Glisson v. Riley et al

Filing 84

OPINION and ORDER RULING ON REPORT AND RECOMMENDATION adopting 75 Report and Recommendation, denying 76 Motion for Extension of Time, Motion for Leave to File filed by Andrew N Glisson, granting 57 Motion for Summary Judgment, filed by John McRee, Bernard McKie, Tim Riley, Yolanda Mitchell, David M Ingraham, Lefford Fate, Alfred D Moore, Jack M Valpey, denying as moot 56 Motion to Exclude,, filed by John McRee, Bernard McKie, Tim Riley, Yolanda Mitchell, David M Ingraham, Lefford Fate, Alfred D Moore, Jack M Valpey. Signed by Honorable Donald C Coggins, Jr on 3/30/20. (alew, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Andrew N. Glisson,

)
)
Plaintiff,
)
)
v.
)
)
Tim Riley, Lefford Fate, John McRee, )
Jack M. Valpey, Bernard McKie,
)
David M. Ingraham, Alfred D. Moore,
)
John Doe and Jane Doe 1–10, and
)
Yolanda Mitchell,
)
)
Defendants. )
________________________________ )

C/A No. 6:17-cv-2599-DCC

OPINION AND ORDER

This matter comes before the Court on Defendants' Motion for Summary
Judgment, ECF No. 57, and Defendants' Motion to Exclude Expert Witness, ECF No. 56.
The Motions were fully briefed, and, in accordance with 28 U.S.C. § 636(b) and Local
Civil Rule 73.02(B)(2) (D.S.C.), this matter was referred to United States Magistrate
Judge Kevin F. McDonald for pre-trial proceedings and a Report and Recommendation
(“Report”). On January 14, 2020, the Magistrate Judge issued a Report recommending
that Defendants' Motion for Summary Judgment be granted and Defendants' Motion to
Exclude Expert Witness be denied as moot. ECF No. 75. Plaintiff filed Objections to the
Report, Defendants filed a Response to Plaintiff's Objections, and Plaintiff filed a Reply.
ECF Nos. 77, 81, 82. Additionally, Plaintiff filed a Motion for Extension of Time and Leave
to File Affidavit of Witness, and Defendants filed a Response.
Therefore, the Motions are ripe for review.

1

ECF Nos. 76, 79.

LEGAL STANDARDS
I.

Magistrate Judge Review
The Magistrate Judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility to make a
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report of the
Magistrate Judge to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b).
The Court will review the Report only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating
that “in the absence of 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.” (citation omitted)).
II.

Summary Judgment
One of the principal purposes of summary judgment “is to isolate and dispose of

factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
It is “not a disfavored procedural shortcut,” but is instead the “principal tool by which
factually insufficient claims or defenses [can] be isolated and prevented from going to trial
with the attendant unwarranted consumption of public and private resources.” Id. at 327.
To that end, “Rule 56 states “[t]he 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
2

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if proof of its
existence or non-existence would affect disposition of the case under applicable law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is
“genuine” if the evidence offered is such that a reasonable jury might return a verdict for
the non-movant. Id. at 257. When determining whether a genuine issue has been raised,
the court must construe all inferences and ambiguities against the movant and in favor of
the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
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 movant has made this threshold demonstration, the nonmoving party, to survive the motion for summary judgment, may not rest on the allegations
averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate
specific, material facts exist that give rise to a genuine issue. Id. Under this standard,
the existence of a mere scintilla of evidence in support of the non-movant’s position is
insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252.
Likewise, conclusory allegations or denials, without more, are insufficient to preclude
granting the summary judgment motion. Ross v. Commc’ns Satellite Corp., 759 F.2d
355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989). “Only 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.” Anderson, 477 U.S. at 248.

3

DISCUSSION 1
I.

Defendants' Motion for Summary Judgment
A. Deliberate Indifference Claim
First, Plaintiff contends that the Magistrate Judge "erroneously embraced

Defendants' call to focus on unrelated medical care that was provided to Plaintiff instead
of focusing on the constitutionally denied care, the denial of which has left Plaintiff, at the
age of 52, forever crippled, disabled[,] and unable to support himself." ECF No. 77 at 1.
Plaintiff further claims that the "Magistrate Judge erred by focusing on what care was
provided and concluding that care was somehow relevant in the analysis of this case and
somehow made up for the lack of critically necessary care." Id. at 3. Instead, Plaintiff
contends that the proper focus is on the failure to provide needed supervised physical
therapy.
The Magistrate Judge stated, "the record evidence does not support a finding that
the denial of supervised physical therapy constituted care that was so grossly
incompetent, inadequate or excessive as to shock the conscience or to be intolerable to
fundamental fairness as required to support a deliberate indifference claim." ECF No. 75
at 18 (quotation omitted). The Court has reviewed the records, filings of the parties, and
the relevant law de novo, and agrees with the Magistrate Judge that the evidence, viewed
in the light most favorable to the Plaintiff, constitutes negligence or medical malpractice.
To that end, Plaintiff's expert—Dr. Daniel Herman—testified that he believed "deliberate
indifference" equated to negligence or violating the standard of care. Even Plaintiff's

