United States District Court, D. South Carolina, Aiken Division
Timothy M. Cain, United States District Judge
an inmate proceeding pro se, filed this action pursuant to 42
U.S.C. § 1983. In accordance with 28 U.S.C. §
636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter was
referred to a magistrate judge for pretrial handling. Before
the court is the magistrate judge's Report and
Recommendation (“Report”), recommending that the
court dismiss Plaintiff's complaint without prejudice and
without issuance and service of process. (ECF No. 8).
Plaintiff was advised of his right to file objections to the
Report. (ECF No. 8 at 7). Plaintiff has timely filed
objections. (ECF No. 10).
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). In the absence of objections, this court is not
required to provide an explanation for adopting the Report.
See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983). Rather, “in the absence of a timely filed
objection, a district court need not conduct a de novo
review, but instead 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 &
Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72 advisory committee's note).
sets forth three specific objections to the Report. In his
first objection, Plaintiff argues that Dr. McRee purposely
refused to send him to an orthopedic physician. He argues
that Dr. McRee has not given him a proper scoliosis
examination and it is possible that, with a proper
examination and treatment by an orthopedist, his pain over
the past twelve months could have been avoided. He also
contends that the magistrate judge's recommendation in
the Report that this action should be dismissed is premature,
and that he needs to conduct discovery to be able to prove
have repeatedly rejected medical indifference claims alleging
that medical practitioners failed to provide diagnostic
tests, even in cases where such tests might have proved
highly beneficial to the prisoner-plaintiffs or where failure
to provide such tests may have constituted medical
malpractice. See, e.g., Estelle v. Gamble, 429 U.S.
97, 107 (1976) (“[T]he question whether an X-ray or
additional diagnostic techniques or forms of treatment is
indicated is a classic example of a matter for medical
judgment. A medical decision not to order an X-ray, or like
measures, does not represent cruel and unusual
punishment.”). A prison inmate “does not enjoy a
constitutional right to the treatment of his or her
choice.” De'Lonta v. Johnson, 708 F.3d
520, 526 (4th Cir. 2013). Having carefully reviewed
Plaintiff's objections and the evidence submitted by both
parties, the court agrees with the magistrate judge that this
is not a case of deliberate indifference to serious medical
needs, but simply a disagreement between Plaintiff and prison
health care staff about the appropriate course of his
second objection, Plaintiff alleges that Nurse Terry Andrews
was purposely indifferent to his medical needs when she
interfered with his receipt of a pair of high-top or mid- top
athletic shoes which had been prescribed by Dr. McRee. In his
Complaint, however, Plaintiff alleges that Nurse Andrews
ordered the wrong shoes and then destroyed the prescription
to cover up that she had ordered the wrong shoes. (Compl. at
8). Moreover, in regard to his grievance, he stated that
Nurse Andrews “failed to properly describe the type of
shoes that needed to be ordered.” (ECF No. 1-1 at 1).
The magistrate judge stated that, at most, Plaintiff's
allegations support a negligence claim which is not
actionable under § 1983. (Report at 5). In his
Objections, Plaintiff now contends that Nurse Andrews
intentionally changed the description of the prescribed shoes
and then destroyed the original prescription. Plaintiff
cannot use his objections to plead new facts not alleged in
his complaint, especially when those new facts are
contradictory to those alleged in the complaint. Compare
United States v. George, 971 F.2d 1113, 1118 (4th Cir.
1992) (specifying a district court has the duty “to
consider all arguments . . ., regardless of whether they were
raised before the magistrate” (emphasis added))
with Backus v. Cox, C/A No. 4:13-cv-00881-RBH, 2013
WL 5707328, at *2 (D.S.C. Oct.18, 2013) (“Plaintiff,
however, cannot use his objections to plead new claims or
cure the factual defects of his existing claims against
Defendant . . . ”). See Ferola v. McCall, C/A
No. 9:16-cv-00547-RBH-BM, 2017 WL 490113, *3 n.11 (D.S.C.
Feb. 7, 2017). The court agrees with the magistrate judge
that Plaintiff's allegations in his Complaint support
only a negligence claim against Nurse Andrews and is not
actionable under §1983.
third objection, Plaintiff contends that Defendants Corporal
Lee and Officer Miskints denied him access to the courts by
causing him to be late to a hearing on September 2, 2015.
Additionally, he contends that the remaining defendants are
also responsible for causing him to be late to this hearing.
As the magistrate judge noted, Plaintiff has not alleged any
prejudice in regard to his denial of access to court claims.
(Report at 6).
court has thoroughly reviewed the Report and Plaintiff's
objections and finds no reason to deviate from the
Report's recommended disposition. Accordingly, the court
finds Plaintiff's objections are overruled. Based on the
foregoing, the court adopts the Report (ECF No. 8) and
incorporates it herein, and Plaintiff's complaint is
DISMISSED without prejudice and without issuance and service
IS SO ORDERED.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the ...