BRISTOW MARCHANT, Magistrate Judge.
This action has been filed by the Plaintiff,
The Defendants filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. on April 4, 2017. As the Plaintiff is proceeding
Plaintiff alleges in his verified Complaint
Plaintiff alleges that during this time he made several verbal requests to be immediately taken to the hospital to have an x-ray or MRI done due to his injuries, which included complaints of a head concussion, headaches, internal bleeding from around the eardrum, and "massive" swollen eyes. However, Plaintiff alleges that the Defendant Captain Canning told him there was no need to take him to the emergency room because Plaintiff was able to carry on an "intelligent conversation" about what had happened. Plaintiff alleges that the "soreness and extreme pain" he sustained from his altercation with Bartlette then increased "several hours later", at which time Plaintiff again asked for medical treatment (i.e., to be transported to the hospital) from the Defendant Sergeant Fisher. Plaintiff further alleges that he "affirmed" this request with Captain Canning, Sergeant Burrison, and Lieutenant Gilbreath.
Plaintiff alleges that when the day shift nurses arrived, he was seen by Nurse Deborah Parks, who assessed his injuries and (according to the Plaintiff) "confirmed" that he should have been taken to the hospital. Plaintiff alleges that two other nurses, Amy Spencer and Judy Calvert, agreed with Nurse Parks' observations. However, after Plaintiff was transferred to ACI, a "Dr. Brynes" denied him any x-rays or an MRI.
Plaintiff alleges that he pursued his administrative remedies at the prison with respect to his complaints, and also wrote a letter to the Spartanburg County Sheriff's Department requesting that formal charges be brought against inmate Brandon Bartlette. However, Plaintiff alleges that he never got a response from the Sheriff's Department, even though he had been advised by the Defendants Captain Jonathan Nance and Major Barry Tucker about his "civil rights". Plaintiff seeks monetary damages for "medical negligence and malpractice" due to the alleged improper treatment of his "major trauma". He also seeks to have the Defendants reprimanded by the Department of Corrections for their "inappropriate professionalism" due to their "afore knowledge of prior bad acts sustained to other inmates" at TCI.
Plaintiff has also attached copies of his grievance forms to his Complaint. The response to Plaintiff's Step 1 grievance (in which Plaintiff requests that criminal charges be brought against Bartlette) states that Bartlette admitted to assaulting the Plaintiff on September 9, 2015, following which Plaintiff was transferred to ACI on September 10, 2015. This response also indicates that Plaintiff was referred to medical, that he was evaluated by the medical staff at both TCI on September 9, 2015 and ACI on September 10, 2015, and that Plaintiff was afforded appropriate medical care. Plaintiff appealed this grievance decision by filing a Step 2 Grievance appeal,
In an amendment to his Complaint filed November 17, 2016, Plaintiff alleges that SCDC policy was violated by the Defendant David Tatarsky because he failed to have criminal charges brought against inmate Bartlette, even though the Defendants Nance and Tucker had advised Tatarsky that Plaintiff "had that constitutional right". Plaintiff further alleges that Tatarsky "made polarizing and unprofessional excuses for the injuries as [Plaintiff's] health was not an accepted issued". However, Plaintiff's amendment fails to request any specific relief against the Defendant Tatarsky.
In support of summary judgment in the case, the Defendant Jermaine Burrison has submitted an affidavit in which he attests that he is a Sergeant at TCI, and that around 9:15 p.m. on September 9, 2015 he and Sergeant Jonathan Gregory were working a roll call count when they noticed that the Plaintiff was injured. Burrison attests that Plaintiff refused to identify his assailant, and that he then notified Captain Canning of Plaintiff's injuries and escorted Plaintiff to the upper yard, where he was placed in a holding cell. Burrison attests that while he was providing Plaintiff with a mattress, Plaintiff did identify his assailant, and Burrison then provided this information to his supervisor. Burrison attests that he made no medical related decisions concerning the evaluation or treatment of Plaintiff's injuries, as he is not a licensed medical professional and it is outside the scope of his duties to make such decisions. Rather, Burrison attests that medical decisions are made by SCDC's medical staff, and that as a corrections officer he follows the instructions provided by medical staff with respect to medical care provided to inmates.
