McDonald v. Marlboro County

Filing 64

ORDER RULING ON REPORT AND RECOMMENDATION: The undersigned adopts in part and respectfully rejects in part the Magistrate Judge's Report and Recommendation 58 . The undersigned DENIES Plaintiff's Motion to Amend [55 ] and GRANTS IN PART AND DENIES IN PART Defendant's Motion for Summary Judgment 36 . The Motion for Summary Judgment is GRANTED IN PART as to Plaintiff's claim brought pursuant to 42 U.S.C. § 1983. Given the dismissal of the federal claim, the Court declines to exercise jurisdiction over Plaintiff's remaining state law claims for violation of the South Carolina Tort Claims Act and the tort of outrage. As such, the Court declines to rule on Defendant's Motion for Summar y Judgment to the extent it addresses those causes of actions. This action is hereby REMANDED to the Marlboro County Court of Common Pleas for further proceedings regarding Plaintiff's remaining causes of action. Signed by Honorable R Bryan Harwell on 12/16/2013. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Demetrius McDonald,

)
)
Plaintiff,
)
)
v.
)
)
Marlboro County d/b/a the Marlboro )
County Detention Center,
)
)
Defendant.
)
)

Civil Action No.: 5:12-cv-1725-RBH-KDW

ORDER

PROCEDURAL HISTORY
Plaintiff filed this action on May 30, 2012 in the Marlboro County Court of Common Pleas
alleging a federal cause of action pursuant to 42 U.S.C. §§ 1983 and 1988, violation of the South
Carolina Tort Claims Act, S.C. Code Ann. § 15-78-10 et seq., and a state law claim for the tort of
outrage. Compl., ECF No. 1-1. Defendant removed the action to this Court on June 22, 2012.
Notice of Removal, ECF No. 1. On April 25, 2013, Defendant filed a Motion for Summary
Judgment. Mot. for Summ. J., ECF No. 36. The Court issued a Text Order on May 16, 2013
directing Plaintiff to file a legal memorandum in response to the Motion for Summary Judgment no
later than May 30, 2013 if Plaintiff wished to pursue his case. Order, ECF No. 38. Plaintiff did not
respond prior to this deadline and, as a result, the Magistrate Judge issued a Report and
Recommendation which recommended that the action be dismissed for failure to prosecute. Report
and Recommendation, ECF No. 41. Plaintiff objected to the Report and Recommendation, citing an
issue with counsel’s email system and a resulting failure to receive notifications from the Court. Pl’s
Objections, ECF No. 42. Accordingly, this Court rejected the Report and Recommendation by
Order dated June 18, 2013, and ruled that Plaintiff could file a response no later than June 28, 2013.

Order, ECF No. 47. Plaintiff timely filed a Response in Opposition to Defendant’s Motion for
Summary Judgment on June 28, 2013. Pl’s Resp. in Opp’n to Def’s Motion for Summ. J., ECF No.
52. Plaintiff also filed a Motion to Amend Complaint and Extension of Deadline on July 17, 2013.
Mot. to Am., ECF No. 55.
This matter is now before the undersigned for review of the Report and Recommendation (“R
& R”) filed by United States Magistrate Judge Kaymani D. West, to whom this case had previously
been assigned pursuant to 28 U.S.C. § 636 and Local Rule 73.02(B)(2)(g) (D.S.C.). See R & R, ECF
No. 58. In her Report, the Magistrate Judge recommends that Defendant’s Motion for Summary
Judgment be granted on all claims and Plaintiff’s Motion to Amend be denied as futile. Plaintiff
filed objections to the Report on September 12, 2013. See Pl’s Objections, ECF No. 60. Defendant
filed a reply to the objections on September 30, 2013. See Def’s Reply to Pl’s Objections, ECF No.
62.
For the following reasons, the Court adopts the Report and Recommendation in part and
respectfully rejects the Report and Recommendation in part as specified herein.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court.

The

recommendation has no presumptive weight. The responsibility to make a final determination
remains with the district court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The district
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 with instructions. 28 U.S.C. §
636(b)(1).

2

The district court is obligated to conduct a de novo review of every portion of the Magistrate
Judge’s report to which objections have been filed. Id. However, the court need not conduct a de
novo review when a party makes only “general and conclusory objections that do not direct the
[C]ourt to a specific error in the [M]agistrate’s proposed findings and recommendations.” Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court reviews only for clear error in the absence of
a specific objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005).
FACTS
The court agrees with the factual and procedural background as set forth by the Magistrate
Judge in her Report and Recommendation.1
DISCUSSION
I.

