Oglesby v. Brown

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

ANDERSON/GREENWOOD DIVISION

John F. Oglesby #194567, Case No. 8:19-cv-00016-SAL

Plaintiff,

v.

OPINION AND ORDER

Sgt. Brown, Ofc. Vanderlinden, Capt. Jones,

Capt. Young, Sgt. Davis, Corp. Daniels, Nurse

Collins, AW Stephan, Warden Dennis Bush,

and Major Ocean,

Defendants,

This matter is before the Court for review of the January 17, 2020 Report and

Recommendation of United States Magistrate Judge Jacquelyn D. Austin (the AReport@), made in

accordance with 28 U.S.C. ' 636(b) and Local Civil Rule 73.02 (D.S.C.). In the Report, the

Magistrate Judge recommended that the Motion for Summary Judgment filed by Warden Dennis

Bush, Sgt. Brown, Capt. Jones, Ofc. Vanderlinden, Capt. Young, AW Stephan, and Major Ocean

(“Prison Official Defendants”), ECF No. 50, be granted, except with respect to claims of excessive

force and deliberate indifference against Defendants Bush, Brown, Jones, Vanderlinden, Stephan,

and Ocean in their individual capacities. Additionally, the Magistrate Judge recommended that

Defendant Nurse Collins’ Motion for Summary Judgment, ECF No. 84, be granted. On January

31, 2020, the Prison Official Defendants filed objections to the Report. ECF No. 96. Plaintiff

replied out of time on February 26, 2020, see ECF No. 98, and filed a corresponding Motion for

Extension of Time on March 2, 2020. ECF No. 99.

I. Plaintiff’s Motion for Extension of Time

In order to consider Plaintiff=s request, a review of the relevant procedural history is

instructive. As noted above, on January 17, 2020, the Magistrate Judge issued the Report, ECF

No. 94, recommending resolution of Defendants= motions for summary judgment. The Report

included a Notice of Right to File Objections. Id. Defendants timely filed their objections on

January 31, 2020. ECF No. 96. Plaintiff did not timely file any objections. On February 26, 2020,

however, Plaintiff filed a reply to the Prison Official Defendants’ objections, which it appears he

dated February 14, 2020. ECF No. 98. On March 2, 2020, Plaintiff filed a motion for extension of

time. ECF No. 99. Plaintiff=s reasoning for requesting extension is as follows:

Plaintiff received the Report and Recommendation on January 28, 2020 at the

McCormick Correctional Mailroom. Plaintiff gained access to the Law Library

facilities on Jan. 29, 2020 and has not been able to gain usage of the facilities again,

Due to lockdowns, shortages of security or staff and the facility being closed on

fridays and weekends.

ECF No. 99 at 1. Plaintiff requested an extension until February 10, 2020. Plaintiff dated

this motion January 29, 2020, and it was received by the Clerk on March 2, 2020. Defendants filed

their Response in Opposition for Plaintiff=s Motion for Extension of Time on March 04, 2020. ECF

No. 100.

Rule 6(b) of the Federal Rules of Civil Procedure provides that A[w]hen an act may or must

be done within a specified time, the court may, for good cause, extend the time . . . on motion made

after the time has expired if the party failed to act because of excusable neglect.@ Fed. R. Civ. P.

6(b)(1)(B). Plaintiff has not shown good cause or excusable neglect. While Plaintiff complains

about not having access to the law library, this obstacle did not prevent him from writing the reply

to Defendants= objections on February 14, 2020. As of now, Plaintiff has still yet to file any

objections to the Report, even though he requested an extension of time until February 10, 2020.

Accordingly, the Motion for Extension of Time to File Objections is denied, see Major v. Housing

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Authority of City of Greenville, No. 6:12-cv-00183, 2012 WL 3000676, at *1 (D.S.C. July 23,

2012) (denying motion for extension of time to file objections where plaintiff failed to show good

cause), and the Court does not consider Plaintiff’s reply filed out of time.

II. Background

Plaintiff filed this action on January 2, 2019, pursuant to 42 U.S.C. ' 1983, alleging use of

excessive force and deliberate indifference to a serious medical need in violation of his

constitutional rights. ECF No. 1. The operative complaint alleges that on October 14, 2017, while

Plaintiff was an inmate at Broad River Correctional Institution (ABroad River@), Defendant Officer

Vanderlinden and Defendant Sgt. Brown assaulted Plaintiff outside the medical office at Broad

River. ECF No. 1-2 at 15. In addition, Plaintiff alleges Defendants acted with deliberate

indifference in failing to provide him with medical care and preventing him from receiving care

on multiple occasions. ECF 1-2 at 14-23. Defendants moved for summary judgment, ECF No. 50,

arguing, among other things, that Plaintiff had not forecasted any evidence creating a genuine

factual dispute regarding whether Defendants Vanderlinden and Brown used any force against him

on October 14, 2017. Id.