The Defendant Joseph Canning has also provided an Affidavit in which he attests that he is a Major at the Trenton Correctional Institution, but that during the time relevant to Plaintiff's claims he was a shift captain at TCI. Canning attests that in his capacity as a shift captain, he became involved with the Plaintiff on the night of September 9, 2015 when Plaintiff, who was scheduled to be transferred to ACI the following day, was assaulted by his cell mate. Canning attests that he did not observe the assault because he was not in Unit 7, B-Wing, where Plaintiff was housed, when the incident occurred. Canning attests that he was made aware of the assault by a corrections officer who observed Plaintiff's injuries during a roll call count. Plaintiff was then escorted to the administration building in the upper yard, where Canning was stationed that evening.
Canning attests that neither he nor any of the corrections officers who dealt with the Plaintiff on the night of September 9, 2015 and the early morning hours of September 10, 2015 made any medical related decisions concerning the evaluation or treatment of Plaintiff's injuries. Rather, Canning attests that after Plaintiff was observed and interviewed in the Administration Building, Kirkland Correctional Institution (KCI) medical staff were contacted by phone for directions, as TCI does not have twenty-four hour medical staff. Canning attests that the established protocol for after hours medical issues at TCI is for corrections officers to contact KCI medical to obtain instructions from the KCI medical staff member on duty, and to follow that medical staff's instructions concerning any immediate course of treatment required. Canning attests that he is not a licensed medical profession and it is outside the scope of his duties to make medical decisions; he follows the instructions of SCDC's medical staff. Canning attests that the duty nurse at KCI advised them to provide Plaintiff with Tylenol and to schedule him to be seen by TCI's medical staff when they arrived later that morning. Canning attests that they followed those instructions, and that Plaintiff was evaluated by TCI medical staff when they arrived for their morning shift on September 10, 2015.
Canning attests that Plaintiff was then transferred to ACI as previously planned on September 10, 2015, and that he has had no contact with Plaintiff since his transfer. Canning further attests that, contrary to Plaintiff's allegations, neither he nor any other TCI officers decided not to send Plaintiff to a hospital or to have an outside medical facility evaluate him. Canning attests they followed the instructions of SCDC medical personnel.
Finally, Canning attests that he has attached as Exhibit A to his affidavit a true and accurate copy of the Management Information Note (MIN) that was entered concerning these matters, and which was prepared at or near the time of the events it describes. This attachment reads as follows:
The Defendant Jonathan Nance has also submitted an affidavit wherein he attests that during the relevant time period he was an Administrative Captain at TCI, and that he became involved with the Plaintiff when he participated in the investigation of the assault on the Plaintiff and assisted in bringing formal administrative disciplinary charges against the Plaintiff's cell mate. Nance attests that he has attached as Exhibit A to his affidavit a true and accurate copy of the Disciplinary Report and Hearing Record for Bartlette's administrative disciplinary case, which includes the punishment imposed. This document indicates that Inmate Brandon Bartlette was charged with a Code Violation 810, striking an inmate with or without a weapon. Bartlette pled guilty to this charge, and was sentenced to a thirty day loss of good time along with the suspension of various privileges.
Plaintiff has submitted forty-six pages of exhibits as attachments to his memorandum in opposition to the Defendant's motion. These exhibits include several documents wherein Plaintiff is complaining about the handling of his grievance, including a Request to Staff Member form addressed to the Director of the SCDC complaining that he was "denied immediate medical attention" by Captain Canning after he had been assaulted by Brandon Bartlette. One of Plaintiff's handwritten exhibits (which Plaintiff contends was a response from the Defendant Tatarsky to one of his complaints) reads that: "Upon review of the documentation concerning this incident, we found that at the time of the assault, you would not identify your attacker. Your medical encounter show that since this incident, you have been seen by medical approximate 20 times. This assault was investigated by the Institution and not the division of police services". Plaintiff apparently responded to this notification by asking "how to go about having a street charge brought against" Bartlette. As part of another document, Plaintiff indicates that his mother had notified the "Investigations Division of Spartanburg County which has jurisdiction of such case", but that they had "denied her the right to have charges" brought against Bartlette.
