaintiff has failed to show that defendants violated any of his constitutional or s ta tu to ry rights under 42 U.S.C. § 1983. It is therefore, for the reasons stated herein, RECOMMENDED that the motion filed by defendants (document # 28) for summary ju d g m en t be GRANTED IN ITS ENTIRETY. IT IS FURTHER RECOMMENDED that any other outstanding motions be deemed M OO T.

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R e sp e c tf u lly Submitted,

s / T h o m a s E. Rogers, III Thomas E. Rogers, III U n ite d States Magistrate Judge

F lo re n c e, South Carolina N o v e m b e r 10, 2008 T h e parties' attention is directed to the important notice on the next page.

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