Ham v. Stirling et al

Filing 78

ORDER RULING ON REPORT AND RECOMMENDATION 74 . It is therefore ordered that Defendants Motion for Summary Judgment (ECF No. 46) is GRANTED, Plaintiffs Motion for Judgment on the Pleadings (ECF No. 36) is DENIED, and this action (ECF Nos. 1, 13) is DISMISSED. Signed by Honorable J Michelle Childs on 3/17/2015. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Angelo Ham,

)
)
Plaintiff,
)
)
v.
)
)
Brian P. Stirling, Dr. John B. Tomarchio, )
Michael McCall, Nurse Stokes, Anthony
)
J. Padula, John J. Brooks, Robert Peele,
)
Debra Whitney, Sandra Bracey-Simon,
)
)
Defendants.
)
____________________________________)

Civil Action No. 6:13-cv-03178-JMC

ORDER AND OPINION

Plaintiff Angelo Ham (“Plaintiff”) filed this pro se action pursuant to 42 U.S.C. § 1983.
Plaintiff alleges an equal protection violation by Defendants Brian Stirling, John Tomarchio,
Michael McCall, and Nurse Stokes for failing to provide a clinic for his chronic illness and
alleges denial of access to the court by Defendants Anthony Padula, John Brooks, Robert Peele,
Debra Whitney, and Sandra Bracey-Simon (collectively “Defendants”). (ECF Nos. 1, 13.) This
matter is before the court on Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 36) and
Defendants’ Motion for Summary Judgment (ECF No. 46).
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to
United States Magistrate Judge Kevin F. McDonald for pre-trial handling. On January 12, 2015,
the Magistrate Judge issued a Report and Recommendation (“Report”) recommending the court
grant Defendants’ Motion for Summary Judgment and deny Plaintiff’s Motion for Judgment on
the Pleadings.

(ECF No. 74.)

This review considers Plaintiff’s Objections to Report of

Magistrate Judge (“Objections”), filed January 23, 2015. (ECF No. 76.) For the reasons set
forth herein, the court ACCEPTS the Magistrate Judge’s Report. The court thereby GRANTS

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Defendants’ Motion for Summary Judgment (ECF No. 46) and DENIES Plaintiff’s Motion for
Judgment on the Pleadings (ECF No. 36).
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the factual and
procedural summation in the Magistrate Judge’s Report is accurate, and the court adopts this
summary as its own. (See ECF No. 74.) The court will only recite herein facts pertinent to the
analysis of Plaintiff’s Objections.
Plaintiff is incarcerated at Lee Correctional Institution within the South Carolina
Department of Corrections (“SCDC”). (ECF No. 1.) On November 26, 2013, he filed his
Complaint against Defendants Stirling, Tomarchio, McCall, and Stokes alleging that the SCDC,
in violation of its policies, has failed to provide a “chronic clinic” to treat his acid reflux, or
“dyspepsia,” which results in Plaintiff having to pay for sick call visits “just to receive either a
review of his current medication and/or renewal of his current medication.” (Id. at 4-5; ECF No.
68 at 6.) Plaintiff seeks “a declaration that the acts and omissions described herein violated
Plaintiffs’ [sic] rights under the Constitution and laws of the United States,” preliminary and
permanent injunctions “ordering defendants to stop treating chronic ill patients different and
provide chronic ill patients with a chronic clinic and to send the Plaintiff to an institution that
provides a chronic clinic for dyspepsia,” compensatory damages equal to the amount deducted
from Plaintiff’s account for medical copays charged, punitive damages in the amount of $50 a
day for each day Defendants did not provide a chronic clinic for Plaintiff, “nominal damages
against each defendant,” Plaintiff’s costs, and any additional relief the court deems just. (ECF
No. 1 at 6 (emphasis in original).)
On December 13, 2013, Plaintiff amended his Complaint to add five additional

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Defendants—Padula, Brooks, Peele, Whitney, and Bracey-Simon—and an additional cause of
action—denial of access to the court. (ECF No. 13.) In the Amended Complaint, Plaintiff
alleges these Defendants “hindered the Plaintiff from perfecting a petition for a writ of certiorari
in the U.S. Supreme Court after the U.S. Court of Appeals gave the Plaintiff 90 days to file such
petition.” (Id. at 1.) Plaintiff seeks nominal and punitive damages, costs, and any additional
relief the court deems just. (Id. at 3.)
Plaintiff filed a Motion for Judgment on the Pleadings on March 6, 2014. (ECF No. 36.)
Defendants followed with a Motion for Summary Judgment on April 3, 2014. (ECF No. 46.)
On January 12, 2015, the Magistrate Judge issued the Report recommending the court deny
Plaintiff’s Motion and grant Defendants’ Motion. (ECF No. 74.) In the Report, the Magistrate
Judge found that Defendants were entitled to summary judgment on Plaintiff’s medical care
claim because Plaintiff could not establish Defendants were deliberately indifferent to a serious
medical need of Plaintiff. (Id. at 4-6.) The Magistrate Judge also found that with regard to
Plaintiff’s request for reimbursement of co-payments made for medical care, the record showed
Plaintiff had received medical care, and thus the SCDC was entitled to collect a co-payment for
those services. (Id. at 7, citing Cabbagestalk v. Richstad, 2009 WL 4040479, at *9 (D.S.C. Nov.
9, 2009); Sturkey v. Ozmint, 2009 WL 649569, at *2 (D.S.C. Mar. 11, 2009).) Further, the
Magistrate Judge found that Plaintiff’s claims regarding care for sickle cell anemia and asthma
that Plaintiff first raised in his Response to Defendants’ Motion for Summary Judgment (ECF
No. 68) should not be considered by the court, as they were not raised in either the Complaint or
the Amended Complaint. (ECF No. 74 at 7.) On Plaintiff’s denial of access to the court claim,
the Magistrate Judge found that although SCDC staff made mistakes in the mailing of Plaintiff’s
petition for writ of certiorari, the mistakes were unintentional, and “could best be characterized

