Pendergrass v. United States of America et al
ORDER adopting Report and Recommendations re 56 Report and Recommendation.; denying 67 Motion to Amend/Correct Signed by Honorable Patrick Michael Duffy on February 12, 2013.(prei, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
United States of America, Federal
Bureau of Prisons, and Dr. FNU Blocker,
Civil Action No.: 0:11-cv-2706-PMD-PJG
This matter is before the Court upon the Report and Recommendation (“R&R”) of
Magistrate Judge Paige J. Gossett recommending that Defendants’ Motion for Summary
Judgment be granted. Also before the Court are Plaintiff Jerome Pendergrass’s (“Plaintiff” or
“Pendergrass”) objections to the R&R. For the reasons set forth below, the Court adopts the
R&R and fully incorporates it into this Order.
The facts of this case are discussed in the Magistrate Judge’s R&R and need not be
reiterated in their entirety here. In short, Plaintiff, a self-represented federal prisoner,1 brought
this action pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, against
the United States of America, the Federal Bureau of Prisons (“BOP”), and Dr. Rex Blocker (“Dr.
Blocker”) (collectively “Defendants”).2 Pendergrass, who is a diabetic, alleges in his verified
Pendergrass was incarcerated at the Federal Correctional Institution (“FCI”) in Edgefield,
South Carolina, from October 15, 1999, to October 20, 2009. The procedure at issue in this case
took place while Plaintiff was housed at the FCI in Edgefield. He was then transferred to the
Federal Medical Center (“FMC”) in Butner, North Carolina, and is now incarcerated at the FMC
In his objections, Plaintiff acknowledges that the United States of America is the only proper
defendant. Thus, he agrees with the Magistrate Judge that the Federal Bureau of Prisons (“BOP”)
and Dr. Rex Blocker should be dismissed from this action. Pl.’s Obj. 1 n.1.
Complaint3 that on February 20, 2009, Dr. Blocker, a physician and the Clinical Director at
Federal Correctional Institution (“FCI”) Edgefield, committed medical malpractice by
improperly incising the tip of his middle finger on his left hand. Pendergrass alleges that, due to
Dr. Blocker’s actions, his finger became infected and eventually had to be amputated.
According to Plaintiff, Dr. Blocker was deliberately indifferent to his medical needs and
breached the duty of care owed to him because Dr. Blocker failed to wear gloves and properly
sterilize the finger during the procedure. Pendergrass claims he has suffered pain and seeks
$345,000 in actual damages and $345,000 in punitive and compensatory damages.
Defendants filed a motion for summary judgment wherein they provided the Court with
affidavit testimony from Dr. Blocker, as well as Plaintiff’s relevant medical records. Dr. Blocker
denies Pendergrass’s allegations and provides an extensive summary of the care that was
provided to him on a regular basis. See Blocker’s Decl. [Doc. # 20-6]; R&R pp. 2-3
STANDARD OF REVIEW
Magistrate Judge’s R&R
The Magistrate Judge makes only a recommendation to the Court. It has no presumptive
weight, and the responsibility for making a final determination remains with the court. Mathews
v. Weber, 423 U.S. 261, 270–71 (1976). Parties are allowed to make a written objection to a
Magistrate Judge’s R&R within fourteen days after being served a copy of the report. 28 U.S.C.
§ 636(b)(1). This Court is charged with conducting a de novo review of any portion of the R&R
to which a specific objection is registered, and the Court may accept, reject, or modify the R&R
in whole or in part. Id. Additionally, the Court may recommit the matter to the Magistrate Judge
In this Circuit, verified complaints by pro se prisoners are to be considered as affidavits and
may, standing alone, defeat a motion for summary judgment when the allegations contained
therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
with instructions. Id. A party’s failure to object is accepted as an agreement with the conclusions
of the Magistrate Judge. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). In the absence of a
timely filed, specific objection, the Magistrate Judge’s conclusions are reviewed only for clear
error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall
be rendered when a moving party has shown that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” The court must determine
whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251–52 (1986). Summary judgment should be granted in those cases
where it is perfectly clear that there remains no genuine dispute as to material fact and inquiry
into the facts is unnecessary to clarify the application of the law. McKinney v. Bd. of Trustees of
Mayland Cmty. Coll., 955 F.2d 924, 928 (4th Cir. 1992). In deciding a motion for summary
judgment, “the judge’s function is not himself to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
Pro Se Litigant
Plaintiff is acting pro se in this action. A court is charged with liberally construing the
pleadings of a pro se litigant. See, e.g., De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003).
The requirement of a liberal construction does not mean, however, that the court can ignore a
plaintiff’s clear failure to allege facts that set forth a cognizable claim, or that a court must
assume the existence of a genuine issue of material fact where none exists. See United States v.
