United States District Court, D. South Carolina, Beaufort Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Plaintiff's pro se
Complaint, filed in this court pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971). Plaintiff seeks monetary damages for
alleged violations of equal protection and due process.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(d), DSC, this matter was referred to United
States Magistrate Judge Bristow Marchant for pre-trial
proceedings and a Report and Recommendation
(“Report”). On December 4, 2019, the Magistrate
Judge issued a Report recommending that this matter be
dismissed without prejudice and without issuance and service
of process. The Magistrate Judge advised Plaintiff of the
procedures and requirements for filing objections to the
Report and the serious consequences if he failed to do so.
Plaintiff has filed no objections to the Report, but instead
has filed an Amended Complaint, apparently attempting to cure
the deficiencies outlined by the Magistrate Judge in the
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. See Mathews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. § 636(b). The
court reviews the Report 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.”) (citation omitted).
established local procedure and in light of certain legal
precedents, a careful review has been made of the pro se
Amended Complaint pursuant to the procedural provisions of 28
U.S.C. § 1915, 28 U.S.C. § 1915A, and the Prison
Litigation Reform Act. See also Denton v. Hernandez,
504 U.S. 25 (1992); Haines v. Kerner, 404 U.S. 519
(1972); Nasim v. Warden, Maryland House of Corr., 64
F.3d 951 (4th Cir. 1995) (en banc). Moreover, because
Plaintiff is a pro se litigant, his pleadings are accorded
liberal construction. See Erickson v. Pardus, 551
U.S. 89 (2007) (per curiam); Hughes v. Rowe, 449
U.S. 5, 9-10 & n. 7 (1980) (per curiam); and Cruz v.
Beto, 405 U.S. 319 (1972).
initial review, Plaintiff's allegations are assumed to be
true. Fine v. City of New York, 529 F.2d 70, 74 (2nd
Cir. 1975). Even with this assumption, Plaintiff must plead
factual content that allows the court to draw the reasonable
inference that the named defendant is plausibly liable, not
merely possibly liable. Ashcroft v. Iqbal, 556 U.S.
662 (2009). The requirement of liberal construction does not
mean that the court can ignore a clear failure in the
pleading to allege facts which set forth a claim currently
cognizable in a federal district court. Weller v. Dept.
of Social Servs., 901 F.2d 387 (4th Cir. 1990).
court must dismiss any action filed by a prisoner if the
court determines the action (1) “is frivolous” or
(2) “fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2); see 28 U.S.C.
§ 1915A. The first standard includes claims based upon
“an indisputably meritless legal theory” or
claims where the “factual contentions are clearly
baseless.” Neitzke v. Williams, 490 U.S. 319,
when considered under this less stringent standard, however,
Plaintiff's Amended Complaint is subject to summary
dismissal. Plaintiff attempts to cure the deficiencies noted
in the Report regarding the statute of limitations and the
accrual of his claims, and has provided further details on
his claims. Plaintiff's Amended Complaint alleges that
while he injured his penis in 1996, his claim did not accrue
until “he had reason to know of his injury [on]
February 5, 2018.” ECF No. 18 at 5. To support this, he
has attached two pages of medical records dated February 5,
2018, for two examinations: a fluoroscopic voiding
cystourethrography, and a fluoroscopic retrograde
urethrocystography. ECF No. 18-2 at 34, 35. Both procedures
were “successful” and “unremarkable.”
Id. There is no indication of new problems or issues
raised on either test, or notations requiring follow up or
further treatment. Essentially, there is nothing on these
notes revealing an injury or consequence of the original
injury about which Plaintiff did not already know. As
conceded, Plaintiff knew of his fall and injury when it
occurred in 1996, and any claims regarding his medical
treatment at the BOP would have accrued at the time it
occurred or failed to occur. The court therefore finds
Plaintiff's claims were brought outside the statute of
limitations and must be dismissed as untimely.
timely, however, the court finds Plaintiff's Amended
Complaint fails to set forth a claim on which Defendants
could plausibly be liable. The court agrees with the
Magistrate Judge's determination that Plaintiff received
treatment for his fall numerous times at the BOP, and was
referred to outside providers when necessary. Although
Plaintiff alleges he “never received medical treatment
neither [sic] painkiller for his pain” for his injury
after the fall, this is patently untrue based on the medical
records submitted by Plaintiff with his Amended Complaint.
See ECF No. 18-2 (medical records show Plaintiff was seen two
days after the fall, and at least 10 times in the year in
which the fall occurred, including a retrograde urethrogram
at an outside hospital). As noted by the Magistrate Judge,
Plaintiff does not have a constitutional right to his
preferred treatment. It is clear Plaintiff's injury was
evaluated many times and treatment administered. The facts as
pleaded do not show a plausible claim for deliberate
indifference to medical needs.
reviewing the record of this matter, the applicable law, the
Report and Recommendation of the Magistrate Judge, the court
agrees with the conclusions of the Magistrate Judge. In
addition, the court has carefully reviewed the Amended
Complaint and concludes that, even according it liberal
construction, it suffers from the same deficiencies as the
original Complaint. Accordingly, the court adopts and
incorporates the Report and Recommendation by reference as
supplemented in this Order. For the reasons above,
Plaintiff's case is dismissed without prejudice and
without issuance and service of process.
 Plaintiff states he brings his case
pursuant to 42 U.S.C. § 1983. However, as the Defendants
are employed by the Federal Bureau of Prisons
(“BOP”) and thus federal employees, his ...