Randy M. Fuewell v. Lt. Thompson et al

Filing 224

ORDER RULING ON REPORT AND RECOMMENDATION. The Reports and Recommendations 200 and 202 of the Magistrate Judge are adopted and incorporated by reference. It is ORDERED that the Motion for Summary Judgment jointly made by Defendants Lt. J. Thompson; Lt. Donald Gilchrist; Director Joyce L. Young; Jennifer Franklin,Capt. Joseph Stevens; V. Aikens, Lt.; Sgt. Moss; Terry Andrews, HCA; T. James, Nurse; Mr. Richardson; Warden Leroy Carledge; Sgt. Terry; Vera Courson, RN; Of ficer Hines; Dr. John B.McRee; Dr. Thomas Moore; Major Frank Musier; Ms. Lambert; Ms. Sullivan; Capt. Baldwin; Sgt. J. Bell; and Cpl. Clarissa Jones, ECF No. 176, is GRANTED. Moreover, the Court agrees that Plaintiff has failed to state a claim upon which relief can by granted against Defendant Randolph and thus the Complaint is DISMISSED, without prejudice, as to any claims asserted against him. The Complaint is also DISMISSED, with prejudice, as to Defendant Jane Doe Dentist. The Court may con sider the statute of limitations sua sponte for a complaint filed in forma pauperis. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 65556 (2006). Here, the face of PlaintiffsAmended Complaint clearly alleges that Defendant Jane Doe Dentist extracted the wrong tooth, for captol [sic] gain in July of 2003. See ECF No. 61 at 1. Plaintiffs complaint was not filed until April 13, 2012. Plaintiffs claim against Defendant Jane Doe Dentist was filed well beyond the applicable three year statute of limit ations for any federal claim that the Complaint could beconstrued to assert, which the Court determines would be for violation of § 1983. See S.C. Code Ann. § 15-3-530 (providing for a general three year statute of limitations); Williams v. City of Sumter Police Dept., No. 3:09-2486-CMC-PJG, 2011 WL 723148, at *23 (D.S.C. Feb. 23, 2011)(explaining in detail the legal doctrine supporting the application of South Carolinas general three year statute of limitations in § 1983 personal injury actions). Accordingly, dismissal is appropriate because the claim asserted against Defendant Jane Doe Dentist is barred by the applicable statute of limitations. It is further ORDERED that Defendants Krebs, Koon, and Koshers Motions for Summa ry Judgment, ECF Nos. 158, 177, and 181, are also GRANTED. Accordingly, Plaintiffs Amended Complaint is DISMISSED, with prejudice, as to all Defendants except Defendant Dr. Randolph. Plaintiffs Amended Complaint is DISMISSED, without prejudice, as t o Defendant Dr. Randolph. To the extent the Amended Complaint can beconstrued to assert any claims pursuant to South Carolina state law, the court DECLINES to exercise pendent jurisdiction over those state law claims.Plaintiffs Motion to re-serve D efendant Sullivan, ECF No. 169; Motion to Appoint Counsel, ECF No. 185; Motion to re-serve Dr. Randolph, ECF No. 208; Motion to Appoint Counsel, ECF No. 213; and Motion to Retalitory [sic] Retaliation, ECF No. 216 are DENIED as MOOT. Defendant Koons Motion to Substitute and Dismiss, ECF No. 106, is also DENIED as MOOT. Signed by Honorable R Bryan Harwell on 1/03/2014. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
)
)
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Plaintiff,
)
)
v.
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Lt. J. Thompson; Lt. Donald
)
Gilchrist; Dr. Kosher; Dr. Koon;
Director Joyce L. Young; Jennifer )
Franklin; Capt. Joseph Stevens; V. )
)
Aikens, Lt.; Sgt. Moss; Terry
)
Andrews, HCA, and T. James,
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Nurse, Mr. Richardson Warden
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Leroy Carledge; Sgt. Terry; Jane
Doe; Dentist at Evans CI in 2003; )
Vera Courson, RN; Officer Hines; )
Dr. Randolph; Dr. John B. McRee; )
)
Dr. Kerbs; Dr. Thomas Moore;
Major Frank Musier; Ms. Lambert; )
Ms. Sullivan; Capt. Baldwin; Sgt. J. )
)
Bell; and Cpl. Clarissa Jones,
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Defendants.
)
Randy Morris Fuewell, #279287

Civil Action No.: 4:12-cv-1004-RBH

ORDER

Plaintiff Randy Morris Fuewell, #279287 (“Plaintiff”), a state prisoner proceeding pro se,
filed this action alleging that Defendants violated his constitutional rights by being deliberately
indifferent to his medical needs and interfering with his mail. Plaintiff also makes various other
conclusory allegations regarding actions of several of the named defendants which purportedly
violated his constitutional rights. The matter is before the Court for review of the Reports and
Recommendations (“R & R”) of United States Magistrate Judge Thomas E. Rogers, III, made in
accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02 for the District of South Carolina.
See ECF Nos. 200, 202.
In the first Report and Recommendation, the Magistrate Judge recommends that the Court
grant the Motion for Summary Judgment jointly made by Defendants Lt. J. Thompson; Lt. Donald

