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Walker v. Griswold

United States District Court, D. South Carolina

September 29, 2017

David Richard Walker, Jr.,
v.
Dr. Marilee Griswold, M.D. Senior Psychiatrist, Defendant.

          ORDER AND OPINION

         This matter is before the court upon the Magistrate Judge's Report and Recommendation ("Report") (ECF No. 85) and Defendant's Objection to the Report (ECF No. 88).

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         On March 11, 2016, Plaintiff David Richard Walker Jr. ("Plaintiff), proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983, alleging a violation of his Eighth Amendment rights and a supplemental claim for medical malpractice. (ECF No. 1.) On June 27, 2016, Plaintiff moved to amend the relief sought in his complaint (ECF No. 23), which was granted by the court on July 15, 2016. (ECF No. 31.) Later, on November 10, 2016, Plaintiff filed a motion to proceed without affidavit of an expert witness. (ECF No. 53.) Defendant filed a motion for an extension of time on December 7, 2016 (ECF No. 55), which the court granted on December 8, 2016 (ECF No. 57). Significantly, the court extended the deadline for dipositive motions to April 7, 2017 and noted that "[b]arring extraordinary circumstances, no additional extension of time to file dipositive motions will be granted." (Id.) On December 16, 2016, Defendant filed a motion to dismiss and a response in opposition to Plaintiff's motion to proceed without affidavit of an expert witness. (ECF Nos. 62, 63.) On December 28, 2016, the court issued a Roseboro[1] order, advising Plaintiff of the summary judgment/dismissal procedure and of the possible consequences of failing to adequately respond to a motion for dismissal or summary judgment. (ECF No. 64). On June 16, 2017, Plaintiff filed a response in opposition to Defendant's motion to dismiss. (ECF No. 83.)

         In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to United States Magistrate Judge Jacquelyn D. Austin for pre-trial handling. On July 27, 2017, the Magistrate Judge issued her Report recommending the court deny Plaintiffs motion to proceed without an expert witness (ECF No. 53), dismiss Plaintiffs state law medical malpractice claim, and allow Plaintiffs § 1983 claims to proceed. (ECF No. 85). Thereafter, on July 27, 2017, Defendant filed a motion for leave to file a dispositive motion on Plaintiffs section 1983 claims. (ECF No. 87.) Additionally, on August 10, 2017, Defendant filed an objection to the report (ECF No. 88) and a motion for summary judgment (ECF No. 89). On August 10, 2017, the court denied Defendant's motion for leave to file a dispositive motion (ECF No. 87). (ECF No. 92.) Then, on August 14, 2017, the court denied Defendant's motion for summary judgment (ECF No. 89) as moot.[2] (ECF No. 95.) Lastly, on August 14, 2017, Defendant filed an amended objection. (ECF No. 98.) Accordingly, this matter is now ripe for consideration.

         II. LEGAL STANDARD

         The Magistrate Judge's report is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Matthews v. Weber, 423 U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those portions of the Report to which specific objections are made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge's recommendation, or recommit the matter with instructions. See 28 U.S.C. § 636 (b)(1). Objections to a Report and Recommendation must specifically identify portions of the Report and the basis for those objections. Fed.R.Civ.P. 72(b). "[I]n 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 & Ace. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note). Failure to timely file specific written objections to a Report will result in a waiver of the right to appeal from an Order from the court based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Am, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). If the petitioner fails to properly object because the objections lack the requisite specificity, then de novo review by the court is not required.

         III. DISCUSSION AND ANALYSIS

         A. Plaintiff's State Malpractice Claim and Motion to Proceed Without an Expert Witness

         In her report, the Magistrate Judge recommended the court deny Plaintiffs motion to proceed without an expert witness (ECF No. 53), dismiss Plaintiff's state law medical malpractice claim, and allow Plaintiff's section 1983 claim to proceed. (ECF No. 85 at 11.) Neither party objected to the Magistrate Judge's recommendation to deny the Plaintiff's motion to proceed without an expert witness (ECF No. 53) or her recommendation to dismiss Plaintiff's state medical malpractice claim. (See ECF Nos. 85 at 11, 89 at 13.) Finding no clear error, the court accepts the Magistrate Judge's recommendations to deny Plaintiffs motion to proceed without an expert witness (ECF No. 53) and to dismiss Plaintiff's state medical malpractice claims.

