Waldrup v. Mueller

Full title: Richard Douglas Waldrup, # 20170291, Plaintiff, v. Sheriff Steve Mueller…

Court: UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

Date published: Feb 21, 2019

CIVIL ACTION NO. 9:18-0354-HMH-BM (D.S.C. Feb. 21, 2019)

Opinion

CIVIL ACTION NO. 9:18-0354-HMH-BM

02-21-2019

Richard Douglas Waldrup, # 20170291, Plaintiff, v. Sheriff Steve Mueller and Captain Robert Padgett, Defendants.

Bristow Marchant United States Magistrate Judge

REPORT AND RECOMMENDATION

This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. § 1983. Plaintiff, a pre-trial detainee at the Cherokee County Detention Center, alleges violation of his constitutional rights by the named Defendants.

The Defendants filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on September 21, 2018. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on September 25, 2018, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to respond adequately, the Defendants' motion may be granted, thereby ending his case. Plaintiff thereafter filed memoranda in opposition to the Defendants' motion for summary judgment on October 1, 2018, and October 15, 2018.

The Defendants' motion is now before the Court for disposition.¹

1 This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), D.S.C. The Defendants have filed a motion for summary judgment. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.

Background and Evidence

Plaintiff alleges in his verified Complaint² that on or around June 10, 2017 he was denied medical care while detained at the Cherokee County Detention Center. Plaintiff alleges that after a "couple [of] months of being locked up" he noticed a growth of some sort growing on his left shoulder. Plaintiff alleges that then he "started seeing medical" for this complaint, but as time went by the growth "grew and started causing pain and numbness". Plaintiff alleges that after writing "sick calls & grievances" he was sent to a hospital as well as to see a "general surgeon", neither of which did anything because (Plaintiff alleges he was told by the Defendant Padgett, a Captain at the jail) it was his [Plaintiff's] responsibility to pay for, or have his family pay for, the medical care or treatment that was required, not the Detention Center.

2 In this Circuit, verified complaints by pro se litigants are to be considered as affidavits and may, standing alone, defeat a motion for summary judgment when the allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).

Plaintiff concedes that after he noticed the growth on his shoulder and started feeling discomfort, he was seen by the nurse at the Detention Center after he submitted a medical request form, and that the Detention Center nurse then referred Plaintiff to see the doctor at the Detention Center. Plaintiff alleges that the doctor documented the swelling and prescribed Plaintiff an anti-inflammatory for his condition. Nonetheless, Plaintiff alleges that at as time progressed, his condition got worse. Plaintiff alleges that after he continued to complain about his condition, he was taken to the local hospital to see another doctor, who advised the transport officer (a Sergeant "Ricci") that the growth was not a cyst or boil but was another type of growth of some sort. Plaintiff further alleges that the doctor at the hospital told him that he needed to have a biopsy taken of the growth, and that she (the doctor) thereafter put in a request for Plaintiff to be seen by a general surgeon. However, Plaintiff alleges that it was not until "maybe a month later", after he submitted more complaints, that he was finally taken to the general surgeon, but that since no one assumed responsibility for paying for the treatment Plaintiff needed, he was taken back to the Detention Center. Plaintiff alleges that he has "yet to have a biopsy or whatever procedure is necessary to remedy the problem".

Plaintiff also alleges that the surgeon had requested that he be returned to the hospital to have an MRI done, but that when he was taken back to the hospital for this procedure, the hospital was advised that the jail would not pay for the MRI, and that he was therefore returned to the jail without having the MRI performed. Plaintiff further alleges that he was told by the person at the hospital (identified only as "she") that Plaintiff had health insurance in North Carolina, and that he was asked whether Plaintiff want her to contact them. However, when she did so the insurance company also refused to pay after being advised that Plaintiff was in the Cherokee County Jail. Plaintiff alleges that the continued growth on his shoulder and his failure to receive necessary medical treatment for his condition are due to the Defendants Sheriff Mueller and Captain Padgett's refusal to pay for the procedure, even though he is an inmate in the County jail. Plaintiff seeks monetary damages. Plaintiff has attached to his Complaint as exhibits copies of his Inmate Grievance forms. See, generally, Verified Complaint, with attached Exhibits.