Plaintiff has also submitted (as his Attachment C) copies of what purport to be medical summaries from SCDC Health Services. Consistent with the statements provided in Defendants' affidavits, these documents show that Plaintiff was seen by Registered Nurse Deborah Parks at TCI on the morning of September 10, 2015. Nurse Parks noted that when the Captain had called reporting that Plaintiff had been assaulted, he reported that Plaintiff had some swelling on his face with small lacerations but no active bleeding. This medical note also confirms that the officer was instructed to have Plaintiff report to medical in the a.m. Plaintiff was then brought to medical at 6:05 a.m., where he was noted to have very bruised and swollen areas on his left ear (no dried blood was found in his ear canal) as well as superficial lacerations in the left cheek area and an abrasion on the left of the head above the left ear. Plaintiff also had some red areas on his left shoulder and left side of his neck, with no swelling. The medical summary indicates that Plaintiff's wounds were cleaned with wound cleaner and antibiotic ointment, and that the wounds on Plaintiff's ear were covered with some type of dressing. The medical entry note further states that Plaintiff "denies any other problems except [states] legs and hips sore. But no redness or bruising noted to them. [States] as far as he knows was hit with roommate's fist. [Inmate] is being transferred today and will call and give [ ] report to Allendale nurses".
These medical summaries next show that when Plaintiff arrived at ACI it was noted that he had been assaulted on September 9, 2015, prior to his transfer, and that he presented with extreme redness on his face. The medical summaries indicate that the following day Plaintiff complained that he was bleeding out of his left ear. It was noted at that time that Plaintiff had some cuts in his left ear canal, and he was provided with some earwax drops. Plaintiff was seen again later that day for a dressing change, and it was noted that when the dressing was removed from Plaintiff's lower leg, the "area was completely healed". A subsequent medical entry for September 15, 2015 includes the notation "inmate [states] ear is fine now". Plaintiff was then seen again the following day, September 16, 2015, where Plaintiff complained that in the last twenty four hours his eyes were itchy, swollen and burning. The medical note reflects that Plaintiff had been in an altercation before arriving at ACI. The skin on his head and face appeared natural in color, and Plaintiff was advised that his eyes would be slightly swollen from the altercation.
On September 17, 2015 the doctor noted that Plaintiff's abrasions looked "much better", with "diffuse swelling over both cheeks". Plaintiff was provided with some medications. A medical entry for September 18, 2015 reflects that Plaintiff reported that he had been in a fight and been hit in his left jaw, and that he was worried about whether his jaw was fractured. On examination no swelling or abrasions were noted, and things appeared normal. Plaintiff was advised that his ridges were intact with no obvious fracture, but that if he had any problems he would be referred to "OS". It was further noted that Plaintiff had been scheduled for surgery at the hospital on October 16, 2015, but that this surgery was for a bilateral inguinal hernia repair, not for anything relating to his fight with Bartlette. On September 22, 2015 it was noted that Plaintiff's faciale with swelling had "resolved", although Plaintiff was going to have an x-ray due to his continued complaints of pain.
Plaintiff's Exhibit C also includes records concerning other medical conditions or issues Plaintiff had, including a history of partial complex seizures. Some of these records go as far back as 2006. Plaintiff's exhibits also include copies of his administrative filings through the SCDC grievance process.
Summary judgment shall be rendered forthwith if the pleadings, 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 judgment as a matter of law. Rule 56, Fed.R.Civ.P. The moving party has the burden of proving that judgment on the pleadings is appropriate.
