Jones v. McRee

Filing 19

ORDER RULING ON REPORT AND RECOMMENDATION: The Court ADOPTS the recommendation of the Magistrate Judge regarding the summary dismissal of Plaintiff's claims for medical malpractice and negligence against all Defendants a nd the summary dismissal of all claims against Defendant South Carolina Department of Corrections. The Court DECLINES TO ADOPT the recommendation of summary dismissal regarding the deliberate indifference claim against Defendant McRee, and REFERS this matter back to the Magistrate Judge for further action consistent with this order.AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 11/09/2015. (dsto, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

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Eric Jasen Jones #118937, aIkIa Eric Jones,
Plaintiff,

v.
J. McRee (M.D.) for S.C.D.C., South Carolina
Dept. of Corrections,
Defendants.

No: 4: 15-cv-3273-RMG

ORDER

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This matter is before the Court on the Report and Recommendation ("R&R") of the
Magistrate Judge recommending the summary dismissal of this action. (Dkt. No. 12.) For the
reasons set forth below, the Court adopts the recommendation of the Magistrate Judge to
summarily dismiss the negligence and medical malpractice claims asserted under 42 U.S.C.
§ 1983 against all Defendants and all § 1983 claims asserted against the South Carolina
Department of Corrections. The Court declines to adopt the recommendation of the Magistrate
Judge regarding the summary dismissal of the deliberate indifference claim under the Eighth
Amendment of the United States Constitution against Defendant McRee and refers this matter
back to the Magistrate Judge for further proceedings consistent with this order.

I. BACKGROUND
Plaintiff brings this pro se action seeking relief pursuant to 42 U.S.c. § 1983. For the
purposes of this motion to dismiss, the Court assumes the facts alleged in the Complaint are true,
construes the facts in Plaintiffs favor, and draws all inferences in Plaintiffs favor. Plaintiff is a
state inmate at McCormick Correctional Institute ("MCI"). He asserts claims of: "(1)
negligence; (2) medical malpractice; (3) 8th Amendment violation; (4) constitutional violations,

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with no regards for human life; [and] (5) pain and suffering and discomfort towards good
health." (Dkt. No.1 at 7.)
Plaintiffs claims arise from the alleged inadequate treatment of Plaintiffs skin condition.
Plaintiff alleges that he has suffered from "itching, red bumps, red burning skin, and skin
discoloration" since January of2014. (Id. at 3.) For four months, Plaintiff went to "sick call"
two or three times a week and asked to be seen by a doctor. (Id. at 3-4.) Each of these medical
visits cost Plaintiff five dollars and any medication prescribed by a nurse cost an additional five
dollars. (Id. at 4.) Plaintiff alleges he was not allowed to see Dr. 1. McRee, "the institution
medical doctor," until the end of this four month period. (Id. at 3-4.) According to Plaintiff, Dr.

J. McRee prescribed various "methods of medication for treatment" that were not "very helpful"
in providing "any type of relief." (Id. at 3.) Plaintiff then requested to see a dermatologist. (Id.
at 4.)
Four months after making this request, Plaintiff was seen by two dermatologist specialists
at the Medical University of South Carolina ("MUSC"). (Id.) These specialists diagnosed
Plaintiff with a chronic skin disease. (Id.) They told Plaintiff that he possibly had scabies, but
would need additional tests for confirmation. (Id.) The specialists explained that "it is a
contagious disease" and could turn into cancer if left untreated. (Id.) Plaintiff alleges that he
was denied further testing and, despite his requests "to return to outside treatment," he has not
seen the specialists again. (Id.) Plaintiff alleges that Dr. 1. McRee "stated that he did not know
what else to do." (Id.)
According to Plaintiff, he then "went through the proper channels within the institution in
filing a grievance for denial of medical treatment." (Jd) Plaintiff has attached to the Complaint
two completed Step 1 Grievance Forms and three completed Request to Staff Member Forms.

