Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Heaton v. Stirling

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

July 29, 2019

Kimmie Heaton, Plaintiff,
v.
Director Bryan Sterling, et al., Defendants.

          ORDER

          RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.

         Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 40) recommending the Court grant Defendants Julie Johnson and Patricia Carney's separate motions to dismiss (Dkt. Nos. 20; 24.) For the reasons set forth below, the Court adopts the R & R and the Defendants' motions to dismiss are granted.

         I. Background

         This action was 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.) Service was authorized on Defendants by order dated April 22, 2019. (Dkt. No. 16.) On May 9, 2019, the summons for Defendant Julie Johnson was returned and executed with her address listed in Dunwoody, Georgia. (Dkt. No. 18.) On May 16, 2019, the summons for Patricia Carney was returned 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 separate motions to dismiss. (Dkt. Nos. 20; 24.) In their motions, these individuals state that they were improperly identified as Defendants in this action. They also filed accompanying affidavits stating such.

         Defendant Carney asserts that she is a Professor of Family Medicine and Health Systems and Policy at the Oregon Health & Science University in Portland, Oregon. (Dkt. No. 24-1 at 2.) In addition, she avers that the has never been licensed to practice medicine in the United States, especially in South Carolina. (Id.) Defendant Johnson asserts that she is a medical doctor practicing in Atlanta, Georgia and that she has never practiced any type of medicine in South Carolina. (Dkt. No. 21-1 at 1.) Defendants additionally assert that Plaintiffs claims are barred by the statute of limitations. (Dkt. Nos. 21 at 8; 24 at 8-9.) Plaintiff filed responses to Defendants' motions to dismiss arguing that the statute of limitations has not expired on her claims. (Dkt. Nos. 28; 35.) Subsequently, Plaintiff wrote a letter to the United States Marshal, stating that she located the correct identifying information for Patricia Carney and Julie Johnson on the website for the South Carolina Board of Medical Examiners. (Dkt. No. 36.) Plaintiff requested that the U.S. Marshal serve these individuals at the appropriate addresses as listed on the website. (Id.) Plaintiff also requested for service to be completed as to John Doe because service was returned unexecuted on June 25, 2019. (Dkt. No. 34.) On July 9, 2019, the Magistrate Judge filed an R & R and Order (Dkt. No. 40) recommending the Court grant Defendants' motions to dismiss as to the wrongly named Defendants with instructions to attempt service on the correct individuals. (Dkt. Nos. 20; 24.) Plaintiff has not filed objections to the R & R.

         II. Legal Standard

         The Magistrate Judge makes only a recommendation to this Court that has no presumptive weight. The responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court must make a de novo determination of those portions of the R & R to which Plaintiff specifically objects. Fed.R.Civ.P. 72(b)(2). Where Plaintiff fails to file any specific objections, "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 & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). Plaintiff did not file objections, and the R & R is reviewed for clear error.

         III. Discussion

         After a review of the record, this Court finds that the Magistrate Judge ably addressed the issues raised and appropriately granted Defendants' motions to dismiss with instructions to attempt service on Julie Johnson, Patricia Carney, and John Doe. The Magistrate Judge correctly identified that the individuals orginally served, Julie Johnson of Georgia and Patricia Carney of New Hampshire, were not intended named Defendants as conceded by Plaintiff. (Dkt. No. 36.) The Magistrate Judge correctly ordered the Clerk of Court to issue a summons for Defendants Julie Johnson, Patricia Carney, and John Doe to the following addresses:

Julie Johnson Palmetto Health Richland 2 Medical Park Rd., Ste. 208 Columbia, SC 29203-6839
Patricia Carney University Specialty Clinic 2 Medical Park Rd., #208 Columbia, SC 29203-6839
John Doe Director/Supervisor of OBGYN Services 5 Richland Medical Park Columbia, SC 29203

On July 9, 2019 service was authorized for the Defendants at the addresses listed above. (Dkt. No. 41.) As such, this Court adopts the R & R of the Magistrate Judge to grant Defendants' motions to dismiss.

         IV. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.