Simon v. Paige et al

Filing 100

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 84 Motion for Summary Judgment; granting 90 Motion to Dismiss. This case is dismissed. Signed by Honorable Richard M Gergel on 3/13/2015.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA' "
"

ZO IS MAR I 3 PI: 35
Jovan Cornelius Simon, # 25282-171,

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Plaintiff,
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vs.
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LlCPL Kevin Paige, SCHP; Trooper Bucky
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Geddings, SCHP; LlCpl Mark Jennings, SCHP; and)
Agent H. Eric Cohoon, A TF;
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Defendants.
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CIA No.: 9: 13-3025-RMG

ORDER

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This matter is before the Court on the Report and Recommendation ("R & R") of the
Magistrate Judge, (Dkt. No. 97), recommending that the Court grant Defendants' motions for
summary judgment (Dkt. Nos. 84,90) as to Plaintiffs federal claims and decline jurisdiction
over Plaintiffs state claims. For the reasons set forth below, the Court agrees with and ADOPTS
the R & R as an order of this Court. Accordingly, Defendants' motions are GRANTED as to
Plaintiffs federal claims, and this case is DISMISSED.
I. Background!

Plaintiff alleges in his verified Complaint that after Defendant Geddings arrested him,
Defendant Page improperly placed Plaintiff in the front seat of Page's cruiser with his hands
cuffed behind his back while Defendants Geddings and Jennings looked on; that while
transporting Plaintiff, Defendant Page ran into a metal pole and Plaintiff hurt his neck; and that
the remaining Defendants were indifferent to his neck pain. The Magistrate Judge recommended
granting summary judgment on Plaintiffs federal claims because Plaintiff has failed to put

1 The facts are laid out in detail in the R & R adopted by the Court. (Dkt. No. 97 at 3-10).
Therefore, the Court does not recount them again here but only provides a summary.

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forward evidence that he suffered a serious injury or that Defendants knew of and disregarded an
excessive risk to Plaintiff's health or safety. (Dkt. No. 97). Plaintiff has filed objections to the R
& R. (Dkt. No. 99).

II. Legal Standard
A. Report & Recommendation

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.c. § 636(b)(1). This Court is charged with making a de novo determination of those
portions of the R & R or specified proposed findings or recommendations to which objection is
made. Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28
U.S.C. § 636(b)(1)); accord Fed. R. Civ. P. 72(b).
B. Summary Judgment

Summary judgment is appropriate "if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). Only material facts-those "that might affect the outcome of the suit under the governing
law"-will preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute about a material fact is genuine, "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party." Id. Thus, "[t]he mere
existence of a scintilla of evidence in support of the plaintiffs position will be insufficient." !d.
at 252.

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At the summary judgment stage, the court must "construe the evidence, and all
reasonable inferences that may be drawn from such evidence, in the light most favorable to the
nonmoving party." Dash v. Mayweather, 731 F.3d 303, 310 (4th Cir. 2013). However, "the
nonmoving party must rely on more than conclusory allegations, mere speculation, the building
of one inference upon another, or the mere existence of a scintilla of evidence." Id. at 311.
III. Discussion

Because Plaintiff is a pretrial detainee, the Fourteenth Amendment, rather than the Eighth
Amendment, governs his claim. Ervin v. Mangum, 127 F.3d 1099 (4th Cir. 1997). However, the
same deliberate indifference standard applies. Id.
A. Failure to Protect Claim

To establish a claim for failure to protect, a plaintiff must show: (1) serious or significant
physical or emotional injury and (2) that officials exhibited deliberate indifference to plaintiffs
health or safety. De 'IonIa v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003). To be deliberately
indifferent, a prison official must "know of and disregard an objectively serious ... risk of harm."
Id A showing of mere negligence does not qualify as deliberate indifference. Bacchus v.
Scarborough, 466 F. App'x 269,271 (4th Cir. 2012).

