Hoffman v. Tuten, No. CA.9:05 1773 PMD GCK.

Page 455

446 F.Supp.2d 455

Frank E. HOFFMAN, Plaintiff, v. Cindy TUTEN, Bernardo Parina, M.D. and NFN Bush, Defendants.

No. CA.9:05 1773 PMD GCK.

United States District Court, D. South Carolina, Beaufort Division.

August 9, 2006.

Frank E. Hoffmann, Juno, FL, Pro se.

Barbara Murcier Bowens, US Attorneys Office, Columbia, SC, for Defendants.

ORDER

DUFFY, District Judge.

On June 21, 2005, pro se litigant Frank E. Hoffman ("Plaintiff" or "Hoffman") brought an action against employees of the Bureau of Prisons, Defendants Cindy Tuten, Bernardo Parina, M.D. and Jackie Reed-Bush, alleging violations of his rights under the Eighth Amendment. This matter is before the court upon Magistrate Judge George C. Kosko's recommendation that this court grant Defendants' motion to dismiss. The court received the Magistrate Judge's Report and Recommendation ("R & R") on May 31, 2006. A party may object, in writing, to a R & R within ten days after being served with a copy of that report. 28 U.S.C. § 636(b)(1). Hoffman's objections to the R & R, postmarked June 26, 2006, were filed with this court on June 30, 2006. Although these objections are untimely, given the more lenient standards applicable to pro se litigants, the court considers the objections on their merits.

I. BACKGROUND

Frank E. Hoffman is a resident of Palm Beach County, Florida, and a former federal prisoner. Hoffman filed his action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), which allows an action against federal employees for violations of constitutionally protected rights. A Bivens action is analogous to a claim under 42 U.S.C. § 1983, except the action is brought against a federal employee rather than an employee acting under the color of state law. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

Plaintiff Hoffman was incarcerated at Federal Correctional Institute in Estill, South Carolina, ("FCI Estill") from June 13, 2001, through June 25, 2003. During his incarceration at FCI Estill, Plaintiff was diagnosed with Hepatitis C. Plaintiff claims that he contracted Hepatitis C due to the deliberate indifference to his wellbeing and negligence of Defendant Cindy Tuten, a Medical Technician employed by FCI Estill. Plaintiff alleges that Tuten drew blood with a syringe that was unpackaged before he arrived in the room despite Plaintiff's insistence that she use a clean syringe unpackaged in his presence. Plaintiff asserts that the use of this unsanitary syringe is the only possible way he could have contracted Hepatitis C.

Plaintiff next contends that former Clinical Director Bernardo Parina¹ and Health Information Supervisor Jacquelyn Reed-Bush, doctors employed by FCI Estill, were deliberately indifferent to his wellbeing by failing to provide him with medication to treat his disease. Plaintiff seeks damages for injury caused by his continued physical symptoms of Hepatitis C and for the emotional distress of knowing the disease was unnecessarily inflicted upon him by Defendant Tuten. Plaintiff alleges that the Defendants individually and collectively violated his Eighth Amendment rights by their deliberate indifference to his physical and mental well-being by "inflicting upon him Hepatitus C, and then by deliberately refusing to treat him for the same." (Complaint at 3.) Plaintiff requests a jury trial, and seeks compensation in the amount of $500,000 from each Defendant to compensate him for his physical and mental harm, as well as punitive damages.

II. PROCEDURAL HISTORY

Plaintiff filed this action on June 21, 2005. The court issued an Order authorizing service of process on July 18, 2005, requiring that service be made on or before October 21, 2005. Because no Defendants had been served by that deadline, on October 27, 2005 the Magistrate Judge issued an Order allowing Plaintiff an additional ten days to properly serve Defendants. The court received no evidence that Defendants had been properly served by the deadline. Accordingly, on November 9, 2005 the Magistrate Judge filed an R & R recommending that the action be dismissed for lack of prosecution.

