Wright v. Ozmint et al

Filing 62

ORDER ADOPTING REPORT AND RECOMMENDATIONS 53 of Magistrate Judge Robert S Carr and granting 46 Motion for Summary Judgment, filed by Adrian Martell, Dr Blake, Tim B Roof, D Austin, Gilbert Emrhein, Stan Burtt, Jon Ozmint, Fred Thompson, Yvette Blo we, R Reeves, Mr Powell, D Norwood, Thierry Nettles, Dr Babbs, Robert Ward. 58 Motion to Appoint Counsel filed by Albert Wright is denied. All unserved defendants are dismissed without prejudice. It is further ordered that this case shall be deemed a "strike" against the plaintiff pursuant to 28 USC 1915(g). Signed by Honorable Joseph F Anderson, Jr on 10/7/2008. (ssan, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA

A lb e rt Nathaniel Wright,

) ) P l a in tif f , ) vs. ) ) Jo n Ozmint; Stan Burtt; Adrian Martell; ) R . Reeves; Robert Ward; Fred Thompson; ) T h ie rry Nettles; Tim B. Roof; Gilbert Emrhein; ) N F N Williams; J. Powell; Yvette Blowe; ) D r. Hutchinson; Dr. Smith; Dr. Blake; ) N u r s e D. Austin; Nurse D. Norwood; Nurse ) B a z z ille ; Nurse C. Felder; Dr. Babbs, ) ) D e f e n d a n ts . ) _______________________________________)

C/A No. 2:07-2515-JFA-RSC

ORDER

T h e pro se plaintiff, Albert Nathaniel Wright, initiated this action pursuant to 42 U .S .C . § 1983. The plaintiff, who is incarcerated at the South Carolina Department of

C o rre c tio n s , contends that the defendants have not provided him with appropriate medical ca re and treatment for a venous statis ulcer. T h e Magistrate Judge assigned to this action 1 has prepared a Report and R e c o m m e n d a tio n ("Report") dated August 6, 2008 wherein he suggests that this court should

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The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. 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. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is 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).

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g ra n t the defendants' motion for summary judgment;2 that all remaining defendants be d is m is s e d for failure of service; and that this action be deemed a "strike" against the plaintiff u n d e r the Prison Litigation Reform Act. The Report sets forth in detail the relevant facts and s ta n d a rd s of law on these matters, and the court incorporates such without a full recitation. T h e plaintiff was advised of his right to file objections to the Report. However, he h a s failed to file any objections in this case. N o tw ith s ta n d in g the plaintiff's failure to file objections, the court is convinced that th e Magistrate Judge's recommended disposition is appropriate. As an initial proposition, a n y defendants who have not by now been served, shall be dismissed pursuant to Rule 4(m) o f the Federal Rules of Civil Procedure. The gist of the plaintiff's complaint is that he has not received the proper medical care w h ile a state inmate for his venous statis ulcer condition. He also adds a claim that he was n o t treated properly when he was found to have violated prison rules in not respecting an o ff icer. W ith regard to Warden Burtt, the only named defendant against whom substantive a lle g a tio n s are directed, the Magistrate Judge points out that Burtt is not alleged to have p e rs o n a lly taken any of the actions complained of in this case. In light of the fact that the d o c trin e of respondeat superior does not apply in such § 1983 actions, the Magistrate Judge o p in e s that Warden Burtt is entitled to judgment as a matter of law. The Magistrate Judge f u rth e r suggests that even if the plaintiff could establish a deficiency in medical care and

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An order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying plaintiff of the summary dismissal procedure and possible consequences if he failed to adequately respond to the motion for summary judgment.

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so m e type of liability could be imputed toward Burtt, ordinary negligence is not actionable u n d e r 42 U.S.C. § 1983. A f te r a careful review of the record, the applicable law, and the Report, the court finds th e Magistrate Judge's recommendation to be proper and such Report is incorporated herein b y reference. The motion by defendants Ozmint, Burtt, Martell, Reeves, Ward, Thompson, N e ttle s, Roof, Emrhein, Powell, Blowe, Blake, Austin, Norwood, and Babbs (the served d e f en d a n ts ) is hereby granted. All unserved defendants are hereby dismissed without p re ju d ic e . It is further ordered that this case shall be deemed a "strike" against the plaintiff p u rsua n t to 28 U.S.C. § 1915(g). P la in tif f 's motion for appointment of counsel is denied. IT IS SO ORDERED.

O ctob er 7, 2008 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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