Opinion
Civil Action No.: 4:16-cv-2482-JFA-TER
07-25-2018
MARILYN MILLER, Plaintiff, v. PICKENS COUNTY SHERIFF'S DEP'T, SHERIFF RICK CLARK, CAPTAIN KEITH GALLOWAY, SOUTHERN HEALTH PARTNERS, and various Jane and John Does, Defendants.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 AND 42 U.S.C. § 1981, alleging that Defendants violated her constitutional rights under the First Amendment by being deliberately indifferent to her serious medical needs. Presently before the court are Defendant South Health Partners' Motion for Summary Judgment (ECF No. 40), Defendants Pickens County Sheriff's Department, Sheriff Rick Clark, and Captain Keith Galloway's (hereinafter, "the County Defendants") Motion for Summary Judgment (ECF No. 42), and the County Defendants' Motion for Sanctions (ECF No. 55). Plaintiff has not filed a response to any of the motions. 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)(d), DSC.
II. STATUS OF CASE
Defendants filed Motions for Summary Judgment (ECF Nos. 40, 42) on February 15, 2018. The County Defendants also filed a Motion to Seal (ECF No. 43) on February 16, 2018. Plaintiff did not file responses to any of these motions. Plaintiff also failed to file her ADR Statement/Certification, which was due February 15, 2018.
The parties filed a joint Motion to Amend the Scheduling Order (ECF No. 47) to extend the mediation deadline as the parties were unable to set mediation within the current scheduling order's deadline of March 16, 2018. The motion indicated that all parties had agreed upon a mediation date of April 16, 2018, and they moved to extend the mediation deadline to that date. Their motion was granted and an Amended Scheduling Order (ECF No. 50) was entered. On April 16, 2018, counsel for Southern Health Partners filed a Letter (ECF No. 52) with the court stating that counsel for Plaintiff had informed defense counsel on April 13, 2018, that she had made a good faith effort to communicate with her client, but Plaintiff had not responded to her communications about the mediation. As a result, she would not be present at the mediation.
Thereafter, on June 25, 2018, the County Defendants filed a Motion for Sanctions (ECF No. 55). Defendants note that following the canceled mediation, defense counsel and the mediator made several attempts via email with Plaintiff's counsel to reschedule the mediation but Plaintiff's counsel never provided them with any available dates to reschedule. Snyder Aff. ¶ 5 (Ex. to Def. Motion for Sanctions); Emails (Ex. to Def. Motion for Sanctions). Defendants also note in the motion that Plaintiff's refusal to participate in mediation is part of a course of behavior since the beginning of the suit. Counsel for the County Defendants avers that she served discovery requests on Plaintiff on October 26, 2016. After contacting Plaintiff's counsel over a series of months, defense counsel filed a Motion to Compel (ECF No. 25) Plaintiff's discovery responses on May 15, 2017. Plaintiff did not file a response to the motion but provided discovery responses approximately two months after the motion was filed. Snyder Aff. ¶ 2 (Ex. to Def. Motion for Sanctions); Snyder Letter (Ex. to Def. Motion for Sanctions). Plaintiff did not file a response to the Motion for Sanctions.
Rule 26(a)(3) Pretrial Disclosures were due under the amended scheduling order on July 16, 2018. Defendants timely filed their disclosures (ECF Nos. 59, 60). Plaintiff has not filed pretrial disclosures.
III. MOTION FOR SANCTIONS
Defendants move for sanctions pursuant to Local Rule 16.09, D.S.C., and Rules 37(b) and 41(b) of the Federal Rules of Civil Procedure and ask the court to dismiss this action for Plaintiff's failure to participate in mediation and prosecute this case. Local Rule 16.09 provides that "[i]f a person fails to attend a duly ordered mediation conference without good cause, the court may impose upon the party of the party's principal any lawful sanctions, including but not limited to, the payment of attorney's fees, mediators fees and any other sanction authorized by Rule 37(b) of the Federal Rules of Civil Procedure." Rule 37(b)(2)(A)(v) allows for dismissal of an action as an appropriate sanction. In addition, Rule 41(b) provides that "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it."
