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Craig v. United States

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

November 6, 2017

Charles P. Craig, #14756-035, Plaintiff,
v.
United States of America, Defendant.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE

         The Plaintiff, proceeding pro se and in forma pauperis, brought this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (See generally Dkt. No. 1; see also 28 U.S.C. § 1346.) This matter is before the Court upon a Motion to Dismiss filed by the United States. (See Dkt. No. 16.) For the reasons set forth herein, the undersigned recommends granting Defendant's Motion to Dismiss (Dkt. No. 16).

         Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration.

         The Plaintiff brought the instant action on or about November 21, 2016. (See generally Dkt. No. 1.) On May 8, 2017, Defendant filed a Motion to Dismiss. (Dkt. No. 16.) By order filed May 9, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Plaintiff was advised of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 17.) On or about May 23, 2017, Plaintiff filed a Response in Opposition to the Motion to Dismiss, as well as a Motion to Stay and a Motion to Appoint Counsel. (See Dkt. No. 20; Dkt. No. 19; Dkt. No. 21.)

         In an Order dated June 20, 2017, the undersigned denied Plaintiff's Motion to Appoint Counsel; that same Order granted in part and denied in part Plaintiff's Motion to Stay. (Dkt. No. 23.) That Order provided, inter alia, “[T]he request to stay is granted insomuch as Plaintiff will be allowed forty-five days to submit the affidavit of an expert witness to identify ‘at least one negligent act or omission . . . and the factual basis' for that claim. See S.C. Code Ann. § 15-36-100(B).” (Dkt. No. 23 at 3.) Plaintiff filed a Motion for Reconsideration as to the Order denying Plaintiff's request to appoint counsel; that motion was denied on July 12, 2017. (Dkt. No. 26; Dkt. No. 27.)

         FACTUAL BACKGROUND

         In the instant action, Plaintiff complains about events that occurred while he was incarcerated at the Federal Correctional Institution in Edgefield, South Carolina (“FCI Edgefield”). (See generally Dkt. No. 1.) Plaintiff alleges, inter alia,

While in federal prison [at FCI Edgefield], Plaintiff suffered from a serious physical injury causing him extreme pain. When Plaintiff asked Defendant for medical assistance, he was constantly ignored. When Plaintiff begged Defendant for nerve pain medicine, Defendant merely took actions to exacerbate Plaintiff's pain and suffering by denying it.

(Dkt. No. 1 at 1 of 7.) Plaintiff alleges that despite suffering tingling sensations, weakness, and muscle deterioration, Defendant's employees prescribed ibuprofen, “which did not help Plaintiff['s] battle with numbness, tingling sensations, and burning sensations.” (Dkt. No. 1 at 4 of 7.) Plaintiff further alleges that due to Defendant's negligence, his “health has deteriorated to the point that he can barely use his right arm and hand; ha[s] difficulty walking; and will need continued medical consultations and treatment from specialists, as well as medications[, ] for the rest of his life.” (Dkt. No. 1 at 5 of 7.) Plaintiff's Complaint lists the following causes of action: (a) “medical malpractice/medical negligence” and (b) negligence. (See Dkt. No. 1 at 6-7 of 7.)

         DISCUSSION

         In its Motion to Dismiss, the Defendant contends that the instant action should be dismissed because Plaintiff failed to file “an affidavit from a supporting medical expert” along with his Complaint. (See Dkt. No. 16 at 7-10.) As noted above, Plaintiff attempts to bring the following causes of action against the Defendant, the United States of America: (a) “medical malpractice/medical negligence” and (b) negligence. (See Dkt. No. 1 at 6-7 of 7.)

         In the case sub judice, Plaintiff did not file an expert affidavit with his Complaint, nor has he filed such an affidavit while the instant action has been pending. South Carolina Code Section 15-36-100(B) provides as follows:

Except as provided in Section 15-79-125, in an action for damages alleging professional negligence against a professional licensed by or registered with the State of South Carolina and listed in subsection (G) or against any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of South Carolina and listed in subsection (G), the plaintiff must file as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit.

         S.C. Code Ann. § 15-36-100(B). Section 15-36-100 applies to medical doctors and nurses. See S.C. Code Ann. § 15-36-100(G). As Judge Currie recently noted in Grant v. United States, Civ. A. No. 3:17-cv-0377-CMC, 2017 WL 2265956 (D.S.C. May 24, 2017), “[m]ultiple judges within this district . . . have held . . . Section 15-36-100 [is] part of the substantive law of South ...


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