Richardson v. County of Greenville et al

Filing 14

ORDER ADOPTING 8 REPORT AND RECOMMENDATION dismissing this case without prejudice and without issuance and service of process. Signed by Honorable G Ross Anderson, Jr on 5/22/2015. (gmil)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
)
C/A No.: 1:15-cv-01328-GRA
)
Plaintiff,
)
)
v.
)
ORDER
)
(Written Opinion)
County of Greenville; Vandermosten,
)
Assistant County Administrator; Scotti )
Bodifer, Operations Administrator; Tracy )
Krein, Medical Administrator; Katie
)
Barnes, Clinical Supervisor; and Nurse )
McMurray,
)
)
Defendants. )
________________________________ )
This matter comes before the Court for review of United States Magistrate
Kelvin Richardson,

Judge Shiva V. Hodges’s Report and Recommendation made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(d) DSC, and filed on April 15,
2015.

ECF No. 8.

For the reasons discussed herein, this Court adopts the

Magistrate Judge’s recommendation in its entirety.
Background
Plaintiff Kelvin Richardson, proceeding pro se and in forma pauperis, filed this
action pursuant to 42 U.S.C. § 1983. ECF No. 1. Under established procedure in
this judicial district, Magistrate Judge Hodges made a careful review of the pro se
complaint and now recommends that this Court dismiss Plaintiff’s case against
Defendants without prejudice and without issuance and service of process. ECF No.
8.

Plaintiff timely filed objections to the Magistrate Judge’s Report and

Recommendation on April 27, 2015. ECF No. 11.

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Standard of Review
Plaintiff brings this claim pro se. This Court is required to construe pro se
pleadings liberally. Such pleadings are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This
Court is charged with liberally construing a pleading filed by a pro se litigant to allow
for the development of a potentially meritorious claim. Boag v. MacDougall, 454 U.S.
364, 365 (1982). However, a court may not construct the plaintiff's legal arguments
for him, Small v. Endicott, 998 F.2d 411 (7th Cir.1993), nor is a district court required
to recognize “obscure or extravagant claims defying the most concerted efforts to
unravel them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir.1985), cert.
denied, 475 U.S. 1088 (1986).
Plaintiff brings this claim in forma pauperis under 28 U.S.C. § 1915, which
permits an indigent litigant to commence an action in federal court without prepaying
the administrative costs of proceeding with the lawsuit. To protect against possible
abuses of this privilege, the statute requires a district court to dismiss the case upon a
finding that the action “fails to state a claim on which relief may be granted,” “is
frivolous or malicious,” or “seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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 this Court. Mathews v. Weber, 423 U.S. 261, 270–71
(1976). This Court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and this

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Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court may
also "receive further evidence or recommit the matter to the magistrate with
instructions." Id.
In order for objections to be considered by a United States District Judge, the
objections must be timely filed and specifically identify the portions of the Report and
Recommendation to which the party objects and the basis for the objections. Fed. R.
Civ. P. 72(b); see United States v. Schronce, 727 F.2d 91, 94 n.4 (4th Cir. 1984);
Wright v. Collins, 766 F.2d 841, 845–47 nn.1–3 (4th Cir. 1985). “Courts have . . .
held de novo review to be unnecessary in . . . situations when a party makes general
and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendation.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Furthermore, in the absence of specific objections to the
Report and Recommendation, this Court is not required to give any explanation for
adopting the recommendation. Camby v. Davis, 718 F.2d 198 (4th Cir. 1983). In this
case, May 4, 2015 was the deadline for filing objections.

Plaintiff filed timely

objections to the Report and Recommendation on April 27, 2014. ECF No. 11.
Discussion
Having reviewed Plaintiff’s objections, this Court finds that many of the
objections are unrelated to the dispositive portions of the Magistrate Judge’s Report
and Recommendation, and merely restate his claims.

However, this Court will

address the objection that it finds to be specific and pertinent to the Report and
Recommendation.

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Liberally construed, Plaintiff’s objection appears to be that the provision of
Benadryl as a remedy to his symptoms constitutes deliberate indifference to his
serious medical needs. ECF No. 11 at 4. Plaintiff furthers this argument by claiming
that he objects to the “court[‘s] citing of (Thomas v. Anderson City Jail, No. 6:103270-RMG-KFM, 2011 WL 442053, at *3 (D.S.C. Jan. 19, 2011) which implies that
simply because I disagreed with the treatment it[’s] not a violation when I was only
treated for the side effect and not the injury.” Id. In making this argument, however,
the Plaintiff mischaracterizes the Magistrate Judge’s Order. The Magistrate Judge
correctly cited Thomas for the proposition that “Plaintiff’s belief that he should have
received additional or different treatment does not constitute deliberate indifference to
his serious medical needs.” ECF No. 8 at 4. Further, the Magistrate Judge was
correct in stating that “treatment ‘must be so grossly incompetent, inadequate or
excessive as to shock the conscience or to be intolerable to fundamental fairness,”
and that Plaintiff’s allegations fail to meet that standard. ECF No. 8 at 4 (quoting
Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990)). Accordingly, this Court overrules
Plaintiff’s objection.
Conclusion
After a thorough review of the record, this Court finds that the Magistrate
Judge’s Report and Recommendation accurately summarizes the case and the
applicable law.

Accordingly, the Report and Recommendation is accepted and

adopted in its entirety.

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IT IS THEREFORE ORDERED that this case is DISMISSED without prejudice
and without issuance and service of process.
IT IS SO ORDERED.  

________________________________
G. Ross Anderson, Jr.

Senior United States District Judge
May 22, 2015
Anderson, South Carolina

NOTICE OF RIGHT TO APPEAL
Pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure,
Plaintiff has the right to appeal this Order within thirty (30) days from the date of its
entry. Failure to meet this deadline, as modified by Rule 4 of the Federal Rules of
Appellate Procedure, will waive the right to appeal.

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