United States District Court, D. South Carolina, Beaufort Division
OPINION AND ORDER
Cameron McGowan Currie Senior United States District Judge.
Rosenbaum (“Plaintiff”), proceeding pro
se and in forma pauperis, brought this action
against Mediko; Joseph Papotto, MD; Missy Vanduser; Latonya
Wineglass; Phillip Thompson; and Wayne Owens (collectively
“Defendants”) alleging deliberate indifference to
his medical needs in violation of his constitutional rights
pursuant to 42 U.S.C. § 1983 and seeking injunctive
relief and damages. ECF No. 24. This matter is before the
court on Defendant Mediko's motion to dismiss, Defendant
Vanduser's motion for summary judgment, Defendant
Papotto's motion for summary judgment, Defendant
Wineglass' motion for summary judgment, and Defendants
Owens and Thompson's motion for summary judgment. ECF
Nos. 43, 44, 45, 46, 51. Because Plaintiff is proceeding
pro se, the Magistrate Judge entered orders pursuant
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), advising him of the importance of the motions and the
need to file adequate responses. ECF Nos. 49, 52. Plaintiff
filed responses to the motions. ECF Nos. 77, 78, 79, 80.
Defendants Owens and Thompson, and Papotto, Vanduser, and
Wineglass filed replies. ECF No. 82, 85.
19, 2019, the Magistrate Judge issued a Report and
Recommendation (“Report”), recommending
Defendants' motions to dismiss and/or for summary
judgment be granted. ECF No. 89. The Magistrate Judge advised
the parties of the procedures and requirements for filing
objections to the Report and the serious consequences if they
failed to do so. On July 10, 2019, Plaintiff filed objections
to the Report. ECF No. 91. Defendants Owens and Thompson
filed a reply on July 24, 2019. ECF No. 92. This matter is
ripe for the court's review.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261 (1976). The
court is charged with making a de novo determination
of those portions of the Report to which specific objection
is made, and the court may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge,
or recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b)(1). The
court reviews only for clear error in the absence of an
objection. See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating
that “in the absence of a timely filed objection, 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.'”) (quoting Fed.R.Civ.P. 72
advisory committee's note).
Magistrate Judge recommends granting Defendants' motions
to dismiss or for summary judgment. The Report concludes the
requested injunctive and/or declaratory relief should be
dismissed as moot, as Plaintiff is no longer a pretrial
detainee, but a prisoner in the custody of the South Carolina
Department of Corrections, and is no longer housed at the
Detention Center. ECF No. 89 at 28-29. As to Plaintiff's
damages claim for deliberate indifference to serious medical
needs, the Report recommends summary judgment as the evidence
shows no medical Defendant was deliberately indifferent to
Plaintiff's serious medical needs. Id. at 31.
The Report also concludes the claims against non-medical
Defendants (Owens and Thompson) should be dismissed, as
Plaintiff failed to present evidence they did not follow
instructions of medical personnel. Id. at 35. The
Report also notes any potential claim for a HIPAA violation
should be dismissed, as HIPAA does not provide for a private
right of action. Id. at 37. Finally, the Report
recommends any claim for retaliation should be dismissed, as
there is no evidence Plaintiff was unlawfully retaliated
asserts brief objections to the Report. He contends his
affidavit states Dr. Papotto saw MRIs of his shoulder, and
said he would need surgery but would have to wait until he
was released. ECF No. 91 at 1. Plaintiff disagrees with the
Report's assertion he did not submit medical proof he
needed to see an orthopedic doctor, as his MRIs show tears in
his shoulder and Dr. Papotto said he would need surgeries.
Id. He further argues the MRIs and Dr. Papotto's
statement “prove Dr. Papotto was deliberately
indifferent to Plaintiff's serious medical needs.”
Id. at 2. No further objections were included.
Owens and Thompson were the only Defendants to file a reply
to Plaintiff's objections. In their reply, they argue
Plaintiff offered no specific objections related to them, but
only challenged findings as to Dr. Papotto. ECF No. 92 at 2.
Therefore, they contend, the balance of the Report should be
reviewed only for clear error. As no clear error exists, they
argue, summary judgment should be granted for Owens and
court agrees Plaintiff has not offered specific objections to
any portion of the Report except for the conclusions
regarding medical evidence as to his shoulder. The
Report's conclusions regarding injunctive relief, a
possible HIPAA claim, a possible retaliation claim, and claim
regarding non-medical personnel (Owens and Thompson) are
therefore reviewed for clear error. Finding none, the court
adopts these portions of the Report and incorporates them by
reference into this order. Summary judgment is granted to
Defendants on these claims.
Plaintiff's claim for deliberate indifference of serious
medical needs against medical personnel, the court finds
Plaintiff's objections require de novo review of
this portion of the Report. However, the court ultimately
agrees with the Magistrate Judge that no medical Defendants
(Papotto, Vanduser, or Wineglass) were deliberately
indifferent to Plaintiff's serious medical needs.
Plaintiff's objections concern his shoulder MRIs and
ongoing pain while he was a pretrial detainee. However, the
evidence and medical records show Plaintiff was seen multiple
times by physicians and medical staff at the Detention Center
for chronic shoulder pain, and was prescribed medication -
just not the medication Plaintiff desired. It is well
established that deliberate indifference cannot be shown
merely by a plaintiff's disagreement with the treatment
provided. Jackson v. Sampson, 536 Fed.Appx. 356, 357
(4th Cir. 2013) (citing Russell v. Sheffer, 528 F.2d
318, 319 (4th Cir. 1975)) (“An inmate's mere
disagreement with the course of treatment provided by medical
officers will not support a valid [deliberate indifference]
claim.”). Further, while Plaintiff has provided
evidence of a shoulder injury and/or pain, he has not
provided evidence that the treatment of his shoulder while at
the Detention Center, namely the failure to send him for an
external orthopedic consultation or to prescribe narcotic
pain medications, establishes a violation of his
constitutional rights via deliberate indifference.
Accordingly, the medical Defendants are entitled to summary
judgment on the deliberate indifference claim.
conducted a de novo review of the Report and
underlying motion and related memoranda, and having fully
considered Plaintiff's objections, the court adopts the
Report and it is incorporated into this order.
Defendants' motions to dismiss and/or for summary
judgment (ECF Nos. 43, 44, 45, 46, 51) are granted, and this
matter is dismissed with prejudice.