In support of summary judgment in the case, the Defendants have provided copies of some of Plaintiff's medical records from the Mary Black Health System and Mary Black Physicians Group - Orthopedics (Gaffney). The records provided show that Plaintiff was seen at the Mary Black Health System (Gaffney) on April 15, 2017 for treatment of injuries incurred during an attempted burglary Plaintiff had committed on that date.³ This report indicates that at discharge Plaintiff was alert and oriented X 3, and that he had no cognitive and/or functional deficits noted. Plaintiff's bleeding was noted to be controlled, dressing had been applied to his injuries, and he had an armband placed on his right wrist. See Defendants' Exhibit (Court Docket No. 43-2, pp. 9-11). Plaintiff was assessed with chest wall pain and multiple contusions and was advised to return to the emergency department if his symptoms worsened or persisted. Id., p. 14. There is nothing in this evidence pertaining to any growth on Plaintiff's shoulder.

3 Plaintiff states as part of the allegations of his verified Complaint that he was arrested by the Cherokee County Sheriff's Department on April 15, 2017 for first degree burglary, and that prior to his arrest he had been "violently assaulted" by one of the residents of the home he was accused of burglarizing. Plaintiff further alleges that after being treated for his injuries at the hospital, which consisted of (but not limited to) lacerations to his face, cracked or broken ribs, and bruises to his shoulders and torso, he was transported to the Cherokee County Detention Center. See Complaint (Court Docket No. 1), p. 7.

The next records contained in Defendants' exhibits are from the Mary Black Health System (Gaffney) dated October 16, 2017. On that date, Plaintiff presented with a complaint of a mass on his right shoulder that had been present for approximately two to three months. Plaintiff complained that the mass, which was noted to be approximately five centimeters in diameter, had been rapidly growing and was becoming increasingly painful. A sepsis protocol was conducted, and it was determined that the mass was "not suspicious for sepsis". Id., pp. 1-2. Even so, it was noted that Plaintiff's "presenting complaint qualified as a certified emergency". Id., p. 4. It was also noted that the growth did not appear to be an abscess, and the impression was a mass to the left trapezius area, questionable cellulitis. Plaintiff condition was noted to be "stable". Id., pp. 5-6. Plaintiff was to followup with Dr. Robert Hennon. Id., pp. 6-8.

The Defendants' remaining exhibits include a treatment report from the Mary Black Physicians Group Orthopedics (Gaffney) dated December 12, 2017, where Plaintiff presented with a complaint of left shoulder pain due to a growth/knot on his left shoulder. Plaintiff stated that the growth had started approximately four to five months previous and had been progressively getting bigger and his pain was getting worse. Plaintiff was noted to be receiving various medications, which were refilled. The patient summary further indicated that Plaintiff had recently been seen at the emergency room and was told that he would need further followup for this condition. On examination Plaintiff was noted to have a "large subcutaneous mass left supraspinatus area posterior to clavicle. This appears to subcutaneous and is somewhat mobile non fluctuant with mild tenderness and no warmth". Plaintiff was assessed with a mass on his left shoulder that was probable lipoma (benign lipomatous neoplasm of skin and subcutaneous tissue) of the left arm. However, the patient instructions (per Dr. Frank Phillips) noted that it was not typical for a lipoma to cause the amount of pain in the neck and arm that Plaintiff was complaining of, so the doctor recommended that an MRI be done to evaluate Plaintiff's mass to make sure they were not dealing with any atypical issue. Pending this MRI, Plaintiff was to take Ibuprofen three times a day and start shoulder and neck exercises. Dr. Phillips indicated that he would see Plaintiff back after he had had his MRI. Id., pp. 30-32.

