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Phillips v. Valpey

United States District Court, D. South Carolina, Anderson/Greenwood Division

July 17, 2014

Douglas E. Phillips, Plaintiff,
v.
Dr. Jack M. Valpey, Cherly Werre, Michael A. Miles, Defendants.

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

JACQUELYN D. AUSTIN, Magistrate Judge.

This matter is before the Court on a motion for summary judgment filed by Defendants. [Doc. 28.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.

Plaintiff, proceeding pro se, filed this action on July 15, 2013, alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983.[1] [Doc. 1.] Defendants filed a motion for summary judgment on October 28, 2013. [Doc. 28.] By Order filed on October 29, 2013, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the dismissal/summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. [Doc. 29.] Plaintiff filed a response in opposition on January 6, 2014 [Doc. 34] and submitted additional attachments on March 3, 2014 [Doc. 38]. The motion is ripe for review.

BACKGROUND[2]

At all times relevant to the factual allegations underlying this action, Plaintiff was in the custody of the South Carolina Department of Corrections ("SCDC") and housed at Manning Correctional Institution ("Manning").[3] [Doc. 1 at 2.] Plaintiff alleges he fell and injured his knee and back while coming out of the bathroom on November 20, 2012 during work time in the SCDC cafeteria on his assigned job. [ Id. at 3.] According to Plaintiff, the floor was wet with no wet floor sign and there were missing tiles, including where Plaintiff fell. [ Id. ] Plaintiff contends the cafeteria supervisor witnessed the incident, completed an incident report, and called medical, but medical was closed at the time. [ Id. ] Defendant Nurse Michael A. Miles ("Miles") informed the cafeteria supervisor that medical would be open later, and the cafeteria supervisor told Plaintiff to wait in the cafeteria until medical opened. [ Id. ]

Plaintiff alleges he waited in great pain and when he was finally taken to medical that day, he was seen by Miles, but Miles did not treat the injury; instead, Miles just looked at the injury and said it was fine. [ Id. ] On December 17, 2012, Plaintiff was seen by Defendant Cherly Werre ("Werre"), who glimpsed at Plaintiff's leg, told him there was nothing wrong with him, and told him to sign up for sick call. [ Id. ] On December 19, 2012, Plaintiff was seen by Defendant Dr. Jack M. Valpey ("Dr. Valpey"). [ Id. ] Plaintiff contends Dr. Valpey failed to treat or properly examine Plaintiff. [ Id. ]

Plaintiff alleges that he has been signing up for sick call off and on and, as of the date he filed the Complaint, he had not received any treatment for his injury. [ Id. ] Construing the Complaint liberally, Plaintiff alleges claims for medical malpractice, negligence, and deliberate indifference to medical needs. He seeks payment for any medical bills and expenses incurred after his release and compensatory damages. [ Id. at 4.]

APPLICABLE LAW

Liberal Construction of Pro Se Complaint

Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

Requirements for a Cause of Action Under § 1983

This action is filed pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 "is not itself a source of substantive rights, ' but merely provides a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, a civil action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).

Section 1983 provides, in relevant part,

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress..."

42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant "deprived [the plaintiff] of a right secured by the Constitution and laws of the United States" and (2) that the defendant "deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage." Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).

The under-color-of-state-law element, which is equivalent to the "state action" requirement ...


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