Wilson, 699 F.3d 789, 797 (4th Cir. 2012).
The Magistrate Judge considered the merits of Plaintiff’s FTCA claim4 and determined
that Plaintiff failed to submit sufficient evidence to give rise to a genuine issue of fact as to
whether a wrongful or negligent act was committed by Dr. Blocker.5
Plaintiff objects on the
basis that the R&R overlooked the fact that Defendants failed to file expert testimony, “and
thus[,] [have] failed to place into evidence any showing that [there are no] genuine and material
question[s] . . . as to whether Dr. Blocker’s treatment of [him] comported with the standard of
care applicable to such incisions.” Pl.’s Obj. 5. Plaintiff contends that he is not obligated to file
expert testimony at this time, and the R&R should have rejected Dr. Blocker’s opinion because
he is not an expert. The Court disagrees and hereby overrules Plaintiff’s objections.
Under the FTCA, the Court must determine liability in accordance with the substantive
tort law of the state “where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Accordingly,
because Pendergrass alleges medical negligence that occurred while he was housed in a BOP
facility located in South Carolina, see Compl. ¶ 5, [Doc. # 1] at 2, the substantive law of South
To recover in a negligence claim, “a plaintiff must prove the following three elements:
(1) a duty of care owed by defendant to plaintiff; (2) breach of that duty by a negligent act or
omission; and (3) damage proximately resulting from the breach of duty.” Bloom v. Ravoira, 529
S.E.2d 710, 712 (S.C. 2000). The standard of duty for an FTCA claim, which is provided by
statute, see 18 U.S.C. § 4042, is that of “reasonable care.”
Butler v. United States, No. 9:08-
The Magistrate Judge also held that the United States is the only proper defendant to an FTCA
claim, see 28 U.S.C. § 2679(b), and therefore, correctly dismissed as defendants the BOP and Dr.
Blocker under this claim. R&R 8.
The FTCA waives sovereign immunity and allows suits against the United States for personal
injuries cause by government employees acting within the scope of their employment. See 28
U.S.C. § 1346(b).
2760, 2001 WL 1631013, at *8 (D.S.C. Mar. 24, 2011). Further, the South Carolina Supreme
Court has required that
a plaintiff alleging medical malpractice must provide evidence
showing (1) the generally recognized and accepted practices and
procedures that would be followed by average, competent
practitioners in the defendants’ field of medicine under the same or
similar circumstances, and (2) that the defendants departed from
the recognized and generally accepted standards. Also, the plaintiff
must show that the defendants’ departure from such generally
recognized practices and procedures was the proximate cause of
the plaintiff’s alleged injuries and damages.
David v. McLeod Reg’l Med. Ctr., 626 S.E.2d 1, 4 (S.C. 2006) (internal citations omitted).
Additionally, “[t]he plaintiff must provide expert testimony to establish both the required
standard of care and the defendants’ failure to conform to that standard, unless the subject matter
lies within the ambit of common knowledge so that no special learning is required to evaluate the
conduct of the defendants.” Id. In a medical malpractice case, the burden of proof of negligence,
proximate cause, and injury is entirely on the plaintiff. Dumont v. United States, 80 F. Supp. 2d
576, 581 (D.S.C. 2000).
Defendants, as the moving party, have the burden of showing an absence of a genuine
issue of material fact; however, such a showing does not have to be made by expert testimony.
The sworn declarations and medical records submitted by Defendants in support of their motion
for summary judgment are sufficient documents to demonstrate that Plaintiff received adequate
medical treatment. See Bennett v. Reed, 534 F. Supp. 83, 87 (E.D.N.C. 1981) (court relying on
the affidavits of medical personnel), aff’d by 676 F.2d 690 (4th Cir. 1982). As such, the
Magistrate Judge did not err in failing to consider the fact that Defendants did not file expert
testimony nor did she err in considering Dr. Blocker’s testimony. Under South Carolina law, it
is the plaintiff who must provide expert testimony to support a medical malpractice claim. Here,
it is undisputed that Plaintiff did not file an expert affidavit or testimony with the Court. In the
absence of such testimony, Plaintiff failed to set forth the applicable standard of care for the
medical procedure at issue or establish Defendants’ failure to conform to that standard. Even
assuming such testimony is not required,6 as Plaintiff contends, Plaintiff still failed to
demonstrate that the injury he suffered (the amputation of his finger) was causally connected to
the alleged negligent treatment by Dr. Blocker. Plaintiff’s claim cannot succeed unless he
establishes proximate cause. See Bloom, 529 S.E.2d at 712. The Court finds that the Magistrate
Judge properly concluded that the evidence is insufficient to support an inference that Dr.
