KENNETH T. DEPUTY, Plaintiff,
DR. J. CONLON, Defendant.
Submitted: March 30, 2017
Defendant's Motion for Summary Judgment GRANTED
Mary M. Johnston, Judge
case has a lengthy and complicated procedural history. The
underlying facts and procedural context are set forth in this
Court's Memorandum Opinion decided April 19,
Memorandum Opinion, the Court found:
The Court already has ruled that as the record presently
stands, genuine issues of material fact exist. In order to
obtain summary judgment, Defendant must at least present: (1)
an expert medical opinion that Plaintiff received adequate
medical care; and (2) an affidavit refuting the factual
allegations of a state of mind of deliberate indifference
towards Plaintiffs health. At that point, Plaintiff would
bear the burden of producing rebuttal evidence, or risk
dismissal pursuant to Superior Court Rule 56(e).
Conlon has filed two affidavits. The Affidavit of
Richard P. DuShuttle, M.D. provides sworn testimony that he
was Plaintiffs treating physician. Dr. DeShuttle confirms his
alternative recommendations that "(1) Mr. Deputy could
live with the injury or (2) surgery could be performed."
Dr. DuShuttle further stated that he will not provide expert
testimony on behalf of Plaintiff in this litigation.
Affidavit of Dr. J. Conlon, M.D. opines that "the
treatment was in accordance with the care recommended by Dr.
DuShuttle." Dr. Conlon further states that there is
"no evidence that any of the medical staff was
deliberately indifferent to Mr. Deputy's medical
condition....There is no evidence that anyone (including me)
failed to, consciously or otherwise, provide appropriate
medical treatment to Mr. Deputy at any time."
response to Defendant's submissions, Plaintiff reiterated
previous factual allegations and arguments. Additionally,
Plaintiff directs the Court's attention to "the
consultation of Dr. DuShuttle filed on June 16, 2005."
It appears that Plaintiff intends that this
"consultation" serve as rebuttal evidence in
opposition to Defendant's Motion for Summary Judgment.
judgment is granted only if the moving party establishes that
there are no genuine issues of material fact in dispute and
judgment may be granted as a matter of law. All facts are
viewed in a light most favorable to the non-moving
party. Summary judgment may not be granted if the
record indicates that a material fact is in dispute, or if
there is a need to clarify the application of law to specific
circumstances. When the facts permit a reasonable person
to draw only one inference, the question becomes one for
decision as a matter of law. If the non-moving party bears the
burden of proof at trial, yet "fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, " then summary judgment may be
granted against that party.
indifference requires that a prison official: (1) must be
aware of facts from which an inference reasonably could be
drawn that a substantial risk of serious harm exists; and (2)
must actually perceive the risk. An act or omission
unaccompanied by knowledge of a significant risk of harm does
not constitute cruel and unusual punishment as outlawed by
the 8th Amendment. Choosing a treatment plan different from
that requested by an inmate does not amount to deliberate
indifference, provided that the treatment plan is
now has presented expert medical testimony that Plaintiff
received adequate medical care. Further, Defendant has filed
a sworn affidavit refuting Plaintiffs factual allegations of
the state of mind of deliberate indifference towards
Court Civil Rule 56(e) provides: "When a motion for
summary judgment is made and supported as provided in this
Rule, an adverse party may not rest upon the mere allegations
or denials of the adverse party's pleading, but the
adverse party's response, by affidavits or as otherwise
provided in this Rule, must set forth specific facts showing
that there is a genuine issue for trial. If the adverse party
does not so respond, summary judgment if appropriate, shall
be entered against the adverse party."
reviewed all submissions, the Court finds that Defendant has
failed to demonstrate that there are genuine issues for
trial. Defendant has presented unrebutted sworn testimony
that Defendant did not fail to take reasonable steps to avoid
Plaintiffs substantial risk of serious harm, and that
Defendant did not ...