As attachments to his response in opposition to the Defendants' motion, Plaintiff submitted some of these same medical documents along with a copy of his discharge instructions from his October 16, 2017 visit to the Mary Black Health System (where he was seen by Dr. John Flood). Plaintiff's discharge instructions include a notation that Plaintiff was to have a followup appointment scheduled with Dr. Robert Hennon (apparently a general surgeon). See Plaintiff's Exhibit (Court Docket No. 48-1, p. 3). Plaintiff also submitted some additional medical forms as an attachment to a document styled "Evidence for Civil Suit" (Court Docket No. 28), which includes some documents from the Detention Center showing medical requests and various treatment Plaintiff received on different dates. One of these documents is an "Imaging Order" from December 12, 2017, which indicates that Plaintiff had been diagnosed with "benign lipomatous neoplasm of skin and subcutaneous tissue of left arm", that an MRI of his shoulder had been ordered, but that (apparently) the MRI had not been performed because the provider "could not determine [insurance] eligibility". There was a notation on this Imaging Order to "[p]lease call the insurance company to verify eligibility or try again later". See Court Docket No. 28-1, p. 15; see also, Id., p. 18.

Discussion

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. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991). Once the moving party makes this showing, however, the opposing party must respond to the motion with specific facts showing there is a genuine issue for trial. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). Further, while the Federal Court is charged with liberally construing a complaint filed by a pro se litigant to allow for the development of a potentially meritorious case, see Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972), the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a Federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4^th Cir. 1990).

Here, after careful review of the evidence and arguments presented, the undersigned concludes that the Defendants' motion for summary judgment must be denied. Since Plaintiff is a pre-trial detainee, his claims are evaluated under the due process clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). However, for purposes of consideration of Plaintiff's claim, the standard of whether Plaintiff received constitutionally adequate medical care is essentially the same as for a claim under the Eighth Amendment (which is used to evaluate conditions of confinement claims for those convicted of crimes). See Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988)[Holding that the 14th Amendment guarantees at least 8th Amendment protections]. Under this standard, in order to survive the Defendants' motion for summary judgment, Plaintiff must present evidence sufficient to create a genuine issue of fact as to whether any named Defendant was deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Farmer v. Brennen, 511 U.S. 825, 837 (1994); Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986); Wester v. Jones, 554 F.2d 1285 (4th Cir. 1977); Russell v. Sheffer, 528 F.2d 318 (4th Cir. 1975); Belcher v. Oliver, 898 F.2d 32 (4th Cir. 1990). The evidence submitted is sufficient to meet this standard.

Plaintiff specifically alleges in his verified Complaint that he has a still growing mass on his right shoulder that is causing him significant pain, that physicians who have examined him have recommended both that he have an MRI and a biopsy performed on this mass, but that policies put in place by the Defendants Mueller and Padgett (who oversee jail operations) are preventing him from getting this necessary and recommended treatment through their refusal to pay for either the MRI or the biopsy, even though Plaintiff is an inmate at the jail. Williams, 952 F.2d at 823 [factual allegations in a verified complaint can be sufficient to defeat a motion for summary judgment]. The exhibits provided (including the Defendants' own exhibits) confirm that Plaintiff has a growing mass on his shoulder which is causing him significant pain, that Plaintiff's complaint has been "qualified as a certified emergency", and that a recommended MRI on the mass that was to be done to make sure they were not dealing with any "atypical issue" was not performed because the Detention Center refused to pay for it. The inmate grievance forms provided as exhibits also confirm that the reason these recommended medical procedures have not been performed is because the Detention Center (per responses signed by the Defendant Captain Padgett) is refusing to pay for any such procedures, with Plaintiff being advised that his condition "is something that your family will have to make the arrangements to pay the bill up front and then call the medical department to make the arrangements to take you for the treatment". See Complaint (Court Docket No. 1-1), pp. 3-4; see also Plaintiff's Response (Court Docket No. 48-1), pp. 1-2. However, jail officials may not deny "an inmate medical treatment due to lack of funds or condition[ ] the provision of needed medical services upon an inmates's ability to pay, " and to do so may violate the inmate's constitutional rights. Cannon v. Mason, 340 Fed.Appx. 495, 498 (10^th Cir. 2009).