Plaintiff=s Response to the Prison Official Defendants’ motion, ECF No. 68, which includes

several affidavits and declarations, recounts one version of events. According to Plaintiff=s own

affidavit, he describes that he was instructed to Areport to medical immediately if any

complications presented themselves@ from a surgery on October 2, 2017. ECF No. 68-1 at 18. He

states that Aon October 14, 2017, [he] was suffering with chest pains with difficulty breathing and

at the advice of Corp. McCrae working B-wing officer to report to medical at the noon insulin

diabetic call to receive insulin therapy and to report medical complications.@ Id. (verbatim).

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Plaintiff states that he arrived at the medical unit but was denied entry. Id. Soon after, Plaintiff

alleges that ASgt. John K. Brown he hit me in my face area with a closed fist and Ofc. Kalib

Vanderlinden who was standing behind me clipped my feet from under me and I fell to the

sidewalk.@ Id. at 19. In addition to his affidavit, Plaintiff has included the declarations of two other

inmates, John Kittrell, see ECF No. 68-1 at 30-33, and James Steen, ECF No. 68-1 at 35-36, which

offer some corroboration for Plaintiff=s assertions. In particular, the declaration of James Steen

states that on the date of the alleged assault, Steen saw that one of Plaintiff=s eyes was Ablood-shot

and puffy@ and that Plaintiff was having Atrouble walking.@ Id. at 35.

This version of events is contradicted by the affidavits of Angela Hardin, Cheryl Werre,

Officer Vanderlinden, Sgt. Brown, and Capt. Jones. These witnesses generally attest that they do

not recall ever seeing Plaintiff on October 14, 2017, and that no assault occurred. In particular,

Cheryl Werre=s affidavit describes that on October 17, 2018, three days after the alleged assault,

Plaintiff was seen at medical, and the nurse noted Plaintiff Awas in no acute distress and walking

freely.@ ECF No. 50-6 at 3. The nurse noted that Plaintiff Adid not complain about and/or did not

appear to have a swollen blood shot eye, bruised shoulder, chest and stomach areas, scratches on

his face, and painful throat and spinal area.@ Id. at 4-5.

This case presents two separate versions of events. Plaintiff=s inability to document or

produce any record of the events is certainly a factor that a fact finder could consider, but as the

Magistrate Judge noted, Ait does not so clearly demonstrate the falsity of Plaintiff=s claim that the

assault occurred.@ ECF No. 94 at 16. Defendants object to this conclusion and argue that Plaintiff=s

version of events is based solely upon Aallegations@ and raise no genuine issue of material fact.

ECF No. 96 at 1. Because the Court finds that the evidence forecasted by Plaintiff is sufficient for

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him to carry his burden at this stage, the Court adopts the Report over the Prison Official

Defendants’ objections.

III. Standard of Review

The Magistrate Judge makes only a recommendation to this Court. The recommendation

has no presumptive weight, and the responsibility to make a final determination remains with this

Court. See Mathews v. Weber, 423 U.S. 261, 270B71 (1976). The Court is charged with making a

de novo determination of only those portions of the Report that have been specifically objected to,

and the Court may accept, reject, or modify the Report, in whole or in part. 28 U.S.C. ' 636(b)(1).

In the absence of objections, the Court is not required to provide an explanation for adopting the

Report and must Aonly 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, 315 (4th

Cir. 2005) (citing Fed. R. Civ. P. 72 advisory committee=s note).

IV. Discussion

Defendants= overarching objection to the Report is that Plaintiff=s case is based solely upon

allegations and that the record does not give rise to a genuine issue of material fact. Reviewing the

record de novo, Plaintiff=s verified complaint, sworn affidavit, and other forecasted evidence

regarding the events that occurred on October 14, 2017 are sufficient to preclude summary

judgment on the excessive force and deliberate indifference claims against Defendants Brown,

Vanderlinden, Jones, Young, Stephen, Bush, and Ocean, in their individual capacities.

A. The dispute over whether this alleged assault ever occurred is a genuine issue

of material fact which precludes summary judgement in favor of the Prison

Official Defendants.

Summary judgment is appropriate when no genuine issue of material fact exists, and the

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moving party is entitled to judgment as a matter of law. Reyazuddin v. Montgomery Cty., Md., 789

F.3d 407, 413 (4th Cir. 2015); Fed. R. Civ. P. 56(a) (AThe court shall grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.@). The facts and inferences to be drawn from the evidence must be

viewed in the light most favorable to the non-moving party, Reyazuddin, 789 F.3d at 413, but the

Court Acannot weigh the evidence or make credibility determinations.@ Jacobs v. N.C. Admin.

Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015).

