R. BRYAN HARWELL, District Judge
Plaintiff Tyron Morton was a pre-trial detainee at the Aiken County Detention Center ("ACDC") at the time of the alleged incidents giving rise to this action. Plaintiff filed a complaint against defendants alleging medical deliberate indifference under 42 U.S.C. § 1983.
As noted in the Court's discussion of plaintiff's objections, plaintiff objects to his classification as a pretrial detainee.
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02, this matter was referred to United States Magistrate Judge Robert S. Carr for pretrial handling. Before the court is defendants' motion for summary judgment filed September 1, 2004. Plaintiff filed a response to the motion for summary judgment on October 18, 2004. On November 23, 2004, United States Magistrate Judge Robert S. Carr issued a report analyzing the issues and recommending that the District Court grant the defendants' motion for summary judgment. The plaintiff filed objections to the Report on December 10, 2004.
The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. Mathews v. Weber, 423 U.S. 261, 270 (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, 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).
The district court is obligated to conduct a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the district 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 Judge's proposed findings and recommendations. Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982).
Facts
The Court notes that since this is defendants' motion for summary judgment all facts will be viewed in the light most favorable to plaintiff as the non-moving party.
The court agrees with the factual and procedural background as set forth by the Magistrate Judge in his Report and Recommendation. The court therefore adopts the Magistrate Judge's version of the facts in this case to the extent such facts are not specifically included herein.
On February 4, 2004, the plaintiff was arrested and housed at the ACDC to await disposition of criminal charges. On the night of February 13, 2004, plaintiff experienced chest pains and pressed the "call button" in his cell. No one responded to this call. Half an hour later Morton stopped an officer walking in the hall and told him he was having difficulty breathing. That officer got defendant Smith on the intercom and Smith called defendant Fields. Defendants Fields and Hall came to the plaintiff's cell and escorted him to the day room where he was observed by the defendants for approximately twenty (20) minutes. Morton did not appear to be having any difficult speaking and the officers did not believe he was in any distress. Plaintiff claims he should have been considered a "medical emergency" requiring immediate medical attention. Morton was put back in his cell and monitored by the in-cell communication system which allowed the control room to listen to sounds in Morton's cell. Additionally, defendant Hall checked on Morton every thirty (30) minutes throughout the night.
Morton was seen in the medical department the next day. His medical records indicate that he was not having difficulties and he was breathing normally. Morton did not return to medical. He does not allege that he suffered any injury as a result of not being seen by a medical staff member that evening.
Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is well established that summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987).
The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). When the defendant is the moving party and the plaintiff has the ultimate burden of proof on an issue, the defendant must identify the parts of the record that demonstrate the plaintiff lacks sufficient evidence. The nonmoving party, here the plaintiff, must then go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also generally Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
A party "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Therefore, "[m]ere unsupported speculation . . . is not enough to defeat a summary judgment motion." Ennis v. National Ass'n of Bus. Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
Discussion
The plaintiff makes several objections to the Report and Recommendation. Some of those objections do not weigh on the merits of this motion and, therefore, need not be addressed by this Court. Those objections include: (1) an objection to the caption; (2) the Magistrate Judge's interpretation of plaintiff's motion to amend; (3) the Report's failure to reflect that the plaintiff filed a motion to strike the defendants' unsigned affidavits; (4) plaintiff was not released from the ACDC on February 19, 2004; and (5) the plaintiff disagrees with the Magistrate Judge's recommendation as to the disposition of this case.
Plaintiff Asserts that he was not a Pretrial Detainee
The plaintiff objects to the Magistrate Judge's classification of him as a pretrial detainee at the time of this incident. Confinement conditions of pretrial detainees are to be evaluated under the Due Process Clause, rather than under the Eighth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). However, as a practical matter, the contours of the Due Process Clause in this context tend to be coextensive with the substantive constitutional principles applied via the Eighth Amendment to convicted inmates. Riley v. Dorton, 115 F.3d 1159, 1166-67 (4th Cir. 1997) (excessive force claim); Hill v. Nicodemus, 979 F.2d 987, 991-92 (4th Cir. 1992) (medical needs).
The Fourth Circuit stated in Hill v. Nicodemus, 979 F.2d 987 (4th Cir. 1992), that, "as a practical matter . . . we do not distinguish between the Eighth and Fourteenth Amendments in the context of a pre-trial detainee's § 1983 claim." Id. at 990-92; see also Belcher v. Oliver, 898 F.2d 32, 33 (4th Cir. 1990). Thus, despite the Supreme Court's suggestion in Wolfish that pre-trial detainees may be afforded greater protection than convicted prisoners, the circuit courts have generally analyzed both situations under the same "deliberate indifference" standard. See Hill, 979 F.2d at 991 n.* (citing cases); Bass v. Jackson, 790 F.2d 260, 262-63 (2d. Cir. 1986); Hare v. City of Corinth, 74 F.3d 633, 643 (5th Cir. 1996); Zarnes v. Rhodes, 64 F.3d 285, 290 (7th Cir. 1995); Johnson v. Busby, 953 F.2d 349, 351 (8th Cir. 1992); Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996). Consequently, the plaintiff's status as a pretrial detainee or inmate does not impact the analysis by the Magistrate Judge or this Court.