Plaintiff’s Motion to Amend
The Court will first address Plaintiff’s Motion to Amend. In the motion, Plaintiff argues that

the Court should allow amendment of the original Summons and Complaint to assert claims against
Sheriff Fred Knight and the Marlboro County Sheriff’s Department. ECF No. 55 at 1. The
Magistrate Judge recommends that Plaintiff’s motion be denied as futile. Plaintiff objects, arguing
that amendment should be allowed because “the parties are not prejudiced with an amended

1

Briefly stated, Plaintiff alleges that he was injured in a motor vehicle accident on May 31, 2010 and
taken to Marlboro Park Hospital. ECF No. 1-1 at 2. While in the emergency room at the hospital,
on June 1, 2010, he was arrested and transported to the Marlboro County Detention Center
(“MCDC”). Id.; ECF No. 52-4 at 37:6-17. He alleges that while he was held at MCDC he was
placed in a holding cell, denied medical care, and “had to stay in the holding cell in his feces and urine
because he could not move until he was able to bond out on June 2, 2010.” ECF No. 1-1 at 2–3.
Finally, Plaintiff asserts that when he was released on bond he was taken by ambulance back to
Marlboro Park Hospital, then immediately transferred to Carolinas Hospital in Florence, South
Carolina for spinal surgery. Id. at 3.
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complaint and extension of time to conduct the completion of discovery.” ECF No. 60 at 8.
Plaintiff’s counsel also argues that she was under the “misimpression given . . . by the defense that
discovery was not over” and that the amended scheduling order “did not preclude further discovery.”
Id. Plaintiff’s counsel asserts that Plaintiff would be prejudiced if the Motion to Amend is denied.
Id. Finally, Plaintiff’s counsel argues that the amendment should be allowed to relate back to the
date of the original pleading in the event the motion is granted. Id. While the Court agrees with the
Magistrate Judge that the motion to amend should be denied, it modifies the rationale set forth in the
R & R. Accordingly, the motion is denied for the reasons set forth below.
1. Standard for Amending Complaint
Ordinarily, “the court should freely give leave [to amend] when justice so requires.” Fed. R.
Civ. P. 15(a); Davis v. Va. Commonwealth Univ., 180 F.3d 626, 628 (4th Cir. 1999) (noting that the
disposition of a motion to amend is within the sound discretion of the district court). A district court
may deny a party’s motion to amend if allowing the amendment would be futile. See In re PEC
Solutions, Inc. Sec. Litig., 418 F.3d 379, 391 (4th Cir. 2005) (“Leave to amend need not be given
when amendment would be futile.”). If amendment is proper, Rule 15(c) allows for an amendment
to relate back to the date of filing of the original pleading provided at least one of three criteria is met.
See Fed R. Civ. P. 15(c)(1)(C)(1)-(3).
Here, Plaintiff seeks to amend the complaint long after the deadline provided by the
scheduling order for amending pleadings has passed. See Scheduling Order, ECF No. 6. “[A]fter
the deadlines provided by a scheduling order have passed, the good cause standard [of Rule 16] must
be satisfied to justify leave to amend the pleadings.” Nourison Rug Corp. v. Parvizian, 535 F.3d
295, 298 (4th Cir. 2008). The “good cause” requirement of Rule 16(b) is unlike the more lenient

