United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE.
matter comes before the Court for review of the Report and
Recommendation (“Report”) (Doc. No. 53) issued by
United States Magistrate Judge Shon T. Erwin pursuant to 28
U.S.C. § 636(b)(1)(B) and (C). Judge Erwin recommends
that Defendant Redmon's Motion for Summary Judgment (Doc.
No. 51) be granted and that the Court strike the portion of
the Court's March 15, 2018 Order that purports to dismiss
state law negligence claims with prejudice, rather than
Plaintiff's “constitutional due process negligence
claim.” R. & R. at 7 n.2, 10; Order of March
15, 2018 (Doc. No. 15) (Miles-LaGrange, J.).
has filed a timely written objection to the Report,
see Pl.'s Obj. (Doc. No. 57), thus triggering
the Court's obligation to make a de novo determination of
those portions of the Report to which objection is made.
See 28 U.S.C. § 636(b)(1); United
States v. 2121 E. 30th St., 73 F.3d 1057, 1060
(10th Cir. 1996); Fed.R.Civ.P. 72(b)(3). Issues or claims
raised for the first time, however, are waived. Marshall
v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).
Defendant Redmon has filed a Response to Plaintiff's
Objection. See Def. Redmon's Resp. (Doc. No.
Having conducted a de novo review in light of Plaintiff's
objections, the Court concludes that the Report should be
adopted in its entirety, as further addressed herein.
a state prisoner appearing pro se and proceeding in forma
pauperis, brings this federal civil rights action under
42 U.S.C. § 1983. In his Complaint, Plaintiff alleges
that Defendant Redmon provided medical care to Plaintiff at
the University of Oklahoma Medical Center in 2015, while
Plaintiff was a pretrial detainee. See Compl. at
4-5. Plaintiff states that “he was provided inadequate
medical treatment, and . . . would go so far as alleging that
. . . Defendant Redmon and/or [University of Oklahoma]
Medical Center staff directly involved, falsified a [computed
tomography (“CT”)] scan and provided no
appropriate diagnosis or treatment, considering
Plaintiff's purported injury.” Id. at 4-5.
In his report, Judge Erwin found that Plaintiff had failed to
respond to Defendant Redmon's Motion within the time
allotted and that Defendant Redmon had provided sufficient
uncontested material facts and supportive documents to
support summary judgment in his favor. See R. &
R. at 8-9.
raises three objections to Judge Erwin's Report. First,
Plaintiff objects to the legal standard Judge Erwin applied
to Plaintiff's claim of inadequate medical care.
Plaintiff argues that the traditional deliberate-indifference
standard applicable to pretrial detainees should be abandoned
in favor of an objective-only standard pursuant to the
Supreme Court's ruling in Kingsley v.
Hendrickson, 135 S.Ct. 2466 (2015). However, as Judge
Erwin thoroughly explained in his Report,
Kingsley-an excessive-force case-did not directly
address the standard applicable to a pretrial detainee's
inadequate medical care claim, and while the Tenth Circuit
has noted that circuits “are split on whether
Kingsley alters the standard for conditions of
confinement and inadequate medical care claims brought by
pretrial detainees, ” the Tenth Circuit “has not
yet ruled directly on this issue.” Estate of
Vallina v. Cty. of Teller Sheriff's Office, 757
Fed.Appx. 643, 646 (10th Cir. 2018); Burke v.
Regalado, No. 18-CV-231-GKF-FHM, 2019 WL 1371144, at *4
(N.D. Okla. Mar. 26, 2019); see also Rife v. Okla.
Dep't of Pub. Safety, 854 F.3d 637, 647 (10th Cir.
