Granger v. Bodiford et al

Filing 83

ORDER RULING ON REPORT AND RECOMMENDATION. that Plaintiffs motion to amend the complaint is DENIED; Plaintiffs motion for summary judgment is DENIED, and Defendants motion for summary judgment is GRANTED. Plaintiffs constituti onal claims are hereby DISMISSED with prejudice, and the Court declines to exercise supplemental jurisdiction over Plaintiffs remaining state tort claims. All pending motions are deemed moot. Signed by Honorable R Bryan Harwell on 9/12/2012. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Floyd Granger, #339558
a.k.a. Floyd Randolph Granger, III

)
)
)
Plaintiff,
)
)
v.
)
)
Director Scotty Bodiford; Greenville )
County Law Enforcement Center and )
Health Services; Unknown Medical )
Personnel; and Greenville County, )
)
Defendants.
)
)

Civil Action No.: 6:11-cv-01162-RBH

ORDER

This matter is before the Court after the issuance of the Report and Recommendation
(“R&R”) of United States Magistrate Judge Kevin F. McDonald.1 Plaintiff and Defendants each
filed motions for summary judgment. In the R&R, the Magistrate Judge recommends that the Court
grant Defendants’ motion and deny Plaintiff’s motion. Also before the Court is Plaintiff’s motion
to amend the complaint to additional parties, as well as his motion to issue a subpoena ordering the
South Carolina Department of Corrections to photograph his hand. Both motions were filed after
the issuance of the R&R.
Factual Background and Procedural History
Plaintiff, a state prisoner proceeding pro se, filed this action on May 11, 2011. He alleges
constitutional claims of deliberate indifference under 42 U.S.C. § 1983, as well as state tort claims,
arising from the alleged failure of Defendants, officials with the Greenville County Detention

1

In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate Judge for pretrial handling.
1

Center, to treat a broken finger during his detention. The Magistrate Judge, in his R&R, provides an
adequate summary of the facts; however, the following facts are not in dispute.
Plaintiff punched a window.

A broken pinky finger resulted.

Jail medical personnel

conducted an x-ray and forwarded the films to a radiologist, who confirmed Plaintiff’s pinky finger
was in fact broken.

The doctor observed, “The bony structure is intact without evidence of

dislocation. Fracture seen at the neck of the right 5th metacarpal bone. Bones are in good position.
Articular surfaces are intact. No significant soft tissue abnormality is seen.” ECF No. 35-3, at 2.
His conclusion was simply to “recheck in 2 week interval.” Id. A physician’s assistant employed by
the jail ordered that his pinky finger be “buddy taped” to his ring finger for two weeks, as well as a
follow-up x-ray in two weeks. Id. at 3
Subsequently, over the course of his detention, Plaintiff received follow-up x-rays every two
weeks, which showed consistent improvement, according to the medical records.

Plaintiff,

however, began to complain about pain and the failure of the medical staff to buddy tape his finger
as ordered. Plaintiff’s complaints turned into a request to staff to Defendant Scotty Bodiford, the
jail’s administrator, as well as calls to a member of the Greenville County Council, who, along with
Plaintiff’s father, intervened on Plaintiff’s behalf. This apparently continued until Plaintiff was
transferred to the custody of the South Carolina Department of Corrections. Plaintiff complains
Defendants’ failure to treat his broken finger precluded him from employment in prison industries.
He seeks compensatory and punitive damages, as well as attorney’s fees.
Defendants jointly filed a motion for summary judgment on September 9, 2011, arguing
Plaintiff’s claims were meritless. Plaintiff responded to their motion on October 12, 2011. Plaintiff
also filed a motion for summary judgment on February 15, 2012. The Magistrate Judge issued his
R&R on May 30, 2012, recommending that judgment be granted in favor of Defendants. R&R, ECF

2

No. 76. Plaintiff filed timely objections on June 20, 2012. Pl.’s Objs., ECF No. 79. Subsequent to
the issuance of the R&R, Plaintiff filed a motion to amend his complaint (on June 18, 2012) and a
motion to issue a subpoena (on June 20, 2012). ECF Nos. 78, 81.
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo
determination of those portions of the R&R to which specific objection is made, and the Court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a
party makes only “general and conclusory objections that do not direct the [C]ourt to a specific
error in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the absence
of objections to the R&R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “ ‘satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’ ” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Discussion
I.

