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Parten v. Boland

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION
Oct 26, 2018
Case No. 2:17-cv-02539-TMC-MGB (D.S.C. Oct. 26, 2018)

Opinion

Case No. 2:17-cv-02539-TMC-MGB

10-26-2018

Jeffrey Bryn Parten, Plaintiff, v. Lt. Mickey Boland, Captain Kenneth Downing, Nurse Donna Miller, individually and in their official capacities, Defendants.


REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, brought this action pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.) This matter is before the Court upon Defendants' Motions for Summary Judgment. (Dkt. Nos. 35; 38.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. For the reasons set forth herein, the undersigned recommends granting both motions.

BACKGROUND

The events giving rise to the instant action occurred on the morning of August 29, 2017, when Plaintiff fell in the shower while he was a pretrial detainee at Greenwood County Detention Center ("the Detention Center"). (Dkt. No. 1-3 at 5.) Plaintiff alleges that he "slipped and fell on [his] left wrist" while exiting the shower. (Id.) Plaintiff alleges that "Officer James" and inmates Toyre Ned McCarthy and Tommy Smith witnessed the fall. (Id. 5-6.) Plaintiff alleges the "incident was due to negligence because there were no slip-resistant mats" in his shower. According to Plaintiff, he wrote maintenance three times in early September asking why there were not any slip resistant mats for "top tier showers" and was told "they were in the process of ordering mats." (Id. at 7, 10.)

Plaintiff alleges that as a result of the fall, he "sustained broken bones to my left wrist. As a result of slipping and falling on my wrist, it requires bones to be removed and fused together. I have not received treatment (surgery) [and am] gradually losing use of my hand/wrist. I stay in constant pain." (Id. at 6.) Plaintiff also alleges he injured his head and shoulder. (Dkt. No. 1 at 3.) Plaintiff alleges that he did not receive proper medical treatment for his injuries.

Plaintiff alleges that an "outside contractor" performed an x-ray on August 29, 2018. (Dkt. No. 1-3 at 10.) According to Plaintiff, "PA and Nurse Donna Miller both stated that [he] had multiple broken bones and [] would probably require surgery." (Id.) Plaintiff alleges that he put in a request to medical on August 30, 2017, and he was told an MRI was being scheduled. (Id.) Plaintiff alleges that on August 31, 2017, he was transferred to Self Regional Hospital for an MRI and more x-rays. (Dkt. No. 1 at 4.) Plaintiff alleges that he wrote to medical again on September 5, 2018 and September 9, 2018, complaining of the pain in his hand/wrist. (Dkt. No. 1-3 at 10.) Plaintiff alleges that Defendant Miller told him it looked like an old injury and if so, the Detention Center would not be responsible. (Id.) Plaintiff alleges that he went to Lakelands Orthopedics on September 11, 2017. (Id.) According to Plaintiff, the doctor stated that it was an old break, that Plaintiff had re-broken his hand/wrist, and that it would require surgery. (Id.) When the doctor asked about payment for surgery, Plaintiff alleges that his transportation officer told the doctor "it's an old injury, [the] Detention Center is not responsible." (Id.) Plaintiff alleges that his surgery was never scheduled. (Id.)

Plaintiff alleges that Defendants Boland and Downing violated Plaintiff's Fourteenth Amendment rights by refusing to provide slip resistant mats. (Dkt. No. 1 at 5.) Plaintiff further alleges that Defendant Miller refused to provide him the "right to medical care" in violation of the Eighth and Fourteenth Amendments. (Id. at 5-6.) He seeks actual and punitive damages. (Dkt. Nos. 1 at 6; 1-3 at 6.) Plaintiff also seeks injunctive relief in that the Court order "Donna Miller to send Plaintiff to an orthopedic to have [his] hand worked on or casted" to avoid permanent damage. (Dkt. No. 1 at 6.)