Plaintiff objected to the R & R on November 18, 2005, noting that he had not received the Order detailing the October 27, 2005 deadline for service. Hurricane Wilma was presumed to be the reason that Plaintiff failed to receive the Court's Order. Attached to Plaintiff's objections were proofs of service indicating that Dr. Bush and Ms. Tuten had been served on October 14, 2005, within the 120 days required under Federal Rule of Civil Procedure 4(m). Plaintiff requested additional time to serve Dr. Parina.

An answer was filed on behalf of all three named defendants on December 14, 2005. The answer denied all claims asserted by Plaintiff. Furthermore, Defendants primarily argued that the action should be dismissed because the three year statute of limitations had run as of March 18, 2005, while Plaintiff did not file suit until June 21, 2005. Defendants also asserted a defense of qualified immunity. Plaintiff responded to the answer on January 13, 2006, noting that Defendants failed to produce any medical records to substantiate their claim that Plaintiff was diagnosed with Hepatitus C between March 1 and March 18, 2002. Plaintiff further asserted that regardless of when he was diagnosed with Hepatitis C, Defendants provided no evidence to dispute his claim that he was denied treatment for his disease. Finally, Plaintiff argued that Defendants were not entitled to qualified immunity because Plaintiff enjoyed an established right to adequate medical care.

On January 20, 2006, this court issued an Order granting Plaintiff an extension until February 10, 2006, to serve Dr. Parina. The case was also remanded to Magistrate Judge Kosko for further disposition.

On February 22, 2006, Defendants filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Defendants attached the affidavit of Roy Lathrop to their Motion. Plaintiff filed a preliminary response on March 23, 2006, and on March 29, 2006, the Magistrate Judge granted Plaintiff a time extension in which to file a substantive response to the Defendant's Motion to Dismiss. Plaintiff filed his substantive response on April 19, 2006. Defendants filed their Reply on April 28, 2006, and attached the affidavit of Dr. Zoltan Vendel, the clinical director at FCI Estill. On May 1, 2006, Plaintiff filed a Motion to add Dr. Zoltan Vendel as a defendant and a Motion for Summary Judgement. Defendants filed a Response opposing both motions.

United States Magistrate Judge George C. Kosko recommended that the Defendants' Motion to Dismiss be granted; Plaintiff's Motion to add a Defendant be deemed moot; and Plaintiffs Motion for Summary Judgement be denied.

III. STANDARD OF REVIEW

A. Magistrate Judge's R & R

The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 269, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court reviews de novo those portions of the R & R to which a 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 him with instructions. 28 U.S.C. § 636(b)(1)(C).

After a review of the entire record, the R & R, and Plaintiffs objections, the court finds that the Magistrate Judge fairly and accurately summarized the facts and applied the correct principles of law. Therefore the court adopts the Magistrate Judge's R & R in full and incorporates it by specific reference into this Order.

B. Legal Standard For Summary Judgment

Defendants filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). Where, as in this case, a motion to dismiss under Rule 12(b)(6) is accompanied by exhibits, affidavits and other material to be considered by the court, the motion shall be construed as motion for summary judgement pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Fed. R. Civ. Pro. 12(b).

To grant a motion for summary judgment, the court must find that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The judge is not to weigh the evidence but rather to determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All evidence should be viewed in the light most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir.1990). "[W]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, disposition by summary judgment is appropriate." Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir.1991). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The "obligation of the nonmoving party is `particularly strong when the nonmoving party bears the burden of proof.'" Hughes v. Bedsole, 48 F.3d 1376, 1381 (4th Cir.1995) (quoting Pachaly v, City of Lynchburg, 897 F.2d 723, 725 (4th Cir.1990)). Summary judgment is not "a disfavored procedural shortcut," but an important mechanism for weeding out "claims and defenses [that] have no factual bases." Celotex, 477 U.S. at 327, 106 S.Ct. 2548.

IV. DISCUSSION

With respect to Defendants' Rule 12(b)(1) motion, the Magistrate Judge recommended that Dr. Parina be dismissed because he was not served within the time...