Taylor v. Spartanburg County Detention Facility et al

Filing 95

ORDER accepting 90 Report and Recommendation of Magistrate Judge Bruce Howe Hendricks, denying Defendant Dr. Bianco's 27 Motion to Dismiss. Signed by Honorable J Michelle Childs on 2/26/13.(hhil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Todd Michael Taylor,

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Plaintiff,
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v.
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Major Neal Urch; Corporal Tahara;
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Dr. Bianco, Med. Dept.,
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Defendants.
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____________________________________)

Civil Action No. 2:12-cv-01293-JMC

OPINION AND ORDER

This matter is before the court for review of the Magistrate Judge's Report and
Recommendation (“Report”) [Dkt. No. 90], filed on February 1, 2013, recommending that
Defendant Dr. Bianco’s (“Dr. Bianco”) Motion to Dismiss and Motion for Summary Judgment,
[Dkt. No. 27], regarding Plaintiff’s Eighth Amendment claim of deliberate indifference to serious
medical need brought under 42 U.S.C. § 1983, be denied. The Report sets forth in detail the relevant
facts and legal standards on this matter which the court incorporates herein without a recitation.
STANDARD OF REVIEW
The Magistrate Judge’s Report and Recommendation is made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge
makes only a recommendation to this court. The recommendation has no presumptive weight. The
responsibility to make a final determination remains with this court. See Mathews v. Weber, 423
U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objections are made, and the court

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may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or
recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
DISCUSSION
The Magistrate Judge’s Report recommends that Dr. Bianco’s motion be denied because the
Magistrate Judge found that Plaintiff sufficiently stated a cause of action and demonstrated a
genuine issue of fact with regard to whether Dr. Bianco acted with deliberate indifference to any
serious medical need of Plaintiff. The Magistrate Judge reasoned that, in viewing the facts in the
light most favorable to Plaintiff, the record before the court contained evidence that Plaintiff fell and
injured his arm and back on May 1, 2012, in a manner requiring medical attention at the Spartanburg
Regional Medical Center (“SRMC”). The SRMC emergency room physician advised Plaintiff to
wear a splint and prescribed Plaintiff the medications Ultram and Flexeril. Under Dr. Bianco’s
authority, staff at the detention center did not administer the medications Ultram and Flexeril to
Plaintiff. Instead, they continued a medication regiment began with Plaintiff before his fall.
Thereafter, Plaintiff continued to complain of pain and request medical attention. However, Dr.
Bianco did not make a medical visit to Plaintiff until several days after Plaintiff’s return from the
SRMC and continuous complaints of pain. The Magistrate Judge further observed that the records
reflected that the medication regimen Plaintiff did receive was not provided with regularity. This
course of treatment continued after Dr. Bianco received radiology reports from the SRMC noting
a “fracture of the ulnar styloid which could be acute.” [Dkt. No. 27-1 at 35-40]. The Magistrate
Judge acknowledged that “While the fact that a plaintiff may not agree with specific pain medication
ordered would not constitute deliberate indifference, see Wright, 766 F.2d at 849, leaving an inmate

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with a broken bone in lock-up for three days with no pain medication and no medical treatment
could support a claim for deliberate indifference.” [Dkt. No. 90, at 8-9].
Dr. Bianco timely filed objections to the Magistrate Judge’s Report. [Dkt. No. 93]. Dr.
Bianco objects to the recommendation of the Magistrate Judge on the ground that “disagreements
between an inmate and a physician over the inmate’s proper medical care” do not support an Eighth
Amendment claim of deliberate indifference to serious medical need pursuant to § 1983. See
Objections of Defendant Salvatore Dianco, MD, to Report and Recommendation of Magistrate
Judge to Todd Michael Taylor 12-06207, Plaintiff [Dkt. No. 93, at 2] (quoting Wright v. Collins, 766
F.2d 841, 849 (4th Cir. 1985)). Dr. Bianco first implies that Plaintiff has presented no evidence in
the record to support his allegations that he received inadequate medical attention by categorizing
Plaintiff’s claims as “unsubstantiated.” However, Plaintiff’s Response in Opposition of Defendant
Bianco’s Motion to Dismiss and Motion for Summary Judgment By Plaintiff Todd M. Taylor [Dkt.
No. 42] is in the nature of a declaration made under penalty of perjury. Therefore, Plaintiff has
submitted the equivalent of an affidavit in support of his claims. See 28 U.S.C. § 1746 (2008)
(noting that unsworn declarations can satisfy affidavit requirement only if signed under penalty of
perjury); see also Williams v. Sielaff, 914 F.2d 250, 250 (4th Cir.1990) (noting that statement made
under penalty of perjury and declared to be true and correct to the best of declarant's knowledge
qualifies as affidavit). Additionally, Dr. Bianco attempts to persuade the court to disregard the
standard of review and, instead, view the facts in the light most favorable to him. Particularly, Dr.
Bianco insists that the medications he authorized and prescribed were the appropriate medications
and that the medications prescribed at the SRMC were inappropriate for Plaintiff. In reference to
the prescribing information for Ultram, Dr. Bianco notes that the product information contains a

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seizure warning for patients with a risk for alcohol or drug withdrawal. However, the SRMC
records submitted by Dr. Bianco in support of his motion actually note Plaintiff’s drug use as
“shoots heroin.” [Dkt. No. 27-1, at 25]. Therefore, the record reflects that the emergency physician
at the SRMC may have prescribed Ultram as an appropriate course of treatment given Plaintiff’s
charted drug use. Accordingly, there still remains a genuine issue of material fact concerning Dr.
Bianco’s actions and Plaintiff’s claims of deliberate indiference.
CONCLUSION
After a thorough review of the Report and Recommendation and the record in this case,
the court ACCEPTS the Magistrate Judge’s Report and Recommendation. [Dkt. No. 90]. It is
therefore ORDERED that Defendant Dr. Bianco’s Motion to Dismiss and Motion for Summary
Judgment [Dkt. No. 27] is DENIED.
IT IS SO ORDERED.

United States District Judge
Greenville, South Carolina
February 27, 2013

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