Plaintiff filed this action on September 20, 2017. On February 1, 2018, Plaintiff filed a letter with the Court, asserting that Defendants are denying him the surgery he needs and that he is "gradually losing mobility of [his] wrist/hand and muscle tissue due to pinched nerves" caused by his August 2017 fall. (Dkt. No. 21 at 1.) By Text Order, the Court asked Defendants to file a status report, advising the Court of the medical care Plaintiff has received, or is receiving, for the alleged injury. (Dkt. No. 23.) Defendants filed the requested status reports on February 16, 2018, asserting that Plaintiff has received proper medical care for the alleged injuries and that the surgery at issue was elective and was non-emergent. (Dkt Nos. 26 at 2-3; 27 at 2-3.)

On March 8, 2018, Defendants Lt. Mickey Boland and Captain Kenneth Downing filed a Motion for Summary Judgment. (Dkt. No. 35.) On March 9, 2018, Defendant Donna Miller filed a Motion for Summary Judgment. (Dkt. No. 38.) These motions have been fully briefed and are ripe for disposition.

STANDARDS

A. Liberal Construction of Pro Se Complaint

Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520.. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

B. Summary Judgment Standard

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).

DISCUSSION

Defendants present several arguments in support of their Motions for Summary Judgment. (Dkt. Nos. 35-1; 38-3.) They argue, inter alia, that Plaintiff has failed to establish a violation of his constitutional rights. In support of their motions, Defendants have submitted affidavits from Defendants Boland and Miller and Plaintiff's medical records and grievance records. The undersigned will address Plaintiff's claims in turn.

A. Conditions of Confinement

To state a claim that conditions of confinement violate constitutional requirements, "a plaintiff must show both '(1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.'" Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (quoting Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991)). Here, Plaintiff alleges that Defendants Boland and Downing violated his Fourteenth Amendment rights by refusing to provide slip resistant mats. (Dkt. No. 1 at 5.) Plaintiff does not allege that he asked for slip resistant mats prior to his fall or that he directly contacted these Defendants regarding his alleged requests for slip resistant mats.

Because at all relevant times Plaintiff was a pretrial detainee, his claims are evaluated under the Fourteenth Amendment rather than the Eighth Amendment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Gallipeau v. ABL Mgmt., Inc., Case No. 3:09-cv-1382, 2010 WL 3192934, at *4 (D.S.C. July 12, 2010), adopted by, 2010 WL 3192933 (D.S.C. Aug. 10, 2010). Under Bell v. Wolfish, a pretrial detainee faces a lighter burden to show a constitutional violation than under the Eighth Amendment. 441 U.S. 520, 537 n.16 (1979) (due process requires that a pretrial detainee not be punished; the Eighth Amendment requires that the punishment imposed not be cruel and unusual). But, as a practical matter, courts do not distinguish between the Eighth and Fourteenth Amendments in the context of a pretrial detainee's Section 1983 claim. See Hill v. Nicodemus, 979 F.2d 987, 990-92 (4th Cir. 1992); Gallipeau, 2010 WL 3192934, at *4.

Plaintiff's allegations against Defendant Miller relate only to Plaintiff's medical care.

Defendant Boland submitted an affidavit in support of his Motion for Summary Judgment, averring that precautions were taken regarding the showers at the Detention Center. Specifically, Defendant Boland avers that "prisoners are provided rubber shower shoes during intake at the [Detention Center] and the prisoners are allowed to wear the shoes in the shower for their health and safety." (Dkt. No. 35-2 ¶ 6.) According to Defendant Boland, "the rubber soles provide the prisoners traction on the wet shower floor so as to prevent falls such as the one the plaintiff alleges." (Id. ¶ 7.) He further avers that "the [D]etention [C]enter now has shower mats." (Id.)

In his response to Defendants' Motions for Summary Judgment, Plaintiff does not address Defendant Boland's claims as to the prisoners' access to rubber sole shoes. Plaintiff asserts that the fact that the Detention Center now has shower mats supports his conditions of confinement claim. (Dkt. No. 41 at 1-2.) Plaintiff also submitted a signed statement from Toyre Ned McCarthy III ("Mr. McCarthy"), who claims that he witnessed Plaintiff fall on August 29, 2017. (Dkt. No. 41-1.) Mr. McCarthy asserts that "[b]efore they installed the mats, the floors outside the shower were slippery." (Id.) Mr. McCarthy further claims that the slippery floors, "combined with the smooth bottomed shower shoes they provide," made it "easy to slip." (Id.) Mr. McCarthy does not claim that he reported his observations about the slippery shower conditions to any employees of the Detention Center.

