Wade v. Luerre et al

Filing 164

ORDER RULING ON REPORT AND RECOMMENDATION 154 . Nurse Olds and Nurse Smith's motion for summary judgment (ECF No. 117) and Nurse Collins motion for summary judgment (ECF No. 151) are granted. These defendants are dismissed from this action with prejudice. Additionally, the remaining pending nondispositive motions (ECF Nos. 86; 88; 91; & 132) are dismissed as moot. Signed by Honorable Joseph F Anderson, Jr on 3/31/2021. (kric, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Tyrone G. Wade,

C/A No. 6:19-cv-3576-JFA-KFM
Plaintiff,

vs.

ORDER

April Collins, Ms. Olds, and June Smith,
Defendants.
I.

INTRODUCTION

Plaintiff Tyrone G. Wade, (“Plaintiff”) a self-represented state prisoner, brings this action
pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. In accordance with 28
U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), the case was referred to the Magistrate
Judge for pretrial proceedings.
On March 9, 2020, Plaintiff’s second amended complaint was entered on the docket. (ECF
No. 25). Thereafter, Head Nurse Ms. Olds (“Nurse Olds”) and Nurse Practitioner June Smith’s
(“Nurse Smith”) moved for summary judgment. (ECF No. 117). Additionally, Nurse April Collins
submitted a separate motion for summary judgment. (ECF No. 151).
After reviewing the motions and responses thereto, the Magistrate Judge assigned to this
action 1 prepared a thorough Report and Recommendation (“Report”). (ECF No. 154). Within the
Report, the Magistrate Judge opines that Nurse Olds and Nurse Smith’s motion for summary
judgment and Nurse Collins’ motion for summary judgment should be granted. The Report sets

1

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Civil 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, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976).
1

forth, in detail, the relevant facts and standards of law on this matter, and this Court incorporates
those facts and standards without a recitation.
The Report was entered on the docket on February 17, 2021 and it advised Plaintiff of his
right to object by March 3, 2021. Id. Plaintiff filed objections on March 15, 2021. (ECF No. 160).
Thus, this matter is ripe for review.
II.

LEGAL STANDARD

The 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 recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge
with instructions. See 28 U.S.C. § 636(b)(1). However, a district court is only required to conduct
a de novo review of the specific portions of the Magistrate Judge’s Report to which an objection
is made. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); Carniewski v. W. Virginia Bd. of Prob. &
Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the
Report of the Magistrate, this court is not required to give an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Thus, the court must
only review those portions of the Report to which Petitioner has made a specific written objection.
Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005).
“An objection is specific if it ‘enables the district judge to focus attention on those issues—
factual and legal—that are at the heart of the parties’ dispute.’” Dunlap v. TM Trucking of the
Carolinas, LLC, No. 0:15-cv-04009-JMC, 2017 WL 6345402, at *5 n.6 (D.S.C. Dec. 12, 2017)
(citing One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)).
A specific objection to the Magistrate Judge’s Report thus requires more than a reassertion of
arguments from the complaint or a mere citation to legal authorities. See Workman v. Perry, No.

2

6:17-cv-00765-RBH, 2017 WL 4791150, at *1 (D.S.C. Oct. 23, 2017). A specific objection must
“direct the court to a specific error in the magistrate’s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
“Generally stated, nonspecific objections have the same effect as would a failure to object.”
Staley v. Norton, No. 9:07-0288-PMD, 2007 WL 821181, at *1 (D.S.C. Mar. 2, 2007) (citing
Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)). The court
reviews portions “not objected to—including those portions to which only ‘general and
conclusory’ objections have been made—for clear error.” Id. (emphasis added) (citing Diamond,
416 F.3d at 315; Camby, 718 F.2d at 200; Orpiano, 687 F.2d at 47).
The legal standard employed in a motion for summary judgment is well-settled and
correctly stated within the Report. Accordingly, that standard is incorporated herein without a
recitation.
III.

