Waldrup v. Mueller

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

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

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

February 21, 2019

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

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.

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 wastaken 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 copiesof 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.

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 trapeziusarea, 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. JohnFlood). 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...