United States District Court, D. South Carolina, Beaufort Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge
matter is before the court with the Report and Recommendation
of United States Magistrate Judge Bristow Marchant, made in
accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02 of the District of South Carolina. Fernadus Allen
(“Allen”), a state prisoner proceeding pro se,
alleges a violation of 42 U.S.C. § 1983 against
Defendant Marty Lutz (“Dr. Lutz”), the facility
doctor at Greenville County Detention Center
(“GCDC”). Allen alleges that he was deprived of
his medical rights and that his physical health was
endangered when he was prescribed Bactrim, to which he is
allergic, while detained at GCDC. In his Report and
Recommendation filed on October 24, 2018, Magistrate Judge
Marchant recommends dismissing the complaint without
prejudice and without service of process. (R&R, ECF No.
November 20, 2018, after receiving no timely objections from
Allen, the court adopted the Report and Recommendation and
dismissed Allen's complaint without prejudice and without
issuance and service of process. (Nov. 20, 2018, Order, ECF
No. 15.) However, after the order was entered, the court
received two documents from Allen. On November 29, 2018, the
court received Allen's amended complaint. (Am. Compl.,
ECF No. 18.) On December 17, 2018, Allen filed his
objections. (Objs., ECF No. 19.)
amended complaint was dated October 30, 2018. (Am. Compl.,
ECF No. 18.) However, the amended complaint was postmarked
November 26, 2018, and did not contain a date stamp from the
GCDC mail room. (Id. Attach. 3 (Envelope), ECF No.
18-3.) Accompanying Allen's amended complaint is a note
that states, “1/M released to [South Carolina
Department of Corrections] 11/7/2018. Left in our mailroom in
Greenville County Detention.” (Id. Attach. 2
(Note), ECF No. 18-2.) It appears that Allen attempted to
file his amended complaint within the time period for filing
objections and before he was transferred from GCDC, but the
document was delayed in the GCDC mail room. Considering the
mailing issues and Allen's transfer from GCDC to Kirkland
Correctional Institution in Columbia, South Carolina, the
court will excuse the untimeliness of Allen's objections
and consider the amended complaint and his objections to the
Report and Recommendation. Therefore, the previous court
order issued on November 20, 2018, is hereby vacated, and the
court now considers Allen's 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 Allen's objections
are non-specific, unrelated to the dispositive portions of
the Report and Recommendation, or merely restate his claims.
However, the court was able to glean one specific objection.
Allen objects to the magistrate judge's conclusion that
his complaint is factually deficient to state a claim.
(Objs., generally, ECF No. 19.)
was a pretrial detainee when the alleged harm occurred. (Am.
Compl. 4, ECF No. 18.) Thus, his claim is evaluated under the
Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520,
535 (1979) (holding that a pretrial detainee's challenge
to prison conditions is properly analyzed under the Due
Process Clause of the Fourteenth Amendment); Martin v.
Gentile, 849 F.2d 863, 870 (4th Cir. 1988) (noting that
a pretrial detainee's claim for denial of medical care
following his arrest was properly analyzed under the Due
Process Clause of the Fourteenth Amendment and holding that
“[t]he due process rights of a pretrial detainee are at
least as great as the eighth amendment protections available
to the convicted prisoner[.]”). “[D]eliberate
indifference to the serious medical needs of a pretrial
detainee violates the due process clause.” Young v.
City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001).
“Deliberate indifference requires a showing that the
defendants actually knew of and disregarded a substantial
risk of serious injury to the detainee or that they actually
knew of and ignored a detainee's serious need for medical
care.” Id. at 576. “[A] showing of mere
negligence” does not satisfy the standard for
deliberate indifference. Id. at 575 (quoting
Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999)).
attempts to cure the factual deficiencies in his complaint
and now alleges in his amended complaint that Dr. Lutz
prescribed him Bactrim, which he then took and had an
allergic reaction. (Am. Compl. 4, 6, ECF No. 18.) However,
Allen cannot satisfy the test for deliberate indifference.