Defendants assert that they were able to mitigate any attorneys' fee and mediator fees since the mediation was canceled the workday before the mediation was scheduled and, thus, are not seeking attorneys' fees or mediator's fees. --------
The factors to consider when determining whether dismissal of a case is an appropriate sanction are the same under Rule 41(b) and Rule 37(b): (1) the degree of personal responsibility on the part of the plaintiff; (2) the amount of prejudice to the defendant caused by the delay; (3) the presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal. Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 348 (4th Cir.2001) (addressing Rule 37(b)); Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (addressing Rule 41(b)).
The emails in the record indicate that counsel for the County Defendants emailed Plaintiff's counsel on April 4, 2018, stating "I have called you several times regarding the status of our settlement offer and have not heard back. Please call me or respond regarding the same." Emails (Ex. to Def. Motion for Sanctions). Counsel responded on April 6, 2018, stating "I have not been have to locate Ms. Miller at all at this point. I am going to travel up to her place of residence again tomorrow to see if I can locate her." Id. As of April 13, 2018, counsel still had not located Plaintiff and informed defense counsel by phone. Defense counsel emailed all counsel of record to inform them of the need to cancel mediation and noted "I think [Plaintiff's counsel] has worked hard to get in touch with her." Id. As the parties attempted to reschedule the mediation, counsel for Plaintiff emailed the other counsel of record on April 27, 2018, and informed them "I was able to locate Ms. Miller's daughter through my new found detective skills. I asked that she have Ms. Miller give me a call. I am waiting to hear from her and will update you all next week." Id. The record does not reveal any further updates from Plaintiff's counsel. It appears that any responsibility for Plaintiff's failure to participate in this action lies with Plaintiff and not her counsel. Defendants have been prejudiced in this action by Plaintiff's failure to participate in litigation because they have been unable to come to a timely resolution of this action, whether it be by settlement, summary judgment, or trial. Further, Plaintiff's history of dilatory action in this case is evident through her failure to (1) timely respond to discovery requests, (2) respond to the motion to compel, (3) file her ADR Statement/Certification, (4) respond to Defendants' motions for summary judgment and motion to seal, (5) participate in mediation, (6) reschedule mediation, and (7) respond to the motion for sanctions. Given this either dilatory or complete lack of action from Plaintiff since November of 2016, when Plaintiff's discovery responses were originally due, the undersigned concludes she has abandoned her claims. No other conclusion is reasonable. Thus, it is recommended that the County Defendants' Motion for Sanctions be granted this case be dismissed with prejudice pursuant to Rules 37(b) and 41(b).
IV. MOTIONS FOR SUMMARY JUDGMENT
In the alternative, based on the evidence in the record it is recommended that Defendants' motions for summary judgment be granted for failure to exhaust administrative remedies and for failure to create an issue of fact as to her deliberate indifference cause of action. Plaintiff alleges that Defendants were deliberately indifferent to her medical needs with respect to an injury she sustained to her wrist. The record includes undisputed affidavit testimony that Plaintiff filed no grievances with respect to the medical care she received for this injury. Leopard Aff. ¶ 15 (ECF No. 40-5, 42-2). See 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.").
Further, based on the undisputed evidence in the record, including medical records, an expert report and deposition testimony, Plaintiff received an examination and/or treatment for her wrist injury on an almost daily basis between the date of her injury, July 8, 2014, until the day of her release on July 23, 2014. See Harden Expert Report (ECF No. 40-1); Tice Deposition (ECF No. 40-2). See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (holding that deliberate indifference to a serious medical need requires proof that, objectively, the plaintiff was suffering from a serious medical need and that, subjectively, the defendant was aware of the need for medical attention but failed either to provide it or to ensure that the needed care was available); De'lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013) )"[A] prisoner does not enjoy a constitutional right to the treatment of his or her choice.").
For these reasons, summary judgment is appropriate.
V. CONCLUSION
For the reasons discussed above, it is recommended that the County Defendants' Motion for Sanctions (ECF No. 55) be granted and this case be dismissed with prejudice in its entirety. In the alternative, it is recommended that Defendants' Motions for Summary Judgment (ECF Nos. 40, 42) be granted and this case be dismissed with prejudice in its entirety.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge July 25, 2018
Florence, South Carolina