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Krug v. Loranth

United States District Court, D. South Carolina

November 10, 2014

Gregory C. Krug, Plaintiff,
v.
Victor Loranth, in his individual capacity, Defendant

Gregory C Krug, Plaintiff, Pro se, Los Angelas, CA.

For Victor Loranth, in his individual capacity, Defendant: Marshall Prince, LEAD ATTORNEY, U.S. Attorneys Office, Columbia, SC.

REPORT AND RECOMMENDATION

Shiva V. Hodges, United States Magistrate Judge.

Plaintiff Gregory C. Krug, proceeding pro se and in forma pauperis, filed this action seeking compensatory damages pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).[1] At the time of the incidents giving rise to the complaint, Plaintiff was incarcerated at the Federal Correctional Institution in Williamsburg, South Carolina (" FCI-Williamsburg"), a facility of the Bureau of Prisons (" BOP"). Plaintiff sues FCI-Williamsburg clinical director Dr. Victor Loranth (" Defendant"), alleging violations of his constitutional rights.

This matter comes before the court on Defendant's motion to dismiss, or in the alternative, motion for summary judgment.[2] [ECF No. 20]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the summary judgment procedures and the possible consequences if he failed to respond adequately to Defendant's motion. [ECF No. 21]. The motion having been fully briefed [ECF Nos. 30, 32], it is ripe for disposition.

Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this case has been referred to the undersigned for all pretrial proceedings. Because the motion is dispositive, this report and recommendation is entered for review by the district judge. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that the district judge grant Defendant's motion for summary judgment.

I. Factual and Procedural Background

Plaintiff claims that Defendant failed to treat his cirrhosis despite having knowledge of Plaintiff's condition. [ECF No. 1 at 2]. He alleges that on March 29, 2011, Defendant prescribed Plaintiff a daily dose of 81 mg of aspirin, although he knew that Plaintiff had a cirrhosis diagnosis. Id. at 2-3. Plaintiff states that the aspirin treatment damaged his liver and shortened his life expectancy. Id. at 6. Plaintiff states that he was unaware of his cirrhosis diagnosis and the danger of the aspirin regimen until he received a medical report on May 14, 2014. Id. at 5.[3] Plaintiff seeks compensatory and punitive damages. Id. at 6.

II. Discussion

A. Standard on Summary Judgment

The court shall grant summary judgment " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by " citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; " or " showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1).

In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the ...


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