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standard of Rule 15(a) in that Rule 16(b) “does not focus on the bad faith of the movant, or the
prejudice to the opposing party,” but focuses on the diligence of the party seeking amendment.
Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co., 986 F. Supp. 959, 980 (D.S.C. 1997). “‘Good
cause’ means that scheduling deadlines cannot be met despite a party’s diligent efforts.” Id. (citing
6A Wright, Miller & Kane, Federal Practice and Procedure § 1522.1 at 231 (2d ed. 1990)).
However, “[g]ood cause is not shown when the amendment could have been timely made.”
Interstate Narrow Fabrics, Inc. v. Century USA, Inc., 218 F.R.D. 455, 460 (M.D.N.C. 2003) (quoting
Aventis Cropscience N.V. v. Pioneer Hi–Bred Int'l, Inc., No. 1:02-CV-00146, 2002 WL 31833866, *2
(M.D.N.C. Dec.12, 2002)) (internal quotation marks omitted). If a party was not diligent, the good
cause inquiry should end. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.
1992).
The “good cause” requirement of Rule 16(b) is a threshold analysis to determining whether
relation back is proper; thus, if good cause is not shown the inquiry ends. See, e.g., Gullo v. City of
New York, No. 10 Civ. 8516(BSJ)(DF), 2012 WL 4834182, at *2 (S.D.N.Y. Oct. 11, 2012)
(“Although Judge Freeman also addressed whether the otherwise time-barred claims in the proposed
amended complaint would be allowed on a theory of ‘relation back’ under Rule 15(c), the threshold
decision before her, and before the Court, is whether Plaintiffs had good cause to violate the
Scheduling Order.”); United States v. Goodwin, No. 5:06-CV-221-D, 247 F.R.D. 503, 508 (E.D.N.C.
2007) (“Finding a lack of ‘good cause’ as required by Rule 16(b), the court need not analyze the
government’s motion under Rule 15.”); Westfall v. Kendle Int’l CPU, LLC, No. 1:05-cv-00118, 2007
WL 486606, at *5 (N.D.W. Va. Feb. 15, 2007) (“Because I denied adding the proposed plaintiffs

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addition to the complaint, plaintiff’s motions to allow the proposed plaintiffs’ claims to relate back to
the filing of the complaint is DENIED as MOOT.”).
2. Analysis
Plaintiff’s Motion to Amend states that it is made “pursuant to Rule 15 of the Federal Rules of
Civil Procedure.” ECF No. 55 at 1. Although Plaintiff only makes a cursory reference to Rule 16,
the discussion does include some analysis of whether the “good cause” standard has been met.
Plaintiff asserts that good cause has been shown because “additional time is needed to complete the
discovery in this matter and prepare it for mediation and/or trial,” and the amendment to assert claims
against the additional proposed defendants “will allow the parties additional time to complete
discovery and prepare the case for trial.” Id. at 1–2. Finally, Plaintiff’s counsel asserts that Plaintiff
would be prejudiced if amendment was barred in light of the “age of the case, the amount of costs
Plaintiff has in it conducting discovery under the misrepresentation given to Plaintiff by the defense,
and the fact that discovery is over.” Id. at 2.
As previously discussed, the Rule 16 standard applies in this case because the deadline for
amending pleadings has long since expired. An initial scheduling order was entered on June 26,
2013, which specified the deadline for amending pleadings was September 24, 2012. 2

The

scheduling order was subsequently modified twice, but not until February 5, 2013, months after the
deadline for amending pleadings expired. The first modification occurred when the court granted an
extension to file dispositive motions on February 5, 2013. Text Order, ECF No. 30. Later, the court
2

The original scheduling order also specified that the deadline for conducting discovery was January
21, 2013. Plaintiff’s motion to amend acknowledges “the fact that discovery is over,” ECF No. 55 at
2, but Plaintiff’s Objections to the R & R state that “discovery has not yet even been allowed to be
completed,” ECF No. 60 at 2. After reviewing the record, it is manifestly clear that the deadline for
discovery was January 21, 2013, and that this deadline was never modified by the Court.
Accordingly, the Court finds that the discovery period concluded on January 21, 2013.
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modified the scheduling order to extend the deadlines for filing motions, filing Rule 26(a)(3) pretrial
disclosures, jury selection, pretrial briefs, and motions in limine by entering an Amended Scheduling
Order on March 7, 2013. See Am. Scheduling Order, ECF No. 35. Again, the deadline for
amending pleadings was and always had been September 24, 2012.
“A scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly
disregarded by counsel without peril.” Jordan v. E.I. du Pont de Nemours, 867 F. Supp. 1238, 1250
(D.S.C. 1994). As the case law cited above explains, the key to the “good cause” analysis of Rule 16
is whether the party was diligent in seeking to amend. Dilmar Oil Co., 986 F. Supp. at 980. The
deadline to amend pleadings was September 24, 2012. Plaintiff’s counsel first sought to amend his
Complaint on July 17, 2013, over nine months after the deadline to amend had passed. This
extensive delay shows a lack of diligence in attempting to amend the complaint.
Plaintiff’s motion appears to be based in part on the argument contained in Defendant’s
Motion for Summary Judgment asserting that Plaintiff sued the wrong defendant. However, the
motion for summary judgment was filed on April 25, 2013. Even if Plaintiff was unaware of the
purported need to add additional defendants until that juncture, Plaintiff’s counsel waited nearly three
additional months before filing the motion to amend. Accordingly, the Court cannot find the
requisite diligence sufficient to show “good cause” in light of these delays.
However, even if the Court found good cause, Plaintiff’s proposed amendment would be
futile as to the § 1983 claim, which is the only claim the Court addresses on the merits. Plaintiff
seeks to amend the Complaint to add both Marlboro County Sheriff Fred Knight and the Marlboro
County Sheriff’s Department. Pursuant to South Carolina law, a Sheriff’s Department is an arm of
the state and thus is not a person subject to suit under § 1983. See James v. Lancaster Sheriff’s Dept.,