While the Defendants argue in their brief that the evidence does not give rise to a genuine issue of fact as to whether either Defendant has been "deliberately indifferent" to a "serious" medical condition, the medical records provided show that Plaintiff has a serious condition for which further tests have been recommended by attending physicians, but that the Defendants are refusing to provide that further recommended care on the ground that Plaintiff should himself be responsible for that care. This evidence is sufficient to give rise to a genuine issue of fact as to whether the Defendants are being deliberately indifferent to a serious medical need. Borrow v. Buren, No. 12-1268, 2015 WL 417084 at * 16 (N.D.N.Y. Jan. 30, 2015) ["'Because society does not expect that prisoners will have unqualified access to health care, a prisoner must first make [a] threshold showing of serious illness or injury' to state a cognizable claim".] (quoting Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003)); see also Levy v. State of Ill. Dept. of Corrections, No. 96-4705, 1997 WL 112833 (N.D.Ill. March 11, 1997) ["A defendant acts with deliberate indifference . . . if he or she 'knows of and disregards' an excessive risk to inmate health or safety.'"], quoting Farmer, 511 U.S. at 837; cf. Foimica v. Aylor, 739 Fed. Appx. 745, 757 (4^th Cir. 2018) [Reversing the granting of summary judgment for jail nurse who deemed medical treatment elective and recommended scheduling procedure after prisoner could pay for it after court determined that delay of treatment posed excessive risk to prisoner's health]; Ivey v. Tishomingo County, Miss., No. 10-165, 2010 WL 6580499 at * * 4-5 (N.D.Miss. Nov. 15, 2010) [Dismissing plaintiff's claims where, although the jail would not cover the costs, they ensured he received treatment, but allowing a separate claim to proceed for where plaintiff was not permitted to undergo procedure where defendant would not pay and hospital would not perform it without guarantee of payment], report and recommendation adopted, 2011 WL 1672028 (N.D.Miss. May 4, 2011).

Defendants' argument is essentially premised on a defense that Plaintiff's condition is not an emergent condition and therefore any further medical treatment of the condition is elective or discretionary, not required. Cf. Estate of Hammos v. Douglas County, Kansas Board of Commissioners, 303 F.Supp. 3d 1134, 1151 (D.Kan. Mar. 28, 2018) ["While there is an affirmative duty to provide adequate medical care to inmates, this duty requires only that government "make available to inmates a level of medical care which is reasonably designed to meet the routine and emerging health care needs of inmates."] (quoting Ramos v. Lamm, 639 F.2d 559, 575 (10^th Cir. 1980)). However, considered in the light most favorable to the Plaintiff, the medical records provided do not establish that the care being recommended, and in particular the recommended MRI or biopsy, are merely discretionary and not something the attending physicians believed was necessary to properly diagnose the severity of Plaintiff's condition. Muhammad v. Klotz, 36 F.Supp.2d 240, 243 (E.D.Pa. 1999)["Thus, at the summary judgment stage the only inquiry is the threshold one of determining whether there is the need for a trial, that is, 'whether the evidence presents a sufficient disagreement to require submission to [the trier of fact] or whether it is so one-sided that one party must prevail as a matter of law.'"].

