Welch v. Johnson et al
ORDER RULING ON REPORT AND RECOMMENDATION 54 . Plaintiffs motion for a preliminary injunction is denied. Signed by Honorable Margaret B Seymour on 6/16/2017. (kric, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Scott Rudolph Welch,
) C/A No. 6:17-0439-MBS-KFM
OPINION AND ORDER
Joey Johnson, Melissa Vandoser,
Beverly Giraldi, Jane Tyler, and
Plaintiff Scott Rudolph Welch is a pretrial detainee currently housed at the J. Reuben Long
Detention Center (JRLDC) in Conway, South Carolina. Plaintiff, proceeding pro se and in forma
pauperis, filed a complaint on February 10, 2017, alleging that the nurses at JRLDC administer shots
and change bandages utilizing the same tables where detainees eat their meals. Plaintiff filed an
amended complaint on March 20, 2017, alleging that he contracted a MRSA staph infection during
his detention. Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging unconstitutional
conditions of confinement and seeking injunctive relief and compensatory and punitive damages.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to
United States Magistrate Judge Kevin F. McDonald for pretrial handling.
Plaintiff filed a motion for preliminary injunction on April 26, 2017. Plaintiff asserts that
“the prison staff have once again started using the dining hall for the administering of shots and
physicals, after the[y] agreed to stop. I wish to file for an preliminary inju[n]ction so that they may
take their promises a little less lightly.” ECF No. 45. Defendants Beverly Giraldi, Melissa
VanDuser,1 and Karen Wright filed a response in opposition on May 11, 2017. The Magistrate
It appears this Defendant’s proper name is VanDuser or Van Duser. See ECF No. 51-1.
Judge filed a Report and Recommendation on May 15, 2017. Plaintiff filed a reply to Defendants’
responses on May 22, 2017.2
The Magistrate Judge reviewed the affidavit of Defendant VanDuser, who averred that tables
were used directly outside a triage room to take medical histories and complete medical intake forms.
Defendant VanDuser stated that wound dressings were not changed at the table, although nurses
might provide a new band-aid or clean bandage if a detainee arrives at intake with a need to cover
something. Defendant VanDuser further stated that tuberculosis skin tests are administered during
intake, but that the process is sterile and involves no bodily fluid. According to Defendant
VanDuser, the nurses sanitize the area after completing intake. Defendant Vanduster further avers
that JRLDC provided the medical personnel with a separate table to use, but after Plaintiff continued
to complain, the medical staff does not use tables in the eating area at all, and works only in the
triage room. ECF No. 51-1. Defendant VanDuser also disputes Plaintiff’s allegation that he was
treated for the MRSA staph infection. Id.
The Magistrate Judge also reviewed the affidavit of Defendant Johnson. Defendant Johnson
attests that inmate workers clean the eating area after each mean, which includes wiping down the
tables and sweeping and mopping the floors. Defendant Johnson asserts that he investigated
Plaintiff’s complaints and was assured by the medical staff that the services provided utilizing the
tables were safe, sterile, and posed no health risk to any inmates. Defendant Johnson also states that
medical personnel were provided with an alternate table, and that currently medical staff has ceased
to use the disputed area. ECF No. 52-1.
The court’s docket reveals that the Report and Recommendation was placed in the mail to Plaintiff
on May 16, 2017. The reply from Plaintiff is also dated May 16, 2017, and was received by the
Office of the Clerk of Court on May 22, 2016.
The Magistrate Judge determined that Plaintiff failed to show entitlement to a preliminary
injunction. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) (holding that a plaintiff
must make a clear showing that (1) he is likely to succeed on the merits; (2) he is likely to be
irreparably harmed absent injunctive relief; (3) the balance of equities tips in his favor; and (4)
injunctive relief is in the public interest). Relying on Strickler v. Waters, 989 F.2d 1375, 1379 (4th
Cir. 1998), the Magistrate Judge noted that, for conditions of confinement to violate constitutional
requirements, a plaintiff must show that he was deprived of a basic human need and that prison
officials were deliberately indifferent to that deprivation. The Magistrate Judge further observed that
the first prong of the Strickler analysis requires an objective showing that the deprivation was
sufficiently serious, while the second prong is a subjective test requiring evidence that prison
officials acted with a sufficiently capable state of mind. The Magistrate Judge determined that
Plaintiff had met neither Strickler prong, and thus could not prevail on the merits. The Magistrate
Judge further found that Plaintiff failed to show a likelihood that he will suffer irreparable harm,
because the eating area is no longer used by medical staff, and that he failed to show the balance of
equities tips in his favor or that an injunction would be in the public interest.
As noted, the Magistrate Judge did not have the benefit of Plaintiff’s reply. Plaintiff disputes
Defendant VanDuser’s statement that wound care did not take place at the eating tables and that he
was not diagnosed with MRSA. Plaintiff also includes statements from various inmates regarding
bloody bandages left on the tables and a failure of medical staff to sanitize the area. Plaintiff also
has submitted copies of the various grievances he filed with respect to the use of the eating area by
medical staff. However, Plaintiff filed no objections to the Report and Recommendation.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). This court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1).
This court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id. 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 v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005).
The court has thoroughly reviewed the record. The court concurs in the Magistrate Judge’s
recommendation that Plaintiff has failed to show irreparable harm if no injunction issues because
it appears Defendants have voluntarily ceased utilizing the eating area for medical purposes. For this
reason, Plaintiff’s motion for a preliminary injunction is denied. The case is recommitted to the
Magistrate Judge for further pretrial handling.
IT IS SO ORDERED.
/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
June 16, 2017
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