         B. Plaintiff's Section 1983 Claim

         In her objection to the report, Defendant argues that the Magistrate Judge erred in allowing the Plaintiff's section 1983 claims to proceed. (See ECF Nos. 89, 90, 98.) Specifically, Defendant argues that she did not violate Plaintiffs rights secured by the Constitution or federal law, that she was not acting under the color of law, that she is entitled to qualified immunity, and that the Eleventh Amendment bars Plaintiff's suit. (See ECF No. 90.) Plaintiff has not responded to Defendant's objection.

         Further discussion is warranted in regard to the Magistrate Judge's finding that Plaintiff's section 1983 claim should proceed. (See ECF No. 85 at 11.) Specifically, the Magistrate Judge noted that she was allowing Plaintiffs section 1983 claims to proceed because Defendant only moved to dismiss his state medical malpractice claims, not his civil rights claims.[3] (ECF No. 85 at 10 n.5.) After the Magistrate Judge issued her report, Defendant filed a motion for leave to file a dispositive motion regarding Plaintiff's section 1983 claims (ECF No. 87) and later filed a motion for summary judgment (ECF No. 89), which addressed these claims[4]The court denied Defendant's motion for leave to file a dispositive motion because the Magistrate Judge had set an April 7, 2017 deadline for dipositive motions and because the court did not find there to be excusable neglect. (See ECF No. 92.) Accordingly, the court denied Defendant's motion for summary judgment (ECF No. 89) as moot, but noted that it would be considered with Defendant's objection in the court's review of the Magistrate Judge's report. (See ECF No. 95.) Now the court must decide whether it will consider Defendant's new arguments regarding Plaintiff's section 1983 claims, contained in her motion for summary judgment (ECF No. 89), in its review of the Magistrate Judge's report.

         In United States v. George, 971 F.2d 1113 (4th Cir. 1992), the Fourth Circuit held "that as part of its obligation to determine de novo any issue to which proper objection is made, a district court is required to consider all arguments directed to that issue, regardless of whether they were raised before the magistrate." Id. at 1118. In George, a criminal defendant filed two motions to suppress evidence seized pursuant to search warrants. Id. at 1116. The Magistrate Judge made proposed findings of fact and recommended the court grant the defendant's suppression motions. Id. In response to the Magistrate Judge's recommendation, the government filed objections, raising two new arguments in opposition to the suppression motions that were not presented to the Magistrate Judge. Id. The district court adopted the Magistrate Judge's proposed findings and recommendations and refused to consider the government's new arguments because it had not raised these arguments before the Magistrate Judge. Id. at 1117. The Fourth Circuit held that the district court erred by refusing to entertain the government's new arguments. See Id. at 1118. The Fourth Circuit reasoned that because "de novo review entails consideration of an issue as if it had not been decided previously. . . the party entitled to de novo review must be permitted to raise before the court any argument as to that issue that it could have raised before the magistrate." Id.

         In Samples v. Ballard,860 F.3d 266 (4th Cir. 2017), the Fourth Circuit clarified its holding from George. In Samples, a federal habeas petitioner presented new ineffective assistance of counsel claims, not raised in his second habeas petition, in his objections to the Magistrate Judge's report. Id. at 269. The district court concluded that Petitioner waived these claims by failing to raise them in front of the Magistrate Judge. Id. at 270. However, the district court acknowledged that George may apply to this case, and accordingly, granted a certificate of appealability "limited to the procedural issue of whether [the petitioner] 's claims should be heard where they were raised for the first time in objections to the Magistrate judge's PF&R." Id. On appeal, the Fourth Circuit first determined that George applied to federal habeas petitions. Id. at 272. Additionally, the Court clarified its holding in George and explained that "George envisions a hierarchical scheme, wherein a legal case is divided into issues, and issues are further subdivided into arguments." Id. (emphasis in original). Furthermore, the Court noted that George did not require the court to consider wholly new issues, which were not before the Magistrate Judge, presented by the party in his or her objections. See Id. (quoting George, 971 F.2d at 1118) (emphasis added). Instead, George required the court to consider new arguments related to an issue that was before the Magistrate Judge and to which a proper objection was made. See Id. (emphasis added) (quoting George, 971 F.2d at 1118). Illustrating the application of this framework, the court clarified that in George "the legal case was the entire criminal case, the issue was suppression of evidence from the truck, and the arguments made against suppression by the government were (1) existence of a valid warrant; (2) good faith reliance on a valid warrant; (3) no reasonable expectation of privacy; and (4) inevitable discovery." Id. (emphasis added). Moreover, the Court noted that in the habeas context the George framework applied as follows: "(1) the legal case is the habeas petition; (2) the issues or claims are the asserted grounds for relief; and (3) the arguments are whatever position is taken in support of or ...


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