Moreover, Athe mere existence of some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary judgment; the requirement is that

there be no genuine issue of material fact.@ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986). AA dispute of material fact is >genuine= if sufficient evidence favoring the non-moving party

exists for the trier of fact to return a verdict for that party.@ Seastrunk v. United States, 25 F. Supp.

3d 812, 814 (D.S.C. 2014). A fact is Amaterial@ if proof of its existence or nonexistence would

affect disposition of the case under the applicable law. Anderson, 477 U.S. at 248.

At the summary judgment stage, Athe moving party must demonstrate the absence of a

genuine issue of material fact. Once the moving party has met his burden, the nonmoving party

must come forward with some evidence beyond mere allegations contained in the pleadings to

show that there is a genuine issue for trial.@ Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75

(4th Cir. 1992) (internal citation omitted). Summary judgment is not warranted, unless, Afrom the

totality of the evidence, including pleadings, depositions, answers to interrogatories, and affidavits,

the [C]ourt believes no genuine issue of material fact exists for trial and the moving party is entitled

to judgment as a matter of law. Whiteman v. Chesapeake Appalachia, L.L.C., 729 F.3d 381, 385

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(4th Cir. 2013); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Each party gives a completely different story regarding the existence of the alleged assault.

Plaintiff alleges and forecasts evidence that the assault occurred outside of medical on October 14,

2017. Defendants argue and forecast evidence that the alleged assault never occurred. This is the

quintessential case that cannot be resolved on summary judgment. See Zoroastrian Ctr. & Dar-E-

Mehr of Metro. Wash., D.C. v. Rustam Guiv Found. Of N.Y., 822 F.3d 739, 751 (4th Cir. 2016)

(AWhere the determination of what actually happened depends on an assessment of the credibility

of the respective witnesses, this assessment is a disputed issue of fact that cannot be resolved on

summary judgment.@). An excessive force claim, like the one brought by Plaintiff, requires some

physical interaction between inmate and officer and a determination of whether any interaction

occurred must be decided by a fact finder, not the Court.

The use of excessive force upon an inmate by correctional officers violates the Eighth

Amendment=s prohibition against cruel and unusual punishment. Hudson v. McMillan, 503 U.S. 1,

5 (1992). To state an excessive force claim, an inmate must show (1) that the correctional officers

acted with a sufficiently culpable state of mind and (2) that the harm inflicted on the inmate was

sufficiently serious. Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). For Plaintiff to prevail

on his claim of excessive force, and subsequently, the deliberate indifference claim, the fact that

an assault actually occurred is material. The existence or nonexistence of the assault is the essence

of the Complaint. Without a determination of whether the assault actually happened, the claims

for excessive force and deliberate indifference cannot be decided.

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B. Admissible evidence presented by Plaintiff to the Court at this time is more

than Aunsubstantiated allegations@ and is sufficient to defeat summary

judgment.

Plaintiff has presented various pieces of admissible evidence into the record at this stage

that can be considered on summary judgment. This evidence consists, in part, of his verified

complaint, his own affidavit, and portions of a declaration written by another inmate, James Steen.

The evidence contained in these documents is sufficient at this time to defeat summary judgment.

A verified complaint is the equivalent of an opposing affidavit for summary judgment

purposes, when the allegations contained therein are based on personal knowledge. Williams v.

Griffin, 952 F.2d 820, 823 (4th Cir. 1991); Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979)

(holding that factual allegations contained in a verified complaint may establish a prima facie case

under 42 U.S.C. ' 1983 sufficient to defeat summary judgment).

Plaintiff filed a verified complaint on January 2, 2019. ECF No. 1. The allegations in the

Complaint are based on the personal knowledge of Plaintiff. To further corroborate his verified

complaint, he swore and signed an affidavit, ECF No. 68-1 at 17-23, in response to Defendant=s

Motion for Summary Judgment that re-raised the allegations from the original verified complaint.

Defendants= objections to the Report are essentially one whole objection asking this Court

to impermissibly weigh the evidence and make credibility determinations, which the Court cannot

do. See Jacobs, 780 F.3d at 569 (emphasizing a court Acannot weigh the evidence or make

credibility determinations@ when ruling on a motion for summary judgment). Specifically, in the

Prison Official Defendants= objection No. 12, ECF No. 96 at 6, they specifically argue, APlaintiff=s

story lacks credibility and a reasonable inference to overcome summary judgment.@ Credibility

issues are for the finder of fact, not the Court at this stage.

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Plaintiff has also presented two declarations purportedly written by other inmates at Broad

River in support of his claims. The first, ECF No. 1-3 at 1, purportedly written by John Kittrell, is

neither signed nor sworn before a notary. The second, ECF No. 68-1 at 35, written by James Steen,

is both signed and sworn. Evidence contained in John Kittrell=s declaration should not have been

considered by the Magistrate in making the Report. Portions of James Steen=s declaration,

however, are admissible at trial and were properly considered in the summary judgment

recommendation. In any event, where Plaintiff’s affidavit and verified complaint alone are

sufficient to preclude summary judgment, whether or not other evidence should or should not be

considered becomes no longer determinative.