2017) (discussing the traditional two-prong standard for a
pretrial detainee's inadequate medical care claim
post-Kingsley). The Court fully concurs with Judge
Erwin's determination that, in the absence of a clear
directive on the issue from the Tenth Circuit, this Court
should follow established Tenth Circuit precedent in
evaluating Plaintiff's claim.
next argues that the allegations in Plaintiff's verified
Complaint, as well as “the record evidence in [the
Special Report (Doc. No. 30)], ” create a genuine issue
of material fact precluding summary judgment. Pl.'s Obj.
at 6-8. Plaintiff points specifically to his allegation that
“Defendant Redmon and/or O.U. Medical Center staff
directly involved, falsified a CT scan and provided no
appropriate diagnosis or treatment.” Compl. at 4;
see Pl.'s Obj. at 5-6. As further support,
Plaintiff states that “evidence shows that the CT scan
was [begun] at 5:44 [a.m.] and completed at 5:44
[a.m.].” Pl.'s Obj. at 5. By failing to timely
respond to Defendant Redmon's Motion, however, Plaintiff
has “waive[d] the right to respond or to controvert the
facts asserted in the summary judgment motion, ” and
the Court “should accept as true all material facts
asserted and properly supported in the summary judgment
motion.” Reed v. Bennett, 312 F.3d 1190, 1195
(10th Cir. 2002). Accordingly, Plaintiff's attempt to
belatedly contest the material facts asserted in the Motion
is improper. See Def. Redmon's Mot. Summ. J.
(Doc. No. 51) at 9-10 (Defendant Redmon asserting that he
ordered a CT scan, that a radiologist reviewed the CT scan
results and created a report indicating that there was
“‘no evidence of acute injury in the osseous
cervical spine, '” and that Defendant Redmond
“relayed the results” to Plaintiff); see also
Smith v. Sprint/United Mgmt. Co., No. 15-cv-550-WJM-KLM,
2017 WL 1130034, at *3 (D. Colo Mar. 27, 2017) (“The
Court is unaware of any precedent, nor does Plaintiff point
the Court to any relevant authority, that allows [a]
[p]laintiff to ‘sandbag' the Magistrate Judge by
failing to point out facts and relevant claims that were not
previously presented and argued.”).
Plaintiff's claims against Defendant Redmon would not
survive the summary judgment motion even if the Court
considered the evidence presented by Plaintiff in his
Objection to Judge Erwin's Report. Plaintiff fails to
show how the documented time of the CT scan is relevant to
his claims or how it creates a factual dispute for purposes
of summary judgment. And while a verified complaint
“may be treated as an affidavit for purposes of summary
judgment if it satisfies the standards for affidavits set out
in Rule 56(e), ” Plaintiff “may not rely merely
on the unsupported or conclusory allegations contained in his
pleadings.” Conaway v. Smith, 853 F.2d 789,
792 (10th Cir. 1988). Here, Plaintiff's allegation that
Dr. Redmon or another staff member falsified a medical record
is “unsupported [and] conclusory” and does not
appear to be based on personal knowledge. Conaway,
853 F.2d at 792; see Fed. R. Civ. P. 56(c)(4)
(“An affidavit or declaration used to support or oppose
a motion must be made on personal knowledge.”).
Moreover, an independent review of Plaintiff's remaining
allegations against Defendant Redmon revealed no conduct that
would rise to the level of a constitutional violation.
See Perkins v. Kan. Dep't of Corr., 165 F.3d
803, 811 (10th Cir. 1999) (“A negligent failure to
provide adequate medical care, even one constituting medical
malpractice, does not give rise to a constitutional
Plaintiff argues that granting Defendant Redmon's Motion
would violate Plaintiff's Seventh Amendment right to a
jury. See Pl.'s Obj. at 9-10. “The Seventh
Amendment is not violated by proper entry of summary
judgment.” Shannon v. Graves, 257 F.3d 1164,
1167 (10th Cir. 2001). For the reasons discussed herein and
in Judge Erwin's thorough and well reasoned Report,
summary judgment in favor of Defendant Redmon is proper.
Thus, this argument fails to undercut the Report's
findings and recommendations.
the Report and Recommendation issued by United States
Magistrate Judge Shon T. Erwin on April 30, 2019 (Doc. No.
53) is ADOPTED in its entirety. Defendant Redmon's Motion
for Summary Judgment (Doc. No. 51) is GRANTED. The portion of
the March 15, 2018 Order (Doc. No. 15) purporting to dismiss
state law negligence claims with prejudice is STRICKEN. The
Court clarifies that the March 15, 2018 Order dismisses with
prejudice Plaintiffs § 1983 claims of inadequate medical
care against Defendants Redman and an unidentified
radiologist insofar as those claims are predicated on
allegations of negligence. See R. & R. of
October 18, 2017 (Doc. No. 9) at 8-9.