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No. 0:13-210-FJA-SVH, 2013 WL 3938962, at *1 (D.S.C. July 30, 2013). Moreover, the Sherriff is
also not subject to suit in his official capacity under § 1983. See Gulledge v. Smart, 691 F. Supp.
947, 954–55 (D.S.C. 1988). Accordingly, amendment would be futile to add either the Sheriff’s
Department or the Sheriff in his official capacity.
Plaintiff has not asserted that Sheriff Knight was personally involved in his treatment at the
detention center either, which is a requirement to sue a state official in their individual capacity. See
Lemon v. Sheriff of Sumter County, 2012 WL 570197, at *5 (Feb. 22, 2012) (“In order to hold the
Sheriff liable in his individual capacity, a plaintiff must demonstrate some direct involvement on the
part of the Sheriff.”). Therefore, to the extent Plaintiff seeks to assert a claim against the Sheriff in
his individual capacity, it would not survive a motion to dismiss, rendering any amendment futile here
as well. See Woods v. Boeing Co., 841 F. Supp. 2d 925, 930 (D.S.C. 2012).
Plaintiff’s Motion to Amend, therefore, is denied. Because the Motion to Amend is denied,
Plaintiff’s request that any amendment be allowed to relate back is moot.
II.

Defendant’s Motion for Summary Judgment
Defendant’s Motion for Summary Judgment specifically attacks both Plaintiff’s § 1983 claim

and violation of the South Carolina Tort Claims Act claim. See Mem. in Supp. of Mot. for Summ. J.,
ECF No. 36-1 at 3–5.

The motion does not address the merits of Plaintiff’s outrage claim.

However, the motion asserts procedural deficiencies with all of the claims asserted by Plaintiff. Id.
at 5–7. Accordingly, Defendant requests summary judgment as to each of Plaintiff’s claims. The
Magistrate Judge recommends granting Defendant’s motion in its entirety. For the reasons stated
below, the Court adopts the Magistrate Judge’s recommendation that Defendant’s motion should be
granted as to Plaintiff’s § 1983 claim, as modified, and respectfully rejects the recommendation as to

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Defendant’s state law claims. The Court declines to exercise supplemental jurisdiction over the state
law claims and, accordingly, declines to address Defendant’s contention that summary judgment
should be granted on the state tort claims.
1. Summary Judgment Standard
The Court shall grant summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is
appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth
specific facts showing that there is a genuine dispute for trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986).
If a movant asserts that a fact cannot be disputed, it must support that assertion either by
“citing to particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials;” or by “showing . . . that an
adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
Accordingly, to prevail on a motion for summary judgment, the movant must demonstrate
that: (1) there is no genuine dispute as to any material fact; and (2) that he is entitled to judgment as a
matter of law. As to the first of these determinations, a fact is deemed “material” if proof of its
existence or non-existence would affect disposition of the case under applicable law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” if the evidence
offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In
determining whether a genuine dispute has been raised, a Court must construe all inferences and

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ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962).
The existence of a mere scintilla of evidence in support of the non-movant's position is
insufficient to withstand a summary judgment motion. Anderson, 477 U.S. at 252. Likewise,
conclusory allegations or denials, without more, are insufficient to preclude the granting of the
summary judgment motion. Ross v. Commc'n Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985).
“Only disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.

