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Kinloch v. Myers

United States District Court, D. South Carolina

September 26, 2017

Antonio Kinloch, #219914, Plaintiff,
v.
Sgt. Kelvin Myers, et al., Defendants.

          ORDER AND OPINION

          Margaret B. Seymour Senior United States District Judge

         Plaintiff Antonio Kinloch is an inmate in custody of the South Carolina Department of Corrections (SCDC). He currently is housed at Lee Correctional Institution (LCI) in Bishopville, South Carolina. On January 13, 2015, Plaintiff filed a complaint in the Court of Common Pleas for Dorchester County, South Carolina, asserting claims for deprivation of his constitutional rights. See 42 U.S.C. § 1983. Plaintiff also asserts various state law causes of action. On February 18, 2015, Defendants removed the case to this court. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Mary Gordon Baker for pretrial handling.

         This matter currently is subject to a second amended complaint filed September 7, 2016, which named as Defendants Sgt. Kelvin Myers, Assistant Warden Fred Thompson, Investigator Mr. Trey, N.P.-Ms Holcome, M.H.-Ms. Joyner, M.H.-Ms. Harris, Warden C. Anthony, RN-Robinson, Nurse-Ms. K. Scott, Warden Mr. Cartlige, Dr. Charlotte Thompson, Officer Ms. Smith, Warden Reynolds, and Nurse Enloe. Defendants are employed by or medical staff associated with LCI or Plaintiff's prior custody terms at Lieber Correctional Institution in Ridgeville, South Carolina, and Perry Correctional Institution in Pelzer, South Carolina.

         Defendant Thompson filed a motion for summary judgment on November 14, 2016. By order filed November 14, 2016, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the summary judgment procedures and the possible consequences if he failed to respond adequately. Plaintiff filed responses in opposition to Defendant Thompson's motion on December 1, 2016, and December 2, 2016.

         On December 28, 2016, Defendant Anthony filed a motion to dismiss or, in the alternative, motion for summary judgment. A second Roseboro order was issued on December 29, 2016. Plaintiff filed a response in opposition on January 11, 2016.

         On January 3, 2017, Plaintiff filed a “Motion asking the Judge to stop the defendants from sending me Back to Dr. Charlotte's hospital for care and treatment.” Defendants Anthony, Cartlige, Enloe, Harris, Holcome, Joyner, Myers, Reynolds, and Thompson filed a response in opposition to Plaintiff's motion on January 16, 2017, to which Plaintiff filed a reply on January 25, 2017.

         On February 16, 2017, Defendants Cartlige, Enloe, Harris, Holcome, Joyner, Myers, Reynolds, and Thompson filed a motion to dismiss, or, in the alternative, for summary judgment. A third Roseboro order was issued on February 17, 2017. Plaintiff filed a response in opposition to Defendants' motion on March 20, 2017, to which Defendants filed a reply on March 21, 2017, and Plaintiff filed a surreply on March 31, 2017.

         On July 27, 2017, the Magistrate Judge issued a Report and Recommendation wherein she recommended that Defendant Thompson's motion for summary judgment be granted. The Magistrate Judge further recommended that Defendant Anthony's motion for summary judgment be granted. As to the motion for summary judgment filed by Defendants Myers, Thompson, Holcome, Joyner, Harris, Cartlige, Reynolds, and Enloe, the Magistrate Judge recommended that summary judgment be granted as to all Defendants with the exception of an excessive force claim against Defendant Myers. Finally, the Magistrate Judge recommended that the court deny Plaintiff's motion that he not be sent to “Dr. Charlotte's Hospital” and that Defendants Trey, Robinson, Scott, and Smith be dismissed pursuant to Fed.R.Civ.P. 4(m) because they have not been served with the within action.

         Defendant Myers filed objections to the Report and Recommendation on August 4, 2017. Plaintiff filed objections to the Report and Recommendation on August 14, 2017, and August 22, 2017. Defendant Thompson filed a Reply to Plaintiff's objections on September 7, 2017.

         The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this court. Mathews v. Weber, 423 U.S. 261, 270 (1976). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1). This court may also receive further evidence or recommit the matter to the Magistrate Judge with instructions. Id. This court is obligated to conduct a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. 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).

         DISCUSSION

         The facts are thoroughly summarized in the Magistrate Judge's Report and Recommendation.

         A. Defendant Thompson's Motion for Summary Judgment (ECF No. 116)

         Defendant Thompson performed surgery on Plaintiff's eyes in 2004. Plaintiff contends that his eyes looked worse after the surgery and that he was disfigured. The Magistrate Judge determined that any claim against Defendant Thompson should have been brought within three years from the date of treatment, or three years from the date of discovery, as mandated by S.C. Code § 15-3-545(a). However, Plaintiff did not bring an action against Defendant Thompson until 2015, eleven years after his surgeries.

         Plaintiff does not dispute the Magistrate Judge's conclusion, but states that he was unaware of the limitations period. As a general proposition, ignorance of the law, even for an incarcerated pro se complainant, does not excuse prompt filing. Rodgers v. Angelone, 113 F.Supp.2d 922, 931 n.8 (E.D. Va. 2000) (quoting Fisher v. Johnson, 174 F.3d 710, 714-15 (5th Cir. 1999)). Plaintiff further contends that at the time he was dealing with mental and physical health issues, and that the court should allow his claims to ...


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