The above evidence does not support finding a constitutional violation. It is undisputed that the Detention Center provided shoes for the prisoners to wear in the shower—Mr. McCarthy's statement supports this claim. In short, Plaintiff has failed to establish a condition posing a serious risk of substantial harm that was deliberately ignored by Defendants. Indeed, "courts have routinely held that slip and fall cases do not implicate the Constitution." Samuel v. Nolland, Case No. 2:11-cv-3417-MGL-BHH, 2013 WL 360263, at *3 (D.S.C. Jan. 9, 2013), adopted by, 2013 WL 361083 (D.S.C. Jan. 30, 2013) ("A slippery floor also does not amount to punishment in the constitutional sense.") (citing Bacon v. Carroll, 232 F. App'x 158, 160 (3d Cir. 2007) (holding a prisoner's assertion that prison officials failed to warn him of a wet floor stated a claim of mere negligence and not a constitutional violation); Reynolds v. Powell, 370 F.3d 1028, 1031-32 (10th Cir. 2004) (holding slippery conditions arising from standing water in a prison shower was not a condition posing a substantial risk of serious harm, even where the inmate was on crutches and had warned prison employees that he was at a heightened risk of falling); Beasley v. Anderson, 67 F. App'x 242 (5th Cir. 2003) (holding a prisoner's claim that he slipped and fell on a slippery shower floor sounded in negligence and was insufficient to allege a constitutional violation); Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (holding "an inch or two" of accumulated water in the shower was not "an excessive risk to inmate health or safety")); see also LaMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) ("[S]lippery prison floors . . . do not state even an arguable claim for cruel and unusual punishment." (quotations and citations omitted)); Sweat v. Walker, Case No. 9:08-cv-3095-HFF-BM, 2009 WL 2256475, at *1 (D.S.C. July 27, 2009) (rejecting claim for fall in prison shower where the inmate "maintain[ed] that Defendants knew the shower posed a risk because the shower beside the one he fell in had rubber mats"); Davis v. Reilly, 324 F. Supp. 2d 361, 367 (E.D.N.Y. 2004) (holding failure to provide shower mats does not rise to level of constitutional violation).

Likewise, because there was no constitutional violation with respect to the conditions of confinement claim, to the extent Plaintiff attempts to bring a supervisory liability claim against Defendants Boland and Downing, such a claim fails. See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (setting forth elements necessary to establish supervisory liability under § 1983). Plaintiff does not allege that these Defendants had any actual or constructive knowledge of a subordinate's actions that posed a pervasive and unreasonable risk of constitutional injury, or that there was an affirmative causal link between any purported inaction and the alleged constitutional injury. See Gathers v. Clarey, Case No. 2:12-2206-JMC-BHH, 2012 WL 11894584, at *2 (D.S.C. Aug. 24, 2012), adopted by, 2014 WL 4955281 (D.S.C. Sept. 30, 2014) (recommending dismissal of supervisory § 1983 claims where the complaint lacked "allegations sufficiently showing the supervisors' personal or constructive knowledge of ongoing problems at [Georgetown County Detention Center]").

Here, Plaintiff's allegations given rise to, at the most, a negligence claim. A claim of negligence is not actionable under § 1983, and this claim should therefore be dismissed. See Samuel, 2013 WL 360263, at *3 (noting that "negligence is not actionable in a § 1983 action," and finding that "slip and fall cases articulate state law tort claims at best"); Green v. Rushton, Case No. 8:05-cv-2251-GRA-BHH, 2006 WL 2564396, at *4 (D.S.C. Sept. 1, 2006) (dismissing the plaintiff's "run-of-the-mill slip and fall negligence claim," noting "[i]t is well-settled that mere negligence does not state a viable Eighth Amendment claim").

