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 District 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. Â§ 1983.
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. Â§ 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. Â§ 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 Â¶ 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 Â¶ 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 material
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. Â§ 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 Â§ 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) are DISMISSED.
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
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. Â§ 1915.
See ECF No. 141-1 at 21.The Magistrate Judge