Although Allen states that he has a “known”
allergy to Bactrim, he has not alleged that Dr. Lutz knew
about Allen's allergy or later allergic reaction or that
he informed Dr. Lutz of that allergy. The only time that
Allen mentions Dr. Lutz in any of his filings is in one
sentence in the amended complaint, which says, “Doctor
M. Lutz perscribed [sic] me Bactrim, which I have a known
allergy.” (Am. Compl. 4, ECF No. 18.) Allen states that
he was given Bactrim by the “medical staff” at
GCDC, that he “had to eventually refuse the meds cause
[they] began to make [him] dizzy, ” and that he
“made [his] symptoms known to the medical staff, and
that's when [he] was told that [he] was allergic to the
Bactrim.” (Id. 6, ECF No. 18.) Although Allen
states that he has “a known allergy” to Bactrim,
Allen alleges in his amended complaint that he was unaware of
the allergy until he informed medical staff of his symptoms
and was told that he was allergic to Bactrim. (Am. Compl.
6-7, ECF No. 18.) Thus, Allen has not alleged that Dr. Lutz
actually knew of his allergy to Bactrim. Accordingly, Allen
has not stated a claim for deliberate indifference under the
Fourteenth Amendment and his objections fail.
although not specifically addressed in the Report and
Recommendation, there has been no evidence presented to
demonstrate that Allen has exhausted his administrative
remedies at GCDC before filing the instant action.
See Prison Litigation Reform Act, 42 U.S.C. §
1997e(a) (“No action shall be brought with respect to
prison conditions under Section 1983 of this title, or any
other federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are
exhausted.”). In fact, Allen concedes that he did not
file a grievance at GCDC because he did not think he was
required to do so for grievances involving medical issues.
(Am. Compl. 10-11, ECF No. 18.) However, Allen was required
to exhaust any available administrative remedies at GCDC in
order to maintain the instant suit. See Rutland v.
Dewitt, C.A. No. 8:09-13-SB, 2010 WL 288217, at *5
(D.S.C. Jan. 25, 2010) (unpublished) (“The exhaustion
of administrative remedies is also required of pretrial
detainees[.]”); Tate v. Anderson, C.A. No.
8:05-3085-HMH-BHH, 2007 WL 28982, at *4 (D.S.C. Jan. 3, 2007)
(unpublished) (“[T]he PLRA's strict exhaustion
requirement does indeed apply in actions brought by pretrial
detainees[.]”). See also Custis v. Davis, 851
F.3d 358, 361 (4th Cir. 2017) (“A court may sua sponte
dismiss a complaint when the alleged facts in the complaint,
taken as true, prove that the inmate failed to exhaust his
ignorance of the grievance process or the exhaustion
requirement does not excuse his failure to exhaust
administrative remedies. Adams v. Sw. Va. Reg'l
Jail, C.A. No. 7:12cv00462, 2014 WL 3828392, at *3 (W.D.
Va. Aug. 4, 2014) (unpublished) (“[A]ny contention that
plaintiff's failure-to-exhaust should be excused merely
on the basis of his ignorance about the process
fails.”), aff'd sub nom. Adams v. Ofought,
No. 14-7234, 592 Fed. App'x 225 (4th Cir. Feb. 9, 2015)
(unpublished). Further, there is no evidence that Allen was
prevented from utilizing the GCDC grievance procedures in
order to excuse his failure to exhaust administrative
remedies. See Moore v. Bennette, 517 F.3d 717, 725
(4th Cir. 2008).
on the foregoing, the court finds that Allen's objections
are without merit. Therefore, after thorough review of the
Report and the record in this cause, the court adopts
Magistrate Judge Marchant's Report to the extent it is
consistent with this order and incorporates it herein.
that the previous order adopting the Report and
Recommendation, dated November 20, 2018, docket number 15, is
vacated. It is further
that Allen's amended complaint, docket number 18, is
dismissed without prejudice and without issuance and service