United States District Court, W.D. North Carolina, Charlotte Division
ROBERT E. WOODWARD, Plaintiff,
ALAN CLONINGER, et al., Defendants.
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on the following:
(1) Defendant Kim LNU's Motion for Summary Judgment [Doc.
(2) Plaintiff's Pro Se Motion to Obtain Correct
Identities of Both Unknown Nurses [Doc. 24];
(3) Defendant Kim LNU's Motion to Strike Plaintiff's
Surreply to Defendant LNU's Motion for Summary Judgment
(4) Defendant Cloninger and Nolen's Motion for Summary
Judgment [Doc. 27]; and
(5) Plaintiff's Pro Se Motion to Amend/Correct Complaint
Plaintiff Robert E. Woodward is a North Carolina inmate
incarcerated at Alexander Correctional Institution in
Taylorsville, North Carolina. Plaintiff filed this action on
April 26, 2018, pursuant to 42 U.S.C. § 1983. Plaintiff
named the following individuals as Defendants: (1) Alan
Cloninger, Sheriff of Gaston County; (2) Kim LNU
(“Defendant Kim”), identified as the “Head
Nurse Kim” at Gaston County Detention Center; (3) Jane
Doe, identified as a nurse at the Gaston County Detention
Center; and (4) FNU Nolen, an officer at the Gaston County
Detention Center. Plaintiff brought an Eighth Amendment claim
against Defendants for deliberate indifference to serious
medical needs based on Defendants' refusal to provide him
with proper medical care of his diabetes-related foot
conditions while he was a pre-trial detainee at the Gaston
County Detention Center (the “jail”). Plaintiff
seeks compensatory and punitive damages.
January 7, 2019, Defendant Kim moved for summary judgment.
[Doc. 14]. In support of her motion, Defendant Kim filed a
memorandum in support, an Affidavit of Bruce Flitt, DO, the
Medical Director at the jail, and an Offender Information
Report for the Plaintiff. [Docs. 14-1, 14-2]. Defendant Kim
moves for summary judgment because she was misidentified by
the Plaintiff. Although she was a nurse at the jail during
the general time frame at issue, she was not on duty at the
relevant times and had no interactions with the Plaintiff.
The Plaintiff filed a response. [Doc. 20]. In his response,
the Plaintiff apologizes to Defendant Kim for incorrectly
identifying her and requests that summary judgment be granted
for her. The Plaintiff also responds point-by-point to
Defendant Kim's memorandum in support of summary judgment
and to the Affidavit of Bruce Flitt, DO. [See Doc.
20]. The Plaintiff, however, submitted no affidavit or any
other statements made under penalty of perjury. Defendant Kim
replied [Doc. 22] and the Plaintiff filed a surreply [Doc.
23]. Defendant Kim moved to strike the Plaintiff's
surreply as unauthorized. [Doc. 25].
February 8, 2019, after learning that Defendant Kim was not
on duty at the relevant times, Plaintiff moved to conduct
discovery to obtain the identities of “both
nurses” who were present in the medical unit on March
7, 2018. [Doc. 24]. On February 25, 2019, Defendants
Cloninger and Nolen moved for summary judgment. [Doc. 27]. In
support of their motion, Defendants Cloninger and Nolen filed
a memorandum, an Affidavit of Sheriff Alan Cloninger, and a
letter from the Plaintiff dated March 8 and 11, 2018. [Docs.
27-2, 27-4, 29]. These Defendants also stated that they would
provide video footage of the Plaintiff in the jail and at the
medical area on March 7, 2018, on the Court's request.
[Doc. 27-1]. Then, on February 26, 2019, the Plaintiff moved
to amend his complaint to “'correctly' name
‘both nurses' that violated [his] constitutional
rights on the morning in question.” [Doc. 30].
March 5, 2019, this Court entered an order in accordance with
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
advising Plaintiff of the requirements for filing a response
to the summary judgment motions and of the manner in which
evidence could be submitted to the Court. [Doc. 31]. The
Plaintiff was specifically advised that if he had any
evidence to offer to show that there is a genuine issue for
trial, he must present it to the Court “in a form which
would otherwise be admissible at trial, i.e., in the
form of affidavits or unsworn declarations.” The Court
further advised that:
An affidavit is a written statement under oath; that is, a
statement prepared in writing and sworn before a notary
public. An unsworn statement, made and signed under the
penalty of perjury, may also be submitted. Affidavits or
statements must be presented by Plaintiff to this Court no
later than fourteen (14) days from the date of this Order and
must be filed in duplicate.
[Doc. 31]. The Plaintiff filed a 16-page handwritten response
to Defendant's summary judgment motion. [Doc. 32]. The
Plaintiff, however, submitted no affidavits or other evidence
“in a form which would otherwise be admissible at
did not respond to either summary judgment before the Court
with evidence in the form of an affidavit or that is
otherwise admissible at trial. As such, the Court has before
it only the Plaintiff's original allegations, which are
went to the jail on December 4, 2017 for one night. While
there, he developed blisters on his toes, which turned into
diabetic ulcers. He then got cellulitis and endured months of
pain. Plaintiff wrote Sheriff Cloninger on December 6, 2017
and requested that he change his policy that prevented
diabetics from keeping their personal shoes. When Plaintiff
returned to the jail on March 5, 2018, the policy had not
changed. Plaintiff was forced to wear the exact same shoes
that caused his problems in December.
evening of March 6, 2018, the Plaintiff's toes
“busted open once again.” The Plaintiff went to
medical the following morning to check his blood sugar and to
get some band-aids. He “tried to declare a medical
emergency.” The head nurse, who Plaintiff named in his
Complaint as “Head Nurse Kim, ” was in earshot of
his conversation with another nurse, who the Plaintiff named
in his Complaint as Jane Doe, and would not come look at
Plaintiff's toes. Plaintiff explained to Nurse Jane Doe
that he had court that morning and needed to get his toes
dressed or bandaged because he had a lot of walking to do.
Nurse Doe and Officer Nolen “got mad” at
Plaintiff for asking for this care. Officer Nolen threatened
to mace the Plaintiff if he did not “got out of her