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Ham v. Stirling

United States District Court, D. South Carolina, Greenville Division

March 17, 2015

Angelo Ham, Plaintiff,
v.
Brian P. Stirling, Dr. John B. Tomarchio, Michael McCall, Nurse Stokes, Anthony J. Padula, John J. Brooks, Robert Peele, Debra Whitney, Sandra Bracey-Simon, Defendants.

ORDER AND OPINION

J. MICHELLE CHILDS, District Judge.

Plaintiff Angelo Ham ("Plaintiff") filed this pro se action pursuant to 42 U.S.C. § 1983. Plaintiff alleges an equal protection violation by Defendants Brian Stirling, John Tomarchio, Michael McCall, and Nurse Stokes for failing to provide a clinic for his chronic illness and alleges denial of access to the court by Defendants Anthony Padula, John Brooks, Robert Peele, Debra Whitney, and Sandra Bracey-Simon (collectively "Defendants"). (ECF Nos. 1, 13.) This matter is before the court on Plaintiff's Motion for Judgment on the Pleadings (ECF No. 36) and Defendants' Motion for Summary Judgment (ECF No. 46).

In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to United States Magistrate Judge Kevin F. McDonald for pre-trial handling. On January 12, 2015, the Magistrate Judge issued a Report and Recommendation ("Report") recommending the court grant Defendants' Motion for Summary Judgment and deny Plaintiff's Motion for Judgment on the Pleadings. (ECF No. 74.) This review considers Plaintiff's Objections to Report of Magistrate Judge ("Objections"), filed January 23, 2015. (ECF No. 76.) For the reasons set forth herein, the court ACCEPTS the Magistrate Judge's Report. The court thereby GRANTS Defendants' Motion for Summary Judgment (ECF No. 46) and DENIES Plaintiff's Motion for Judgment on the Pleadings (ECF No. 36).

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The court concludes upon its own careful review of the record that the factual and procedural summation in the Magistrate Judge's Report is accurate, and the court adopts this summary as its own. ( See ECF No. 74.) The court will only recite herein facts pertinent to the analysis of Plaintiff's Objections.

Plaintiff is incarcerated at Lee Correctional Institution within the South Carolina Department of Corrections ("SCDC"). (ECF No. 1.) On November 26, 2013, he filed his Complaint against Defendants Stirling, Tomarchio, McCall, and Stokes alleging that the SCDC, in violation of its policies, has failed to provide a "chronic clinic" to treat his acid reflux, or "dyspepsia, " which results in Plaintiff having to pay for sick call visits "just to receive either a review of his current medication and/or renewal of his current medication." ( Id. at 4-5; ECF No. 68 at 6.) Plaintiff seeks "a declaration that the acts and omissions described herein violated Plaintiffs' [ sic ] rights under the Constitution and laws of the United States, " preliminary and permanent injunctions "ordering defendants to stop treating chronic ill patients different and provide chronic ill patients with a chronic clinic and to send the Plaintiff to an institution that provides a chronic clinic for dyspepsia, " compensatory damages equal to the amount deducted from Plaintiff's account for medical copays charged, punitive damages in the amount of $50 a day for each day Defendants did not provide a chronic clinic for Plaintiff, "nominal damages against each defendant, " Plaintiff's costs, and any additional relief the court deems just. (ECF No. 1 at 6 (emphasis in original).)

On December 13, 2013, Plaintiff amended his Complaint to add five additional Defendants-Padula, Brooks, Peele, Whitney, and Bracey-Simon-and an additional cause of action-denial of access to the court. (ECF No. 13.) In the Amended Complaint, Plaintiff alleges these Defendants "hindered the Plaintiff from perfecting a petition for a writ of certiorari in the U.S. Supreme Court after the U.S. Court of Appeals gave the Plaintiff 90 days to file such petition." ( Id. at 1.) Plaintiff seeks nominal and punitive damages, costs, and any additional relief the court deems just. ( Id. at 3.)

Plaintiff filed a Motion for Judgment on the Pleadings on March 6, 2014. (ECF No. 36.) Defendants followed with a Motion for Summary Judgment on April 3, 2014. (ECF No. 46.) On January 12, 2015, the Magistrate Judge issued the Report recommending the court deny Plaintiff's Motion and grant Defendants' Motion. (ECF No. 74.) In the Report, the Magistrate Judge found that Defendants were entitled to summary judgment on Plaintiff's medical care claim because Plaintiff could not establish Defendants were deliberately indifferent to a serious medical need of Plaintiff. ( Id. at 4-6.) The Magistrate Judge also found that with regard to Plaintiff's request for reimbursement of co-payments made for medical care, the record showed Plaintiff had received medical care, and thus the SCDC was entitled to collect a co-payment for those services. ( Id. at 7, citing Cabbagestalk v. Richstad, 2009 WL 4040479, at *9 (D.S.C. Nov. 9, 2009); Sturkey v. Ozmint, 2009 WL 649569, at *2 (D.S.C. Mar. 11, 2009).) Further, the Magistrate Judge found that Plaintiff's claims regarding care for sickle cell anemia and asthma that Plaintiff first raised in his Response to Defendants' Motion for Summary Judgment (ECF No. 68) should not be considered by the court, as they were not raised in either the Complaint or the Amended Complaint. (ECF No. 74 at 7.) On Plaintiff's denial of access to the court claim, the Magistrate Judge found that although SCDC staff made mistakes in the mailing of Plaintiff's petition for writ of certiorari, the mistakes were unintentional, and "could best be characterized as negligence, which is not actionable under Section 1983." ( Id. at 9.) Further, the Magistrate Judge noted, Plaintiff was "attempting to continue to advance frivolous claims against two defendants who were immune from suit, " and thus failed to satisfy the requirement under Lewis v. Casey, 518 U.S. 343 (1996), that a prisoner must demonstrate that a non-frivolous claim had been impeded. ( Id. at 8, 10.) The Magistrate Judge further found that Defendants were entitled to qualified immunity, as Plaintiff had not demonstrated the deprivation of a constitutional right. ( Id. at 10-11.) Finally, the Magistrate Judge recommended denying Plaintiff's Motion for Judgment on the Pleadings, as "the issues litigated here do not lend themselves to disposition by simple consideration of the pleadings alone." ( Id. at 11.)

Plaintiff timely filed his Objections on January 23, 2015. (ECF No. 76.)

II. LEGAL STANDARD AND ANALYSIS

The Magistrate Judge's Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Matthews v. Weber, 423 U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those portions of the Report to which specific objections are made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge's recommendation, or recommit the matter with instructions. See 28 U.S.C. § 636 (b)(1).

Objections to a Report and Recommendation must specifically identify portions of the Report and the basis for those objections. Fed.R.Civ.P. 72(b). "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note). Failure to timely file specific written objections to a Report will result in a waiver of the right to appeal from an Order from the court based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). If the plaintiff fails to properly object because the objections lack the requisite specificity, then de novo review by the court is not required.

As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).

Plaintiff offers no objection to the portions of the Report regarding Plaintiff's claims about sickle cell anemia and asthma, denial of access to the court, qualified immunity, or the denial of his Motion for Judgment on the Pleadings. In the absence of objections to the Magistrate Judge's Report, this court is not required to provide an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, "in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond, 416 F.3d at 315. Furthermore, failure to file specific written objections to the Report results in a party's waiver of the right to appeal from the judgment of the District Court based upon such recommendation. 28 U.S.C. § 636(b)(1); Thomas, 474 U.S. 140; Wright, 766 F.2d 841; ...


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