Hicks v. Janiszewski et al
MEMORANDUM OPINION AND ORDER DENYING CERTAIN DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE AND SCHEDULING STATUS AND SCHEDULING CONFERENCE re: 62 Motion for Summary Judgment and 65 Motion to Strike. It is hereby ORDERED tha t a status and scheduling conference shall be conducted regarding this civil action on June 1, 2015 at 1:15 p.m. The parties are DIRECTED to appear by counsel in the chambers of Judge Frederick P. Stamp, Jr. Signed by Senior Judge Frederick P. Stamp, Jr. on 4/27/2015. (copy to counsel of record via CM/ECF) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 5:13CV140
Northern Regional Jail,
JOHN DOE, Doctor,
Northern Regional Jail,
JERRY HAHN, M.D., Doctor
and JAMES SPENCER,
MEMORANDUM OPINION AND ORDER
DENYING CERTAIN DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
AND MOTION TO STRIKE AND
SCHEDULING STATUS AND SCHEDULING CONFERENCE
The plaintiff, a state inmate who is now represented by
counsel, instituted this civil action pursuant to 42 U.S.C. § 1983.
He alleges a claim of deliberate indifference to his serious
The claims arise from an injury to the plaintiff’s hand
and the medical treatment prescribed, which will be more thoroughly
discussed below. Due to the alleged delay of medical treatment for
his injury, the plaintiff asserts that he has a deformed hand, and
seeks money damages as relief.
Previously, the defendants, who were initially identified as
Cecilia Janiszewski and Dr. John Doe, filed a motion to dismiss.
The then-pro se1 plaintiff filed both a response in
opposition, as well as a motion for summary judgment.
ECF No. 22.
United States Magistrate Judge James E. Seibert then entered a
report and recommendation, finding that the plaintiff sufficiently
stated a claim for deliberate indifference to his medical needs,
and that qualified immunity did not apply to those defendants.
to defendant Dr. John Doe, the magistrate judge recommended that if
the defendants did not waive the affirmative defense of failure to
additional thirty days to properly identify Dr. John Doe so that he
could be properly served.
The defendants filed objections to that
report and recommendation.
This Court affirmed and adopted the magistrate judge’s report
Following that ruling, the
plaintiff filed a motion file an amended complaint, which this
ECF Nos. 43 and 44, respectively.
complaint clarified the following: (1) identified defendant “John
Doe” as Jerry Hahn, M.D.; and (2) identified James Spencer as an
Janiszewski timely answered the amended complaint.
defendants”) have now filed a motion for summary judgment, which is
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer. Black’s Law
Dictionary 1416 (10th ed. 2014).
currently at issue.
ECF No. 62.
In that motion, the defendants
claim that the plaintiff failed to submit any additional evidence
to support his deliberate indifference claim. Next, the defendants
argue that they are entitled to qualified immunity.
Court rejected that argument in its prior ruling, the defendants
constitutional rights, qualified immunity should apply.
reasons, the defendants request that this Court grant their motion.
In response, the plaintiff2 first argues that the defendants
were aware of his injuries.
ECF No. 64.
He points to his numerous
complaints and grievances, which allegedly went unanswered. Id. at
Next, the plaintiff argues that his medical condition was
As to that medical condition, the plaintiff
claims that the defendants were deliberately indifferent to his
treatment before the plaintiff received his delayed surgeries.
Following the plaintiff’s response, the defendants filed a
motion to strike the plaintiff’s response, or in the alternative,
ECF No. 65.
In that reply, the defendants first argue
that the Court should strike the plaintiff’s response in opposition
In particular, the defendants contend that the
Although the plaintiff initially proceeded pro se, it appears
that he is now represented by counsel. ECF No. 61.
The defendants also believe that the plaintiff failed to
meet his burden of proof under his deliberate indifference claim.
For those reasons, the defendants request that this Court grant
their motions to strike and for summary judgment.
The plaintiff then responded in opposition to the defendants’
motion to strike.
ECF No. 66.