The Magistrate Judge thoroughly outlines the relevant facts in the Report, and the Court
incorporates the Report's recitation herein. See ECF No. 75 at 2–12.
1

4

treating physician who ordered the supervised physical therapy—Dr. David Koon—
testified that supervised physical therapy would not have made a difference in Plaintiff's
prognosis and would not have assisted Plaintiff's healing. In sum, while there is evidence
that Defendants may have been negligent in their treatment of Plaintiff, the evidence falls
far short of creating a factual issue as to a deliberate indifference claim. Accordingly, the
Court overrules Plaintiff's first objection.
B. Application of Summary Judgment Standard
Second, Plaintiff contends that the Magistrate Judge "erroneously viewed the
evidence in the light most favorable to Defendants." ECF No. 77 at 1. The Court
disagrees, as the Magistrate Judge thoroughly discussed Plaintiff's medical treatment,
viewed in the light most favorable to the Plaintiff, and acknowledged that Defendants'
conduct might rise to the level of negligence or medical malpractice for failing to provide
supervised physical therapy. However, the Magistrate Judge appropriately concluded
that this evidence falls short of the evidence needed to prove a claim for deliberate
indifference. Nothing in the Report indicates that the Magistrate Judge did not apply the
correct legal standard in evaluating a motion for summary judgment. Accordingly, the
Court overrules Plaintiff's second objection.
C. Qualified Immunity
Finally, Plaintiff claims that the "Magistrate Judge erred in recommending that the
Court rule Plaintiff has failed to demonstrate that Defendants violated his constitutional
rights, and also in recommending that Plaintiff's claims be dismissed as barred by the
doctrine of qualified immunity." ECF No. 77 at 18 (citation omitted). As discussed above,
however, Plaintiff has failed to offer any evidence that the Defendants violated his

5

constitutional rights.

That alone is sufficient to confer qualified immunity on the

Defendants. Accordingly, the Court overrules third Plaintiff's objection, and GRANTS
Defendants' Motion for Summary Judgment, ECF No. 57. 2
II.

Dismissal of the John Doe and Jane Doe Defendants
The Report recommended that the John Doe and Jane Doe defendants be

dismissed because "these defendants, who remain unidentified, have not been served,
and the deadline for service has expired." ECF No. 75 at 24. Plaintiff does not object to
this portion of the Report; therefore, the Court reviews the Report's recommendation for
clear error. Finding none, the Court adopts the Magistrate Judge's recommendation that
the John Doe and Jane Doe defendants be dismissed.
III.

Motion for Extension of Time and Leave to File Affidavit of Witness
After the Magistrate Judge issued the Report, Plaintiff filed a Motion for Extension

of Time and Leave to File Affidavit of Witness. ECF No. 76. Plaintiff contends that "the
Magistrate Judge, sua sponte, stated that the record does not contain evidence that three
letters from Plaintiff's mother, Geraldine Goldman, were mailed to the prison wardens."
Id. at 1. Therefore, Plaintiff seeks leave to submit an affidavit from Ms. Goldman stating
that she mailed the letters to the Warden of Kirkland. ECF Nos. 76, 76-1. Defendants
filed a Response, in which they "neither consent nor object to [Plaintiff's] [M]otion and
defer to the Court's discretion." ECF No. 79. However, Defendants do contend that the
"request is untimely." Id.

In light of the Court's ruling granting Defendants' Motion for Summary Judgment, ECF
No. 57, the Court agrees with the Magistrate Judge that Defendants' Motion to Exclude
Expert Witness, ECF No. 56, is moot.

2

6

The Court concludes that Plaintiff's Motion is unnecessary, as the Court assumes
for purposes of this Order that the letters were mailed in viewing the facts in the light most
favorable to Plaintiff. Although the Magistrate Judge did reference the lack of evidence
that the letters were mailed, there is no evidence that any of the Defendants received or
reviewed the letters. Therefore, the letters are not material to Plaintiff's constitutional
claim. Finally, as Defendants note, Plaintiff's request to supplement the record with Ms.
Goldman's affidavit is untimely, which is an independent basis for denying Plaintiff's
Motion.
CONCLUSION
For the foregoing reasons, the Court overrules Plaintiff's objections. Additionally,
the Court has reviewed the remainder of the Report and finds no clear error. Accordingly,
the Court ADOPTS the Report. Defendants' Motion for Summary Judgment, ECF No.
57, is GRANTED; Plaintiff's Motion for Extension of Time and Leave to File Affidavit of
Witness, ECF No. 76, is DENIED; Defendants' Motion to Exclude Expert Witness, ECF
No. 56, is DENIED AS MOOT; and the claims against the John Doe and Jane Doe
defendants are DISMISSED.
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge

March 30, 2020
Spartanburg, South Carolina

7