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as negligence, which is not actionable under Section 1983.” (Id. at 9.) Further, the Magistrate
Judge noted, Plaintiff was “attempting to continue to advance frivolous claims against two
defendants who were immune from suit,” and thus failed to satisfy the requirement under Lewis
v. Casey, 518 U.S. 343 (1996), that a prisoner must demonstrate that a non-frivolous claim had
been impeded. (Id. at 8, 10.) The Magistrate Judge further found that Defendants were entitled
to qualified immunity, as Plaintiff had not demonstrated the deprivation of a constitutional right.
(Id. at 10-11.)

Finally, the Magistrate Judge recommended denying Plaintiff’s Motion for

Judgment on the Pleadings, as “the issues litigated here do not lend themselves to disposition by
simple consideration of the pleadings alone.” (Id. at 11.)
Plaintiff timely filed his Objections on January 23, 2015. (ECF No. 76.)
II. LEGAL STANDARD AND ANALYSIS
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. 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).
Objections to a Report and Recommendation must specifically identify portions of the
Report 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

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recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note). Failure to timely file specific written
objections to a Report will result in a waiver of the right to appeal from an Order from the court
based upon the Report. 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).

If the plaintiff fails to properly object because the objections lack the requisite

specificity, then de novo review by the court is not required.
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).
Plaintiff offers no objection to the portions of the Report regarding Plaintiff’s claims
about sickle cell anemia and asthma, denial of access to the court, qualified immunity, or the
denial of his Motion for Judgment on the Pleadings.

In the absence of objections to the

Magistrate Judge’s Report, this court is not required to provide an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in 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, 416 F.3d at 315. Furthermore, failure to file specific
written objections to the Report results in a party’s waiver of the right to appeal from the
judgment of the District Court based upon such recommendation. 28 U.S.C. § 636(b)(1);
Thomas, 474 U.S. 140; Wright, 766 F.2d 841; Schronce, 727 F.2d 91. Therefore, after a
thorough and careful review of the Report and the record, the court finds the Report provides an

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accurate summary of the facts and law and adopts the Magistrate Judge’s recommendation on
these issues.
Plaintiff first objects to the Magistrate Judge’s recommendation regarding his medical
care claim. Plaintiff argues that his claim is one of a violation of equal protection under the
Fourteenth Amendment, whereas the Magistrate Judge evaluated his claim as one for deliberate
indifference to a serious medical need under the Eighth Amendment. (ECF No. 76 at 1.)
Plaintiff, however, fails to allege a cognizable equal protection claim.

Under the Equal

Protection Clause of the Fourteenth Amendment, no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. This is “essentially
a direction that all persons similarly situated should be treated alike.” City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)).
“To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been
treated differently from others with whom he is similarly situated and that the unequal treatment
was the result of intentional or purposeful discrimination. Once this showing is made, the court
proceeds to determine whether the disparity in treatment can be justified under the requisite level
of scrutiny.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Plaintiff fails not only
to show that he is being treated differently from those similarly situated, but that any such
unequal treatment is intentional or purposeful.
Plaintiff argues that because the SCDC has established “chronic clinics” for hypertension,
HIV, diabetes, seizure, and asthma patients, this shows that Defendants treat him unequally by
not providing a clinic for his dyspepsia. (ECF No. 1 at 5.) However, Plaintiff has failed to show
how he is similarly situated with inmates who suffer from the diseases for which clinics have
been established. In his Response to Defendants’ Motion for Summary Judgment, Plaintiff

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argues that the only difference between his condition and asthma “is that these diseases destroys
[sic] different organs in the human body.” (ECF No. 68 at 5.) The court disagrees.
As the Magistrate Judge noted, “Dyspepsia is the scientific name for ‘upset stomach and
indigestion.’” (ECF No. 74 at 6 (citing United States v. Mercado-Moreno¸ 2012 WL 3150438
(D.N.M. July 18, 2012).)