In that response, the plaintiff
argues that Local Rule of General Procedure 5.06(g) extends the
response deadline for motions for summary judgment by three days.
Because of that, the plaintiff claims that he timely filed his
Therefore, the plaintiff believes that the defendants’
motion to strike should be denied.3
For the reasons set forth below, the defendants’ motions to
strike and for summary judgment must be denied. Further, the Clerk
is directed to enter an entry of default as to defendant James
The plaintiff, after punching a wall in his cell, suffered a
metacarpal of his right hand.
ECF No. 64 Ex. 5.
That injury occurred on August 24,
After the pain and swelling in his hand
increased, the plaintiff immediately sought medical attention.
Further, it appears that defendant James Spencer has failed
to plead or otherwise defend against the amended complaint served
upon him. See ECF No. 50.
received an over-the-counter pain reliever and an ice pack, and
then received x-rays the following day.
Although the pain and
swelling persisted in his hand, the plaintiff continued to only
receive pain relievers and ice packs.
Because that treatment
failed to alleviate his pain, the plaintiff filed five grievances
between the end of August and end of September requesting proper
medical attention. Id. Those grievances allegedly went unanswered
by the defendants.
Twenty-six days later, on November 7,
2012, the plaintiff finally underwent surgery for his broken hand,
in which several pins were implanted.
Following that surgery, the plaintiff claims that his surgeon
requested that the defendants return the plaintiff for a follow-up
surgery in order to remove the pins implanted in his hand.
follow-up surgery was intended to occur within two to three weeks
from the date of his initial surgery, which would have been by the
end of November or December 2012.
ECF No. 62 Ex. C.
however, shows that the pins were not removed until January 17,
grievances, wherein he requested that he be taken to his surgeon in
order to have the pins removed.
ECF No. 64 Ex. A.
Because of the
experienced great pain while the pins remained in his hand.
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
party seeking summary judgment bears the initial burden of showing
the absence of any genuine issues of material fact.
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
“The burden then
shifts to the nonmoving party to come forward with facts sufficient
to create a triable issue of fact.”
Temkin v. Frederick County
Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
However, as the Supreme Court of the United States noted in
Anderson, “Rule 56(e) itself provides that a party opposing a
properly supported motion for summary judgment may not rest upon
the mere allegations or denials of his pleading, but . . . must set
forth specific facts showing that there is a genuine issue for
trial .” Anderson, 477 U.S. at 256.
“The inquiry performed is the
threshold inquiry of determining whether there is the need for a
trial—whether, in other words, there are any genuine factual issues
that properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.”
Id. at 250;
see also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th
Cir. 1979) (Summary judgment “should be granted only in those cases
where it is perfectly clear that no issue of fact is involved and
inquiry into the facts is not desirable to clarify the application
of the law.” (citing Stevens v. Howard D. Johnson Co., 181 F.2d
390, 394 (4th Cir. 1950))).
In Celotex, the Court stated that “the plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
essential to that party’s case, and on which that party will bear
the burden of proof at trial.”
Celotex, 477 U.S. at 322.
judgment is not appropriate until after the non-moving party has
had sufficient opportunity for discovery.
See Oksanen v. Page
Mem’l Hosp., 912 F.2d 73, 78 (4th Cir. 1990), cert. denied, 502
U.S. 1074, 112 S. Ct. 973, 117 L.Ed.2d 137 (1992).
the supported underlying facts, all inferences must be viewed in
the light most favorable to the party opposing the motion.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986).
The defendants argue that although the plaintiff suffered a
medical condition that required treatment, insufficient evidence
exists that proves they acted with deliberate indifference. In the
alternative, they also believe that they are entitled to qualified
The plaintiff contends that genuine issues of material
fact exist about whether the defendants acted with deliberate
indifference towards his medical needs.
As will be discussed
below, this Court agrees that genuine issues of material fact exist
as to the plaintiff’s claims.
Before proceeding any further, this Court will first rule on
the defendants’ motion to strike.
The defendants claim that the
plaintiff’s response to their motion for summary judgment is
untimely, and thus should be stricken.
