The opinion of the court was delivered by: Harold A. Baker United States District Judge
Before the Court is Defendant Hulick's summary judgment motion (30), the plaintiff's motion to compel (d/e 41) and the plaintiff's motion to appoint counsel (d/e 44).
The plaintiff's right eye is missing. To prevent his empty eye socket from developing an infection, he must administer saline to the socket several times per day.
On November 20, 2003, the plaintiff was placed in segregation at Hill Correctional Center. The defendants ignored and refused his repeated pleas for his saline solution, despite that fact that he told them many times of the danger of infection without the saline.
By November 25, 2003, the plaintiff had developed a severe infection in his eye, caused by the defendants' refusal to permit him access to his saline solution. The plaintiff filed an emergency grievance on November 25, 2003, which is attached to his Complaint as Exhibit A.
On November 26, 2006, defendant Hulick apparently checked the box that an emergency was not substantiated and that the plaintiff should submit the grievance in the normal manner. (Complaint, Ex. A). However, it appears that Hulick also wrote "not emergent however I want him seen as soon as possible." [partially illegible, so the Court is guessing as to part of this sentence]. (The Court says "appears" because the signature is illegible.) That day, a nurse practitioner examined the plaintiff and immediately admitted him to the healthcare unit, where he received antibiotics and ointment.
Hulick's Amended Motion for Summary Judgment (d/e 30)
Defendant Hulick's motion is not accompanied by his affidavit or any other evidentiary support. The motion relies on plaintiff's allegations and exhibit A attached to the Complaint (the emergency grievance). The motion is really one for judgment on the pleadings, Fed. R. Civ. P. 12(c), because it argues that the Complaint and the exhibit show that no claim can be stated against Hulick.
Hulick advances that his decision that the grievance was not an emergency "does not equate to a deliberate or reckless disregard for the Plaintiff's constitutional rights." He also advances that the "alleged constitutional violations had ended or ended shortly after [he] became aware of the situation."
There is insufficient factual evidence at this point to rule out Hulick's deliberate indifference. For example, when did Hulick receive the emergency grievance? What did he do upon receipt? What action did he take to determine whether or not the grievance was an emergency? On what did he base that decision? What, if anything, did Hulick do after denying the grievance's emergency status to ensure that the plaintiff was seen by medical staff?
As to when the alleged constitutional violations ended, no factual information on that is in the record either. Hulick did not deny the grievance as moot; he denied it as non-emergent. If the plaintiff was already in HCU by the time Hulick received the grievance, then the Court agrees it would be difficult to prove Hulick's handling of the grievance caused any damage. Similarly, if Hulick's responded to the grievance upon receipt, and his response caused the plaintiff to be seen by the nurse that same day, it is hard to see how Hulick could be found deliberately indifferent. Those are still "ifs" on this nascent record. Accordingly, Hulick's motion is premature and unsupported. Hulick may renew his arguments in a well supported summary judgment motion.
Plaintiff's Motion to Compel (41)
The plaintiff seeks "any and all grievances, complaints or other documents received by the defendants or their agents at Hill Correctional Center concerning mistreatment of inmates, violations of constitutional rights (via gross deliberate indifference) denial of medical needs, harassment, denial of medical treatment, interference/delay of medical treatment by defendants Stewart, Turnquist, Aldridge and Hulick, also any memoranda, investigative files or other documents created in response to such documents from the start of their employment at Hill Correctional Center until the date of their response." (d/e 42). The ...