Motion to Amend
On June 18, 2012, after both motions for summary judgment were filed, Plaintiff filed a

motion to amend his complaint “to [a]dd additional parties based on [n]ew evidence.” He argues he

3

did not have access to information about the parties until discovery and could not have reasonably
known about them beforehand. Mot. to Amend 1, ECF No. 78.
Plaintiff’s complaint included as defendants “Unknown Medical Personnel.” However,
summonses were not issued for the unknown defendants. The Magistrate Judge, in a June 9, 2011
order, required Plaintiff to provide the Court “with additional sufficient particularized information
to identify” the unknown defendants in order to avoid dismissal of his complaint against the
defendants. ECF No. 16, at 3. Plaintiff was given 120 days from the filing of his complaint to
identify the defendants in order to avoid dismissal; however, he failed to do so, and the “Unknown
Medical Personnel” were never properly served.2 In his motion to amend, Plaintiff suggests he can
now identify these parties, although he fails to actually mention the them by name.3
Rule 15(a)(2) of the Federal Rules of Civil Procedure permits the amendment of a complaint
“only with the opposing party’s written consent or the court’s leave. The court should freely give
leave when justice so requires.” However, denial of a motion for leave may be appropriate in
certain circumstances, “such as undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or] futility of amendment.” Foman v.
Davis, 371 U.S. 178, 182 (1962).
The Court denies Plaintiff’s motion to amend his complaint. Plaintiff filed his motion for
summary judgment on February 15, 2012, and included records from his medical file. Despite

2

The Court finds that dismissal of the “Unknown Medical Personal” without prejudice was proper
under Rule 4(m) of the Federal Rules of Civil Procedure.
3
In his objections to the R&R, Plaintiff notes that “[i]t was not until Plaintiff received his medical
file that he was sure who the unknown medical personnel [were] and by then the initial 120 day
period was up.” Pl.’s Objs. 6.
4

having possession of his medical file,4 which allowed him to ascertain the identities of the unknown
defendants, Plaintiff did not move to amend his complaint until June 18, 2012—after the Magistrate
Judge had issued his R&R recommending that summary judgment be granted in favor of
Defendants. Given the pending motions, for Plaintiff to wait months before filing a motion to
amend is unreasonable. The timing of Plaintiff’s motion thus appears to be an effort to salvage his
action after receiving an unfavorable recommendation from the Magistrate Judge. Therefore,
Plaintiff’s motion to amend his complaint is denied.
II.

Motions for Summary Judgment
The Magistrate Judge recommends granting Defendants’ motion for summary judgment and

denying Plaintiff’s motion for summary judgment.5 Specifically, he notes the following:
[P]laintiff's allegation that his finger was not buddy taped does not
raise an issue of material fact with regard to his allegations against
[D]efendant Bodiford. [P]laintiff has not shown that the defendant
was personally involved with a denial of treatment, deliberately
interfered with the medical staff's treatment, or tacitly authorized or
was indifferent to any alleged misconduct by the medical staff.
R&R 8. Plaintiff’s lengthy objections, however, largely rehash the arguments he made in both his
motion for summary judgment and his response to Defendants’ motion for summary judgment.
Specifically, the only error of the Magistrate Judge the Plaintiff points to is that the
Magistrate Judge based his recommendation on false facts relied on by the Defendants—facts
Plaintiff argues are material. Specifically, Plaintiff reiterates that his broken finger was never
buddy taped and that the Motrin he was prescribed was for a back injury, not his finger. His
4

Plaintiff also received the various records from his medical file that were included as exhibits to
Defendants’ motion for summary judgment.
5
The Magistrate Judge recommends granting summary judgment in favor of Greenville County
Law Enforcement Center and Health Services because they are not “persons” amenable to suit
under § 1983 and in favor of Greenville County because he “alleged no facts to state a plausible [§]
1983 claim . . . based on any . . . policy or custom.” R&R 5-6. Plaintiff made no objection to these
recommendations, and the Court finds no clear error.
5

argument is that the Court should conclude from these facts that Defendants, specifically Bodiford,
did nothing to treat his broken finger—hence, a genuine dispute of fact. The Court however must
focus on genuine disputes of material facts. Fed. R. Civ. P. 56(a).
Plaintiff’s alleged in his complaint that Bodiford “personally failed to correct the denial of
medical treatment.” Compl. 2. His constitutional allegations against Bodiford are therefore rooted
in supervisory liability. In actions brought under 42 U.S.C. § 1983, in which deliberate indifference
to serious medical needs is alleged, “liability on the part of the supervisory defendants requires a
showing that: (1) [they] failed promptly to provide an inmate with medical care, (2) [they]
deliberately interfered with the prison doctors’ performance, or (3) [they] tacitly authorized or were
indifferent to the prison physicians’ constitutional violations.” Miltier v. Beorn, 896 F.2d 848, 854
(4th Cir. 1990) (citations omitted). In Miltier, like this case, the “claim of supervisory liability
appear[ed] to rest on the third theory.” Id.
The undisputed evidence shows Plaintiff received x-rays of his broken finger, in two-week
intervals, over the course of several months. The radiologist concluded the fracture was healing
properly after each x-ray, and the physician’s assistant ordered the nursing staff to buddy tape
Plaintiff’s finger on several occasions. The only genuine dispute of fact is whether the medical
staff did indeed follow the orders of the physician’s assistant and buddy tape Plaintiff’s finger as
ordered. Although treatment records suggest action was taken to buddy tape Plaintiff’s finger,
several witnesses, in affidavits submitted by Plaintiff, attest Plaintiff’s finger was never buddy
taped. The Court, however, finds this factual question immaterial to Plaintiff’s claim against
Bodiford.6

