McDowell v. Mitchell-Hamilton et al
ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 59 Motion for Summary Judgment. Signed by Honorable Bruce Howe Hendricks on 7/20/2015.(cwhi, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Civil Action No.: 9:14-2132-BHH
James Stephon McDowell a/k/a James
S. McDowell, #332105
Opinion and Order
Carol E. Mitchell-Hamilton, John B.
Tomarchio, Tianna R. Randolph, Robert
M. Stevenson, III, T. Montgomery, Bryan
Sterling and Evelyn Barber, Head Food
This matter is before the Court upon the Magistrate Judge’s Report and
Recommendation (“Report”) (ECF No. 80) recommending the Court grant the
defendants’ motion for summary judgment (ECF No. 59). For the reasons set forth
below, the Court agrees with the Report, overrules the plaintiff’s objections, and grant’s
the defendants’ motion for summary judgment.
The plaintiff, James Stephon McDowell, a state inmate proceeding pro se, filed
this action pursuant to 42 U.S.C. § 1983 alleging “deliberate indifference to serious
medical need,” “inadequate medical care,” and “cruel and unusual punishment.” The
plaintiff’s complaint provides a long, detailed description of his medical struggles, which
appear to be primarily related to issues with his digestive system.
injunctive relief and monetary damages.
The plaintiff seeks
Pursuant to 28 U.S.C. § 636(b) (1)(B) and Local Civil Rule 73.02(B)(2)(d) DSC,
the case was assigned to Magistrate Judge Bristow Marchant. On January 23, 2015,
the defendants moved for summary judgment. (See ECF No. 59.) In support of their
motion, the defendants attached the affidavit of John B. Tomarchio, M.D., who is a
defendant in the case and one of the physicians who has treated the plaintiff. The
defendants also submitted over one hundred pages of the plaintiff’s medical records.
After being granted an extension of time to respond, the plaintiff filed a lengthy response
in opposition to the motion for summary judgment, complete with medical records,
research and information regarding the plaintiff’s conditions and the medications he was
or is taking or wishes to take, various grievances he has filed, and discovery responses
he received from the defendants, and a lengthy affidavit that reiterates the allegations of
On April 7, 2015, Magistrate Judge Marchant issued a Report
recommending that the defendants’ motion for summary judgment be granted. The
Plaintiff filed objections to the Report on April 27, 2015. (ECF No. 86.)
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court. The
recommendation has no presumptive weight. The responsibility to make a final
determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270–71,
96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and
the court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The court is obligated to conduct a de novo review of every portion of the Report
to which specific objections have been filed. Id. However, the court need not conduct a
de novo review when a party makes only “general and conclusory objections that do not
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) ( “[D]e novo
review [is] unnecessary in . . . situations 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 recommendation.”). The court reviews only for clear error in the absence
of a specific objection. Furthermore, in the absence of a timely filed, specific objection,
the Magistrate Judge’s conclusions are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Additionally, the
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
Because the plaintiff has specifically objected to the Magistrate Judge’s Report,
the Court has conducted a de novo review of the Report, the record, and the relevant
legal authorities. The Report sets forth in substantial detail the medical chronology as
alleged by the plaintiff and as alleged by the defendants in the affidavit of Dr.
It is undisputed that: (1) the plaintiff has continuously complained of
stomach and gastro-intestinal problems; (2) that he has been seen by nurses, nurse
practitioners, mental health staff, and multiple doctors, including a specialist
(gastroenterologist)1, (3) that he has repeatedly been given dietary instructions
regarding foods that he should avoid and has been placed on alternative diets, including
a vegetarian diet and a “heart healthy” diet, (4) that he has been given a number of
medications to treat his stomach condition, including but not limited to, Zantac, Prilosec,
Zofran, Phenergan, and Maalox; and (5) that he received an endoscopy and was tested
for H. Pylori (a test that was negative).
The Magistrate Judge characterized the
plaintiff’s allegations as follows:
Plaintiff’s complaint is quite simply that the medical personnel referenced
in his Complaint did not provide him with the type of medical care he
desired, that he did not receive some drugs he wanted while he did
receive other drugs that he did not want, that sometimes he was not seen
immediately (as he wished to be) or was at times seen by nurses or the
Nurse Practitioner when he would have rather been seen by a physician,
or in particular that he should have been sent to be seen by a
gastroenterologist sooner than he was. However, it is clear in the evidence
provided to this Court (including Plaintiff’s own documentary and
testimonial exhibits) that the medical professionals involved in Plaintiff’s
case evaluated Plaintiff’s condition and rendered a judgment as to the
type of care and treatment warranted based on their professional
experience and judgment . . . .
(Report at 32-33, ECF No. 80.) Having carefully reviewed the record in this case, the
Court finds this summary to be accurate. The Magistrate Judge recommended that the
defendants’ motion for summary judgment be granted because the plaintiff’s mere
disagreement with the treatment he received does not, without more, render such
treatment constitutionally inadequate.
Upon review, the Court agrees with the Magistrate Judge that the defendants’
motion for summary judgment should be granted. While the Court is sympathetic to the
plaintiff’s claims that the treatment he has received has not assuaged his symptoms,
According to Dr. Tomarchio’s affidavit, the plaintiff has had two hundred thirty-five (235) direct
or indirect encounters with medical and mental health staff in just over two years.
that is not enough to establish deliberate indifference, particularly where the record
shows that prison medical staff have taken numerous steps to diagnose and treat the
The plaintiff objected to the Report on April 27, 2015. (See ECF No. 86). The
Court has reviewed the plaintiff’s objections, but finds them to be without merit. The
plaintiff’s first objection is that the Magistrate Judge’s construction of the record is not
faithful to the standard of review. However, the Court finds that the Magistrate has
correctly applied the standard of review on summary judgment. While the non-moving
party is entitled to have the facts and inferences to be drawn therefrom construed in his
favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), ), “[o]nly disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” The Magistrate Judge’s Report does not
reject the plaintiff’s factual allegations as false, it simply finds them to be inadequate to
support a claim for deliberate indifference, and this Court agrees with that conclusion.