Here, Plaintiff alleged that Defendants Geddings, Jennings and Page were deliberately
indifferent to his safety because Defendant Page placed him in the front seat of his cruiser with
his hands cuffed behind his back in violation of South Carolina Department of Public Safety
(SCDPS) policy. (Dkt. No.1 at 3; Dkt. No. 28). However, Plaintifflacks personal knowledge of
SCDPS policy, and Defendants have submitted the applicable SCDPS policy, which shows
Defendant Page transported Plaintiff exactly how he was supposed to pursuant to that policy.
(Dkt. No. 84-2). Plaintiff, forced to concede this point, speculates in his objections to the R & R

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that "the policy may have been violated in other aspects." (Dkt. No. 99 at 4-5). Such
speculation is insufficient to survive summary judgment. Plaintiff has put forward no evidence
that Defendants knew of an objectively serious risk of harm to Plaintiff from the manner in
which it was transported. Therefore, summary judgment is appropriate.
B. Medical Indifference Claim

Plaintiff must put forward evidence that Defendants were deliberately indifferent to a
serious medical need. E.g., Estelle v. Gamble, 429 U.S. 97, 104 (1976). A serious medical need
is "one that has been diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity for a doctor's attention." Iko v.

Shreve, 535 F.3d 225,241 (4th Cir. 2008). The deliberate indifference prong is met where an
officer "knows of and disregards the risk posed by the serious medical needs of the inmate." Id.
Plaintiff has failed to put forward evidence that any of the defendants were deliberately
indifferent to a serious medical need. Plaintiff is correct that his verified complaint is competent
evidence and can defeat summary judgment where it creates an issue of fact. (See Dkt. No. 99 at
3-4). However, Plaintiffs allegations, taken as true, do not show any deliberate indifference.
Taken in the view most favorable to Plaintiff, Plaintiff told Defendants that his "neck was
hurting," Plaintiff was then seen by a nurse at both the Horry County Detention Center and at the
Florence County Detention Center, and, in both instances, Plaintiff was given ibuprofen and told
he would be seen again ifhis neck continued to hurt. (Dkt. No.1 at 4,6). Each time Plaintiff
submitted a medical request form, he was seen by medical personnel. (ld. at 6-7). Similarly,
when staff heard Plaintiff's wheezing, they "immediately gave me a breathing treatment." (ld. at
6). Plaintitlhas simply failed to present any evidence of deliberate indifference. Therefore,
summary judgment is appropriate.

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C. Rule 56( d)
In his objections, Plaintiff also asks for additional time for discovery under Rule 56(d).
(Dkt. No. 99 at 2-3). However, "[n]on-movants must generally file an affidavit or declaration
before they can succeed on a 56( d) motion, or if not, non-movants must put the district court on
notice as to which specific facts are yet to be discovered." McCray v. Maryland Dep't of
Transp., lvlaryland Transit Admin., 741 F.3d 480,484 (4th Cir. 2014). Plaintiff has not has not

explained what facts he could discover with additional time. Therefore, his motion must fail.
Furthermore, "nonmovants do not qualify for Rule 56(d) protection where they had the
opportunity to discover evidence but chose not to." Id. Plaintiff states that he submitted
pleadings to the court requesting discovery. (Dkt. No. 99 at 2-3). However, the record reveals
that he filed a motion to compel after the close of discovery. (Dkt. No. 87); see also Local Rule
26.04, D.S.C. This case was filed in November of2013. (Dkt. No.1). However, it appears
Plaintiff never requested discovery until over a year later on December 1,2014. (Dkt. No. 87,
89). Rule 56( d) relief is not warranted under these circumstances, where Plaintiff did not seek
any discovery until after the discovery deadline. Therefore, his motion must fail for this reason
as well.
IV. Conclusion

For the reasons stated above, the Court ADOPTS the R & R (Dkt. No. 97) in full.
Accordingly, Defendants' motions for summary judgment (Dkt. Nos. 84,90) are GRANTED as
to Plaintiffs federal claims, the Court declines jurisdiction over Plaintiffs state law claims under
28 U.S.c. § 1367(c)(3), and this case is DISMISSED.
II

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AND IT IS SO ORDERED.

United States District Court Judge

'>

,2015
March \
Charleston, South Carolina

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