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Shough v. Management & Training Corp.

United States District Court, N.D. Ohio, Western Division

January 3, 2018

BENNIE SHOUGH, Plaintiff,
v.
MANAGEMENT & TRAINING CORP. et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JAMES R. KNEPP II, UNITED STATES MAGISTRATE JUDGE.

         Introduction

         On January 10, 2016, Plaintiff Bennie Shough (“Plaintiff”) filed a Complaint against Defendants Management & Training Corp., MTC Medical, LLC, Correctional Officer Skidmore, and John Does 1-4 (“Defendants”). (Doc. 1). On March 26, 2016, Plaintiff moved to amend the complaint (Doc. 5-1 at 1-14), [1] which the Court marginally granted (Doc. 7). In the Amended Complaint, Plaintiff alleges five counts, pursuant to 42 U.S.C. § 1983: (1) inadequate policies, procedures, and training; (2) Eighth Amendment violations; (3) Fourteenth Amendment violations; (4) negligence; and (5) punitive damages.[2] Id. Defendants filed an Answer. (Doc. 8). Jurisdiction is proper under 28 U.S.C. § 1331. The parties consented to the undersigned's exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 12). Pending before the Court is Defendants' Motion for Summary Judgment (Doc. 27), to which Plaintiff filed opposition (Doc. 35), and Defendants filed a reply (Doc. 41). Also before the Court are: (1) Plaintiff's motion to strike the affidavit of Dr. Wilson and for sanctions (Doc. 33), Defendants' response (Doc. 40) and notice of filing of original notarized affidavit (Doc. 42), and Plaintiff's reply (Doc. 43); (2) Plaintiff's unopposed motion to strike the affidavit of Warden Turner (Doc. 37); (3) Plaintiff's unopposed motion to supplement the record with his notarized affidavit (Doc. 38); and (4) Plaintiff's motion to strike hearsay statements (Doc. 39), and Defendants' opposition thereto(Doc. 44). For the reasons stated below, Defendants' motion for summary judgment is granted in its entirety and the case is dismissed with prejudice.[3]

         Background [4]

         This case arises out of an incident on January 20, 2014, [5] at the North Central Correctional Complex (“NCCC”), the institution at which Plaintiff was then incarcerated. (Amended Complaint, Doc. 5-1, at 4 & Plaintiff's Affidavit, Doc. 38-1, at 1). Plaintiff suffered a right shoulder injury “from an altercation by another inmate and while being physically restrained and forced to the ground by Correctional Officer Sgt. Skidmore.” (Amended Complaint, Doc. 5-1, at 4).[6] Officer McCurry intervened into a verbal altercation between Plaintiff and another inmate by placing Plaintiff into handcuffs. (Plaintiff's Affidavit, Doc. 38-1, at 1-2). Officer McCurry shoved Plaintiff into walls as he moved him away from the altercation. Id. at 2. At some point during transport, Plaintiff “squared up and planted [his] feet in order to stop officer McMurray [sic] from shoving and pushing [him] into the wall.” (Plaintiff's Affidavit, Doc. 38-1, at 2). Officer McCurry then “grabbed [Plaintiff] by the handcuffs and forcefully slammed [Plaintiff] to the ground causing [his] entire body weight to fall on [his] right shoulder.” Id. Plaintiff felt a sharp pain in his right shoulder and “[his] shoulder became dislocated and came out of [sic] socket.” Id.; see also (Amended Complaint, Doc. 5-1, at 4).

         Officer McCurry and an unknown correctional officer took Plaintiff for medical treatment before taking him to segregation.[7] (Plaintiff's Affidavit, Doc. 38-1, at 2). Plaintiff complained of right shoulder and left thumb injuries. (Doc. 36-1, at 3). A registered nurse examined him and listed the objective physical findings, including a small abrasion inside the right elbow, and assessed: had no signs of symptoms of shortness of breath. Id. Plaintiff was released to segregation. Id. A progress note, also dated January 20, 2014, indicates Plaintiff was prescribed ibuprofen. (Doc. 36-1, at 6).

         From the date of the incident, to Plaintiff's transfer to another facility on March 26, 2014, he was housed in a segregation unit. (Amended Complaint, Doc. 38-1, at 2-3). While in segregation, Plaintiff verbally complained to correctional officers that his shoulder was out of the socket. (Plaintiff's Affidavit, Doc. 38-1, at 2). Two days after the incident, on January 22, 2014, Plaintiff submitted a Health Services Request, seeking treatment for his shoulder. (Plaintiff's Affidavit, Doc. 38-1, at 2 & Doc. 36-1, at 1). The following day, he was evaluated by Dr. Stein, given ibuprofen for pain, referred for x-rays, and returned to segregation. (Plaintiff's Affidavit, Doc. 38-1, at 2 & Doc. 36-1, at 5).