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(Dkt. No. 1-2.) These range in date from February 3, 2015, to June 17,2015. (ld at 1-5.) In the
Request to Staff Member Forms, Plaintiff reported that he has "not heard a word from medical or
the doctor" and that he is "hurting" and "depressed." (ld at 3.) Plaintiff also reported that "his
skin is burning every minute of the day .... I take (2) two showers a day to try and keep my skin
calm." (ld at 4.) A staff member responded to Plaintiff's Request to Staff Member Form on
March 9,2015, stating, "I left the encounter open to the MD. He says he has nothing left to
offer. I saw you January 27, 2015. Come through sick call or send request to MD." (ld at 3.)
Plaintiff continued to go to sick call during this time period. (Dkt. No.1 at 5.) On June
5,2015, Plaintiff received 4 ounces of"hydrocerin cream" from the "pill line nurse." (ld at 6.)
According to Plaintiff, "E. Holcomb," an L.P.N. who Plaintiff has never met, "approved" this
cream. (ld) Plaintiff alleges that his lack of treatment has "destroyed [him] financially" and that
"approximately 70% of [his] body [is] covered with this disease." (ld) Plaintiff seeks injunctive
and monetary relief. (ld at 8.)
Plaintiff's case was referred to the United States Magistrate Judge for all pretrial
proceedings pursuant to the provisions of28 U.S.C. § 636(b)(I)(B) and Local Rule 73.02(B)(2)
(d), D.S.C. Upon initial review, the Magistrate Judge issued a Report and Recommendation
("R&R") recommending summary dismissal of this action for failure to state a claim upon which
relief can be granted. (Dkt. No. 12 at 5.) Plaintiff filed a timely written objection to the
Magistrate Judge's R&R (Dkt. No. 16) and submitted an "Affidavit of Expert Witness," (Dkt.
No. 17) in which Plaintiff briefly restates the allegations in his Complaint and his objections to
the R&R.

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II. LEGAL STANDARDS

A.

Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if
the complaint fails ''to state a claim upon which relief can be granted." Such a motion tests the
legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits
of the claim, or the applicability of defenses. . .. Our inquiry then is limited to whether the
allegations constitute 'a short and plain statement of the claim showing that the pleader is
entitled to relief.''' Republican Party oiNe. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)
(quotation marks and citation omitted). In a Rule 12(b)(6) motion, the Court is obligated to
"assume the truth of all facts alleged in the complaint and the existence of any fact that can be
proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd

P'ship, 213 F 3d 175, 180 (4th Cir. 2000). However, while the Court must accept the facts in a
light most favorable to the non-moving party, it "need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments." Id
To survive a motion to dismiss, the complaint must state "enough facts to state a claim to
relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Although
the requirement of plausibility does not impose a probability requirement at this stage, the
complaint must show more than a "sheer possibility that a defendant has acted unlawfully."

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the
pleading "allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id.

Pro se complaints are construed liberally to allow the development of meritorious claims
and "must be held to less stringent standards than formal pleadings drafted by lawyers."

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Erickson v. Pardus, 551 U.S. 89,94 (2007). However, the requirement of a liberal construction
does not mean that the Court can ignore a plaintiffs clear failure to allege facts that set forth a
cognizable claim. See Well v. Dep't ofSoc. Servs. for Baltimore, 901 F.2d 387, 391 (4th Cir.
1990) ("The special judicial solicitude with which a district court should view pro se complaints
does not transform the court into an advocate. ").

B.

Report and Recommendation

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). This Court is charged with making
a de novo determination of those portions of the R & R to which specific objection is made.
Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court may also
"receive further evidence or recommit the matter to the magistrate judge with instructions." Id.
As to portions ofthe R & R to which no specific objection has been made, this Court
"must 'only satisfy itselfthat there is no clear error on the face ofthe record in order to accept
the recommendation.'" Id. (quoting Fed. R. Civ. P. 72 advisory committee note). Moreover, in
the absence of specific objections to the R & R, the Court need not give any explanation for
adopting the Magistrate Judge's analysis and recommendation. See Camby v. Davis, 718 F.2d
198, 199-200 (4th Cir. 1983).