Defendants' Affidavits
The plaintiff objects to any inference that the defendants filed signed affidavits with their motion for summary judgment on September 1, 2004. Plaintiff asserts, correctly it appears, that defendants Hall and Fields signed their affidavits on September 13, 2004 and defendant Smith signed his affidavit on September 3, 2004. Plaintiff objects to any reliance on the defendants' affidavits on the basis that they were untimely filed. The Court notes that signed copies of the defendants' affidavits were not filed until October 21, 2004. Under Local Civil Rule 7.05 states: "Where appropriate, motions shall be accompanied by affidavits or other supporting documents." While the original affidavits filed by the defendants were unsigned, this error was corrected before the filing of the Magistrate Judge's Report and Recommendation and before plaintiff filed his objections with the Court as to those affidavits. This Court finds no harm to the plaintiff in considering these affidavits because he was given ample opportunity to respond to them both after the unsigned affidavits were filed and after the signed affidavits were filed.
Deliberate Indifference and Resulting Injury
The plaintiff alleges that the defendants were deliberately indifferent because they "knew or should have know[n] that he suffered with a life-threatening disease `asthma' and that his mother had `brought both of' his `asthma inhalers up to the Detention Center on Feb. 9, 2004' and his medication was not given to him forthwith." Objections p. 3. Plaintiff further states that he "saw only a nurse on 2-14-04 who is not a doctor and [did not] specialize in treatment of asthma." Id.
In the case of Estelle v. Gamble, 429 U.S. 91 (1976), the Supreme Court reviewed the Eighth Amendment prohibition of punishments which "involve the unnecessary and wanton infliction of pain." Id. quoting Gregg v. Georgia, 428 U.S. 153, 169-173 (1976). The Court stated:
An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. . . . We therefore conclude that deliberate indifference to serious medical needs of a prisoner constitutes the "unnecessary and wanton infliction of pain" proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983.
Estelle, 429 U.S. at 103-1005 (Footnotes and internal citation omitted).
Despite finding that "deliberate indifference to serious medical needs" was violative of a constitutionally protected right, the court was careful to note, however, that "an inadvertent failure to provide adequate medical care" does not meet the standard necessary to allege an Eighth Amendment violation:
a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.
Estelle, 429 U.S. at 107.
The Fourth Circuit Court of Appeals considered this issue in the case of Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990). In that case, the court noted that treatment "must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness, . . . nevertheless, mere negligence or malpractice does not violate the Eighth Amendment." Id. at 851 (internal citations omitted). Unless medical needs were serious or life threatening, and the defendant was deliberately and intentionally indifferent to those needs of which he was aware at the time, the plaintiff may not prevail. Estelle; supra; Farmer v. Brennan, 511 U.S. 825 (1994); Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986).
In order to establish a prima facie case under the Eighth Amendment, plaintiff must show that, objectively assessed, he had a "sufficiently serious" medical need to require treatment." Brice v. Virginia Beach Correctional Ctr., 58 F.3d 101, 104 (4th Cir. 1995). "A medical need is `serious' if it is `one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention' or if denial of or a delay in treatment causes the inmate `to suffer a life-long handicap or permanent loss.'" Coppage v. Mann, 906 F. Supp. 1025, 1037 (E.D. Va. 1995) ( quoting Monmouth Co. Correctional Institution Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).
Further, incorrect medical treatment, such as an incorrect diagnosis, is not actionable under 42 U.S.C. § 1983. Estelle, supra. Negligence, in general, is not actionable under 42 U.S.C. § 1983. See Davidson v. Cannon, 74 U.S. 344, 345-48 (1986); Daniels v. Williams, 474 U.S. 327, 328-36 n. 3 (1986); Pink v. Lester, 52 F.3d 73, 38 (4th Cir. 1995) ( applying Daniels v. Williams and Ruefly v. London: "The district court properly held that Daniels bars an action under § 1983 for negligent conduct."); Ruefly v. Landon, 825 F.2d 792, 793-94 (4th Cir. 1987).
Additionally, 42 U.S.C. § 1983 does not impose liability for violations of duties of care arising under state law. DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 200-03 (1989). Similarly, medical malpractice is not actionable under 42 U.S.C. § 1983. Estelle, supra, at 106. ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.") Thus, even if the plaintiff were able to show that defendants' actions somehow constituted medical negligence or medical malpractice, these are not actionable under 42 U.S.C. § 1983.
"Although the Constitution does require that prisoners be provided with a certain minimum level of medical treatment, it does not guarantee to a prisoner the treatment of his choice." Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988). Although the provision of medical care by prison officials is not discretionary, the type and amount of medical care is discretionary. See Brown v. Thompson, 868 F. Supp. 326 (S.D. Ga. 1994). Further, a disagreement as to the proper treatment to be received does not in and of itself state a constitutional violation. See Smart v. Villar, 547 F.2d 112 (10th Cir. 1976); Lamb v. Maschner, 633 F. Supp. 351, 353 (D. Kan 1986). Mistakes of medical judgment are not subject to judicial review in a § 1983 action. Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975).
Here, Morton has failed to carry his burden of showing a disputed issue of material fact. The medical records, as well as the affidavits of the defendants, demonstrate that Morton did not have a serious medical condition within the meaning of Estelle. Further, the medical attention Morton received is well documented, which undercuts the claim that any defendant was deliberately indifferent to his needs. The proper inquiry in an Eighth Amendment medical indifference case is whether the prison officials disregarded a serious medical condition; the plaintiff's agreement or disagreement with the treatment is irrelevant. Lamb, 633 F. Supp. at 353. To the extent Morton wanted more or different treatment than his doctor prescribed, and to the extent Morton disagreed with the nurse, such claims are not actionable in a civil rights action. Russell, 528 F.2d at 319.
Conclusion
The court has reviewed the Report, objections, pleadings, memoranda, and applicable law. The court adopts the Report and Recommendation and incorporates it herein by reference. Accordingly, summary judgment is GRANTED.
IT IS SO ORDERED.