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Berthelot v. Thomas

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

December 23, 2014

PATRICK JON BERTHELOT, Plaintiff
v.
OFFICER THOMAS, et al., Defendants

Patrick Jon Berthelot, Plaintiff, Pro se, Mt. Meigs, AL.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

HARWELL G. DAVIS, III, UNITED STATES MAGISTRATE JUDGE.

Plaintiff, Patrick Jon Berthelot, filed this pro se action pursuant to 42 U.S.C. § 1983 alleging that rights, privileges, or immunities afforded him under the Constitution or laws of the United States were abridged during his incarceration at Tuscaloosa County Jail in Tuscaloosa, Alabama.[1] In his amended complaint, he names Detention Officer Thomas and Deputy Sheriff Smith as defendants. As compensation for the alleged constitutional violations, the plaintiff seeks declaratory and injunctive relief[2] as well as monetary damages. In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(2), the complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136 (1991).

I. Procedural History

On April 16, 2014, the court entered an Order for Special Report directing that copies of the amended complaint in this action be forwarded to each of the named defendants and requesting that they file a special report addressing the factual allegations of the plaintiff's complaint. (Doc. 9). The defendants were advised that the special report could be submitted under oath or accompanied by affidavits and, if appropriate, would be considered as a motion for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. By the same Order, the plaintiff was advised that after he received a copy of the special report submitted by the defendants he should file counter affidavits if he wished to rebut the matters presented by defendants in the special report. The plaintiff was further advised that such affidavits should be filed within twenty days after receiving a copy of the defendants' special report.

On June 10, 2014, the defendants filed a special report accompanied by affidavits and certified copies of institutional records. (Doc. 12). Thereafter, the plaintiff was notified that he would have twenty days to respond to the motion for summary judgment, filing affidavits or other material if he chose. (Doc. 13). He also was advised of the consequences of any default or failure to comply with Fed.R.Civ.P. 56. See Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985). The plaintiff has not filed a response to the defendants' motion for summary judgment.

II. Factual Allegations

The following facts are undisputed, or if disputed, taken in a light most favorable to the plaintiff.

The plaintiff does not dispute the defendants' assertion (doc. 12 at 1) that he was a pre-trial detainee at the Tuscaloosa County Jail during the time the events giving rise to this complaint occurred, which began when the plaintiff thought he broke his ankle around 12:30 p.m. on June 12, 2012. (Doc. 5 at 5). The plaintiff immediately notified jail personnel of his injury. (Id. at 4, 6). Officer Thomas admits the plaintiff " complained" of a foot injury, so he " reported that to the medical unit." (Doc. 12-3, Exhibit 3 at 1). " When the nurse arrived, [Thomas] escorted [the plaintiff] to the medical facility within the jail." (Id.).

The plaintiff declares Thomas escorted him to the medical unit around 4:00 p.m. (Doc. 5 at 6). The plaintiff told Officer Thomas that he " believed [his] ankle was broken and [he] could not walk on it[, ]" but Thomas " stated he was not going to get a wheelchair and [the plaintiff] had to walk to medical." (Id.).[3]

Upon examination at the medical unit, Nurse Dahn informed the plaintiff that his " ankle was probably just sprained and" would not send the plaintiff to the hospital " because he did not want to get in trouble." (Id.). Dahn " ordered 'Tylenol' every 8 hours[, ] . . . [an] ice pack every 4 hours[, ] . . . and told Thomas to push [the plaintiff] back to holding cell 247 in a wheelchair." (Id.).

At 9:30 a.m. the next morning, " 'Diane' came for morning medication . .., stated [the plaintiff's] ankle was defin[i]tely broken and told jail personnel [he] needed to go to the hospital." (Id.). An Inmate Medical Referral Transport Arrangement Form signed by Nurse D. Lutz on that date shows that the plaintiff was ordered to be transported by patrol car to the Druid County Hospital Emergency Room as soon as possible so that an x-ray could be performed on his ankle, and " if broken[, ]" that it be " splint[ed] there." (Doc. 12-1 at 1).

At 11:30 a.m. Officer David Smith told the plaintiff he " needed to go to booking." (Doc. 5 at 6). The plaintiff told Smith " he could not walk on [his] ankle[, ]" but Smith told the plaintiff he " had to because he 'wasn't pushing no damn inmate in a wheelchair.'" (Id.).[4] When he got to booking, Officer Simpson " got [the plaintiff] a pair of crutches and transported [him] to the ...


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