DISCUSSION

As stated above, the relevant facts and standards of law on this matter are incorporated
from the Report. Because Plaintiff is proceeding pro se, the Court is charged with liberally
construing the pleadings to allow Plaintiff to fully develop potentially meritorious cases. See Cruz
v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The requirement of liberal
construction does not mean that the Court can ignore a clear failure in the pleading to allege facts
which set forth a claim cognizable in a federal district court. See Weller v. Dep’t of Soc. Servs.,
901 F.2d 387, 391 (4th Cir. 1990).
At the outset, it should be noted that Plaintiff’s objections are untimely and therefore should
not be entitled to a de novo review. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005)(“In the absence of a timely filed objection, a district court need not conduct a

3

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.”)(cleaned up). Nevertheless, out of an abundance
of caution, the Court will endeavor to analyze Plaintiff’s objections.
Plaintiff’s “objections” appear to be a general disagreement with the Magistrate Judge’s
conclusions as opposed to objections to specific portions of the Report. Plaintiff takes issue with
the Magistrate Judge’s conclusion that Nurse Collins acted in a professional manner despite
leaving a wound on his hand uncovered and handling his hand roughly. Plaintiff also argues that
Nurse Olds placed staples into his hand to close the wound without any authorization from a
doctor. Essentially, Plaintiff avers that it “should be left up to a jury to decide whether the plaintiff
was given proper care.” (ECF No. 160, p. 4).
Despite these objections to the contrary, the Report adequately considered and rejected
these arguments when determining that summary judgment was appropriate. As the Magistrate
Judge properly held:
the plaintiff’s complaints regarding these defendants revolve around his desire for
treatment by a physician or a hand specialist and are merely a disagreement with
the type of treatment he received, which is not actionable under § 1983. See Sharpe
v. SCDC, 621 F. App’x 732, 732 (4th Cir. 2015) (“[M]ere disagreement between
an inmate and medical staff regarding the proper course of treatment provides no
basis for relief [under § 1983].”) (citation omitted).
(ECF No. 154, p. 10).
Thus, Plaintiff’s objections merely rehash arguments previously made and do not point to
any error in the Report. Even when viewed in a light most favorable to Plaintiff and taking his
assertions as true, Plaintiff has failed to show that any of the nurses had actual knowledge of any
serious medical need and the related risks but nevertheless disregarded them. At most, these
allegations amount to negligent treatment which cannot serve as the basis for a deliberate
indifference claim. See Campbell v. Florian, 972 F.3d 385, 395 (4th Cir. 2020), as amended (Aug.
4

28, 2020) (“Thus, deliberate indifference is a very high standard, and a showing of mere negligence
will not meet it.”)(cleaned up). Thus, these objections must be overruled.
Plaintiff fails to object to the remaining portions of the Report, namely the conclusion that
all claims against Defendants in their official capacities should be dismissed. Thus, this portion of
the Report is also adopted without objection.
Additionally, Plaintiff filed a separate motion in which he claims he has “no access to the
law computer by way of tablet” that is keeping him from being able to respond to the Report. (ECF
No. 156). When opposing counsel asked the South Carolina Department of Corrections for
clarification on this issue, they received the following response:
Inmate Wade does not have a personally assigned tablet due to his continuous
disciplinary issues. He was unable to produce a pending deadline when previously
asked based upon his misuse of the tablet when he had the opportunity. He has
continued to have disciplinary issues as of today, he will be afforded an opportunity
to utilize the tablet tomorrow [February 23, 2021] to respond.
(ECF No. 157).
Thus, is appears Plaintiff’s own disciplinary history initially caused his inability to utilize
a tablet, but he has since been afforded an opportunity to use a tablet to prepare a response. Plaintiff
ultimately filed objections after the above response and the Court has considered them despite their
untimely filing. Consequently, Plaintiff’s motion for access to a law computer (ECF No. 156) is
denied as moot.
IV.

CONCLUSION

After carefully reviewing the applicable laws, the record in this case, and the Report, this
Court finds the Magistrate Judge’s recommendation fairly and accurately summarizes the facts and
applies the correct principles of law. Accordingly, this Court adopts the Magistrate Judge’s Report
and Recommendation and incorporates it herein by reference. (ECF No. 154). Consequently,

5

Nurse Olds and Nurse Smith’s motion for summary judgment (ECF No. 117) and Nurse Collins’
motion for summary judgment (ECF No. 151) are granted. These defendants are dismissed from
this action with prejudice. Additionally, the remaining pending nondispositive motions (ECF Nos.
86; 88; 91; & 132) are dismissed as moot.
IT IS SO ORDERED.

March 31, 2021
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

6