Factual disputes that are irrelevant or

unnecessary will not be counted.” Anderson, 477 U.S. at 248.
2. Analysis
The Magistrate Judge recommends granting Defendant’s Motion for Summary Judgment on
Plaintiff’s § 1983 claim. ECF No. 58 at 4–7. Specifically, the Magistrate Judge notes that Plaintiff
failed to offer any evidence demonstrating that his injuries constituted an objectively serious
condition or risk of harm, or that Defendant was deliberately and intentionally indifferent to his needs
of which it was aware at the time. Id. at 7. Moreover, the Magistrate Judge reasons that to the
extent Plaintiff contends Defendant was deliberately indifferent, the record indicates Defendant did
not act with the intent to cause Plaintiff harm or with a reckless disregard of a risk of harm. Id.
Accordingly, the Magistrate Judge recommends granting Defendant’s Motion for Summary
Judgment as to Plaintiff’s § 1983 claim. Id.
In response, Plaintiff filed objections to the R & R. The Court may only consider objections
to the R & R that direct it to a specific error. See Fed. R. Civ. P. 72(b); United States v. Schronce,
727 F.2d 91, 94 n.4 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841, 845–47 nn.1–3 (4th Cir. 1985).

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Again, “courts have . . . held de novo review to be unnecessary in . . . situations when a party makes
general and conclusory objections that do not direct the [C]ourt to a specific error in the
[M]agistrate’s proposed findings and recommendation.” Orpiano, 687 F.2d at 47. Thus, the Court
shall conduct a de novo review of those objections it deems proper.
Plaintiff’s objections primarily revolve around the assertion that Defendant’s motion for
summary judgment was premature. ECF No. 60 at 1. Plaintiff cites the need to amend the
complaint and/or the need for “completion of the amended scheduling order and discovery deadlines”
as reasons why summary judgment should be denied. Id. Plaintiff cites a litany of “pertinent
discovery” that is needed to resolve certain issues of fact. Id. at 2–3. Plaintiff also notes the need to
depose several potential witnesses. Id. at 3–4. Aside from the discovery related objections,
Plaintiff also asserts that questions of fact exist regarding the doctrine of respondeat superior. Id. at
5–6. Finally, Plaintiff makes a broad assetion that numerous questions of fact exist which preclude
granting summary judgment. Id. at 9.
A. There is no Genuine Issue of Material Fact
First, the Court must consider Plaintiff’s § 1983 federal claim in light of the existing named
defendants. To the extent Plaintiff suggests that Marlboro County is liable in a supervisory capacity,
this claim must fail. First, the Court agrees with Defendant that Marlboro County is likely not the
proper party to assert this claim against. Under South Carolina law the sheriff of each county has
custody of the jail in his county. S.C. Code Ann. § 24-5-10. Plaintiff has not provided any evidence
indicating that the MCDC is governed by Marlboro County rather than the Sheriff. However, even if
Marlboro County controlled the MCDC, the claim would fail because there is no evidence that any
established municipal policy or custom caused the Plaintiff’s injury.

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The Supreme Court has emphasized that municipal liability under § 1983 does not amount to
respondeat superior. Santos v. Frederick County Bd. of Comm’rs, 725 F.3d 451, 469–70 (4th Cir.
2013) (citing Monell v. Dep’t of Social Servs. of the City of New York, 436 U.S. 658, 691, 98 S. Ct.
2018, 56 L.Ed.2d 611 (1978)). “Consequently, a municipality is subject to Section 1983 liability
only when its ‘policy or custom, whether made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the [plaintiff’s] injury . . . .’” Id. at 470 (quoting
Monell, 436 U.S. at 694). “The requirement that the allegedly unconstitutional act stems from an
established municipal policy or the actions of a final policymaker ensures that the municipality is
‘responsible’ for the alleged violations of a plaintiff's constitutional rights.” Id. (quoting Pembaur v.
City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)).
Even if Marlboro County was the proper defendant, Plaintiff has provided no evidence of any
policy or custom which purportedly inflicted his injury. Defendant, however, has provided both
evidence that MCDC had policies specifically designed to prevent an injury like Plaintiff’s, and that
the county complied with these policies. The policies and procedures provided by Defendant state
that an inmate is to be examined to ensure they are in “good mental and physical health” prior to
admission and that a corrections officer must complete a Medical Screening form. ECF No. 36-8.
If the inmate is visibly injured or obviously physically ill “the officer will request that a medical staff
person examine the individual.” Id. Moreover, if it appears the person needs prompt medical
attention that the facility cannot provide, admission should be “refused” until a physician approves
admission in writing. Id. Defendant provided an affidavit from Nurse W. Stubbs, the individual
who completed Medical Screening form, and attached the form as an exhibit to that affidavit. ECF
No. 36-2. Nurse Stubbs testified that Plaintiff had a medical screening and observation as provided

