Opinion
Civil Action 4:21-cv-0031-DCC-TER
07-18-2023
MICHAEL FRASIER, # 215880, Plaintiff, v. DR. ALDEN, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
I. INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. Presently before the court is Defendant's Motion for Summary Judgment (ECF No. 89). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendant's motion could result in the motion being granted and his claims dismissed. Plaintiff filed a Response (ECF No. 78) All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(e), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
Plaintiff alleges in this action that Defendant, as well as other individuals not named as Defendants, were deliberately indifferent to his serious medical needs. He first alleges that he did not have access to immediate medical services due to a shortage of staff during the period of October 1, 2020, to November 25, 2020, during which there was an administrative quarantine lockdown. Plaintiff alleges that during this time he was suffering with pain from an acute abdominal abscess, as well as a pre-existing condition of COPD. Am. Compl. p. 6 (ECF No. 23). Plaintiff alleges that a corrections officer called the infirmary for him on December 5, 2020, in regards to continued complaints of abdominal pain. Although Plaintiff alleges he was denied medical attention on this date, he then admits he was given milk of magnesia during the pill line and an OTR (Order to Report) for December 7. Am. Compl. p. 8. Alden asserts he is not in possession of any documentation as to Plaintiffs alleged encounter on December 5, 2020. Further, neither party produces any medical records or other evidence with respect to Plaintiff's medical treatment prior to his first visit with Alden.
On December 7, 2020, Plaintiff alleges he passed out while waiting to go to the infirmary with an OTR. Plaintiff was taken to the infirmary and was seen by Alden. Am. Compl. pp. 8-9. This was the first time Alden saw Plaintiff regarding his abdominal pain. This is the first time they had a provider-patient relationship for this medical complaint. Upon assessment, Alden observed an abdominal abscess and immediately transferred Plaintiff to the Beaufort Memorial Hospital (BMH) Emergency Room for further evaluation and treatment. He also wrote an order for Plaintiff to receive a bottom bunk pass on December 7, 2020. Plaintiff underwent surgery and remained at BMH for post surgical care until December 14, 2020, upon which time he was transferred back to Ridgeland infirmary. Alden Aff. ¶¶ 3-4 (ECF No. 89-2); Pl. Med. Records SCDC 0481, 0487, 0490, 0492-0494 (ECF No. 89-3).
Post surgery, Plaintiff was required to wear a wound vac for three weeks for the purpose of healing the wound, and Plaintiff was required to remain in the Ridgeland infirmary for medical observation as long as the wound vac continued. Alden Aff. ¶ 4; Pl. Med. Records SCDC 0481, 0487. Although Plaintiff alleges he was denied post surgical care and treatment, Plaintiff states that the wound was cleaned while at Beaufort Memorial Hospital and the process continued daily while in the Ridgeland infirmary. Am. Compl. pp. 10-11. Medical records also confirm that Plaintiff was seen daily between December 14, 2021, and December 29, 2021, with the exception of two days. Pl. Med. Records SCDC 0411-0487. During these daily visits, his wound was assessed and his providers noted that it was healing well. Alden Aff. ¶ 6; Pl. Med. Records SCDC 0411-0487. Regardless, Plaintiff alleges that Defendant Alden displayed deliberated indifference and violated Plaintiff's constitutional rights by denying post operative care and treatment and that Defendant failed to monitor Plaintiff after surgery. Am. Compl. p. 12. However, there are no documented complaints from Plaintiff regarding his medical treatment during his stay in the infirmary. Alden Aff. ¶¶ 5-6.
Plaintiff also alleges that he failed to receive care after being released from the infirmary. He alleges that he was given an OTR that stated “every day to have Plaintiffs incisions cleaned and monitored” but that neither Defendant nor the nurses came to his housing unit or honored the OTR. Plaintiff alleges that his incisions continued to bleed and that he suffered in pain and physical stress. Am. Compl. p. 12. Medical records indicate that Plaintiff was assessed on December 29, 2020. It was noted that there were two very small slit openings remaining, with no signs or symptoms of infection. The wound was cleaned and the wound vac was removed. As the wound was healed almost completely, there was no further need for Plaintiff to remain in the infirmary and Plaintiff was able to return to the yard. At that time, instructions were given for self-care. Alden Aff. ¶ 6; Pl. Med. Records SCDC 0411-0413. Plaintiff was also given an order for return to clinic on Thursday, December 31. Pl. Med. Records SCDC 0411. However, there are no documented encounters in the medical records that this follow up appointment occurred. Additionally, Plaintiff always had the option of requesting a sick call, which are conducted on scheduled days and handled by the nursing staff, as well as the option of coming to the infirmary for an emergency visit at any point should any additional assistance be required. Alden Aff. ¶ 7.