Blocker “departed from a recognized and generally accepted standard or that a causal link
existed between any alleged departure and any injury.” R&R 9. As such, Plaintiff’s objections
In viewing the evidence in Plaintiff’s favor and accepting his contradictory statements
(that Dr. Blocker did not numb or clean his finger prior to the incision nor did he wear sterile
gloves), the Court agrees with the Magistrate Judge that Pendergrass failed in his burden of proof
to establish an FTCA medical malpractice or negligence claim against Defendants. See Harley v.
United States, No. 4:08-820, 2009 WL 187588, at *5 (D.S.C. Jan. 26, 2009) (Herlong, J.)
Expert testimony is not required if the “the subject matter is of common knowledge” so “no
special learning is needed to evaluate [Dr. Blocker’s] conduct.” Brown v. United States, No.
8:08-cv-2168, 2009 WL 2869940, at *7 (D.S.C. Sept. 2, 2009).
Plaintiff also objects to the R&R’s reliance on the medical records provided to the Court by
Defendants on the grounds that these records are unauthenticated and constitute hearsay. Pl.’s
Obj. 1-4. See ECF [attachments to Doc. # 20]. Plaintiff’s sole challenge to the authenticity of
these records is that there is no certification that they are in fact from FCI Edgefield Medical
Department, FCI Edgefield County Hospital, and FCI Edgefield Commissary. Pl.’s Obj. 2.
Plaintiff’s assertions are incorrect. These records are signed, stamped and/or marked in some
way, clearly indicating the institution from which they originated. There is no reason why their
authenticity should not be accepted. Further, the information on these records would be
admissible at trial as statements made for the purpose of a medical diagnosis or treatment and as
records of regularly conducted activity, under exceptions to the hearsay rule. Fed. R. Evid.
803(4), 803(6). As such, Plaintiff’s objection is overruled.
(finding that the plaintiff’s “conclusory statements, without supporting evidence” are insufficient
to establish that the defendant breached its legal duty of care); Harrison v. Fed. Bureau of
Prisons, No. 8:08-1003, 2008 WL 5429827, at *9 (D.S.C. Dec., 30, 2008) (Floyd, J.) (adopting
the Magistrate Judge’s finding that the plaintiff failed in his burden of proof, noting that “the
plaintiff has not set forth any evidence, except for his own conclusory allegations, that the
defendants failed to conform to a required standard of care or were negligent”); Sheppard v.
Berrios, No. 4:07-0431, 2008 WL 509073, at *12 (D.S.C. Feb. 21, 2008) (Seymour, J.) (same).
The record shows that Plaintiff’s medical needs were appropriately and consistently addressed on
numerous occasions and that Plaintiff was unwilling at times to abide by the medical directions
given to him regarding his poorly controlled diabetes. Therefore, the R&R properly concluded
that summary judgment is appropriate as to Plaintiff’s FTCA claim as the facts set forth in
Defendants’ motion for summary judgment are either undisputed or contested in a deficient
manner. See Luckett v. United States, No. 08–13775, 2009 WL 1856417, at *5 (E.D. Mich. June
29, 2009) (citing Lambert v. United States, 198 F. App’x. 835, 839 (11th Cir. 2006) (affirming
dismissal of medical malpractice claim under FTCA where Plaintiff submitted only “his own
Based on the foregoing, it is hereby ORDERED that Defendants’ motion for summary
judgment is GRANTED.8
Plaintiff also filed a Motion for Leave to Amend/Correct his Complaint, pursuant to Rule 15 of
the Federal Rule of Civil Procedure, on the same day he filed his objections to the R&R. In this
motion, Plaintiff concedes that Defendants Federal Bureau of Prisons (“BOP”) and Dr. Rex
Blocker are not proper parties and states that he wishes to drop all claims previously brought
against these two Defendants. Plaintiff wants to proceed under the Federal Tort Claims Act
(“FTCA”) against only the United States of America. The Court finds that amendment of
Plaintiff’s Complaint at this time would be futile. See Foman v. Davis, 371 U.S. 178, 83 S.Ct.
AND IT IS SO ORDERED.
February 12, 2013
227 (1962) (Supreme Court holding that a motion to amend should be denied if amendment
would be futile). Plaintiff states in his motion that “as for the defense of futility, [he] incorporates
by reference his position set out in [his] Objections to [the R&R].” Pl.’s Mot. to Amend 4.
However, for the reasons stated in this Order, Plaintiff’s objections are overruled. Moreover, as
to his FTCA claim, Plaintiff concedes that his Second Amended Complaint does nothing more
than repeat allegations previously alleged. As such, Plaintiff’s Motion for Leave to Amend is
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