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Heaton v. Stirling

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

July 9, 2019

Kimmie Heaton, Plaintiff,
v.
Brian Stirling et. al., Defendants.

          ORDER AND REPORT AND RECOMMENDATION

          MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

         This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. § 1983, alleging she suffered an unnecessary hysterectomy “on or about mid-2004” at Palmetto Health Hospital in South Carolina. (Dkt. No. 15 at 9.) By Order filed April 22, 2019, service was authorized on the Defendants. (Dkt. No. 12.) On May 9, 2019, the Summons was returned executed for Defendant Julie Johnson, listing her address in Dunwoody, Georgia. (Dkt. No. 18.) On May 16, 2019, the Summons was returned executed for Defendant Patricia Carney, listing her address in Hanover, New Hampshire. (Dkt. No. 19.)

         On May 24, 2019, and June 7, 2019, Defendants Julie Johnson and Patricia Carney filed their respective Motions to Dismiss.[1] (Dkt. Nos. 20; 24.) In their motions, these individuals state that they have been incorrectly identified as the named Defendants in this case and have filed affidavits to this effect. Specifically, Defendant Carney avers that she is a Professor of Family Medicine and Health Systems and Policy at the Oregon Health & Science University in Portland, Oregon and “has never been licensed to practice medicine in any state of the Union, including and especially the State of South Carolina.” (Dkt. No. 24-1 at 2.) Similarly, Defendant Johnson avers that she is a medical doctor practicing in Atlanta, Georgia and she has “never practiced medicine of any kind in the State of South Carolina.” (Dkt. No. 21-1 at 1.) Defendants Johnson and Carney also assert that Plaintiff's claims against them are barred by the applicable statute of limitations. (Dkt. Nos. 21 at 8; 24 at 6.)

         Plaintiff responded to both Motions, asserting that her claims were not barred by any statute of limitations. (Dkt. Nos. 28; 35.) Also, on July 8, 2019, Plaintiff filed a letter directed to the United States Marshal, stating she found the correct identification for Patricia Carney and Julie Johnson on the website for the South Carolina Board of Medical Examiners. (Dkt. No. 36.) Plaintiff asks that the U.S. Marshal serve these individuals at the addresses listed for them on the website. (Id.) Given that Plaintiff concedes that the individuals originally served, Julie Johnson of Georgia and Patricia Carney of New Hampshire, are not the intended named Defendants, the undersigned RECOMMENDS GRANTING their Motions to Dismiss (Dkt. Nos. 20; 24).[2] However, the named Defendants Julie Johnson and Patricia Carney should not be terminated from this action because service should be attempted on the intended individuals, as directed below.

         Specifically, the undersigned directs the Clerk of Court to issue summonses for the intended named Defendants, Patricia Carney and Julie Johnson, as located on the website for the South Carolina Board of Medical Examiners. Specifically, the Clerk of Court is directed to issue a summons for Defendant Julie Johnson at the following address:

Julie Johnson
Palmetto Health Richland
2 Medical Park Rd., Ste. 208
Columbia, SC 29203-6839

         The Clerk of Court is further directed to issue a summons for Defendant Patricia Carney at the following address:

Patricia Carney
University Specialty Clinic
2 Medical Park Rd., # ...

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