B. Claim for Deliberate Indifference to Serious Medical Needs

To prevail on an Eighth Amendment deliberate indifference claim, "a prisoner must prove two elements: (1) that objectively the deprivation of a basic human need was sufficiently serious, and (2) that subjectively the prison officials acted with a sufficiently culpable state of mind." Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998) (internal quotation marks and citations omitted). The first element "is satisfied by a serious medical condition," while the second element "is satisfied by showing deliberate indifference by prison officials." Id. "[A]n inadvertent failure to provide adequate medical care" will not comprise an Eighth Amendment breach. Estelle v. Gamble, 429 U.S. 97, 105-106 (1976).

The standard for reviewing medical claims of pretrial detainees under the Fourteenth Amendment is essentially the same as that for a convicted prisoner under the Eighth Amendment—deliberate indifference to serious medical needs. See Hill, 979 F.2d at 991.

Here, Plaintiff alleges that he did not receive proper medical treatment after he fell in the shower. (Dkt. Nos. 1 at 3-5; 1-3 at 9-10.) It appears Plaintiff's chief complaint is that he was denied surgery for his hand, which allegedly broke during the fall. (Id.) In his response in opposition to Defendants' Motions for Summary Judgment, Plaintiff asserts that he is losing mobility and muscle tissue due to pinched nerves caused by his fall. (Dkt. No. 41 at 1-2.) In support of their Motions for Summary Judgment, Defendants have submitted Plaintiff's medical records detailing the treatment Plaintiff received after his fall on August 29, 2017, as well as Plaintiff's grievance records. (Dkt. Nos. 35-2; 38-2.)

Medical progress notes signed by Donna Miller indicate that she saw Plaintiff after his fall on August 29, 2017. (Dkt. No. 38-2 at 9.) Plaintiff reported elbow and wrist pain. (Id.) Defendant Miller wrapped Plaintiff's wrist in an ace bandage, provided Plaintiff with an ice pack, gave him Tylenol, and arranged for x-rays. (Id. at 9, 21.) That same day, x-rays were taken, and the report came back indicating an "age-indeterminate scaphoid wrist fracture" and a "distal radial metaphysical fracture," as well as noting some degenerative changes at the thumb. (Id. at 22-23.) The Medical Director reviewed the report that same day and ordered an MRI of Plaintiff's wrist as well as a "STAT" referral to an orthopedist. (Id. at 23.)

On August 30, 2017, Plaintiff filed a grievance stating that he went to the nurse following his "accident," and she wrapped his injured wrist and ordered an x-ray, which was taken that afternoon. (Id. at 24.) Plaintiff stated that the x-ray revealed he had broken bones in his left wrist, and he asked to see a doctor due to pain in his left shoulder. (Id.)

Plaintiff's MRI was taken on August 31, 2017. (Id. at 25.) The MRI report was returned the same day and indicated "no definitive acute fracture line," but "an old transverse facture across the mid scaphoid." (Id. at 178.) The report also indicated degenerative changes. (Id.) On September 5, 2017, Plaintiff filed another grievance stating that an MRI and more x-rays had been taken. (Id. at 28.) Plaintiff noted that it had been a week since his accident and asked that someone please call Lakelands Orthopedics to make sure they received the MRI and x-rays. He stated that his "wrist-hand is in constant pain." (Id.)

Plaintiff visited Lakelands Orthopedics on September 11, 2017. (Id. at 106.) Medical notes from that visit asses a "nonunion scaphoid fracture" and conclude that "this is a chronic issue going on with his wrist with his previous noncompliance with scaphoid fracture. . . . back in 2013." (Id. at 107.) The notes further diagnose Plaintiff with arthritis in his left wrist. (Id. at 108.) Plaintiff was ordered to keep the wrist splinted and follow up with another orthopedist in the practice. (Id. at 107.) The notes state that Plaintiff "understands he may require injections or major corrective surgery in the future." (Id.)

On October 10, 2017, filed another grievance stating

Micky Boland, my hand is constantly in pain and I can't even hold anything in it. I broke my hand while I was under Greenwood County's care. Yes, it was determined to be an old injury, but it was a new break. Apparently y'all feel that Greenwood County Detention Center is not responsible. It requires surgery is what Lakelands Orthopedics said on 9-11-2017.
(Id. at 34.)