Gilchrist; Director Joyce L. Young; Jennifer Franklin, Capt. Joseph Stevens; V. Aikens, Lt.; Sgt.
Moss; Terry Andrews, HCA; T. James, Nurse; Mr. Richardson; Warden Leroy Carledge; Sgt.
Terry; Vera Courson, RN; Officer Hines; Dr. John B. McRee; Dr. Thomas Moore; Major Frank
Musier; Ms. Lambert; Ms. Sullivan; Capt. Baldwin; Sgt. J. Bell; and Cpl. Clarissa Jones,1 and that
the Court decline to exercise jurisdiction over any pendent claims asserted under state common law,
to the extent any exist. See ECF No. 200 at 24–25. This R & R also recommends that Defendant
Dr. Randolph be dismissed for failure to state a claim against him upon which relief can be granted,
as the only allegation in the Amended Complaint related to this Defendant was that Plaintiff saw a
Dr. Randolph who allegedly stated Plaintiff was bleeding behind his eyes. See id. at 25. Finally,
the R & R notes that the summons as to Defendant Jane Doe Dentist was returned unexecuted.
In the Second R & R, the Magistrate Judge recommends that the Court dismiss Defendants
Krebs, Koon, and Kocher either pursuant to Rule 41(b) of the Federal Rules of Civil Procedure or,
alternatively, on the merits by granting the respective Motions for Summary Judgment made by
these Defendants, see ECF Nos. 158, 177, and 181.
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
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 with instructions. See 28 U.S.C.
§ 636(b)(1).

Defendants Briscoe, Cook, Culbreath, Harmon, Marshall, and Reid were dismissed by Order of this
Court dated October 10, 2012, based on the absence of any allegations against them in the Amended
Complaint.
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Neither party has filed objections to the Reports and Recommendations. In the absence of
objections to the Reports and Recommendation of the Magistrate Judge, this Court is not required
to give any explanation for adopting the recommendations. See Camby v. Davis, 718 F.2d 198, 199
(4th Cir. 1983). The Court reviews only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005) (stating that “in the
absence of a timely filed objection, a district court need not conduct 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).
After a thorough review of the record in this case, the Court finds no clear error.
Accordingly, the Reports and Recommendations of the Magistrate Judge are adopted and
incorporated by reference.
Therefore, it is ORDERED that the Motion for Summary Judgment jointly made by
Defendants Lt. J. Thompson; Lt. Donald Gilchrist; Director Joyce L. Young; Jennifer Franklin,
Capt. Joseph Stevens; V. Aikens, Lt.; Sgt. Moss; Terry Andrews, HCA; T. James, Nurse; Mr.
Richardson; Warden Leroy Carledge; Sgt. Terry; Vera Courson, RN; Officer Hines; Dr. John B.
McRee; Dr. Thomas Moore; Major Frank Musier; Ms. Lambert; Ms. Sullivan; Capt. Baldwin; Sgt.
J. Bell; and Cpl. Clarissa Jones, ECF No. 176, is GRANTED. Moreover, the Court agrees that
Plaintiff has failed to state a claim upon which relief can by granted against Defendant Randolph
and thus the Complaint is DISMISSED, without prejudice, as to any claims asserted against him.
The Complaint is also DISMISSED, with prejudice, as to Defendant Jane Doe Dentist. The
Court may consider the statute of limitations sua sponte for a complaint filed in forma pauperis.
See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655–56 (2006). Here, the face of Plaintiff’s
Amended Complaint clearly alleges that Defendant Jane Doe Dentist extracted “the wrong tooth,

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for captol [sic] gain” in July of 2003. See ECF No. 61 at 1. Plaintiff’s complaint was not filed until
April 13, 2012. Plaintiff’s claim against Defendant Jane Doe Dentist was filed well beyond the
applicable three year statute of limitations for any federal claim that the Complaint could be
construed to assert, which the Court determines would be for violation of § 1983. See S.C. Code
Ann. § 15-3-530 (providing for a general three year statute of limitations); Williams v. City of
Sumter Police Dept., No. 3:09-2486-CMC-PJG, 2011 WL 723148, at *2–3 (D.S.C. Feb. 23, 2011)
(explaining in detail the legal doctrine supporting the application of South Carolina’s general threeyear statute of limitations in § 1983 personal injury actions). Accordingly, dismissal is appropriate
because the claim asserted against Defendant Jane Doe Dentist is barred by the applicable statute of
limitations.
It is further ORDERED that Defendants Krebs, Koon, and Koshers’ Motions for Summary
Judgment, ECF Nos. 158, 177, and 181, are also GRANTED.
Accordingly, Plaintiff’s Amended Complaint is DISMISSED, with prejudice, as to all
Defendants except Defendant Dr. Randolph. Plaintiff’s Amended Complaint is DISMISSED,
without prejudice, as to Defendant Dr. Randolph. To the extent the Amended Complaint can be
construed to assert any claims pursuant to South Carolina state law, the court DECLINES to
exercise pendent jurisdiction over those state law claims.
Plaintiff’s Motion to re-serve Defendant Sullivan, ECF No. 169; Motion to Appoint
Counsel, ECF No. 185; Motion to re-serve Dr. Randolph, ECF No. 208; Motion to Appoint
Counsel, ECF No. 213; and Motion to Retalitory [sic] Retaliation, ECF No. 216 are DENIED as
MOOT. Defendant Koon’s Motion to Substitute and Dismiss, ECF No. 106, is also DENIED as
MOOT.
IT IS SO ORDERED.

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s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
January 3, 2014

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