Notably and significantly, the Defendants have not provided any affidavit or deposition evidence from any attending physician or medical provider, or any other medical expert, to support their argument that Plaintiff's condition is non-emergent, that the care and treatment he is requesting is merely elective or discretionary and therefore should be his own responsibility, that not providing Plaintiff with these recommended procedures falls within the applicable standard of care, or to show that Plaintiff has received all the care from the Detention Center to which he is entitled. Cf. Scheckells v. Goord, 423 F.Supp. 2d 342, 348 (S.D.N.Y. 2006) (citing O'Connor v. Pierson, 426 F.3d 187, 202 (2d Cir. 2005) ["Lay people are not qualified to determine...medical fitness, whether physical or mental; that is what independent medical experts are for."]). As such, considered in the light most favorable to the Plaintiff, the evidence before the Court (consisting essentially of Plaintiff's verified allegations and the partial medical records provided) is sufficient to present a genuine issue of fact as to whether the Defendants are being deliberately indifferent to a serious medical need of the Plaintiff. See Farmer, 511 U.S. at 842 [Deliberate indifference can be demonstrated by evidence showing "that a substantial risk of [serious harm] was . . . well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus 'must have known' about it"]; Shaw v. Stroud, 13 F.2d 791, 799 (4^th Cir. 1994) [supervisory liability may be established under § 1983 if the evidence is sufficient to show that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed an unreasonable risk to the plaintiff]; see also Gray v. Spillman, 924 F.2d 90, 95 (4^th Cir. 1991) [When considering whether summary judgment is appropriate, the Court must assume that the version of facts presented in opposition to summary judgment to be true]. Therefore, the Defendants are not entitled to summary judgment on Plaintiff's medical claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)["Credibility determinations, the weighing of evidence, and drawing of legitimate inferences from the facts" are functions for the trier of fact].

Finally, the Defendants also assert that even if it is ultimately determined that a constitutional violation has occurred, they are entitled to qualified immunity for Plaintiff's constitutional claims. The Supreme Court, in Harlow v. Fitzgerald, 457 U.S. 800 (1982), established the standard which the Court is to follow in determining whether a defendant is protected by qualified immunity.

Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Harlow, 457 U.S. at 818. Additionally, the Court of Appeals for the Fourth Circuit has stated:

Qualified immunity shields a government official from liability for civil monetary damages if the officer's "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818. "In determining whether the specific right allegedly violated was 'clearly established,' the proper focus is not upon the right at its most general or abstract level but at the level of its application to the specific conduct being challenged." Pritchett v. Alford, 973 F.2d 307, 312 (4^th Cir. 1992). Moreover, "the manner in which this [clearly established] right applies to the actions of the official must also be apparent." Maciariello v. Sumner, 973 F.2d 295, 298 (4^th Cir. 1992) . . . As such, if there is a "legitimate question" as to whether an official's conduct constitutes a constitutional violation, the official is entitled to qualified immunity.

Wiley v. Doory, 14 F.3d 993, 995 (4^th Cir. 1994)(internal citations omitted), cert. denied, 516 U.S. 824 (1995).

The question thus becomes whether, considering the facts and evidence in the light most favorable to the Plaintiff, there is a genuine issue of fact as to whether any Defendants' conduct violated a clearly establish statutory or constitutional right of which a reasonable person would have known. Here, it was certainly clearly established at the time relevant to Plaintiff's claims that jail officials have a constitutional responsibility for the medical well-being of prisoners assigned to their care, and that they can be liable under the Eighth and Fourteenth Amendments if they are deliberately indifferent to the serious medical needs of such prisons. Farmer v. Brennan, 511 U.S. at 834; cf. Ruiz-Rosa v. Rullen, 485 F.3d 150, 156 (1^st Cir. 2007) [Denial of needed medical care can constitute deliberate indifference]. Based on the case law and evidence previously cited, the undersigned further concludes that there is a genuine issue of fact as to whether the Defendants' conduct violated a clearly established constitutional right of the Plaintiff of which a reasonable person would have known. Therefore, the Defendants are not entitled to qualified immunity from Plaintiff's claims.

Conclusion

Based on the foregoing, it is recommended that the Defendants' motion for summary judgment be denied.

The parties are referred to the Notice Page attached hereto.

/s/_________

Bristow Marchant

United States Magistrate Judge February 21, 2019
Charleston, South Carolina

Notice of Right to File Objections to Report and Recommendation

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^th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

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:

Robin L. Blume, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29402

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).