United States District Court, D. South Carolina
Michael E. Hamm, Plaintiff,
Harold Alexander, NFN Hickman, NFN White, NFN Trapp, and Galen Sanders, Defendants.
Richard Mark Gergel United States District Court Judge
matter comes before the Court on the Report and
Recommendation (R & R) of the Magistrate Judge (Dkt. No.
28), recommending that the Defendants' motion for summary
judgment be granted and that the Plaintiffs case be dismissed
with respect to the federal claims. Plaintiff has filed
objections to the R & R. (Dkt. No. 31). For the reasons
stated below, the Court ADOPTS the R & R
as the order of this Court.
is a civilly committed inmate under the South Carolina
Sexually Violent Predator's Act (SVPA), SC Code Ann.
§44-48-60, et seq. Plaintiff is confined at the
Broad River Correctional Institution as part of the South
Carolina Department of Corrections, where he is in the
Sexually Violent Predator Treatment Program (SVPTP). Through
both his complaint and amended complaint, Plaintiff brings
claims pursuant to 42 U.S.C. §1983; the Americans with
Disabilities Act (ADA) and/or § 504 of the
Rehabilitation Act; and the Omnibus Adult Protection Act, SC
Code Ann. § 44-35-5, et seq. Through these
claims, plaintiff alleges that the medical care and treatment
he was provided was inadequate, that the medical staffing at
the facility where he is held is "below the accepted
professional standards, " and that the conditions of his
confinement are "impermissibly punitive and restrictive
in the medical care and treatment area, " (Dkt. No.
asserts five specific issues. (See Dkt. No. 1-1).
With respect to the first issue, Plaintiff alleges he suffers
from COPD (emphysema), and he uses his inhaler at night to
help him breathe better. (Id. at 6). Plaintiff
claims that on or about August 20, 2015, he asked Nurse Trapp
for his inhaler and that Nurse Trapp could not find his
inhaler. (Id.). Plaintiff alleges his inhaler went
missing and he was deprived of a new inhaler until August 25,
2015. (Id.). Plaintiff contends not having his
inhaler caused him sleep deprivation and the inability
"to breath[e] right." (Id.). Plaintiff
alleges that allowing his inhaler to "just
disappear" constitutes "deliberate
indifference" to his serious medical needs.
respect to the second issue. Plaintiff alleges he has a
medical condition in both of his legs, which he states
"they" believe is fibromyalgia. (Id. at
9). Plaintiff proclaims that he uses a TENS unit daily
because his brain tells his legs that they are damaged when
they are not, and that the TENS unit relieves this pain by
sending "an electrical pulse to trigger the pain
inhibitors to stop the pain receptor's from firing
continuously." (Id.). Plaintiff alleges that
between August 19, 2015 and August 25, 2015 he was deprived
of new batteries for the TENS unit causing the unit to go
dead after 30 minutes, to not work at its normal intensity,
or to not work at all. (Id.). Plaintiff maintains
that Nurse Supervisor Sanders was aware of the issues with
the TENS unit and that his failure to provide new batteries
to Plaintiff was "deliberate indifference to [his]
medical needs and care" causing him "infliction of
pain and suffering." (Id.).
respect to the third issue, Plaintiff alleges Nurse Hickman
put a battery in the TENS unit backwards and she "fought
to get it back out, " which bent the negative prong and
caused the unit to not work. (Id. at 15). Plaintiff
asserts that fixed the TENS unit by using a pen to pull the
prong out. (Id.). Plaintiff claims after he fixed
the unit, Nurse Hickman told him they had ordered him a new
one. When Plaintiff told her he had fixed the unit, Nurse
Hickman told him he was not supposed to have done that.
(Id.). Plaintiff alleges he was written up for using
a pen to fix the TENS unit. (Id. at 16).
respect to the fourth issue, Plaintiff alleges that he was
called before the Behavior Management Committee on August 28,
2015, to "answer for the said charge" noted in
issue three. (Id. at 24). Plaintiff claims that even
though the referral notice states that he is encouraged to
provide written information to the Committee prior to the
hearing date to include potential witnesses, that he was
never given the chance to do this. (Id. at 24).
Plaintiff asserts "since no consequences have been
handed down or the charges dropped" the outcome of the
tribunal is still hanging over his head. (Id. at
respect to the fifth issue, Plaintiff alleges he is an
ordained minister with full credentials as a "true
worshiper" and that as part of his religion he does not
believe that women should sit in judgment of him.
(Id. at 29).
filed this action pro se in the South Carolina Court
of Common Pleas, Richland, County on September 10, 2015.
(Id. at 1). The Defendants removed this case on the
basis of federal question jurisdiction to this United States
District Court on October 29, 2015 (Dkt. No. 1). On April 1,
2016, Defendants filed a motion for summary judgment (Dkt.
No. 21), which included the affidavits of Kimberly B. Rudd,
M.D. (Dkt. No. 21-2), Nurse Harold Alexander (Dkt. No. 21-3),
Nurse Charlene Hickman (Dkt. No. 21-4), and Cynthia Helff,
Program Manager I for SVPTP (Dkt. No. 21-5). Plaintiff filed
a response in opposition to the Defendants' motion for
summary judgment on May 17, 2016. (Dkt. No, 25). Defendants
filed a reply on May 27, 2016 (Dkt. No. 26), and Plaintiff
filed a sur reply on June 16, 2016 (Dkt. No. 27). On August
31, 2016, the Magistrate Judge issued an R & R,
recommending Defendants' motion for summary judgment be
granted and the case dismissed with respect to the federal
claims (Dkt. No. 28). Plaintiff filed objections to portions of
the R & R on September 22, 2016. (Dkt. No. 31). In
addition to an articulation of objections to specific
portions of the R & R, Plaintiff produced an additional
84 pages in support of his objections. (Dkt. No. 31-1).
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The Court may "accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate." 28 U.S.C. § 636(b)(1). This Court is
charged with making a de novo determination of those portions
of the R & R or specified proposed findings or
recommendation to which objection is made. Diamond v.
Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1)); accord
as to the portions of the R & R to which no objection is
made, this Court "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 & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed.R.Civ.P. 71 advisory committee note).
Additionally, the Court need not give any explanation for
adopting the R & R in the absence of specific objections
by the parties. See Camby v. Davis, 718 F.2d 198,
200 (4th Cir. 1983) ("Absent objection, we do not
believe that any explanation need be given for adopting the
reviewing this complaint, the Court is mindful of Plaintiff
spro se status. This Court is charged with liberally
construing the pleadings of a pro se litigant.
See, e.g., De 'Lonta v. Angelone,330 F.3d 630,
633 (4th Cir. 2003). The requirement of a liberal
construction does not mean, however, that the Court can
ignore a pro se plaintiffs clear failure to allege
facts that set forth a cognizable claim, or that a court must
assume the ...