Under the grievance's "findings" dated October 16, 2017, it notes that Plaintiff was "made aware that injury was preexisting and jail is not paying for surgery[;] explained to inmate to speak [to] office about a payment plan." (Id.)

On October 24, Plaintiff visited Dr. King at Lakelands Orthopedics. (Id. at 109.) During that visit, Plaintiff received injections of lidocaine and celestone. (Id. at 110.) Medical notes from that visit assess Plaintiff with "mild left carpal tunnel syndrome" and wrist arthritis. (Id. at 109.) Dr. King informed Plaintiff "that his wrist symptoms stem from an old injury"; that Plaintiff "does have some arthritic changes and that his pain may have stemmed from his injury but the fracture did not." (Id.) Dr. King ordered a follow up appointment in one month. (Id.)

On October 26, 2017, Plaintiff filed a grievance complaining of constant pain in his wrist, and he asked for pain medication. (Id. at 36.) Under the grievance's "findings" signed by Defendant Miller on October 26, 2017, it notes that Miller spoke to Lakelands Orthopedics and they stated the "problem is chronic" and that Plaintiff can use over the counter medication. (Id.) Plaintiff filed another grievance on November 1, 2017, complaining that his left arm is throbbing. (Id. at 37.) He states "maybe nerve is pinched from my accident Aug-29-2017 or poor circulation. Don't know but need to have something done about it ASAP." (Id.) Plaintiff was prescribed 650 mg of Tylenol that same day. (Id. at 39.) On November 14, 2017, Plaintiff filed a grievance stating his "wrist is still hurting me badly." (Id. at 40.) Medical notes dated November 16, 2017, indicate that Plaintiff was prescribed 600 mg of Ibuprofen and note that Plaintiff has an appointment scheduled with an orthopedist. (Id. at 42.)

On November 21, 2017, Plaintiff filed a grievance stating his "wrist is still in constant pain." (Id. at 43.) He was prescribed 650 mg of Tylenol that same day. (Id. at 45.) Plaintiff filed another grievance on November 28, 2017 complaining that he was "still having problems with [his] left wrist." (Id. at 46.) Plaintiff was prescribed 650 mg of Tylenol and advised to speak to an orthopedist about his pain at his next visit. (Id.)

Plaintiff visited Dr. King again on December 6, 2017. (Id. at 111.) He noted an "extra-articular distal radius fracture which could not be seen on previous films." (Id.) He ordered Plaintiff to continue wearing the splint and that if "neurologic symptoms worsen, . . . he will need surgical intervention." (Id.)

On December 6, 2017, Plaintiff filed a grievance, noting that he had seen the orthopedist that day, and was told he "had a new break in [his] hand but it's healing okay." (Id. at 47.) Plaintiff stated he has "pinched nerves and it still hurts badly." (Id.) He asks for "Ibuprofen once a day for a few days." (Id.) Plaintiff was prescribed 650 mg of Tylenol. (Id.)

At Plaintiff's next appointment with Dr. King on January 10, 2017, Dr. King noted that Plaintiff's distal radius fracture healed, but Plaintiff still had arthritis. (Id. at 113.) He recommended "ulnar nerve decompression at the left elbow with possible anterior transportation, left carpal tunnel decompression and scaphoid excision with limited left wrist arthrodesis with distal radius bone graft." (Id.) He states he discussed the "procedure and postoperative course" with Plaintiff, and that Plaintiff "understands and wished to proceed with surgery." (Id.)

On January 15, 2018, Plaintiff filed a grievance asking Defendant Miller "the newest development in scheduling [his] surgery for [his] hand-wrist." (Id. at 54.) Under the grievance's "findings" dated January 16, 2018, it notes that Plaintiff was "made aware that Lakelands stated surgery was elective" and "it was a chronic problem that inmate had had for years." (Id.) Plaintiff was prescribed 400 mg of Ibuprofen on January 20, 2018. (Id. at 56-57.)