         On January 27, 2014, Plaintiff had x-rays taken of his right shoulder. (Plaintiff's Affidavit, Doc. 38-1, at 3 & Doc. 36-1, at 7). Guillermo Zaldivar, M.D., interpreted the results and his impression was: (1) “[n]o acute changes noted”; (2) “[s]econd to third degree acromioclavicular separation” (3) “[m]ost likely remote, well-healed fracture at distal clavicle”; (4) “[p]ossible remote posterior shoulder dislocation”; and (5) “[t]he acromioclavicular joint appears otherwise unremarkable”. (Doc. 36-1, at 7).[8] Plaintiff completed another Health Services Request, received on February 5, 2014, seeking treatment for his right shoulder. (Doc. 36-1, at 2), and he received various treatment for shoulder pain in February and March 2014 (Doc. 36-1, at 5-6, 8-11, 14-15).[9]

         At NCCC, Plaintiff received “minimal medical care”[10] consisting of ibuprofen and Excedrin for his shoulder injury. (Plaintiff's Affidavit, Doc. 38-1, at 3-4 & Amended Complaint, Doc. 5-1, at 5). When he was transferred to Mansfield Correctional Institution, he received treatment for his shoulder that consisted of a sling, Kenalog injections, Flexeril, muscle relaxers, and shoulder exercises. (Plaintiff's Affidavit, Doc. 38-1, at 3-4); see generally Doc. 36-2 (medical records from Mansfield Correctional Institution). As of the date his Affidavit was filed, Plaintiff still experienced shoulder pain and instances in which his shoulder would dislocate or “pop” out of the socket. (Plaintiff's Affidavit, Doc. 38-1, at 4).

         Plaintiff's Pending Motions

         Motion to Strike Dr. Wilson's Affidavit and for Sanctions

         Plaintiff filed a motion to strike the affidavit of Dr. Wilson, alleging she is an undisclosed medical expert, and requests sanctions against Defendants and counsel. (Doc. 33). Defendants admit the “oversight”, but argues it poses no prejudice to Plaintiff and, because of Plaintiff's repeated failure to cooperate with discovery and failure to provide expert support for his claims, the Court should nonetheless consider the affidavit because it would assist the Court. (Doc. 40).[11]Defendants also argue sanctions are not appropriate in this case. Id.

         On May 11, 2017, following a telephonic status conference, the Court issued a scheduling order requiring Plaintiff's expert reports be filed on or before June 3, 2017, and Defendants' experts reports by July 24, 2017. (Doc. 26); see also Fed. R. Civ. P. 26(a)(2) and (e)(2). Neither party filed an expert report by the imposed deadlines or requested additional time to do so. Defendants filed the motion for summary judgment on August 28, 2017, with Dr. Wilson's affidavit attached, identifying her as a medical expert.

Rule 56 of the Federal Rules of Civil Procedure in relevant part states:
(h) AFFIDAVIT OR DECLARATION SUBMITTED IN BAD FAITH If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court-after notice and a reasonable time to respond-may order the submitting party to pay the other party the reasonable expenses, including attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.

Fed. R. Civ. P. 56(h).

         The Court has the ability to enforce pretrial scheduling orders through Civil Rule 37, Failure to Disclose or Supplement. That rule states, in its entirety:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

Fed. R. Civ. P. 37.

         Defendants do not alleged the failure to identify Dr. Wilson was substantially justified, rather admitted it was simply an “oversight”. (Doc. 40, at 1). Plaintiff alleges prejudice from this failure, however, “[h]armlessness . . . is the key under Rule 37, not prejudice. The advisory committee's note to Rule 37(c) ‘strongly suggests that ‘harmless' involves an honest mistake on the part of a party coupled with sufficient knowledge on the part of the other party.'” Sommer v. Davis, 317 F.3d 686, 692 (6th Cir. 2003) (citing Vance v. United States, 182 F.3d 920, 1999 WL 455435, at *5 (6th Cir. 1999) (unpublished table decision)). Here, Defendants allege an honest mistake in failing to disclose Dr. Wilson, however, Plaintiff had no prior knowledge of her testimony and no opportunity to cross examine her. The failure to disclose her, therefore, was not harmless. The Court grants Plaintiff's Motion to Strike Dr. Wilson's affidavit. (Doc. 33), and now turns to address whether sanctions are appropriate in this case.

         Request for Sanctions

         Plaintiff contends sanctions against both Defendants and defense counsel are appropriate for the willful violation of Civil Rules 26, 37, and 56. (Doc. 33, at 5-6). Defendants respond Plaintiff's request for sanctions is “disingenuous at best” due to his failure to respond to discovery throughout the case-providing examples of such. (Doc. 40, at 5-7).[12]

         The decision to impose or not impose sanctions is within this Court's discretion. First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 510 (6th Cir. 2002); see also Fed. R. Civ. P. 11(b)(1)-(3). Here, while Plaintiff's alleged lack of cooperation in discovery, see Doc. 40-1, does not excuse Defendants' failure to disclose Dr. Wilson as an expert, it certainly suggests Plaintiff has engaged in similar behavior that could potentially expose him to sanctions as well. The Court, however, declines to issue sanctions, and rather will proceed with adjudication of the matter.

         Motion to Strike Warden ...


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