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Hamm v. Alexander

United States District Court, D. South Carolina

October 26, 2016

Michael E. Hamm, Plaintiff,
v.
Harold Alexander, NFN Hickman, NFN White, NFN Trapp, and Galen Sanders, Defendants.

          ORDER

          Richard Mark Gergel United States District Court Judge

         This 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.

         I. Background

         Plaintiff 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. 1-1).

         Plaintiff 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. (Id.).

         With 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.).

         With 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).

         With 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 25).

         With 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).

         Plaintiff 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).[1] 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).

         II. Legal Standard

         The 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 Fed.R.Civ.P. 72(b).

         However, 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 report.").

         In 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 ...


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