Plaintiff further complains about not receiving bottom bunk as ordered by Defendant. Am. Compl. pp. 11-12, 13. Defendant ordered a bottom bunk pass for Plaintiff on December 7. Alden Aff. ¶ 3; Pl. Med. Records SCDC 0494. Although not named as a Defendant, Plaintiff alleges that the housing unit supervisor, Lt. Britton, was deliberately indifferent by not following Defendant Alden's orders. Moreover, records indicate that Plaintiff was seen by medical staff on January 13, 2021, for complaints of bleeding from his incision site and pain and reports of getting up onto and down from the top bunk. This encounter was forwarded to Defendant Alden who advised nursing staff to remind security that Plaintiff had orders for bottom bunk. Alden Aff. ¶ 8; Pl. Med. Records SCDC 0405. Plaintiff alleges that he fell from the top bunk on January 21, 2021. Am. Compl. p. 12. Plaintiff alleges that it was due to Defendant's deliberate indifference that he was constantly pulling himself up on to the top bunk. Am. Compl. pp. 12-13. However, Defendant Alden avers that his bunk orders are given to the nurses who then inform the security staff of the orders. The security staff are then responsible for implementing and enforcing the orders. Alden Aff. ¶ 8.
Plaintiff further alleges that he developed a painful lump between his two incisions that he alleges was a result of being denied post surgical care and treatment. Am. Compl. p. 13. Plaintiff was seen by medical staff during a sick call on March 2, 2021, at which time a bulge on his abdomen was observed. This encounter was forwarded to Defendant who advised to have Plaintiff be put on his list to be seen within the next two days. Defendant Alden did see Plaintiff for this issue on March 4, 2021. Upon observation, Defendant Alden noted Plaintiffs abdominal area was consistent with a hernia. Defendant Alden requested a referral to BMH Surgical Specialists and a CT. Alden Aff. ¶ 9; Pl. Med. Records SCDC 0383-0387. Plaintiff alleges the date and time was undetermined due to a shortage of staff at Ridgeland. Am. Comp. p. 13. However, Defendant Alden's referrals must first be approved by his superior, and Defendant Alden is not responsible for scheduling. Alden Aff. ¶¶ 9, 12. Moreover, records indicate an appointment was made with BMH Surgical Specialists for March 22, and BMH Surgical Specialists advised not to do the CT until Plaintiff was seen by them. Pl. Med. Records SCDC 0382. Plaintiff was seen by the BMH Surgical Specialists on March 22, and was issued an order for CT with contrast and lab work. The CT was scheduled for May 10, but was then later rescheduled for July 7, 2021. Pl. Med. Records SCDC 0370, 0348. Plaintiff was seen for the CT and surgical specialist visits on July 7. Records reflect that Plaintiff did have a large ventral hernia that required surgical repair. Plans were made for Plaintiff to have surgery when ready. However, records indicate that Plaintiff was not ready for surgery at that time. Alden Aff. ¶ 10; Pl. Med. Records SCDC 0340. Therefore, a follow up appointment was recommended in two months. Id.
Plaintiff did not return to medical for any reason until October 14, 2021, for complaints of a foot burn. Plaintiff was treated for his wound and records document that the surgery for hernia repair was to be delayed until the foot injury had resolved. It was further documented that Plaintiff was to follow up in January to discuss the surgery for hernia repair. Defendant Alden discussed with Plaintiff incarcerated or strangulated hernia symptoms and instructed him to seek immediate care if any such symptoms arose. Defendant Alden further instructed Plaintiff to request an appointment to follow up for the hernia surgery once the foot wound healed completely. Pl. Med. Records SCDC 0293. Records show that as of February 2023, Plaintiff was still receiving treatment for the burn to his foot. Add'l Med. Records (ECF No. 113-1). As of the date of his Affidavit, Defendant Alden was not aware of Plaintiff mentioning anything further about the surgery or following up as to the scheduling of the surgery. Alden Aff. ¶ 10 Aff. ¶ 10.