Defendant Miller has submitted an affidavit, averring that she "responded to [Plaintiff's needs and provided him with appropriate care." (Dkt. No. 38-1 ¶ 16.) Defendant Miller avers that she called Lakeland Orthopedics about the surgery after Plaintiff's last visit with Dr. King, and that they "advised me at that time that Dr. King had recommended surgery, but that it was an elective procedure and not emergent. Because it was an elective procedure, Lakelands advised me that payment for the surgery would be required up front." (Id. ¶¶ 9, 10.) Defendant Miller "requested a copy of the records so that [she] could discuss the matter with [the] Medical Director." (Id. ¶ 10.) Defendant Miller avers that the Medical Director examined Plaintiff and confirmed there were no indications of an emergent condition. (Id. ¶ 11.) Defendant Miller advised Plaintiff "that if he wanted the surgery immediately, he would have to arrange for payment, per Lakelands Orthopedics' requirement for elective procedures." (Id.)

The submitted evidence does not support finding a claim for deliberate indifference. Rather, the record shows that Defendant Miller treated Plaintiff's injuries the day he fell and arranged for proper follow up care. Plaintiff had x-rays taken the same day, and he had an MRI only two days later. The record shows that the medical staff, including Defendant Miller, repeatedly saw and treated Plaintiff for his complaints regarding his shoulder, left hand and wrist. See, e.g., Breyan v. Thomas, Case No. 216-cv-03926BHH-MGB, 2018 WL 3912373, at *6 (D.S.C. July 30, 2018), adopted by, 2018 WL 3873392 (D.S.C. Aug. 14, 2018) ("Given that Plaintiff was taken to medical, and evaluated by medical staff, immediately after the use of force, the undersigned concludes no reasonable jury could find Defendants . . . were deliberately indifferent to Plaintiff's serious medical needs."); Singletary v. Fallen, Case No. 0:11-cv-543, 2012 WL 368375 (D.S.C. Jan. 17, 2012), adopted by, 2012 WL 368364 (D.S.C. Feb. 3, 2012) (granting summary judgment to prisoner alleging deliberate indifference because medical records showed that prisoner was seen repeatedly for his complaints regarding foot pain).

While Plaintiff asserts that he needs surgery, the undisputed evidence indicates that surgery was recommended to address Plaintiff's carpal tunnel syndrome and other conditions stemming from Plaintiff's 2013 scaphoid injury, and that the surgery was not emergent. "The fact that [Plaintiff] believe[s] he ha[s] a more serious injury or that he require[s] better treatment does not establish a constitutional violation." Krug v. Loranth, No. 1:13-cv-01409-DCN, 2014 WL 4955365, at *4 (D.S.C. Sept. 29, 2014), aff'd, 599 F. App'x 512 (4th Cir. 2015); see also Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (holding that "[d]isagreements between an inmate and a physician over the inmate's proper medical care" are not sufficient to raise an Eighth Amendment claim pursuant to § 1983). Further, to the extent Plaintiff alleges that he remains in pain, "the Eighth Amendment does not require that the Plaintiff be cured." Collins v. Mauney, Case No. 2:14-cv-4270-RMG-MGB, 2016 WL 805918, at *4 (D.S.C. Jan. 26, 2016), adopted by, 2016 WL 881962 (D.S.C. Mar. 1, 2016).

CONCLUSION

It is therefore RECOMMENDED, for the foregoing reasons, that Defendants Motions for Summary Judgment (Dkt. Nos. 35; 38) be GRANTED, and that Plaintiff's Complaint be dismissed with prejudice.

IT IS SO RECOMMENDED.

/s/_________

MARY GORDON BAKER

UNITED STATES MAGISTRATE JUDGE October 26, 2018
Charleston, South Carolina

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n 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 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29402

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).


Summaries of

Parten v. Boland

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION
Oct 26, 2018
Case No. 2:17-cv-02539-TMC-MGB (D.S.C. Oct. 26, 2018)
Case details for

Parten v. Boland

Case Details

Full title:Jeffrey Bryn Parten, Plaintiff, v. Lt. Mickey Boland, Captain Kenneth…

Court:DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

Date published: Oct 26, 2018

Citations

Case No. 2:17-cv-02539-TMC-MGB (D.S.C. Oct. 26, 2018)