Rosenbaum v. Mediko et al

Filing 94

ORDER adopting 89 Report and Recommendations of Magistrate Judge Bristow Marchant. Defendants' motions to dismiss and/or for summary judgment (ECF Nos. 43, 44, 45, 46, 51) are granted, and this matter is dismissed with prejudice. Signed by Honorable Cameron McGowan Currie on 07/31/2019. (egra, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
James Rosenbaum,

C/A No. 9:18-1666-CMC

Plaintiff,
v.
OPINION AND ORDER
Mediko; Joseph Papotto, MD; Missy
Vanduser; Latonya Wineglass; Phillip
Thompson; and Wayne Owens,
Defendants.
James Rosenbaum (“Plaintiff”), proceeding pro se and in forma pauperis, brought this
action against Mediko; Joseph Papotto, MD; Missy Vanduser; Latonya Wineglass; Phillip
Thompson; and Wayne Owens (collectively “Defendants”) alleging deliberate indifference to his
medical needs in violation of his constitutional rights pursuant to 42 U.S.C. § 1983 and seeking
injunctive relief and damages. ECF No. 24. This matter is before the court on Defendant Mediko’s
motion to dismiss, Defendant Vanduser’s motion for summary judgment, Defendant Papotto’s
motion for summary judgment, Defendant Wineglass’ motion for summary judgment, and
Defendants Owens and Thompson’s motion for summary judgment. ECF Nos. 43, 44, 45, 46, 51.
Because Plaintiff is proceeding pro se, the Magistrate Judge entered orders pursuant to Roseboro
v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising him of the importance of the motions and the
need to file adequate responses. ECF Nos. 49, 52. Plaintiff filed responses to the motions. ECF
Nos. 77, 78, 79, 80. Defendants Owens and Thompson, and Papotto, Vanduser, and Wineglass
filed replies. ECF No. 82, 85.

On June 19, 2019, the Magistrate Judge issued a Report and Recommendation (“Report”),
recommending Defendants’ motions to dismiss and/or for summary judgment be granted. ECF
No. 89. The Magistrate Judge advised the parties of the procedures and requirements for filing
objections to the Report and the serious consequences if they failed to do so. On July 10, 2019,
Plaintiff filed objections to the Report. ECF No. 91. Defendants Owens and Thompson filed a
reply on July 24, 2019. ECF No. 92. This matter is ripe for the court’s review.
I.

Standard

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). 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 to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). The
court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “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.’”)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
II.

Discussion

The Magistrate Judge recommends granting Defendants’ motions to dismiss or for
summary judgment. The Report concludes the requested injunctive and/or declaratory relief
should be dismissed as moot, as Plaintiff is no longer a pretrial detainee, but a prisoner in the
custody of the South Carolina Department of Corrections, and is no longer housed at the Detention
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Center. ECF No. 89 at 28-29. As to Plaintiff’s damages claim for deliberate indifference to serious
medical needs, the Report recommends summary judgment as the evidence shows no medical
Defendant was deliberately indifferent to Plaintiff’s serious medical needs. Id. at 31. The Report
also concludes the claims against non-medical Defendants (Owens and Thompson) should be
dismissed, as Plaintiff failed to present evidence they did not follow instructions of medical
personnel. Id. at 35. The Report also notes any potential claim for a HIPAA violation should be
dismissed, as HIPAA does not provide for a private right of action. Id. at 37. Finally, the Report
recommends any claim for retaliation should be dismissed, as there is no evidence Plaintiff was
unlawfully retaliated against. Id.
Plaintiff asserts brief objections to the Report. He contends his affidavit states Dr. Papotto
saw MRIs of his shoulder, and said he would need surgery but would have to wait until he was
released. ECF No. 91 at 1. Plaintiff disagrees with the Report’s assertion he did not submit
medical proof he needed to see an orthopedic doctor, as his MRIs show tears in his shoulder and
Dr. Papotto said he would need surgeries. Id. He further argues the MRIs and Dr. Papotto’s
statement “prove Dr. Papotto was deliberately indifferent to Plaintiff’s serious medical needs.” Id.
at 2. No further objections were included.
Defendants Owens and Thompson were the only Defendants to file a reply to Plaintiff’s
objections. In their reply, they argue Plaintiff offered no specific objections related to them, but
only challenged findings as to Dr. Papotto. ECF No. 92 at 2. Therefore, they contend, the balance
of the Report should be reviewed only for clear error. As no clear error exists, they argue, summary
judgment should be granted for Owens and Thompson. Id.
The court agrees Plaintiff has not offered specific objections to any portion of the Report
except for the conclusions regarding medical evidence as to his shoulder.
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The Report’s

conclusions regarding injunctive relief, a possible HIPAA claim, a possible retaliation claim, and
claim regarding non-medical personnel (Owens and Thompson) are therefore reviewed for clear
error. Finding none, the court adopts these portions of the Report and incorporates them by
reference into this order. Summary judgment is granted to Defendants on these claims.
As to Plaintiff’s claim for deliberate indifference of serious medical needs against medical
personnel, the court finds Plaintiff’s objections require de novo review of this portion of the Report.
However, the court ultimately agrees with the Magistrate Judge that no medical Defendants
(Papotto, Vanduser, or Wineglass) were deliberately indifferent to Plaintiff’s serious medical
needs. Plaintiff’s objections concern his shoulder MRIs and ongoing pain while he was a pretrial
detainee. However, the evidence and medical records show Plaintiff was seen multiple times by
physicians and medical staff at the Detention Center for chronic shoulder pain, and was prescribed
medication – just not the medication Plaintiff desired. It is well established that deliberate
indifference cannot be shown merely by a plaintiff’s disagreement with the treatment provided.
Jackson v. Sampson, 536 F. App’x 356, 357 (4th Cir. 2013) (citing Russell v. Sheffer, 528 F.2d
318, 319 (4th Cir. 1975)) (“An inmate’s mere disagreement with the course of treatment provided
by medical officers will not support a valid [deliberate indifference] claim.”). Further, while
Plaintiff has provided evidence of a shoulder injury and/or pain, he has not provided evidence that
the treatment of his shoulder while at the Detention Center, namely the failure to send him for an
external orthopedic consultation or to prescribe narcotic pain medications, establishes a violation

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of his constitutional rights via deliberate indifference. Accordingly, the medical Defendants are
entitled to summary judgment on the deliberate indifference claim.1
III.

CONCLUSION

Having conducted a de novo review of the Report and underlying motion and related
memoranda, and having fully considered Plaintiff’s objections, the court adopts the Report and it
is incorporated into this order. Defendants’ motions to dismiss and/or for summary judgment
(ECF Nos. 43, 44, 45, 46, 51) are granted, and this matter is dismissed with prejudice.
IT IS SO ORDERED.
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
July 31, 2019

1

As noted by the Magistrate Judge, Defendant Mediko, which provided medical services to
detainees at the Detention Center pursuant to a contract, could be liable to Plaintiff if a
constitutional violation resulting in damages was the result of a policy or custom of Mediko. ECF
No. 89 at 30. Plaintiff provided no objections regarding Defendant Mediko or its policies, and the
court finds no clear error.
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