Marshall v. Sterling

Filing 60

ORDER RULING ON REPORT AND RECOMMENDATION: The Court ADOPTS the R & R as the Order of the Court and DISMISSES Plaintiff's Complaint with prejudice. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 11/26/2024. (ltap, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Mimi Joe Marshall,
v.

Case No. 1:24-1769-RMG

Plaintiffs,
ORDER

Gary Kocher, Optimal-Eye-Doctor, and
Director Bryan Sterling
Defendants.

This matter is before the Court on the Report and Recommendation (“R & R”) of the
Magistrate Judge, recommending the Court grant Defendant Kocher’s motion to dismiss (Dkt. No.
36) and dismiss Plaintiff’s claims against Defendants Kocher and Sterling with prejudice as barred
by the applicable statues of limitations. (Dkt. No. 52). Plaintiff filed letters after the issuance of
the R & R, but the letters do not directly respond to the R & R. (Dkt. Nos. 54, 55, 56, and 57). For
the reasons set forth below, the Court adopts the R & R as the order of the Court and dismisses
Plaintiff’s claims against Defendants Kocher and Sterling.
I.

Background
Plaintiff, proceeding pro se, alleges that in 2019 he went to see Defendant Kocher, an
ophthalmologist, for his eyesight. (Dkt. No. 9 at 5). Plaintiff alleges that Defendant Kocher delayed
laser surgery which would have corrected Plaintiff’s vision. (Id. at 5-6) For relief, Plaintiff requests
three million dollars. (Id. at 6).
Defendant Kocher moved to dismiss Plaintiff’s claims. (Dkt. No. 36). The Magistrate
Judge issued an R & R recommending the Court grant Defendant Kocher’s motion and also dismiss
Plaintiff’s claims against Defendant Sterling. (Dkt. No. 52). The matter is now ripe for the Court’s
review.
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II.

Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a
de novo determination only of those portions of the Report to which specific objections are made,
and the Court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. §
636(b)(1). In the absence of specific objections, the Court reviews the Report for clear error. 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.’”) (quoting Fed. R. Civ. P. 72 advisory committee's note).

III.

Discussion
The Court reviewed the letters submitted by Plaintiff after the issuance of the R & R (Dkt.

Nos. 54, 55, 56, and 57). The letters do not directly respond to the R & R. Instead, the letters appear
to respond to earlier orders of the court, (Dkt. Nos. 54, 55, and 56), state Plaintiff’s desire for the
case to continue (Dkt. No. 54, 55, 56), recount the process for Plaintiff to receive his legal mail in
prison (Dkt. No. 55, 56), and explain that a subsequent incident between Plaintiff and a correctional
officer would not have occurred if Plaintiff’s eyesight was better (Dkt. No. 57). Additionally, the
Court notes that objections to the R & R were due November 19, 2024 and that the Court has not
received any further correspondence from Plaintiff as of the date of this order. Because the letters
the Court has received are not specific objections to the R & R, the Court reviews the R & R for
clear error.
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For Defendant Kocher, the Magistrate Judge found that the statute of limitations bars
Plaintiff’s claim. Under South Carolina Law, any action against a medical care provider must be
brought within three years of the date of the treatment, omission, or operation giving rise to the
cause of action or three years from date of discovery or when it reasonably ought to have been
discovered. S.C. Code Ann. § 15-3-545(A). The Magistrate Judge found that Plaintiff’s claim
against Defendant Kocher is barred because the actions giving rise to Plaintiff’s claim against
Defendant Kocher arose in 2019, which means the applicable statute of limitations expired at the
end of 2022. The Court agrees with the Magistrate Judge’s conclusion and dismisses Plaintiff’s
claim against Defendant Kocher.
For Defendant Sterling, The Magistrate Judge found that the Court may raise statute of
limitations issues sua sponte and that statute of limitation bars Plaintiff’s § 1983 claim against
Defendant Sterling. Statute of limitations for claims brought pursuant to 42 U.S.C. § 1983 are
determined by the analogous state law state of limitations. Williams v. Cty. of Sumter Police Dept.,
C.A. no. 3:09-2486-CMC, 2011 WL 723148, at *2 (D.S.C. Feb 23, 2011). The general or residual
statue of limitations for personal injury claims is three years. S.C. Code Ann. § 15-3-530. This
statute of limitations has been held to be applicable to statute of limitations for § 1983 claims by
several courts in this District. See, e.g., Huffman v. Tuten, 446 F.Supp.2d 455 (D.S.C. 2006). The
Magistrate Judge found that Plaintiff’s claim against Defendant Sterling is barred because the
actions giving rise to Plaintiff’s claim against Defendant Sterling arose in 2019, which means the
applicable three-year statute of limitations period expired at the end of 2022. The Court agrees
with the Magistrate Judge and dismisses Plaintiff’s claim against Defendant Sterling.

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IV.

Conclusion
For the reasons set forth above, the Court ADOPTS the R & R as the Order of the Court

and DISMISSES Plaintiff’s Complaint with prejudice.

_s/ Richard Mark Gergel_
Richard Mark Gergel
United States District Judge
November 26, 2024
Charleston, South Carolina

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