The conditions Plaintiff cites as having established clinics—

hypertension, HIV, diabetes, seizures, and asthma—are all potentially life threatening conditions.
Plaintiff also notes the Magistrate Judge cited to Brown v. McGowan, 2014 WL 3150438, (S.D.
Fla. Dec. 29, 2014), to assert that an inmate with “inflammatory bowel disease such as Chron’s
Disease or ulcerative colitis, complicated peptic ulcer disease…, chronic liver disease, and other
gastrointestinal disorders” required treatment or monitoring in a clinic. (ECF No. 76 at 2 (citing
Brown at *7); see ECF No. 74 at 6.) Plaintiff has failed to show how his condition rises to the
same level as those gastrointestinal conditions or of the conditions which have established clinics
within the SCDC. Further, Plaintiff notably stopped short of quoting the Magistrate Judge’s
excerpt of Brown that stated, “[t]he Gastrointestinal Clinic is not intended to follow inmates with
simply dyspepsia, constipation, food intolerances, or uncomplicated peptic ulcer disease.” (ECF
No. 74 at 6 (citing Brown at *7).) Thus, Plaintiff has failed to demonstrate that he is similarly
situated with inmates suffering from conditions that have dedicated clinics.
Further, Plaintiff cannot establish that SCDC policy requires every chronic condition to
have a dedicated “chronic clinic.” Plaintiff cites SCDC Policy/Procedure HS-18.15, paragraph
12 as stating “all inmates who have chronic diseases will be monitored on a regular basis by
health services staff.” (ECF No. 68 at 5 (emphasis added by Plaintiff).) This policy does not
state that the monitoring must be done in a formal “chronic clinic.” Further, the record shows
that Plaintiff has received regular monitoring by health care staff.

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Plaintiff also cites to

paragraph 12.2 of HS-18.15, “health services staff will provide chronic disease clinics for
inmates.” (ECF No. 1 at 5.) This policy, however, does not state such clinics will be provided
for all chronic conditions.
Further, Plaintiff fails to allege any facts that establish any alleged unequal treatment
“was the result of intentional or purposeful discrimination.”

“Official action is rarely

unconstitutional merely because it has a disproportionate impact. Unless a clear pattern…
emerges, proof of impact alone is not sufficient.” Shaw v. Martin, 733 F.2d 304, 312 (4th Cir.
1984). Plaintiff alleges no specific facts alleging intentional discrimination by Defendants.
Further, he alleges no facts to establish any pattern of disparate impact that would show
“purposeful discrimination.” As such, summary judgment for Defendants is proper on Plaintiff’s
medical care claim.
Plaintiff also objects to the portion of the Report regarding medical co-payments.
“Plaintiff states that although co-payments may be charged for medical treatment at the request
of inmates, the prison officials should not charge inmates for medical treatment that the inmates
cannot help, such as chronic conditions or if the inmate[’]s account is five dollars or less.” (ECF
No. 76 at 3, citing S.C. Code Ann. § 24-13-80(B) (2015) (emphasis in original).) Plaintiff does
not assert that he did not request any of the care and treatment given to him by SCDC medical
staff. Further, outside of regular preventative care, most medical care, whether to a prisoner or
otherwise, is for conditions patients “cannot help.” South Carolina statute specifically allows the
“reasonable deduction” from prisoner accounts for “medical treatment for injuries inflicted by
the inmate upon himself or others” and to “defray the costs paid by a municipality or county for
medical services for an inmate, which have been requested by the inmate, if the deduction does
not exceed five dollars for each occurrence of treatment received by the inmate. If the balance in

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an inmate’s account is less than ten dollars, the fee must not be charged.” S.C. Code Ann. §§ 413-80(B)(1)(b); 4-13-80(B)(2) (2015). By statute, Plaintiff, or any other inmate, would not be
charged a co-payment if his account holds less than ten dollars. Plaintiff makes no such claim
that he has been charged when his account was below ten dollars, nor his suggested five dollars,
nor that he was charged more than five dollars for each occurrence. Plaintiff merely states that
he “went into debt an undisclosed amount.” (ECF No. 36 at 3.) However, South Carolina
Statute specifically allows this. If an inmate’s account balance is less than ten dollars, an inmate
is not charged a co-payment, “[h]owever, a deficiency balance must be carried forward and,
upon a deposit or credit being made to the inmate’s account, any outstanding balance may be
deducted from the account.” S.C. Code Ann. § 4-13-80(B)(2) (2015). As such, he cannot
demonstrate he was improperly charged a medical co-payment, and summary judgment for
Defendants is appropriate on this claim.
III. CONCLUSION
Based on the aforementioned reasons and a thorough review of the Report of the
Magistrate Judge and the record in this case, the court ACCEPTS the Report of the Magistrate
Judge (ECF No. 74). It is therefore ordered that Defendants’ Motion for Summary Judgment
(ECF No. 46) is GRANTED, Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 36) is
DENIED, and this action (ECF Nos. 1, 13) is DISMISSED.
IT IS SO ORDERED.

United States District Judge
March 17, 2015
Columbia, South Carolina
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