Robinson v. Byrne

Filing 70

ORDER RULING ON REPORT AND RECOMMENDATION: the court DENIES Plaintiff's Motion for for Immediate Outside Treatment. (ECF No. 33 ). The court ACCEPTS the Magistrate Judge's Report and Recommendation (ECF No. 45 ) and incorporates it herein by reference. IT IS SO ORDERED. Signed by Honorable J Michelle Childs on 2/2/2015. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Corey Jawan Robinson,
Plaintiff,
v.
Dr. Thomas E. Byrne,
Defendant.

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Civil Action No. 5:13-cv-2899-JMC
ORDER AND OPINION

Plaintiff Corey Jawan Robinson (“Plaintiff”), a state prisoner proceeding pro se, seeks
relief pursuant 42 U.S.C. § 1983. Defendant Dr. Thomas E. Byrne (“Defendant”), is a physician
with the South Carolina Department of Corrections.
This matter is before the court on Plaintiff’s Motion for Immediate Outside Treatment
(“Motion”).

(ECF No. 33.)

In accordance with 28 U.S.C. § 636(b)(1) and Local Rule

73.02(B)(2)(d) (D.S.C.), the matter was referred to United States Magistrate Judge Kaymani D.
West for pre-trial handling. On April 22, 2014, the Magistrate Judge issued a Report and
Recommendation (“Report”) recommending the court deny Plaintiff’s Motion. (ECF No. 45.)
This review considers Plaintiff’s Objection to Report and Recommendation (“Objection”), filed
May 1, 2014. (ECF No. 51.) For the reasons set forth herein, the court ACCEPTS the
Magistrate Judge’s Report and hereby DENIES Plaintiff’s Motion for Immediate Outside
Treatment (ECF No. 33).
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is currently incarcerated at Lieber Correctional Institute, and was originally
diagnosed with sarcoidosis in 2009. (ECF No. 43-1 at 1–2.) Plaintiff was evaluated by a
physician at the University of South Carolina Department of Neurology on May 5, 2010. (ECF

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No. 43-4.) The evaluating physician recommended (1) reducing Plaintiff’s dosage of prednisone
to fifteen milligrams per day; (2) referring Plaintiff to a rheumatologist “for mainstay of sarcoid
treatment[;]” (3) supplementing Plaintiff’s diet with Ensure to help with weight loss; and (4)
scheduling a follow-up for Plaintiff three months after the initial consultation. (Id.) According
to Plaintiff’s medical record, Plaintiff was “already on [a] tapering dose” of ten milligrams of
prednisone per day by May 6, 2010, and Plaintiff was scheduled to complete his prednisone
treatment by July 31, 2010. (Id.) An x-ray of Plaintiff’s chest performed on June 6, 2010,
revealed that Plaintiff’s lungs were “normally expanded and clear” and there were “[n]o pleural
abnormalities . . . .” (ECF No. 51-1 at 2.)
Plaintiff’s medical record indicates that a neurologist last saw him on August 28, 2013,
and that the neurologist suggested Plaintiff begin seeing a pulmonologist. (ECF No. 51-1 at 4.)
Plaintiff received a chest x-ray on December 11, 2013, which revealed some “faint scarring” and
a “[s]mall chronic left pleural effusion or chronic pleural thickening[,]” but his lungs were
“otherwise clear.” (Id. at 3.) Plaintiff’s medical record further indicates that, as of January 24,
2014, Plaintiff’s lungs were clear and Plaintiff was not suffering from any difficulty breathing.
(ECF No. 51-2 at 1.)
In his Declaration to Support Reply Motion for Immediate Outside Treatment
(“Declaration”), Plaintiff states (1) that Defendant continued to prescribe prednisone after July
31, 2010; (2) Plaintiff refused to take his medication during the month of October 2011; (3) on
November 16, 2011, Plaintiff “wanted to be placed back on prednisone” and that his prescription
was renewed on November 5, 2011; and (4) Defendant interfered with Plaintiff’s medical
treatment because Defendant did not follow the outside neurologist’s recommendations. (ECF
No. 43-1 at 2.) Plaintiff maintains that Defendant has also interfered with Plaintiff’s sarcoidosis

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treatment by not having routine lung function tests performed, and by not arranging
appointments for Plaintiff with specialized doctors. (Id. at 1.)
In addition to his Motion and Declaration, Plaintiff offers the affidavit of his fellow
inmate, Jemel Scriven (ECF No. 43-2), along with Defendant’s Answers to Plaintiff’s Motion
for Interogatories (ECF No. 43-3), and a printout of the National Heart, Lung, and Blood
Institute’s (“NHLBI”) webpage describing sarciodosis (ECF No 43-4 at 2–7) as support for his
position.
In her Report the Magistrate Judge found that Plaintiff failed to prove either (1) that he
will suffer irreparable harm in the absence of injunctive relief, or (2) that he is likely to succeed
on the merits of his complaint. (ECF No. 45 at 2.) The Magistrate Judge further found that
neither the medical records nor the affidavits of the doctors supported Plaintiff’s allegations, and
that the evidence offered by Plaintiff was insufficient to warrant the grant of injunctive relief.
(Id. at 23.) Plaintiff timely filed his Objection on May 1, 2014. (ECF No. 51 at 1.)
II. LEGAL STANDARD AND ANALYSIS
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Rule 73.02(B)(2)(d) (D.S.C.). 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 Matthews v. Weber, 423 U.S. 261, 270–71 (1976).
This court is charged with making a de novo determination of those portions of the Report to
which specific objections are made, and the court may accept, reject, or modify, in whole or in
part, the Magistrate Judge’s recommendation, or recommit the matter with instructions. See 28
U.S.C. § 636(b)(1).