Under both the Federal
Rules of Civil Procedure and this Court’s local rules, however, the
plaintiff’s response is timely.
See Fed. R. Civ. P. 6; L. R. Gen.
Therefore, this Court will consider the plaintiff’s
response in making its ruling.
Thus, the defendants’ motion to
strike is denied.
In order to state a claim under the Eight Amendment for
ineffective medical assistance, a plaintiff must show that the
defendant acted with deliberate indifference to his serious medical
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
condition is serious in two circumstances.
First, a serious
medical condition exists when a physician has diagnosed that
condition as mandating treatment, or the condition is so obvious
that even a lay person would recognize the need for medical care.
Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st
Cir. 1990), cert. denied, 500 U.S. 956 (1991).
Second, a medical
condition is serious if a delay in treatment causes a lifelong
handicap or permanent loss. Monmouth County Corr. Inst. Inmates v.
Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S.
Moreover, to succeed on an Eighth Amendment “cruel and unusual
punishment” claim, a prisoner must prove the following elements:
“sufficiently serious” and (2) the prison official subjectively
acted with a “sufficiently culpable state of mind.”
Seiter, 501 U.S. 294, 298 (1991). This second subjective component
indifference, the United States Court of Appeals for the Fourth
Circuit held that “[t]o establish that a health care provider’s
actions constitute deliberate indifference to a serious medical
need, the treatment must be so grossly incompetent, inadequate, or
excessive as to shock the conscience or to be intolerable to
Miltier v. Beorn, 896 F.2d 848, 851 (4th
indifferent, the official must have ‘actual knowledge of the risk
of harm to the inmate’ and also ‘must have actually known that
their response was inadequate to address those needs.’” Coleman v.
Poff, 497 F. App’x 337, 339 (4th Cir. 2012) (quoting Iko v. Shreve,
Moreover, “the plaintiff must prove three things: (1) subjective
knowledge of a risk of serious harm; (2) disregard of that risk;
[and] (3) by conduct that is more than [gross] negligence.”
Goebert v. Lee County, 510 F.3d 1312, 1327 (11th Cir. 2007)
(quoting Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005)
(internal citations omitted)).
Those three elements are questions
See Goebert, 510 F.3d at 1327.
Regarding the first prong of analysis, the plaintiff’s injury
was sufficiently serious.
This is proven by the fact that the
plaintiff’s surgeon and defendant Jerry Hahn identified the need
ECF No. 63 Ex. B and C.
Therefore, because the
plaintiff’s injury required treatment, which were two surgeries
that required the implanting and the removal of metal pins, the
condition is sufficiently serious.
With the first prong of the
deliberate indifference analysis satisfied, the remaining issue is
whether the defendants acted with deliberate indifference to that
serious medical condition.
As to that second prong, the facts and the evidence proffered
by the parties do not resolve that remaining issue.
point out that delays may have occurred regarding both the initial
surgery and the follow-up surgery to remove the metal pins.
Indeed, the defendants concede that “there was some delay in [the
plaintiff] returning for the scheduled pin removal from his hand.”
ECF No. 63.
The causes and reasons for those delays, however,
remains disputed. The defendants assert that regarding the initial
Due to that busy schedule, the surgeon allegedly had no
Further, as to the delay in removing the pins, the defendants
transportation from the jail.” Id. The plaintiff, however, points
to the many grievances that he filed in order to not only obtain
the initial surgery, but also to be taken to the surgeon to have
the pins removed.
ECF No. 64.
respond to those grievances.
The defendants allegedly failed to
In addition to the grievances, the
plaintiff contends that the care he did receive, which allegedly
amounted to only ice packs and pain relievers, was well-below
inadequate. Such a level of inadequate treatment, according to the
plaintiff, shows a deliberate and conscious disregard by the
defendants of his medical condition.
The parties both proffer affidavits, copies of the grievances,
and certain medical documentation in support of their arguments.
After reviewing that evidence, however, it is clear that genuine
issues of material fact exist.
