United States District Court, D. South Carolina, Orangeburg Division
Jimmy W. Wilson #295782, Plaintiff,
Dr. Way, HCA Nurse Darrell Harrison, S.C.D.C. Medical Director Dr. McRee, Defendants.
ORDER AND OPINION
MARGARET B. SEYMOUR SENIOR UNITED STATES DISTRICT COURT JUDGE
Jimmy W. Wilson (“Plaintiff”), proceeding pro
se and in forma pauperis, brought this action
against Dr. Way, HCA Nurse Darrell Harrison, and S.C.D.C.
Medical Director Dr. McRee (“Defendants”),
alleging that Defendants have been deliberately indifferent
to his medical needs in violation of his constitutional
rights. He brings this action pursuant to 42 U.S.C. §
matter is before the court on three pending motions:
Defendants’ Motion for Summary Judgment,
Plaintiff’s Motion for Jury Trial, and
Plaintiff’s Motion To Dismiss Defendants’ Motion
for Summary Judgment. ECF Nos. 141, 163, and 176. In
accordance with 28 U.S.C. § 636(b) (2012) and Local
Civil Rule 73.02, D.S.C., the matter was referred to United
States Magistrate Judge Kaymani D. West for a Report and
Recommendation. The Magistrate Judge filed a Report and
Recommendation on April 28, 2016, recommending that
Defendants’ Motion for Summary Judgment be granted and
Plaintiff’s remaining motions be dismissed. ECF No.
187. Plaintiff filed objections to the Report and
Recommendation on May 13, 2016. ECF No. 190.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270
(1976). The court is charged with making a de novo
review of any portions of the Report and Recommendation to
which a specific objection is made. Id. The district
court need not conduct a de novo review when a party
makes only general and conclusory objections that do not
direct the court to a specific error in the Magistrate
Judge’s proposed findings and recommendations.
Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir.
1982). The court may accept, reject, or modify, in whole or
in part, the recommendation made by the Magistrate Judge. 28
U.S.C. § 636(b)(1).
has filed only general objections to the Report and
Recommendation, summarizing the arguments he sets forth in
his Complaint and previous motions. ECF No. 190.
Nevertheless, the court has conducted a de novo
review of the issues in this case and concludes that the
Magistrate Judge has properly applied the applicable law.
Magistrate Judge first considered Defendants’ Motion
for Summary Judgment. Under Fed. R. Civ. P 56(c), the court
will award summary judgment if the movant shows that there is
no genuine dispute as to any material fact. In a claim of
deliberate indifference to medical needs, a plaintiff must
demonstrate that “an official knows of and disregards
an excessive risk to inmate health or safety . . .” and
draws an inference that “a substantial risk of serious
harm exists.” See Farmer v. Brennan, 511 U.S.
825, 837 (1994).
details four different treatments that he believes he should
have been afforded: (1) regular doses of Klonopin; (2) Botox
injections every 12 weeks; (3) treatment for fibromyalgia;
and (4) treatment for cholesterol. ECF Nos. 1 at 6-7, 1-1 at
1, and 1-4 at 1. However, in each of these four instances,
the Magistrate Judge found that Plaintiff did not offer any
evidence to support a finding that Defendants disregarded a
serious risk to Plaintiff’s health or safety. First,
Plaintiff missed, at most, five days of Klonopin treatment,
during which time Defendants monitored Plaintiff for signs of
Klonopin withdrawal and waited for the pharmacy to complete
his refill. ECF Nos. 141-1 at 4 and 141-7. Second, although
Plaintiff was denied Botox treatments for a period of time,
his underlying condition was treated through an alternative
course of medicine. ECF No. 141-26 ¶ 14. Third, with the
exception Plaintiff’s “addition” or
addendum to his Complaint (ECF No. 1-1 at 1), there is no
mention of Plaintiff’s alleged fibromyalgia in any
documents or medical records that Defendants would have been
able to access prior to this action. Fourth, it is unclear if
Plaintiff is raising a medical indifference claim concerning
his high cholesterol, as he only mentions it once and
provides no further details. ECF No. 1-4 at 1. Nevertheless,
Defendants construe Plaintiff’s brief mention of high
cholesterol as an additional claim and in response, offer
evidence that Plaintiff has received at least three types
treatment for high cholesterol. ECF No. 141-31 ¶ 21.
Given the lack of supporting evidence for each of these
claims of medical indifference, the Magistrate Judge properly
concluded that Plaintiff failed to raise a genuine issue of
given that Plaintiff is a pro se litigant and the
court must afford his complaint a liberal construction,
see Cruz v. Beto, 405 U.S. 319 (1972), the
Magistrate Judge concluded that Plaintiff’s medical
indifference claims possibly could be construed as medical
malpractice claims. While medical malpractice does not
constitute a claim under 42 U.S.C. § 1983, medical
malpractice is available as a state law cause of action.
See Wright v. Collins, 766 F.2d 841, 849 (4th Cir.
1985). To the extent that Plaintiff has alleged a medical
malpractice claim in violation of state law, the Magistrate
Judge recommended that the court not exercise supplemental
jurisdiction. See Wauben v. Protega (USA), Inc., No.
2:05-2780-PMD-RSC, 2007 WL 775614, at *14 (D.S.C. Mar. 9,
2007) (granting summary judgment on a Title VII claim and
declining to exercise supplemental jurisdiction over
remaining state law claims).
upon the foregoing, the court adopts and incorporates herein
by reference the Report and Recommendation of the Magistrate
Judge. Defendants’ Motion for Summary Judgment is
GRANTED. Plaintiff’s § 1983
claims are DISMISSED WITH PREJUDICE, and
Plaintiff’s possible state law medical malpractice
claims are DISMISSED WITHOUT PREJUDICE and
may be reasserted in state court. Plaintiff’s Motion
for Jury Trial (ECF No. 163) and Motion to Dismiss
Defendants’ Motion for Summary Judgment (ECF No. 176)
the Magistrate Judge’s Report and Recommendation,
Plaintiff filed a Motion for Evidence (ECF No. 193) and a
Motion for Trial (ECF No. 197). These motions are
DENIED AS MOOT.
the court denies Defendants’ request that this action
be counted as a “strike” for the purposes of the
Prison Litigation Reform Act, codified at 28 U.S.C. §
1915. See ECF No. 141-1 at 21.The Magistrate Judge
properly concluded that Plaintiff’s Complaint was not