Under Rule 56(e), an affidavit put forth to support or oppose summary judgment must Abe

made on personal knowledge, set out facts that would be admissible in evidence, and show that

the affiant is competent to testify on the matters stated.@ Fed. R. Civ. P. 56(e). In addition, Ait is

well established that unsworn, unauthenticated documents cannot be considered on a motion for

summary judgment.” Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993).

In the Report, the Magistrate states, AGiven Plaintiff=s and Steen=s accounts and Kittrell=s

averment that Plaintiff was seen outside medical that day, Plaintiff has created a genuine factual

dispute as to whether he was assaulted.@ The Magistrate Judge considered Kittrell=s declaration in

making the summary judgment recommendation. ECF No. 94 at 17. To the extent that any

evidence contained in the declaration was used in making the determination, that evidence should

not have been considered. The declaration contained no signature of anyone purporting to be AJohn

Kittrell.@ See 28 U.S.C. § 1746. Further, it contained no affirmation from a notary, nor even a

statement swearing the declaration=s truth under penalty of perjury. This declaration falls short of

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the requirements necessary in order to be considered as part of the summary judgment

determination.

James Steen=s declaration, however, is different. This declaration was attached as part of

Plaintiff=s Opposition to Defendants= Motion for Summary Judgment. ECF No. 68. This

declaration was signed by AJames Steen@ and included a statement swearing the declared=s truth

under the penalty of perjury, pursuant to 28 U.S.C. ' 1746 (allowing unsworn declarations to have

full force and effect if the writer subscribes the statement as true under penalty of perjury).

Defendants object specifically to the Magistrate Judge=s reliance on James Steen=s

declaration, claiming that it is Afilled with hearsay.@ ECF No. 96 at 6. This claim, while not entirely

unfounded, is irrelevant. In the Fourth Circuit, those opposing motions for summary judgment are

required to submit supporting materials that are admissible at trial. Lorraine v. Markel Am. Ins.

Co., 241 F.R.D. 534, 535 (D.Md.2007) (A[T]o be entitled to consideration on summary judgment,

the evidence supporting the facts set forth by the parties must be such as would be admissible in

evidence@). However, a Anonmoving party could defeat summary judgment with materials capable

of being reduced to admissible evidence at trial.@ Cost Control Mktg. & Sales Mgmt. Of Virginia,

Inc., 64 F.3d at 926 n. 8 (citing Celotex, 477 U.S. at 327).

Defendants contend that James Steen=s declaration contains hearsay statements. Fed. R.

Evid. 801(c) defines hearsay as Aa statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.@ For purposes

of the hearsay rule, a statement is A(1) an oral or written assertion or (2) nonverbal conduct of a

person, if it is intended by the person as an assertion.@ Fed. R. Evid. 801.

Steen=s declaration does include statements that would violate the hearsay rule. ECF No.

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68-1 at 35-36. Those statements, however, are irrelevant for purposes of deciding summary

judgment in this case because the declaration does contain admissible evidence. This declaration

can be, and should be, reduced to the admissible portions for purposes of trial, but that is not

required at this stage. Cost Control, 64 F.3d at 926. Plaintiff, the nonmoving party, can defeat

summary judgment with materials capable of being reduced to admissible evidence at trial, as

Steen’s declaration can be.

C. Defendants are not entitled to qualified immunity.

Defendants Brown, Vanderlinden, Jones, Young, Stephen, Bush, and Ocean argue that

because Plaintiff=s claims stand on nothing other than Aunsubstantiated allegations,@ they are

entitled to qualified immunity. The Court finds this objection to be wholly subsumed by the

foregoing discussion, and is accordingly overruled. The Court has thoroughly reviewed the

remainder of the Report to which no party objected and is satisfied that no plain error exists.

V. Conclusion

After a thorough review of the Report, the applicable law, and the record of this case in

accordance with the applicable standard, the Court hereby adopts the Report and

Recommendation, ECF No. 94, in its entirety. Accordingly, Defendants’ Motion for Summary

Judgment, ECF No. 50, is GRANTED in part and DENIED in part. Summary judgment is granted

for Defendants on all claims except those against Defendants Brown, Vanderlinden, Jones,

Stephen, Bush, and Ocean, in their individual capacities, for the use of excessive force and

deliberate indifference to serious medical needs in violation of the Eighth Amendment. Defendant

Nurse Collins’ Motion for Summary Judgment, ECF No. 84, is GRANTED.

IT IS SO ORDERED.

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/s/Sherri A. Lydon

Sherri A. Lydon

United States District Judge

June 2, 2020

Florence, South Carolina

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