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by the policies and procedures of the MCDC. See id. Plaintiff has not provided any evidence that a
policy or custom caused his injury, and the Defendant’s evidence establishing that there were policies
designed to prevent injuries like Plaintiff’s demonstrates that there is no genuine issue of material
fact. Accordingly, the Court finds municipal liability is not applicable.
Second, the Court will address Plaintiff’s last objection, asserting that summary judgment is
inappropriate due to the presence of a genuine issue of material fact. The Court disagrees with the
Magistrate Judge’s finding that Plaintiff “failed to offer any evidence that his injuries constituted an
objectively serious risk of harm.” See ECF No. 58 at 7. However, the Court agrees that Plaintiff
has failed to establish that Defendant knew of and disregarded the risk posed by the Plaintiff’s
objectively serious medical needs. Therefore, the Court agrees with the Magistrate Judge’s ultimate
recommendation that summary judgment is appropriate as to Plaintiff’s § 1983 claim.
The standard for reviewing medical claims of pretrial detainees under the Fourteenth
Amendment, asserted through a § 1983 claim, is essentially the same as that for a convicted prisoner
under the Eighth Amendment: deliberate indifference to serious medical needs.

See Hill v.

Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992) (quoting Gordon v. Kidd, 971 F.2d 1087, 1094 (4th
Cir. 1992); Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988)).

To establish deliberate

indifference, the Plaintiff must show that the prison official knew of and disregarded “an excessive
risk to inmate health or safety” and was both “aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists” and in fact drew that inference. Farmer v. Brennan,
511 U.S. 825, 837 (1994). The Fourth Circuit defines a serious medical need as “one that has been
diagnosed by a physician 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. Shreye, 535 F.3d 225, 241 (4th Cir.

13

2008) (quoting Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)) (internal quotations
omitted). Finally, “[i]n order to establish a claim of deliberate indifference to medical need, the need
must be both apparent and serious, and the denial of attention must be both deliberate and without
legitimate penological objective.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999).
While the Constitution requires a prison to provide detainees with medical care, it does not
demand that a prisoner receive the treatment of his choice. See Wright v. Collins, 766 F.2d 841, 849
(4th Cir. 1985) (“Disagreements between an inmate and a physician over the inmate’s proper medical
care do not state a § 1983 claim unless exceptional circumstances are alleged.”); see also Nelson v.
Shuffman, 603 F.3d 439, 449 (8th Cir. 2010) (“[A detainee’s] mere difference of opinion over matters
of expert medical judgment or course of medical treatment fail[s] to rise to the level of constitutional
violation.”).
The Court finds that Plaintiff has established a genuine issue of fact as to whether he had a
serious medical need, and respectfully rejects the Magistrate Judge’s finding that Plaintiff provided
no evidence establishing a serious medical need. Plaintiff’s affidavit and deposition testimony both
state that he complained of intense pain after he was arrested at the hospital and confined in the
detention center. See ECF No. 52-3; ECF No. 52-3 at 45:3-7, 48:9-21. Plaintiff also provided an
affidavit from the driver of the vehicle in which Plaintiff was purportedly injured, Titorell Townsend,
who testified that he was confined with Plaintiff at the MCDC. He asserts that he heard McDonald
call out for assistance and that only one officer responded and explained “that they couldn’t do
anything for him but prescribe some Tylenol.” ECF No. 52-5. Plaintiff stated in his deposition that
once he was bonded out of the MCDC he went straight back to the hospital from the prison via
ambulance. ECF No. 52-4 at 61:22-25. Corroborating his testimony, Plaintiff provided medical

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records from after he returned to the hospital which stated that he had suffered a compression fracture
of his “T9” vertebrae. ECF No. 52-1. Defendant’s Motion for Summary Judgment does not appear
to seriously contest whether Plaintiff had a serious medical need, which only strengthens the
conclusion that a genuine issue of fact exists on that point. Accordingly, the Court finds that the
evidence presented by Plaintiff does establish a genuine issue of fact on this point.
However, this alone is not sufficient for Plaintiff to survive summary judgment on the
deliberate indifference claim.