6

The failure to treat a broken finger, under certain circumstances, may very well rise to a claim of
deliberate indifference. However, this Court is skeptical that Plaintiff can show the treatment he
received, which included continuous x-rays over the course of several months and attention from a
6

At the very least, Plaintiff must show adequate evidence that Bodiford was sufficiently
indifferent to his alleged serious medical needs. Here, Plaintiff has not made that showing. No
evidence in the record indicates Bodiford was deliberately indifferent to Plaintiff’s medical needs.
Rather, the only reasonable inference from the evidence is that Bodiford was initially unaware of
Plaintiff’s complaints, and once the complaints were brought to his attention, Bodiford adequately
monitored Plaintiff’s treatment. First, Bodiford admits that he was contacted by a member of
Greenville County Council, at some point during Plaintiff’s detention, regarding Plaintiff’s
complaints. ECF No. 69-4, at 9. Second, Plaintiff’s father submitted an affidavit declaring that
Bodiford spoke with him over the phone about Plaintiff’s finger after Bodiford was contacted by the
councilwoman. ECF No. 69-3, at 4. Third, Plaintiff provided a January 9, 2010 request to staff
addressed to Bodiford where he complained about his treatment. The request to staff was signed by
a staff member, presumably Bodiford, and indicated Plaintiff’s request was forwarded to the jail’s
medical staff. ECF No. 69-2, at 20. Finally, in his affidavit, Bodiford attested that, although he
could not specifically recall Plaintiff’s case, his standard practice is to review the medical records
and interview medical personnel. He notes he likely did so in Plaintiff’s case, and Plaintiff does not
dispute this fact in his response.7 ECF No. 68-1, at 2-3.
Plaintiff does not dispute Bodiford’s statement that he is unqualified to make medical
diagnoses, medical recommendations, or medical decisions. Moreover, as the Magistrate Judge
notes, Plaintiff does not show, even by implication, that Bodiford had any role in Plaintiff’s
treatment, especially a role suggesting interference or indifference. Indeed, the evidence shows
Bodiford was not involved in the medical decisionmaking and deferred to the jail’s physician’s
radiologist who opined Plaintiff’s finger was healing properly in a good position, violated his due
process rights. Even so, Plaintiff must bring his claim against the proper defendant.
7
Instead, Plaintiff, in an affidavit included with his response, focuses again on the medical staff’s
failure to buddy tape his finger. ECF No. 40-2, at 3.
7

assistant to make medical decisions. When issues with Plaintiff’s treatment were brought to his
attention, Bodiford followed-up with the medical staff, as well as Plaintiff’s father. Bodiford was
entitled to rely on the decisions of the medical staff and the medical records, which showed the
medical staff’s continued attention to Plaintiff’s medical needs.8 See Miltier, 896 F.2d at 854 (“No
record evidence suggests why the wardens should not have been entitled to rely upon their health
care providers’ expertise. Moreover, everything in the record suggests that the wardens closely
monitored [the plaintiff’s] health and ensured that she received medical treatment.”).
The Court, therefore, finds no error in the Magistrate Judge’s conclusion and
recommendation to grant Defendants’ motion for summary judgment and deny Plaintiff’s motion
for summary judgment.9

Plaintiff has “failed to meet the heavy burden of proof in supervisory

liability cases.” Id. at 855.
Conclusion
The Court has thoroughly reviewed the entire record, including the motions, the R&R,
objections to the R&R, and applicable law. For the reasons stated above and by the Magistrate
Judge, the Court hereby overrules Plaintiff’s objections and adopts the R&R of the Magistrate
Judge.
IT IS THEREFORE ORDERED that Plaintiff’s motion to amend the complaint is
DENIED; Plaintiff’s motion for summary judgment is DENIED, and Defendants’ motion for
summary judgment is GRANTED. Plaintiff’s constitutional claims are hereby DISMISSED with
8

By the time Bodiford plausibly began monitoring Plaintiff’s treatment, the medical records
indicated a “healing fracture” in “good position.” ECF No. 35-3, at 11-15. Interestingly, one
distinction between this case and Miltier, where the wardens were found not liable, is that the
medical records here showed no evidence of the deterioration of Plaintiff’s condition. Miltier, 896
F.2d at 854.
9
Having recommended dismissal of Plaintiff’s claims, the Magistrate Judge recommends that the
Court decline to exercise supplemental jurisdiction over Plaintiff’s tort claims. R&R 8. Plaintiff
does not object to this recommendation, and the Court finds no clear error.
8

prejudice, and the Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining
state tort claims. All pending motions are deemed moot.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
September 12, 2012
Florence, South Carolina

9