After filing his response to Defendant Alden's motion, Plaintiff filed a Motion (ECF No. 113) to present additional medical records. The records relate to Plaintiff's surgery in February of 2023 for his foot burn but reference Plaintiff's need for hernia repair surgery in the future. Plaintiff did not raise a claim for medical indifference in his amended complaint with respect to any treatment connected to his foot burn. However, Plaintiff's Motion (ECF No. 113) is Granted in that the additional records show that Plaintiff was still being treated for his foot burn as late as February of this year and, thus, had not yet received the hernia repair surgery. The February 2023 records indicate that Plaintiff “denies associated pain” with respect to the hernia. Add'l Med. Records p. 42.
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 87475 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging that Alden was deliberately indifferent to his serious medical needs. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A legal action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). To be successful on a claim under § 1983, a plaintiff must establish two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). As stated above, Plaintiff alleges violations of his constitutional rights, and it is undisputed that Dr. Alden was acting under color of state law at all relevant times.
“[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain” prohibited by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). To state a claim for deliberate indifference to a serious medical need, a plaintiff must show that he had serious medical needs and that the defendant acted with deliberate indifference to those needs. Heyer v. United States Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (citing Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)). 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, 535 F.3d at 241 (internal quotation marks omitted). To constitute deliberate indifference to a serious medical need, “the treatment [a prisoner receives] must be so grossly incompetent, inadequate, or excessive to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled on other grounds by Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Unless medical needs were serious or life threatening, and the defendants were deliberately and intentionally indifferent to those needs of which he was aware at the time, a plaintiff may not prevail. Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Farmer, 511 U.S. at 837, 114 S.Ct. 1970; Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986). A claim of deliberate medical indifference requires more than a showing of mere negligence, Estelle, 429 U.S. at 105-06, 97 S.Ct. 285, and “more than ordinary lack of due care for the prisoner's interests or safety.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986).
In response to Defendant's Motion, Plaintiff focuses his arguments on Alden's failure to timely issue an order for a bottom bunk, his release from the medical infirmary prior to being healed, and an overall lack of post-surgical care following his surgery. The record reflects that Alden ordered a bottom bunk on December 7, 2020, the same day he first saw Plaintiff for abdominal pain. However, he also transferred Plaintiff that same day to the Beaufort Memorial Hospital (BMH) Emergency Room for further evaluation and treatment of his abdominal abscess. Plaintiff remained at BMH until December 14, 2020, and when he returned to the detention center, he was placed in the infirmary for observation while he was on a wound vac. Plaintiff remained in the infirmary until December 29, 2020, when Alden determined he no longer needed to remain on the wound vac. Though Plaintiff was to return to medical for a recheck on December 31, 2020, there are no medical records for that date and it is not clear from the record why he did not return. However, Plaintiff did visit medical on January 13, 2021, because he was having some bleeding from his incision cite and the nurse noted a small amount of blood on his wound dressing. At that time, Plaintiff reported that he was having to jump up and down from a top bunk. Alden directed the nurses to advise security that Plaintiff has a lower bunk restriction. Alden avers that he makes orders for bunk restrictions and the nursing staff is responsible for providing that information to the security staff, who is then responsible for implementing the bunk restriction. Plaintiff asserts that even though Alden may have put in his medical records that Plaintiff was to be given a bottom bunk on December 7, 2020, he did not receive a bottom bunk “pass” until February 4, 2021. However, there is no evidence in the record to support this assertion. The record reflects that Alden immediately ordered a lower bunk restriction for Plaintiff on December 7, 2020, as soon as he learned of his abdominal abscess even though Plaintiff ultimately did not return to a cell until December 29, 2020. Alden then directed nurses to remind security of the lower bunk restriction on January 13, 2021, when Plaintiff complained of bleeding from his incision and that he was having to jump up and down from a top bunk. Plaintiff fails to show that Alden was deliberately indifferent to his serious medical needs with respect to his bunk placement.
Plaintiff also argues that Alden failed to provide proper post-surgical care following his hernia surgery and released him from the infirmary prematurely. The record indicates that Plaintiff was released from the infirmary on December 29, 2020. During his two weeks in the infirmary following his return from BMH, Plaintiff's incision was checked daily except for two days near Christmas. Plaintiff argues that he should not have been released from the infirmary when he was because he continued bleeding from his incision for two months. However, on the day he was released, there is no notation in the medical records of any bleeding from his incision. The first notation of a “small amt of blood” from the incision is on January 13, 2021, when Plaintiff requested to be seen and informed the medical staff that he had been jumping up and down from a top bunk. There are no further reports in the medical records regarding any bleeding from the incision site. Further, there is no evidence in the record that Alden knew that he was bleeding from the surgical site or that releasing him from the infirmary with some wound care to follow was in any way improper medical care/indifference to a medical need.
