Kirtman v. Helbig et al
Filing
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ORDER RULING ON REPORT AND RECOMMENDATION: The court adopts the Report (ECF No. 14 ) in part. Therefore, Defendants John Doe-4, Dumbar, McCellan, and all California Defendants (Parker, Coates, Horton, Tewer, Fernandez, Quinn, Hernandez, Wolverton, Topete, and John Doe-5) are summarily DISMISSED without prejudice and without issuance and service of process. Plaintiff is to file a supplemental complaint adding specific factual allegations only against Defendants Lanford and John Doe-2 within 21 days of the date of this order. Signed by Honorable Timothy M Cain on 02/02/2017. (dsto, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Derrick E. Kirtman,
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Plaintiff,
vs.
Chaplain Helbig, S.I.A. Stivers,
S.I.A. Lt. Dumbar, Warden Cruz,
Case Manager McCellan,
Hospital Administrator, Jane Doe-1,
Assistant Hospital Administrator Whitehurst,
Assistant Warden Landford,
Assistant Warden John Doe-2,
Register Nurse K. Caluago,
Register Nurse Jane Doe-3,
Correctional Officer John Doe-4,
Counselor Parker, Counselor Coates,
Unit Manager Horton, Warden Tewer,
M.D. Jesus Fernandez, M.D. Ross Quinn,
P.A. Hernandez, P.A. Brisitte Wolverton,
E. Topete, Warden John Doe-5,
Defendants.
C/A No. 4:16-2839-TMC-TER
ORDER
Plaintiff, Derrick E. Kirtman, a federal prisoner proceeding pro se, filed this action
pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397 (1971). In
accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter was
referred to a magistrate judge for pretrial handling. Before the court is the magistrate judge’s
Report and Recommendation (“Report”), recommending that the court dismiss Plaintiff’s
complaint as to Defendants John Doe-4, Dumbar, McCellan, Landford, and John Doe-2, and all
California Defendants (Parker, Coates, Horton, Tewer, Fernandez, Quinn, Hernandez,
Wolverton, Topete, and John Doe-5) without prejudice and without issuance and service of
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process. (ECF No. 14). Plaintiff was advised of his right to file objections to the Report, and he
filed timely objections. (ECF No. 18). Accordingly, this matter is now ripe for review.
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 27071 (1976). In making that determination, the court is charged with conducting a de novo review
of those portions of the Report to which either party specifically objects. See 28 U.S.C. §
636(b)(1). Then, the court may accept, reject, or modify the Report or recommit the matter to
the magistrate judge. See id.
In his Report, the Magistrate Judge recommends that court dismiss Plaintiff’s complaint
as to Defendants John Doe-4, Dumbar, McCellan, Landford, and John Doe-2, and all California
Defendants (Parker, Coates, Horton, Tewer, Fernandez, Quinn, Hernandez, Wolverton, Topete,
and John Doe-5) without prejudice and without issuance and service of process. (ECF No. 14).
Among other things, the Magistrate Judge determined that Plaintiff had not adequately pled
supervisory liability against Defendants Wardens Landford and John Doe-2. (Report at 13). In
his objections, Plaintiff only objects to this recommendation. He asserts that he should be
allowed to amend his complaint to add factual allegations only in regard to his claims against
Defendants Lanford and John Doe-2. In his objections, Plaintiff specifically contends that these
two defendants “were notified of the fact that Plaintiff’s necessary cronic (sic) medications were
being denied by the other named Defendants.” (Objections at 3).
A plaintiff must establish three elements to prevail under § 1983 on a theory of
supervisory liability under § 1983: “(1) that the supervisor had actual or constructive knowledge
that his subordinate was engaged in conduct that posed ‘a pervasive and unreasonable risk’ of
constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that
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knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the
alleged offensive practices,’; and (3) that there was an ‘affirmative causal link’ between the
supervisor's inaction and the particular constitutional injury suffered by the plaintiff.” Shaw v.
Stroud, 13 F.3d 791, 799 (4th Cir.1994) (citations omitted). Because Plaintiff is proceeding pro
se, the court will allow him the opportunity to supplement his complaint as to his claims against
only these two Defendants. Adams v. Jones, C/A No. 2:05-CV-434, 2005 WL 4163671, at *2
(E.D. Va. Oct. 27, 2005) (noting that pro se plaintiffs should be allowed to particularize their
claims when their complaint states a “potentially cognizable claim”), aff'd, 170 Fed.Appx. 827
(4th Cir. 2006).
Accordingly, after a thorough review of the record, the court adopts the Report (ECF No.
14) in part. Therefore, Defendants John Doe-4, Dumbar, McCellan,, and all California
Defendants (Parker, Coates, Horton, Tewer, Fernandez, Quinn, Hernandez, Wolverton, Topete,
and John Doe-5) are summarily DISMISSED without prejudice and without issuance and
service of process.
Plaintiff is to file a supplemental complaint adding specific factual
allegations only against Defendants Lanford and John Doe-2 within 21 days of the date of this
order.
IT IS SO ORDERED.
/sTimothy M. Cain
United States District Judge
Anderson, South Carolina
February 2, 2017
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure, if applicable.
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