To state a valid claim for violation of § 1983, Plaintiff must

demonstrate that prison officials “knew of and disregarded” this serious medical need, and that the
denial of attention was “deliberate and without legitimate penological objective.” Grayson, 195
F.3d at 695. Plaintiff put forth evidence, in the form of his own deposition testimony and the
affidavit of Townsend, in support of his argument that he voiced his pain but was ignored. See ECF
No. 52-3 at 45:3-7, 48:9-21; ECF No. 52-5. Review of the record, however, indicates that Plaintiff
has not provided any evidence that this purported denial of attention was “deliberate and without
legitimate penological objective.” Grayson, 195 F.3d at 695. In other words, there is no evidence
of the requisite intent. Moreover, the Fourth Circuit has held that detention center employees are
generally entitled to “rely upon their health care providers’ expertise,” see Miltier v. Beorn, 896 F.2d
848, 854 (4th Cir. 1990), and nothing in the record indicates that prison officials ignored the expertise
of the ER doctor or Nurse Stubbs.
Defendant’s evidence only strengthens these conclusions, as it has put forth ample evidence
establishing that prison officials made repeated efforts to address Plaintiff’s complaints.

For

example, the affidavit of Nurse W. Stubbs, a licensed nurse practitioner who works at the MCDC,
asserts that upon review of the Plaintiff’s medical records there was “no indication he complained of

15

serious back pain during his incarceration, although . . . he asserted he was unable to walk without
assistance.” ECF No. 36-2 at 1. The Defendant also attached the affidavits of D. Bostic and C.
Byers, detention officers at the MCDC, which state that McDonald’s complaints of pain were not
ignored. See ECF 36-4; ECF 36-5. Finally, the Defendant provided the affidavit of Terry Leggette,
assistant warden at MCDC, who stated that at no point during McDonald’s incarceration were his
complaints ignored. ECF No. 36-6 at 2. He stated that the Plaintiff did not make him aware of any
serious complaint until discharge, and he assisted in arranging for transportation to the hospital upon
discharge once Plaintiff made him aware of the complaint. Id. Plaintiff’s own deposition testimony
corroborates the affidavits that his complaints were not ignored, as he states that the officers came
into his cell several times to help him move around. ECF No. 36-3 at 48:9-50:6. Plaintiff also
stated that the “jailhouse doctor” came in to see him and that he told the doctor about his problems.
Id. at 49:6-9.
Defendant’s exhibits also establish that the MCDC followed the instructions provided by the
emergency room doctor at Marlboro Park Hospital.

The discharge instructions informed the

Plaintiff of steps to take since he was “seen in the emergency department because of a minor
accident.” ECF No. 36-11 at 2 (emphasis added). The instructions stressed that muscle aches and
pains were common after an accident and encouraged using ice and heat on affected areas. Id. The
instructions reminded the patient to take medicines as directed and to follow up with the indicated
physicians. See id. at 1–2. Most importantly, the instructions stated that “[y]ou are fortunate to not
have been hurt more severely.”

Id. at 2.

Plaintiff’s own exhibits note that these discharge

instructions were given to a caregiver, that “[e]xtended teaching was extensive,” and that the care
giver “verbaliz[ed] understanding of the discharge instructions.” ECF No. 52-1. Plaintiff has not

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put forth any evidence that he was not given medication as directed by the instructions while at the
MCDC, or that any prison official ignored the Hospital’s directions. Therefore, this only strengthens
the conclusion that prison officials did not “deliberately” ignore Plaintiff’s condition.
The Court, therefore, agrees with the Magistrate Judge’s ultimate recommendation that
summary judgment is appropriate in favor of Defendant on Plaintiff’s § 1983 claim, although the
analysis is modified as discussed above.
B. Plaintiff’s Remaining Objections
As for Plaintiff’s remaining objections, the Court again notes that, as footnote two of this
Order sets forth in some detail, the deadline for discovery was set for January 21, 2013. Review of
the record indicates that at no time was this deadline extended. Accordingly, the discovery period
ended on January 21, 2013. The parties had the opportunity to conduct discovery during the
discovery period set forth in the scheduling order.3 Plaintiff may have discovery questions that are
“pertinent” or potential witnesses that he wishes to depose. The proper time for engaging in this
activity, however, was during the time period specified in the scheduling order. A request for
additional discovery months after the deadline has passed, first raised in objecting to an R & R, is
insufficient to establish that summary judgment is premature.4 Accordingly, Plaintiff’s argument
that summary judgment is premature is inappropriate.5
3

