Cunningham v. Cherokee County Detention Center

Filing 97

ORDER RULING ON REPORT AND RECOMMENDATION 91 . Defendants' motions for summary judgment 51 52 are granted. Signed by Honorable J Michelle Childs on 4/17/2019. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Gary T. Cunningham,

)
)
Plaintiff,
)
)
v.
)
)
Southern Health Partners, Robert Padgett, )
and Tammy Gordon,
)
)
Defendants.
)
____________________________________)

Civil Action No.: 6:18-cv-01381-JMC

ORDER

This matter is before the court for review of the Magistrate Judge’s Report and
Recommendation (“Report”) filed on March 19, 2019 (ECF No. 91). The court ACCEPTS the
Magistrate Judge’s Report and incorporates it herein by reference. For the reasons set out in the
Report, the court GRANTS Defendants Southern Health Partners, Robert Padgett, and Tammy
Gordon’s (collectively, “Defendants”) Motions for Summary Judgment (ECF Nos. 51, 52).
I. FACTUAL AND PROCEDURAL BACKGROUND
The Report sets forth the relevant facts and legal standards, which this court incorporates
herein without a full recitation. (ECF No. 91 at 1–5.) As brief background, on May 21, 2018,
Plaintiff, proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action alleging that
while in detention at the Cherokee County Detention Center (“CCDC”), Defendants were denying
Plaintiff his medication for chronic obstructive pulmonary disease. (ECF No. 1 at 4.) On
November 8, 2018, Defendants filed Motions for Summary Judgment. (ECF Nos. 51, 52.) On
November 9, 2018, the Magistrate Judge entered a Roseboro1 order, advising Plaintiff of the

1

In Roseboro v. Garrison, the United States Court of Appeals for the Fourth Circuit held that
district courts are required to provide pro se litigants with an explanation of summary judgment
procedures. 528 F.2d 309, 310 (4th Cir. 1975).
1

summary judgment procedures and the consequences of failing to adequately respond. (ECF No.
55.) On December 10, 2018, Plaintiff notified the court of a change in his address. (ECF No. 64.)
On December 11 and 20, 2018, the court received three (3) letters from Plaintiff, which the
Magistrate Judge construed as responses to Defendants’ Motions for Summary Judgment. (ECF
Nos. 70, 72, 73, 91 at 3–4 n.3.)
The Magistrate Judge entered her Report on March 19, 2019. (ECF No. 91.) The
Magistrate Judge first found “[P]laintiff failed to show that he had a serious medical need to which
. . . [D]efendants were indifferent. The record before the court is clear that . . . [P]laintiff received
continuous care while housed in the CcdC and that his complaints were not ignored.” (Id. at 5–6,
7.) The Magistrate Judge further found that “[P]laintiff has failed to make any showing that his
breathing issues were so serious as to require more access to his inhaler than was authorized, or
different treatment altogether.” (Id. at 7.) Additionally, the Magistrate Judge determined that “[t]o
the extent . . . [P]laintiff alleges that [D]efendants [Southern Health Partners] and Nurse Gordon
are liable under a theory of respondeat superior for the actions of other nurses, that doctrine is
generally inapplicable to Section 1983 claims,” and “[P]laintiff has failed to demonstrate that any
of the supervised [D]efendants violated [Plaintiff’s] rights, so any claims against their superiors
must necessarily fail.” (Id. at 8.) Finally, the Magistrate Judge also concluded that because
“[P]laintiff fails to demonstrate that . . . [D]efendants violated his constitutional rights[,] . . . .
[D]efendants are entitled to qualified immunity.” (Id. at 9.)
II. STANDARD OF REVIEW
The Magistrate Judge’s Report and Recommendation is made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 for the District Court of South Carolina. The Magistrate
Judge only makes a recommendation to this court; the responsibility to make a final determination

2

remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). This court engages
in a de novo review of those portions of the Report and Recommendation to which the parties have
made specific objections. See 28 U.S.C. § 636(b)(1). See also Fed. R. Civ. P. 72(b)(3). 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).
III. DISCUSSION
On March 19, 2019, as part of the Report, the Magistrate Judge notified the parties of their
right to file objections by April 2, 2019. (ECF No. 91 at 9.) Also, on March 19, 2019, the Report
was mailed to Plaintiff at the updated address THAT Plaintiff provided the court on December 10,
2018. (ECF Nos. 64, 95.) The Report was returned as undeliverable on April 2, 2019.2 (ECF No.
95.) At the beginning of this litigation, on June 15, 2018, the court entered an order directing
Plaintiff to advise the Clerk of Court of the United States District Court for the District of South
Carolina, in writing, “if [his] address change[d] for any reason, so as to assure that orders or other
matters that specify deadlines for you to meet will be received by you.” (ECF No. 11 at 1.) Thus,
apparently, Plaintiff has failed to provide the court with a correct address.3 Neither of the parties
filed any objections to the Report by April 2, 2019. In the absence of objections to the Magistrate
Judge’s Report, this court is not required to provide an explanation for adopting the
recommendations without modification. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Absent objections, the court must only ensure that there is no clear error on the face of the record
in order to accept the recommendations. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,

2

Several other orders entered prior to the Report and Recommendation and mailed to Plaintiff
were also returned as undeliverable. (ECF Nos. 87, 88, 97, 90, 93, 94.)
3
Not only was Plaintiff aware of this obligation, his actions show he understood it, as he previously
informed the court that his address changed on December 10, 2018. (ECF No. 64.)
3

315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). If a party fails to file
specific, written objections to the Report, the party forfeits the right to appeal the court’s decision
concerning the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States
v. Schronce, 727 F.2d 91 (4th Cir. 1984). Accordingly, since none of the parties filed any
objections to the Report, and the court observes no clear error on the face of the record, the court
accepts the Magistrate Judge’s Report. See Diamond, 416 F.3d at 315; Camby, 718 F.2d at 199.
IV. CONCLUSION
After a thorough and careful review of the record, the court finds the Magistrate Judge’s
Report and Recommendation provides an accurate summary of the facts and law in this case.
Accordingly, the court ACCEPTS the Magistrate Judge’s Report and Recommendation (ECF No.
91) and incorporates it herein by reference. For the reasons set out in the Report, the court
GRANTS Defendants’ Motions for Summary Judgment (ECF Nos. 51, 52).
IT IS SO ORDERED.

United States District Judge
April 17, 2019
Columbia, South Carolina

4