Here, after careful review and consideration of the arguments and evidence submitted in this case, the undersigned finds for the reasons set forth hereinbelow that the Defendants are entitled to summary judgment in this case.
First, Plaintiff cannot obtain criminal charges against Bartlette through the filing of this lawsuit.
Additionally, with respect to Plaintiff's demand that some or all of these Defendants be reprimanded or otherwise disciplined for their allegedly improper decisions or job performances, the federal courts are not personnel directors of state prison systems. Therefore, such relief is also unattainable in this action.
With respect to Plaintiff's claim that he did not receive adequate medical care for his injuries following his fight with Bartlette, Plaintiff has provided no evidence whatsoever to show that any of the Defendant prison guards, or Tatarsky (SCDC legal counsel who was not even present), ever made any decision to deny him medical care, or were even authorized to make such a decision. To the contrary, the evidence provided to this Court (including Plaintiff's own exhibits) confirm the Defendants' affidavit testimony that when Plaintiff's inquiries were brought to their attention they contacted medical personnel at KCI and followed the instructions they received.
The correctional officers present at the prison following Plaintiff's altercation with Bartlette were entitled to rely on the judgment and decisions made by the contacted medical professionals, who advised them what steps to take and who then saw Plaintiff early that morning and again later that day.
There is therefore no genuine issue of fact presented as to whether any named Defendant violated Plaintiff's constitutional rights by failing to provide him with necessary emergency medical care.
Moreover, even if Plaintiff had named one of the medical professionals who saw the Plaintiff and provided him care for his injuries as a party Defendant in this case (which he has not), his medical claim would still be subject to dismissal. As noted, in order to avoid summary judgment and proceed with a claim for denial of medical care as a constitutional violation, Plaintiff must have presented evidence sufficient to create a genuine issue of fact as to whether a named Defendant was deliberately indifferent to his serious medical needs.
He was seen by medical personnel at TCI at 6:05 a.m. the morning after the evening when he was assaulted by Bartlette, and he was seen again by medical personnel (twice) when he arrived at ACI later that day. None of the affidavits or medical records submitted, including Plaintiff's own medical evidence and exhibits, show that any of these medical personnel were deliberately indifferent to a serious medical need or condition of the Plaintiff. Rather, these medical records show that Plaintiff had some bruised and swollen areas on his left ear, an abrasion on the left of his head above the left ear, some red areas on his left shoulder and left side of his neck with no swelling, and some lacerations in the left cheek area, all of which were deemed to be minor or superficial. The evidence further shows that Plaintiff received treatment for these injuries in the hours after they were incurred, with Plaintiff's own medical exhibits showing that he thereafter continued to receive regular followup care.
Plaintiff may, of course, pursue a claim in state court if he believes that the medical care provided to him constitutes malpractice.
Finally, although it does not appear that Plaintiff has intended to assert a failure to protect claim against any of the named Defendants, even if he had, Plaintiff has provided no evidence to support such a claim.
In order to avoid summary judgment and proceed with such a claim, Plaintiff would need to have presented evidence to show that a named Defendant violated his constitutional rights by being deliberately indifferent to the danger posed to him by the Defendant Bartlette.
The only allegation Plaintiff even makes in this case that could be construed as addressing such a claim is where he alleges in his Complaint that the Defendants should be reprimanded by the Department of Corrections for their "inappropriate professionalism" due to their "aforeknowledge of prior bad acts sustained to other inmates" at TCI. However, Plaintiff has provided no evidence to support any such assertion, and this conclusory allegation in the Complaint is simply not sufficient to establish the level of knowledge or responsibility required to maintain a failure to protect claim.
Therefore, to the extent Plaintiff has even intended to assert any such claim, it is subject to dismissal.
Based on the foregoing, it is recommended that the Defendants' motion for summary judgment be
The parties are referred to the Notice Page attached hereto.
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a 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.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