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Objections to a Report and Recommendation must specifically identify portions of the
recommendation and the basis for those objections. Fed. R. Civ. P. 72(b). “[I]n the absence of a
timely filed objection, a district court need not conduct a 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.’” Diamond v. Colonial Life & Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note). “[W]hen objections to strictly legal
issues are raised and no factual issues are challenged, de novo review of the record may be
dispensed with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (citing Braxton v. Estelle,
641 F.2d 392 (5th Cir. 1981)).
De novo review is unnecessary “when a party makes general and conclusory objections
that do not direct the court to a specific error in the magistrate's proposed findings and
recommendations.” Orpino, 687 F.2d at 47 (citing United States v. Mertz, 376 U.S. 192, 84 S. Ct.
639, 11 L.Ed.2d 629 (1964); Pendleton v. Rumsfeld, 628 F.2d 102 (D.C. Cir. 1980)).
Furthermore, failure to timely file specific written objections to a recommendation will result in
a waiver of the right to appeal from an order from the court based upon the recommendation. 28
U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841
(4th Cir. 1985); United States v. Schronce, 727 F.2d 91,94 (4th Cir. 1984).
As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments that,
under the mandated liberal construction, it has reasonably found to state a claim. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). However, the court will “not ‘assume the role of
advocate for the pro se litigant.’” Id. (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991)).

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A. Sufficiency of evidence presented by Plaintiff to warrant the grant of injunctive relief.
Plaintiff does not object to the Magistrate construing Plaintiff’s Motion as a motion for
injunctive relief.

Plaintiff does object to the Magistrate Judge’s finding that the evidence

presented by Plaintiff is “insufficient . . . to warrant the grant of injunctive relief.” (ECF 45 at 3.)
Plaintiff does not offer any new evidence or legal argument to support his position but merely
points to evidence already considered by the Magistrate Judge. (ECF No. 51.)
“Federal decisions have uniformly characterized the grant of interim relief as an
extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied
‘only in [the] limited circumstances’ which clearly demand it.”

Direx Israel, Ltd. v.

Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991) (quoting Warner Bros. Pictures,
Inc. v. Gittone, 110 F.2d 292, 293 (3d Cir.1940)). “A plaintiff seeking a preliminary injunction
must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20,
129 S. Ct. 365, 374, 172 L. Ed. 2d 249 (2008).
Plaintiff has cited to the printout of the NHLBI webpage describing sarcoidosis (ECF No.
43-4 at 2–7) in support of his contention that sarcoidosis should be treated by medicines other
than prednisone. (ECF No. 43-1 at 3–4.) The printout cited by Plaintiff clearly states that
“prednisone . . . is the main treatment for sarcoidosis . . . .” and that “most people need to take
prednisone for twelve months or longer . . . .” (ECF No. 43-4 at 4.) While “more than half of
the people diagnosed with sarcoidosis have remission within [three] years of diagnosis[,]” only
two-thirds of people with sarcoidosis “have remission within [ten] years.” (Id. at 1.)

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The NHLBI states that “[l]ong-term use of prednisone, especially at high doses, can
cause serious side effects.” (Id. at 4.) Other medications, including immunosuppressants and
anti-malarial drugs, are available to treat patients who suffer adverse side-effects from
prednisone or whose sarcoidosis does not improve while on prednisone. (Id. at 4–5.)
The NHLBI printout is also cited by Plaintiff for the proposition that Defendant has
intentionally interfered with the treatment of Plaintiff’s sarcoidosis. (ECF No. 43-1 at 4.) The
NHLBI lists a number of tests that a physician may order when diagnosing sarcoidosis, including,
among others, chest x-rays and lung function tests. (ECG No. 43-4 at 2.)

The printout states

that doctors may also order other routine tests when treating a patient with sarcoidosis, and that
patients should discuss their ongoing care with their doctor. (Id. at 5.)
The evidence offered by Plaintiff indicates that the physicians with the South Carolina
Department of Corrections had already reduced Plaintiff’s dosage of prednisone to ten
milligrams per day before the neurologist with the University of South Carolina recommended a
fifteen milligram per day dosage. (ECF No. 43-4.) Furthermore, Plaintiff is currently in contact
with his physicians as evidenced by the correspondence attached to his original Motion, (ECF
No. 33-1 at 1, 2), and the extensive medical record attached to his Objection. (ECF No. 51-2.)
In this case, the evidence does not establish that Plaintiff is likely to succeed on the
merits of his claim or that he is likely to suffer irreparable harm. Plaintiff has merely stated that
there are alternatives to his course of treatment, and that the Department of Corrections’
physician treating Plaintiff has followed a different course of treatment than the course
recommended by an outside neurologist. Plaintiff has not offered any evidence that prolonged
treatment with prednisone has detrimentally affected him, nor has he offered any evidence that
would suggest that he could prevail on the merits of the case.

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IV. CONCLUSION
Based on the aforementioned reasons and a thorough review of the Report and
Recommendation of the Magistrate Judge and the record of this case, the court DENIES
Plaintiff’s Motion for Immediate Outside Treatment. (ECF No. 33). The court ACCEPTS the
Magistrate Judge’s Report and Recommendation (ECF No. 45) and incorporates it herein by
reference.
IT IS SO ORDERED.

United States District Judge
February 2, 2015
Columbia, South Carolina

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