United States District Court, D. South Carolina, Rock Hill Division
Dr. Anthony B. Jones, Sr., Plaintiff,
Sgt. Jean Myers, Defendant.
Bryan Harwell, United States District Judge
Dr. Anthony B. Jones, Sr., a state prisoner proceeding pro
se, filed this action pursuant to 42 U.S.C. § 1983
against Defendant Sgt. Jean Myers. See ECF No. 1.
The matter is before the Court for review of the Report and
Recommendation (“R & R”) of United States
Magistrate Judge Paige J. Gossett, made in accordance with 28
U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 for the
District of South Carolina. See R & R, ECF No.
10. The Magistrate Judge recommends that the Court summarily
dismiss Plaintiff's complaint without prejudice and
without issuance and service of process. R & R at 1, 6.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's 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 must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
is currently a state prisoner, but his lawsuit stems from an
incident that allegedly occurred on May 18, 2016, while he
was a pretrial detainee at the Barnwell County Detention
Center. Plaintiff initiated this action pursuant to 42 U.S.C.
§ 1983 by filing the standard complaint form used by
prisoners in civil rights actions. See ECF No. 1. In
his complaint, Plaintiff alleges Defendant Myers
“mistakenly gave” him medication that belonged to
another detainee. Id. at 6. Plaintiff claims that
after he took the medication, he suffered “what felt
like a heart attack and shortness of breath, ” went
into a seizure, and lost consciousness. Id.
Plaintiff further alleges he had to be transported by EMS to
a hospital for medical treatment. Id.
Magistrate Judge has liberally construed Plaintiff's
complaint as purporting to raise a claim of deliberate
indifference to his medical needs in violation of the
Fourteenth Amendment. R & R at 4 & n.3. The Magistrate
Judge recommends summarily dismissing the complaint because
Plaintiff has failed to state a plausible deliberate
indifference claim. Id. at 5. In making this
recommendation, the Magistrate Judge relies on the fact that
Plaintiff repeatedly alleges Defendant Myers's act was a
“mistake, ” which only plausibly states a claim
for negligence and is insufficient to state a claim under
§ 1983. Id.
the Court notes Plaintiff has not specifically objected to
the Magistrate Judge's finding that he has failed to
state a plausible § 1983 claim for deliberate
indifference to his medical needs. Having found no clear
error in the R & R, the Court agrees with the Magistrate
Judge's recommendation to summarily dismiss
Plaintiff's complaint on this basis. See
Diamond, 416 F.3d at 315 (stating a district court need
only review the magistrate judge's R & R for clear
error in the absence of specific objections).
the time for filing objections, Plaintiff filed a handwritten
complaint reiterating his factual allegations against
Defendant Myers. See ECF No. 12. Similar to his
original complaint, Plaintiff claims Defendant Myers
“unconsciously issued Plaintiff improper
medication that was later discovered” to have
“belonged to another detainee with a similar name as
the plaintiff that was housed within the same . . . dorm as
Plaintiff within the . . . facility.” Id. at
2-6 (emphasis added). For reasons similar to those explained
in the R & R, Plaintiff's allegation that Defendant
Myers “unconsciously” administered him the wrong
medication is insufficient to state a plausible deliberate
indifference claim. At best, Plaintiff's allegations
establish a case of negligence, but not deliberate
indifference. See R & R at 4-5 (setting
forth the law applicable to deliberate indifference claims);
Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999)
(“Deliberate indifference is a very high standard-a
showing of mere negligence will not meet it.”).
in his newly submitted handwritten complaint, Plaintiff does
present a new allegation that Defendant Myers “both
consciously and deliberately breached and violated the Hippa
Privacy Act” by distributing the medication to
Plaintiff. Id. at 4-5. Plaintiff's filing and
new allegation could be liberally construed as a motion for
leave to file an amended complaint. See generally
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (stating
“[a] document filed pro se is ‘to be liberally
construed'” (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976))).
[C]ourt should freely give leave [to amend] when justice so
requires.” Fed.R.Civ.P. 15(a)(2). “[A]
request to amend should only be denied if one of three facts
is present: the amendment would be prejudicial to the
opposing party, there has been bad faith on the part of the
moving party, or amendment would be futile.”
Mayfield v. Nat'l Ass'n for Stock Car Auto
Racing, Inc., 674 F.3d 369, 379 (4th Cir. 2012)
(internal quotation marks omitted).
Plaintiff's amendment-which purports to assert a claim
under the Health Insurance Portability and Accountability Act
of 1996 (“HIPAA”)-would be futile because
“HIPAA does not create a private right of action nor
does it relate to the distribution of prescription
medicines.” Williams v. Jones, No.
9:07-CV-3437-MBS-GCK, 2008 WL 948285, at *1 (D.S.C. Apr. 4,
2008); see Johnson v. United States, No.
3:15-CV-00556-RJC-DSC, 2016 WL 2757609, at *5 (W.D. N.C. Mar.
24, 2016) (“The Fourth Circuit has not addressed the
issue. However, the Fifth Circuit and every district court to
address this issue have found no private right of action
under HIPAA.”), adopted by ...