Moon v. Mueller et al
ORDER ADOPTING 68 REPORT AND RECOMMENDATION re 59 Motion for Summary Judgment, filed by Margaret Lewis, Marcy Queen, Steven Anderson, Steven Mueller and 73 Motion to Appoint Counsel filed by Mark Alan Moon. Defendant's motion for summary judgment (ECF No. 59) is granted and any other pending motions, including Plaintiff's motion to appoint counsel (ECF No. 73) are denied as moot. Signed by Honorable Timothy M Cain on 5/29/2013. (abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Mark Alan Moon,
Sheriff Steven Mueller, Captain
Steven Anderson, Marcy Queen,
and Margaret Lewis,
Civil Action No.: 1:12-1225-TMC
OPINION & ORDER
The plaintiff, Mark Alan Moon (“Moon”), brought this action pro se, pursuant to 42
U.S.C. § 1983, alleging that the defendants – Sheriff Steven Mueller, Captain Steven Anderson,
Marcy Queen, and Margaret Lewis (collectively “Defendants”) – violated his constitutional
rights. Specifically, Moon alleges that, while incarcerated at the Cherokee County Detention
Center (“CCDC”), he suffered an ear infection and a seizure-like incident, to both of which the
Defendants failed to properly respond. Moon further alleges that CCDC officials illegally
opened his legal mail and prohibited him from receiving certain religious materials.
The Defendants moved for summary judgment on December 21, 2012, asserting multiple
grounds, including failure to state a § 1983 claim, failure to exhaust, and qualified and Eleventh
Amendment immunity. (ECF No. 59.) Moon responded on February 15, 2013 (ECF No. 65),
and the Defendants replied on February 25, 2013 (ECF No. 66).
Pursuant to 28 U.S.C. § 636(b) and District of South Carolina Local Civil Rule
73.02(B)(2), this case was referred to a magistrate judge for all pre-trial proceedings. This
matter is now before the court on the magistrate judge’s Report and Recommendation
(“Report”), recommending that the court grant the Defendants’ motion for summary judgment
because Moon has failed to show that the Defendants were deliberately indifferent to his serious
medical needs and has failed to exhaust administrative remedies for his other claims.1 (ECF No.
68.) Moon filed objections to the Report (ECF No. 70) and the Defendants responded to those
objections (ECF No. 72).
Specifically, Moon objects to certain portions of the Report’s analysis of deliberate
indifference to serious medical needs, but does not appear to directly object to the Report’s
determination that he has failed to exhaust administrative remedies for his claims regarding his
mail and access to religious materials.2 Accordingly, the court will only address Moon’s claim
that he has shown that the Defendants were deliberately indifferent to his ear infection and
seizure-like incident. Unfortunately, while the court is sympathetic to Moon’s medical troubles,
it finds that Moon’s objections do not provide it with reason to deviate from the Report.
I. Legal Standard
“In order to establish a claim of deliberate indifference to medical need, the need must be
both apparent and serious, and the denial of attention must be both deliberate and without
legitimate penological objective.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) (citing
Martin v. Gentile, 849 F.2d 863 (4th Cir. 1988)). Additionally, the claimant must show that “the
defendants actually knew of and disregarded a substantial risk of serious injury to the detainee or
that they actually knew of and ignored a detainee’s serious need for medical care.” Young v. City
of Mount Ranier, 238 F.3d 567, 576 (4th Cir. 2001). This standard clearly requires the claimant
The magistrate judge’s recommendation has no presumptive weight, and the responsibility for making a final
determination remains with the United States District Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The
court is charged with making a de novo determination of those portions of the Report to which 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 with instructions. 28 U.S.C. § 636(b)(1).
Additionally, Moon objects to the magistrate judge’s order on Moon’s motion to produce. (ECF No. 70, p. 1.)
Pursuant to Local Rule 73.02(B)(2), that objection should go to the magistrate judge. However, because this court
now grants the Defendants’ motion for summary judgment, Moon’s motion to produce is moot.
to show more than mere negligence on the part of the defendants, see Estelle v. Gamble, 429
U.S. 97, 106 (1976), and more than a disagreement with the defendants over the claimant’s
course of treatment, see Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985). In the Fourth
Circuit, to prevail, the claimant’s treatment “must be so grossly incompetent, inadequate or
excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier v.
Beorn, 896 F.2d 848, 851 (4th Cir. 1990) (citations omitted).
In his objections, Moon claims that: (1) he did notify officials of his ear problem before
July 9, 2011; (2) the medical treatment he received for his ear infection was not the appropriate
course of action; (3) he does suffer from hearing loss, but does not know how to go about
proving that without help from the Defendants or the court; and (4) he did not receive
appropriate care after his seizure-like episode.
In support of his first objection, Moon cites to grievance forms and sick call requests
from June 27, June 29, and July 5, 2011, and a clinic care record from July 6, 2011. (ECF No.
70, pp. 2-3.) However, the alleged grievance forms and sick call requests are not attached to
Moon’s objections or his response to the Defendants’ motion for summary judgment. The clinic
care record does show that Moon complained of ear pain on July 6, 2011, however, it also shows
that he saw the nurse on that day and was prescribed ear drops. Moon attests that the ear drops
were not helpful, but his treatment did not end there. And, even if it had, in this case, prescribing
ineffective ear drops, does not rise to the level of deliberate indifference to a serious medical
need and, therefore, would not constitute a constitutional violation on which to base a § 1983
The same logic applies to Moon’s second and fourth objections; his complaints about the
timing of and possible lag time between his doctor’s visits and about the response he received to
grievance forms and sick call requests about his seizure-like episode do not reveal a “grossly
incompetent” or “inadequate” course of treatment. This court does not have the authority to
decide disagreements between detainees and detention officials over medical treatment that fall
short of this high standard.
Moon’s failure to establish that his medical treatment constituted a constitutional
violation moots his third objection. While the court is sensitive to the limited resources often
available to detainees litigating cases pro se, in this case, even if Moon could show some hearing
loss, his claim would still fail.
Accordingly, after a full review of the record in this case, including the complaint, the
Defendants’ motion for summary judgment and responsive briefing, the Report, and Moon’s
objections to the Report, the court adopts the Report and incorporates it herein by reference.
Therefore, the Defendants’ motion for summary judgment (ECF No. 59) is GRANTED and any
other pending motions, including Moon’s motion to appoint counsel (ECF No. 73) are denied as
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Court Judge
May 29, 2013
Anderson, South Carolina
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure, if applicable.
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