The record before the court indicates Plaintiff's next visit to medical was on March 2, 2021, for complaints of abdominal pain at the incision site. Plaintiff was seen by the nurse at that time, who observed an area between surgical incisions that protruded slightly. Accordingly, Plaintiff was placed on the schedule and was seen by Alden on March 4, 2021. On March 4, 2021, Alden observed that Plaintiff had “developed painful bulge mid abdomen which most likely represents an incisional hernia.” Pl. Med. Records SCDC 0376. Alden ordered a CT scan and requested a referral to a specialist, which was approved by his supervisor on March 8, 2021, and an appointment was scheduled with a BMH surgical specialist for March 22, 2021. The surgical specialist directed that Plaintiff's CT scan should wait until after he was seen by them. Plaintiff was seen by BMH Surgical Specialists on March 22, and was issued an order for CT with contrast and lab work for May 10, but was then later rescheduled for July 7, 2021. Plaintiff was seen for the CT and surgical specialist visits on July 7. Records reflect that Plaintiff did have a large ventral hernia that required surgical repair. Plans were made for Plaintiff to have surgery when ready. However, records indicate that Plaintiff was not ready for surgery at that time. Later, in October of 2021, Plaintiff suffered a burn to his right foot and Alden determined that any surgery for the hernia repair should wait until the burn injury had resolved. As of February of 2023, Plaintiff was still being treated for the burn injury. Records from February of 2023, make note of the need for the hernia repair surgery but also note that Plaintiff had no complaints of pain related to the hernia.
The records reflect that Plaintiff was supposed to report to medical on February 16, 2021, but did not show. Pl. Med. Records SCDC 0389.
Plaintiff originally filed this action on January 5, 2021, and filed an Amended Complaint on March 11, 2021. Thus, this action covers only Plaintiff's treatment by Alden up to the time of his Amended Complaint.
It is not clear from the record why this appointment was rescheduled.
Plaintiff fails to present sufficient evidence to show that his treatment by Alden rises to the level of deliberate indifference. “Although the Constitution does require that prisoners be provided with a certain minimum level of medical treatment, it does not guarantee to a prisoner the treatment ofhis choice.” Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988). A prisoner's difference of opinion over matters of expert medical judgment or a course of medical treatment do not rise to the level of a constitutional violation. Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985). Prison officials implement the type and amount of medical treatment at their discretion. See Allah v. Hayman, 442 Fed.Appx. 632, 635 (3d Cir. 2011) (holding that deliberate indifference standard “requires much more” than taking issue with the “amount and kind of medical care” an inmate received). The record shows that each time Plaintiff was seen by Alden he provided care and/or ordered examinations with specialists as appropriate. Because Plaintiff's complaints regarding abdominal pain were consistently addressed by Alden, he fails to show a constitutional violation and summary judgment is appropriate.
B. State Law Claims
To the extent Plaintiff asserts a state law claim for negligence, it is recommended that the court decline to exercise supplemental jurisdiction over that claim. Title 28 U.S.C. § 1367(c)(3) provides, in pertinent part, “[t]he district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction....” The Fourth Circuit has recognized that “trial courts enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.1995) (holding district court did not abuse its discretion in declining to retain jurisdiction over the state law claims). See also, e.g., United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Revene v. Charles County Comm'rs, 882 F.2d 870, 875 (4th Cir.1989). In determining whether to retain jurisdiction, courts consider “the convenience and fairness to the parties, existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan, 58 F.3d at 110. Here, the undersigned recommends that the district judge decline to retain supplemental jurisdiction over Plaintiff's state law claims. There are no issues of federal policy underlying the remaining state law claims. In addition, comity favors remand since the remaining claims are quintessential state law questions. In United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court cautioned that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a superfooted reading of applicable law....if the federal law claims are dismissed before trial ... the state claims should be dismissed as well.” Accordingly, should the district judge accept the recommendation with respect to Plaintiff's federal claims, it is recommended that the court decline to exercise jurisdiction over any remaining state law claim.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendant's Motion for Summary Judgment (ECF No. 89) be granted pursuant to Fed.R.Civ.P. 56, and this case be dismissed with prejudice.
The parties are directed to the important information on the following page.