It is undisputed that the Defendant took advantage of the discovery period at the very minimum by
deposing the Plaintiff, as both parties have cited to excerpts of his deposition in support of various
filings. See ECF No. 36-3; ECF No. 60-4.
4

The Court notes that the need for additional discovery should have been raised earlier by motion to
amend the scheduling order and, at the very latest, in Plaintiff’s Opposition to Defendant’s Motion for
Summary Judgment. As the Fourth Circuit has explained, a party opposing summary judgment
“cannot complain that summary judgment was granted without discovery unless that party had made
an attempt to oppose the motion on the grounds that more time was needed for discovery.” Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996).
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Plaintiff’s next objection asserts that “questions of fact exist regarding respondeat superior”
and notes that one of the “central legal issues of this case” is when an employer may be responsible
for the acts of an employee.

The doctrine of respondeat superior does not give rise to a § 1983

claim. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691–94 (1978). Moreover, supervisory
liability only arises where the Plaintiff establishes the following:
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 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). As discussed above, Plaintiff has not shown
deliberate indifference by any official and thus the Shaw standard cannot be met. See id. at 799.
Accordingly, the Court finds that supervisory liability is not implicated in this matter and overrules
this objection accordingly.
Finally, Plaintiff objects on the basis that his Motion to Amend should be granted and that
additional discovery will be necessary in the event he is allowed to amend to add the additional
proposed defendants. As discussed above, Plaintiff’s motion was untimely and futile as to the
proposed defendants, and was therefore denied. As a result, Plaintiff’s objections, to the extent they
are based on the Motion to Amend, are moot.

5

Plaintiff’s counsel asserts that she was “under the misimpression given to Plaintiff by the defense
that discovery was not over as well as the amended scheduling order did not preclude further
discovery.” ECF No. 60 at 8. The Court again notes that the Scheduling Order was amended long
after the discovery period expired, and that the Amended Scheduling Order made no mention of
extending the discovery deadline. If Plaintiff needed an extension of the discovery deadline a proper
motion to amend the scheduling order should have been timely filed.
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Accordingly, the Court finds the Magistrate Judge’s recommendation that summary judgment
should be granted as to Plaintiff’s § 1983 claim to be proper, with the analysis modified as discussed
herein, and Plaintiff’s objections to this determination, to the extent they are proper, are overruled.
III.

Remand of State Law Claims
Defendant also moved for summary judgment on each of Plaintiff’s state law tort claims.

However, this Court has discretion concerning whether to retain supplemental jurisdiction over state
law claims after dismissal of the federal claims. See 28 U.S.C. § 1367(c)(3). Where a case is
removed from state court, a district court has discretion to remand the state law claims to state court
instead of dismissing the state law claims. Accordingly, the Court finds that remand of the state law
claims to the Marlboro County Court of Common Pleas, where this action was initially filed, is
appropriate. See Hinson v. Nw. Fin. S.C., Inc., 239 F.3d 611, 616 (4th Cir. 2001); Thompson v.
Prince William Cnty., 753 F.2d 363, 365 (4th Cir. 1985). The Court notes that it declines to address
Defendant’s contention that summary judgment should be granted as to the state tort claims and
respectfully rejects the portion of the Report and Recommendation which recommends granting
summary judgment on these claims.
CONCLUSION
For the foregoing reasons, the undersigned adopts in part and respectfully rejects in part the
Magistrate Judge’s Report and Recommendation. The undersigned DENIES Plaintiff’s Motion to
Amend and GRANTS IN PART AND DENIES IN PART Defendant’s Motion for Summary
Judgment. The Motion for Summary Judgment is GRANTED IN PART as to Plaintiff’s claim
brought pursuant to 42 U.S.C. § 1983. Given the dismissal of the federal claim, the Court declines to
exercise supplemental jurisdiction over Plaintiff’s remaining state law claims for violation of the

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South Carolina Tort Claims Act and the tort of outrage. As such, the Court declines to rule on
Defendant’s Motion for Summary Judgment to the extent it addresses those causes of action. This
action is hereby REMANDED to the Marlboro County Court of Common Pleas for further
proceedings regarding Plaintiff’s remaining causes of action.
IT IS SO ORDERED.

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
December 16, 2013

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