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Duke v. Southern Health Partners

United States District Court, D. South Carolina, Anderson/Greenwood Division

October 1, 2019

Robert Christopher Duke, Plaintiff,
v.
Southern Health Partners, Lt. Drew Sisco, 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. 12.) recommending the Court dismiss the Complaint. For the reasons set forth below, the Court adopts the R & R as the order of the Court to dismiss the Complaint.

         I. Background

         Plaintiff Robert Christopher Duke is a pro se pretrial detainee at the Pickens County Detention Center ("PCDC"). He files this action in forma pauperis alleging claims under 42 U.S.C § 1983. Plaintiff alleges he was "attacked in the POD by two inmates" which then caused Plaintiff s jaw to break. (Dkt. No. 1 at 9-10.) Plaintiff alleges that he was taken to an emergency room at Cannon Memorial Hospital where the doctors notified the nurses that Plaintiff should receive surgery within 48 hours. (Id. at 6.) Plaintiff alleges that he received surgery 9 days later where his jaw was screwed and re-wired (Id. at 12.) Plaintiff alleges he was supposed to have a follow-up appointment within two weeks, but the follow-up appointment did not occur until over a month later. (Id.) In addition, Plaintiff alleges that screws are still in his jaw and he still experiences pain. (Id.)

         Plaintiff filed the instant action against Southern Health Partners and Lt. Drew Sisco and asserts two causes of action for an Eighth Amendment violation and a medical negligence claim. ( Id. at 4, 6.)

         On July 25, 2019, the Magistrate Judge issued a proper form order informing Plaintiff that his complaint was subject to dismissal for failure to state a claim and for failing to name a proper Defendant. (Dkt. No. 9 at 5, 10.) The Magistrate Judge gave Plaintiff twenty-one days to file an amended complaint or risk dismissal. (Id.) Plaintiff did not file an amended complaint and on August 22, 2019, the Magistrate Judge issued an R & R which recommended the Court dismiss the complaint. (Dkt. No. 12.)

         II. Legal Standard

         A. Report and Recommendation

         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 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). "Moreover, in the absence of specific objections to the R & R, the Court need not give any explanation for adopting the recommendation." Wilson v. S.C. Dept of Corr., No. 9:14-CV-4365-RMG, 2015 WL 1124701, at *1 (D.S.C. Mar. 12, 2015). See also Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). Plaintiff did not file objections in this case, and the R & R is reviewed for clear error.

         B. Pro Se Pleadings

         This Court liberally construes complaints filed by pro se litigants to allow the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. See Weller v. Dep 't of Social Services, 901 F.2d 387 (4th Cir. 1990).

         C. Failure to State a Claim

         Under 28 U.S.C. § 1915A, the Court is required to screen prisoner complaints and must dismiss any complaint, or portions of complaints that are "frivolous, malicious, or fail[] to state a claim upon which relief may be granted[, ]" or seek relief from a defendant immune from such relief. The same standard applies to complaints filed by a plaintiff proceeding in forma pauperis. 28 U.S.C.A. § 1915(e)(2). To state a claim, the complaint must state "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In reviewing a complaint, the Court is obligated to "assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). However, while the Court must accept the facts in a light most favorable to the non-moving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id.

         III. ...


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