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Vann v. United States

United States District Court, D. South Carolina, Aiken Division

October 30, 2017

Keith Aaron Vann, #91011-111, Plaintiff,
v.
United States of America, and Rick Perkins, Defendants.

          OPINION & ORDER

          HENRY M. HERLONG, JR. SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court with the Report and Recommendation of United States Magistrate Judge Shiva V. Hodges, made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 of the District of South Carolina.[1] Keith Aaron Vann (“Vann”), a federal prisoner proceeding pro se, is in the custody of the Bureau of Prisons (“BOP”) at Federal Correctional Institution in Estill, South Carolina (“FCI-Estill”). Vann alleges a negligence claim against the Defendants. Defendants filed a motion for summary judgment on August 18, 2017.[2] (Mot. Summ. J., ECF No. 19.) Magistrate Judge Hodges recommends granting the Defendants' motion for summary judgment. (R&R, ECF No. 24.) After review, the court adopts the magistrate judge's Report and Recommendation and grants the Defendants' motion for summary judgment.

         I. Factual and Procedural History

         Vann alleges that the Defendants were negligent in providing maintenance care for the continuous positive airway pressure (“CPAP”) machine he uses daily. (Compl., ECF No. 1.) Vann alleges that he woke up with a severe headache, heart palpitations, labored breathing, chest pains, and a runny nose on October 2, 2016, as a result of improper maintenance of his CPAP machine. (Id. at ¶¶ 7-8, ECF No. 1.) Vann claims damages of $25, 000, 000.00 for his physical, mental and emotional pain and distress. (Id. at ¶ 9, ECF No. 1.)

         II. Report and Recommendation

         First, Magistrate Judge Hodges recommends granting the Defendants' motion for summary judgment on the negligence claim against Defendant Rick Perkins, the Assistant Health Services Administrator, because the court lacks subject matter jurisdiction over Federal Tort Claims Act (“FTCA”) claims against individual defendants. (R&R 4-5, ECF No. 24.) Second, Magistrate Judge Hodges recommends granting the Defendants' motion for summary judgment on the negligence claim because the Defendants did not breach their duty of care to Vann. (Id. at 9, ECF No. 24.) Additionally, the magistrate judge recommends granting summary judgment finding that even if Vann could show the Defendants breached their duty of care, the evidence does not show that Vann suffered any injury or loss as a result of the Defendants' negligence or wrongful act or omission. (Id. at 10, ECF No. 24.)

         III. Discussion of the Law

         A. Summary Judgment Standard

         Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In deciding whether a genuine issue of material fact exists, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.

         A litigant “cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.” Monahan v. County of Chesterfield, 95 F.3d 1263, 1265 (4th Cir. 1996). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Ballenger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987).

         B. Objections to the Report and Recommendation

         Vann filed objections to the Report and Recommendation. Objections to the Report and Recommendation must be specific. Failure to file specific objections constitutes a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the Report and Recommendation of the magistrate judge, this court is not required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

         Upon review, the court finds that many of Vann's objections are non-specific, unrelated to the dispositive portions of the magistrate judge's Report and Recommendation, or merely restate his claims. However, the court was able to glean two specific objections. First, Vann objects to the magistrate judge's finding that the BOP did not breach its duty of care. (Objs., generally, ECF No. 26.) Second, Vann objects that his medical records were “fraudulently altered, changed, deleted, or otherwise changed.” (Id. at 3, ECF No. 26.)

         The FTCA provides for a limited waiver of the Government's sovereign immunity from suit by allowing a plaintiff ...


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