Those pieces of evidence fail to
definitely prove that the defendants did or did not act with
deliberate indifference, which is a question of fact. See Goebert,
510 F.3d at 1327 (“Whether a particular defendant has subjective
knowledge of the risk of serious harm is a question of fact . . . .
Disregard of the risk is also a question of fact that can be shown
by standard methods.”) (citing Farmer, 511 U.S. at 842, 846). More
plaintiff’s claim of deliberate indifference to a serious medical
Therefore, because genuine issues of material fact remain,
the defendants’ motion for summary judgment must be denied.
In their motion for summary judgment, the defendants also
particular, they assert that because the evidence “clearly show[s]
that [the defendants] were not deliberately indifferent to any
serious medical need,” they did not violate a constitutional right.
ECF No. 63. Thus, they contend that they are entitled to qualified
Under Saucier v. Katz, 533 U.S. 194, 201 (2001), an
analysis of a qualified immunity defense requires a two-part
The first question is whether the facts alleged, when
viewed in the light most favorable to the injured party, “show the
officer’s conduct violated a constitutional right.”
facts alleged fail to make this showing, the inquiry is at an end,
and the official is entitled to summary judgment.
however, the facts alleged do show a constitutional injury, the
second question is whether the constitutional right was clearly
established at the time of the violation.
qualified immunity is abrogated only upon a showing that the
officer’s conduct violated a constitutional right and that such
right was clearly established at the time the conduct occurred.
Id.; Hill, 737 F.3d at 321.
To determine whether a right is
“clearly established in a qualified immunity case, ‘the contours of
the right must be sufficiently clear that a reasonable officer
would understand that what he is doing violates that right.’”
Hill, 727 F.3d at 321 (quoting Wilson v. Layne, 526 U.S. 603, 615
infliction of pain.
That right includes a prohibition against the
deliberate indifference by a prison official to a serious medical
need of a prisoner.
Estelle, 429 U.S. at 104.
earlier, however, whether the defendants acted with deliberate
indifference, which would violate the plaintiff’s Eighth Amendment
defendants assert, it is uncertain whether the defendants were or
As stated in Engle v. Townsley, 49 F.3d 1321, 1323
(8th Cir. 1995), “[n]ot every immunity question can be decided on
summary judgment, however, for there may be disputed issues of
material fact which prevent it.”
See Longoria v. Borg, 28 F.3d
106, *2 (9th Cir. 1994) (mem. op.); Arnott v. Mataya, 995 F.2d 121,
124 (8th Cir. 1993) (affirming the denial of summary judgment
regarding qualified immunity where genuine issues of material fact
exist as to whether or not the defendant’s conduct clearly violated
established law); see generally Anderson v. Creighton, 483 U.S.
635, 641 (1987). The applicability of qualified immunity regarding
the existence of a clearly established right is a question of law.
Curley v. Klem, 499 F.3d 199, 224 (3d Cir. 2007); see Melton v.
City of Okla. City, 879 F.2d 706, 727 (10th Cir. 1989) (citing
Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)).
As to whether a
constitutional violation was committed, however, that issue can be
a jury issue, meaning an issue of fact.
Curley, 499 F.3d at 224;
see Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th
Cir. 2004); Turner v. Arkansas Ins. Dept., 297 F.3d 751, 754 (8th
Cir. 2002); McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000);
see also Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005)
precludes a conclusive ruling on qualified immunity at the summary
judgment stage, the district court should submit factual questions
to the jury and reserve for itself the legal question of whether
the defendant is entitled to qualified immunity on the facts by the
Based on the facts and law before it, this Court finds
that the defendants are not entitled to qualified immunity because
genuine issues of material fact exist as to whether the defendants
violated the plaintiff’s constitutional right.
For the reasons set forth above, the defendants’ motion to
strike the plaintiff’s response (ECF No. 65) and motion for summary
judgment (ECF No. 62) are DENIED.
It is hereby ORDERED that a
status and scheduling conference shall be conducted regarding this
civil action on June 1, 2015 at 1:15 p.m.
The parties are DIRECTED
to appear by counsel in the chambers of Judge Frederick P. Stamp,
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
April 27, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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