Culp v. South Carolina Dept of Corrections et al

Filing 45

ORDER RULING ON REPORT AND RECOMMENDATION. The court finds the Magistrate Judges recommendation 27 proper and incorporates it herein by reference. Accordingly, defendants Dr. Petite, Dr. Bearden, and Dr. Doe are dismissed f rom this action without prejudice. As the Magistrate Judge has authorized service of process on the remaining defendants, this matter shall be returned to the Magistrate Judge for further proceedings. Signed by Honorable Joseph F Anderson, Jr on 08/20/2013. (dsto, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Fredrick Y. Culp,
Plaintiff,
vs.
Dr. Alewine, South Carolina Department of
Corrections; Dr. Petite at Richland Memorial;
Dr. Bearden at Richland Memorial; Dr. John Doe
at Richland Memorial; Dr. John Pate, Doctor at
Lee Correctional Institution; Dr. Amonitti,
Doctor at Ridegland Correctional Institution;
Yvonne McDonald, Nurse at Lee Correctional
Institution; Michelle Ussemy, Nurse at Kershaw
Correctional Institution; Paul Drago, Nurse
Practitioner at Kershaw Correctional Institution;
and Nurse Davis at Ridgeland Correctional
Institution.
Defendants.
_______________________________________

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C/A No. 5:13-1342-JFA-KDW

ORDER

The pro se plaintiff, Fredrick Culp, brings this pursuant to 42 U.S.C. § 1983 raising
various claims complaining of his medical care after his heart by-pass surgery and during his
incarceration. The plaintiff seeks injunctive relief, as well as compensatory damages.
The Magistrate Judge assigned to this action1 has prepared a Report and
Recommendation and opines that defendants Dr. Petite, Dr. Bearden, and Dr. Doe should be
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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has no
presumptive weight, and the responsibility to make a final determination remains with the court. Mathews
v. Weber, 423 U.S. 261 (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 to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).

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dismissed as defendants in this action. The Report sets forth in detail the relevant facts and
standards of law on this matter, and the court incorporates such without a recitation.
The plaintiff was advised of his right to file objections to the Report and
Recommendation, which was entered on the docket on July 8, 2013. However, the plaintiff
did not file objections and the time within which to do so has now expired. In the absence
of specific objections to the Report of the Magistrate Judge, this court is not required to give
any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199
(4th Cir. 1983).
As the Magistrate Judge notes, defendants Petite, Bearden and Doe were the
physicians involved in the plaintiff’s 2005 by-pass surgery performed at Richland Memorial
Hospital. The plaintiff makes no allegations from which it may be determined that these
three defendant qualify as “state actors” for purposes of § 1983 liability.

As such, the

Magistrate Judge recommends their dismissal and this court agrees.
The Magistrate Judge also properly suggests that negligent or incorrect medical
treatment or medical malpractice is not actionable under § 1983. Moreover, there is no
diversity jurisdiction here because the plaintiff and named defendants are South Carolina
residents. The Magistrate Judge recommends that this court not exercise supplemental
jurisdiction over the plaintiff’s potential state law claims.
After a careful review of the record, the applicable law, and the Report and
Recommendation, the court finds the Magistrate Judge’s recommendation proper and
incorporates it herein by reference.

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Accordingly, defendants Dr. Petite, Dr. Bearden, and Dr. Doe are dismissed from this
action without prejudice. As the Magistrate Judge has authorized service of process on the
remaining defendants, this matter shall be returned to the Magistrate Judge for further
proceedings.
IT IS SO ORDERED.

Joseph F. Anderson, Jr.
United States District Judge

August 20, 2013
Columbia, South Carolina

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