Fluellen v. Epstein

Full title: Joshua Fluellen, Plaintiff, vs. Franklin M. Epstein, J.A. Serrano, L…

Court: United States District Court, D. South Carolina

Date published: Aug 19, 2003

CA No. 3:02-2091-20BC (D.S.C. Aug. 19, 2003)

Opinion

CA No. 3:02-2091-20BC

August 19, 2003

ORDER

HENRY HERLONG, District Judge

This matter is before the court with the Report and Recommendation of United States Magistrate Judge Joseph R. McCrorey, made in accordance with 28 U.S.C. § 636(b) and Local Rule 73.02 DSC.¹ Joshua Fluellen ("Fluellen"), a pro se federal prisoner, asserts a claim pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971) and a state law medical malpractice claim. The defendants filed motions for summary judgment. Magistrate Judge McCrorey recommends granting the defendants' motions for summary judgment. Fluellen filed objections. After review and for the reasons below, the court grants the defendants' motions for summary judgment.

1 The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the United States District Court. Mathews v. Weber, 423 U.S. 261, 270, 271 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

I. FACTUAL AND PROCEDURAL HISTORY

Fluellen is a federal prisoner who was previously incarcerated at FCI-Edgefield in South Carolina.² On October 16, 2001, while incarcerated at FCI-Edgefield, Fluellen received a spinal decompression recommended and performed by Dr. Frank M. Epstein ("Epstein"), a contract neurosurgeon with the Bureau of Prisons ("BOP"). The remaining defendants are healthcare workers employed by the BOP. In his complaint, Fluellen alleges that he was misled about and did not consent to the surgical procedure. Fluellen further alleges that he has suffered pain and disability as a result of poor care at the prison following the surgery, including being released into the general population too soon. Fluellen seeks in excess of five million dollars in damages.

II. DISCUSSION OF THE LAW A. Objections

Objections to the Report and Recommendation must be specific. Failure to file specific objections constitutes a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94 n. 4 (4th Cir. 1984). In the absence of specific objections to the Report and Recommendation of the magistrate judge, this court is not required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

Fluellen filed "objections" to the Report and Recommendation. After review, however, the court finds that the majority of Fluellen's objections are non-specific and merely restate his claim. The court will address several points in Fluellen's objections. To the extent Fluellen generally objects to the magistrate judge's determination that Fluellen failed to state a constitutional violation against J.A. Serrano ("Serrano"), L. Guevara ("Guevara"), Fuertes-Rosario, and Epstein the court has reviewed the record and agrees with the magistrate judge's recommendation. To the extent Fluellen seeks to assert a state medical malpractice claim, it appears his exclusive remedy is a claim filed pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.³ See 28 U.S.C. § 2679. Last, to the extent Fluellen generally objects to the magistrate judge's determination that the defendants are entitled to immunity, the court has reviewed the record and agrees with the magistrate judge's recommendation. Furthermore, the court has reviewed all of Fluellen's objections and finds them without merit. Therefore, after a thorough review of the Report and Recommendation and the record in this case, the court adopts the magistrate judge's Report and Recommendation and grants the defendants' motions for summary judgment.

3 Even if Fluellen was able to assert a state medical malpractice claim against Epstein, the court declines to exercise supplemental jurisdiction over such a claim. See 28 U.S.C. § 1367(c). In addition, Fluellen currently has a separate FTCA case pending against Serrano, Guevara, and Fuertes-Rosario.

Therefore, it is

ORDERED that the defendants' motions for summary judgment are granted.

IT IS SO ORDERED.

NOTICE OF RIGHT TO APPEAL

Plaintiff is hereby notified that he has the right to appeal this order within sixty days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.