The plaintiff’s fourth objection is that the Magistrate Judge erred in his
conclusion, stated in footnote 10, that the defendants Stevenson, Sterling, Barber and
Montgomery are entitled to dismissal of the claims against them for the additional
reason that they were not responsible for the plaintiff’s medical care and cannot be held
liable in the absence of “an official policy or custom for which they are responsible and
which resulted in illegal action.” The Magistrate Judge found that no such policy was
presented in the evidence. The Court agrees with the Magistrate Judge’s analysis, but
even if it did not, it would not matter because the Court concludes that the plaintiff has
failed to present evidence sufficient to survive summary judgment on claims of
deliberate indifference to serious medical needs.
The plaintiff’s eighth objection is that Dr. Tomarchio’s affidavit, which the
Magistrate Judge cited extensively in his Report, is not based on personal knowledge
and was made in bad faith. Dr. Tomarchio’s affidavit states that, at the time of the
matters alleged, he was employed as a doctor for the South Carolina Department of
Corrections. (Aff. of John B. Tomarchio, M.D. at 1, ECF No. 59-2.) Dr. Tomarchio
indicates in his affidavit where he personally treated the plaintiff or prescribed him
medication, and, in the other instances where he did not personally treat the plaintiff,
identifies the medical records that he is relying upon. These medical records were
submitted along with his affidavit in support of the defendants’ motion for summary
Therefore, the record contains independent support for the summary
provided by Dr. Tomarchio in his affidavit.
Thus the Court concludes that there is
adequate evidentiary support for the Magistrate Judge’s conclusions. Moreover, the
plaintiff has not directed the court to factual allegations in the affidavit and records that
the plaintiff maintains are incorrect. Finally, the plaintiff has directed the Court to no
evidence of bad faith.
The plaintiff’s remaining objections (objections two, three, five, six, and seven) all
appear to deal with the issue of whether the evidence before the Court is sufficient to
allow the plaintiff to proceed with his claims of deliberate indifference. In support of his
arguments, the plaintiff repeatedly points to certain facts he believes are sufficient to
withstand summary judgment. For example, the plaintiff argues that the Magistrate did
not give sufficient credence to his argument that the defendants were persisting in a
course of treatment they knew to be ineffective (ECF No 86 at 2, 6), that the defendants
waited too long to send him to a specialist (id. at 4, 6, 8), that the defendants provided
him with medications that had negative side effects (id. at 8-9), that the defendants have
not provided satisfactory dietary options (id at 2, 3, 6-7), and that SCDC lacks sufficient
policies and training regarding “Gastronal Illnesse(s)” (id at 3).
“An official is deliberately indifferent to an inmate's serious medical needs only
when he or she subjectively ‘knows of and disregards an excessive risk to inmate health
or safety.’” Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (quoting Farmer v.
Brennan, 511 U.S. 825, 837 (1994)).
Adopting a conservative course of treatment
while gradually prescribing additional drugs and ordering additional tests is not
“know[ing] and disregard[ing] an excessive risk to inmate health or safety,” particularly
where the ailments at issue are conditions like GERD, gastritis, and stomach ulcers.
Having carefully reviewed the plaintiff’s objections and the evidence submitted by both
parties, this Court agrees with the Magistrate that this is not a case of deliberate
indifference to serious medical needs, but simply a disagreement between the plaintiff
and prison health care staff about the appropriate course and timing of his treatment.
As the Magistrate Judge has correctly observed, a prisoner’s disagreement with
the judgment of medical professionals, without contrary medical evidence, is insufficient
to support a claim for deliberate indifference. See Jackson v. Lightsey, 775 F.3d 170,
178 (4th Cir. 2014) (“[W]e consistently have found [that disagreements between an
The plaintiff must also show that the condition is “objectively serious” meaning that it has been
diagnosed by a physician as mandating treatment or [is] one that is so obvious that even a lay
person would easily recognize the necessity for a doctor's attention.” Jackson, 775 F.3d at 178.
inmate and a physician over the inmate's proper medical care] fall short of showing
deliberate indifference.” (quotation marks and citation omitted); Wright v. Collins, 766
F.2d 841, 849 (4th Cir. 1985) (“Disagreements between an inmate and a physician over
the inmate's proper medical care do not state a § 1983 claim unless exceptional
circumstances are alleged.”); see also Grayson v. Peed, 195 F.3d 692, 695-96 (4th Cir.
1999) (“the Constitution is designed to deal with deprivations of rights, not errors in
judgment, even though such errors may have unfortunate consequences”); Nelson v.
Shuffman, 603 F.3d 439, 449 (8th Cir. 2010) (“In the face of medical records indicating
that treatment was provided and physician affidavits indicating that the care provided
was adequate, an inmate cannot create a question of fact by merely stating that she did
not feel she received adequate treatment.” (quotation marks and citation omitted)).
After a thorough review of the Report, the record, and the applicable law, the
Court finds that the plaintiff’s objections are without merit. Accordingly, the objections
are overruled and the Court adopts the Report and incorporates it herein.
defendants’ motion for summary judgment (ECF No. 59) is hereby GRANTED.
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge
July 20, 2015
Greenville, South Carolina
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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