The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge
REPORT AND RECOMMENDATION
This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge J. Phil Gilbert pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the Motion for Summary Judgment filed by Defendant Marvin Powers ("Defendant Powers") on January 22, 2007 (Doc. 25). For the reasons set forth below, it is RECOMMENDED the motion be DENIED and that the Court adopt the following findings of fact and conclusions of law:
Plaintiff Jesus Padilla, Jr. ("Plaintiff") originally filed this action in state court on March 23, 2006. Defendant Powers removed the matter from state court and filed here on May 22, 2006. In his complaint, Plaintiff, an inmate in Tamms Correctional Center, stated that in April 2004, Defendant Powers acted with deliberate indifference to his serious medical need of low back pain by causing Plaintiff to be transported and moved roughly by an extraction team, and by accusing Plaintiff of faking his injuries, and thereby refusing to order certain diagnostic tests. The Court completed its threshold review of the complaint pursuant to 28 U.S.C. § 1915(e)(2) on June 13, 2006, (Doc. 7), finding that Plaintiff had stated an Eighth Amendment claim of deliberate indifference to his serious medical needs against Defendant Powers. The Court dismissed Plaintiff's due process claims.
Defendant Powers filed a motion to dismiss the complaint shortly after the case was removed from state court (Doc. 3). On March 28, 2007, the Court granted Defendant Powers's motion to dismiss in part, dismissing the state law claims stated in the complaint (Doc. 34).
Defendant Powers now moves for summary judgment, arguing that there exists no evidence to suggest that he acted with deliberate indifference to any serious medical need of Plaintiff's and, therefore, summary judgment is appropriate in his favor (Doc. 25).
In response, Plaintiff contends that his affidavit presents facts that indicate he suffered from a serious medical need, and further, that Defendant Powers acted sadistically and maliciously to cause harm in violation of the Eighth Amendment. Thus, Plaintiff argues, genuine issues of material fact exist to preclude summary judgment in Defendant Powers's favor (Doc. 39).
The undisputed facts indicate that on April 21, 2004, Plaintiff complained of extreme low back pain that was so severe that he was unable to move. He was removed from his cell and taken to the infirmary (Doc. 25-6 at 1). The parties dispute what transpired next.
Plaintiff's version of the facts are as follows: Defendant Powers came to Plaintiff's cell in the infirmary and ordered him to get up and come to the door, but Plaintiff informed Defendant Powers that he was unable to move due to his severe back pain (Doc. 40 at ¶ 6). Defendant Powers accused Plaintiff of "faking" his injury and threatened him by stating that if he did not come to the door, he would authorize the tactical unit to use force to restrain him (Doc. 40 at ¶ 7). After Plaintiff repeated that he was in so much pain he was unable to move, Defendant Powers authorized the tactical team to enter the cell (Doc. 40 at ¶ 8). The tactical team then "slammed the shield directly on Plaintiff's back," roughly flipped him onto his stomach, grabbed his ankles and pulled them upward to place Plaintiff in leg shackles. At the same time, the tactical team wrenched Plaintiff's arms behind his back to restrain him in handcuffs (Doc. 40 at ¶ 9). Defendant Powers observed the tactical team placing Plaintiff in restraints and heard his cries of pain (Doc. 40 at ¶ 10). Defendant Powers then ordered Plaintiff to sit up for examination but Plaintiff told him that he could not sit up due to his extreme pain (Doc. 40 at ¶ 11). Defendant Powers then ordered the tactical team to force Plaintiff into a sitting position for examination (Pl. Affidavit, ¶ 11). The tactical team did so, while Plaintiff screamed in pain (Doc. 40 at ¶ 12).
Plaintiff states that these events, including Defendant Powers's accusation that Plaintiff was "faking," all occurred before Defendant Powers had examined him (Doc. 40 at ¶ 10). After examination, which consisted of Defendant Powers running a pinwheel up and down Plaintiff's legs for five seconds, Defendant Powers prescribed Motrin and Robaxin (a muscle relaxant).
Defendant Powers's version of the facts provide little information regarding the use of the tactical team prior to the initial examination, except for the following note from an exam in Plaintiff's medical chart:
Laying on the infirmary bunk on his left side. Refuses to get up or to even try to get up, claiming his legs are numb from the waist down. Security entered the cell and secured the inmate. He was placed in a sitting position and examined. He was moving both lower extremities, had good and equal DTR of patella and ankles. Good skin color overall ...