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III. DISCUSSION

A.

Deliberate Indifference to Medical Needs

The Court liberally construes Plaintiffs Complaint to allege a claim for deliberate
indifference to medical needs. 1 A charge of deliberate indifference to medical needs requires a
plaintiff to prove that a defendant knew of and disregarded the plaintiffs objectively serious
medical need. See Farmer v. Brennan, 511 U.S. 825,846 (1994); Wilson v. Setter, 501 U.S. 294,
297 (1991); Estelle v. Gamble, 429 U.S. 97,104-05 (1976). "[A] 'serious ... medical need' is
'one that has been diagnosed by a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor's attention. '" Iko v. Shreve,
535 F.3d 225,241 (4th Cir. 2008) (quoting Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir.
1999)).
Here, the Magistrate Judge found that Plaintiff had "received medical attention for his
medical issues" and had been provided with medications and creams as recently as June of2015.
(Dkt. No.5.) In light of these facts, the Magistrate Judge recommended that Plaintiffs claim
does not rise to the level of deliberate indifference to a serious medical need. (Id.) The Court
agrees that Plaintiff initially received some treatment for his skin condition; however, following
Plaintiff s visit to MUSC, where the physicians indicated a need for further testing, Plaintiff
alleges he did not receive any further testing and was never seen by another physician inside or
outside of MCl. Plaintiff alleges that his skin condition has worsened to the point where it now
covers 70% of his body. The records attached to the Complaint support Plaintiffs allegations
that Dr. J. McRee knew of his serious medical condition and did no further diagnostic evaluation
following Plaintiffs visit to MUSC. (Dkt. No. 1-2.)

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his objections, Plaintiff states that Dr. J McRee's conduct constitutes "deliberate
indifference to ... his medical needs." (Dkt. No. 16 at 4.)
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Based on the foregoing, the Court finds that Plaintiff has provided sufficient factual
allegations to avoid summary dismissal of his claim against Dr. J. McRee for the alleged
deliberate indifference to medical needs. Keith v. Merch., No.1 :13-cv-2721, 2013 WL 6162248,
at *2 (D.S.C. Nov. 21, 2013) (finding that Plaintiff had survived summary dismissal of his claim
for deliberate indifference to medical needs where Plaintiff alleged that he was denied medical
attention for a skin condition caused by an allergic reaction to soap and was denied help in
obtaining a better mattress for his scoliosis).

B.

Remaining Claims

Plaintiffs objections focus on his claims for "professional negligence," and lack of
medical care. (Dkt. No. 16 at 3-4.) The Court agrees with the Magistrate Judge's finding that
claims of negligence and medical malpractice are not cognizable under 42 U.S.C. § 1983. See
Estelle, 429 U.S. at 106 (finding that "a complaint that a physician has been negligent in
diagnosing or treating a medical condition" is not actionable under 42 U.S.C. § 1983). In
addition, to the extent that Plaintiff asserts claims against the South Carolina Department of
Corrections, it is well settled that actions against the State and its entities are barred by the
Eleventh Amendment, Alden v. Maine, 527 U.S. 706, 712-13 (1999), and the State and its
entities are not "persons" under 42 U.S.c. Section 1983. Will v. Mich. Dep't. ofState Police,
491 U.S. 58, 65-66 (1989). Accordingly, the Court adopts the Magistrate Judge's
recommendation that Plaintiffs remaining claims be dismissed.
IV. CONCLUSION
For the reasons set forth above, the Court ADOPTS the recommendation of the
Magistrate Judge regarding the summary dismissal of Plaintiff's claims for medical malpractice
and negligence against all Defendants and the summary dismissal of all claims against Defendant

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South Carolina Department of Corrections. The Court DECLINES TO ADOPT the
recommendation of summary dismissal regarding the deliberate indifference claim against
Defendant McRee and REFERS this matter back. to the Magistrate Judge for further action
consistent with this order.

AND IT IS SO ORDERED.

United States District Court Judge

i,

November
2015
Charleston, South Carolina

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