Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wishard v. United States

United States District Court, E.D. North Carolina, Western Division

February 23, 2017

DWIGHT CHARLES WISHARD, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          JAMES C. FOX Senior United States District Judge

         This matter is before the court on the Order and Memorandum and Recommendation ("Order and M&R") of United States Magistrate Judge Robert T. Numbers, II, pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) [D.E. 15]. For the reasons addressed below, this court ADOPTS the Order and M&R.

         BACKGROUND

         On July 12, 2016, plaintiff Dwight Charles Wishard ("plaintiff or "Wishard") filed a lawsuit seeking monetary damages and injunctive relief, alleging that the defendants are violating his constitutional rights and engaging in negligence by providing inadequate medical care for his bone cancer.[1] He claims that he is entitled to receive a specific medication to combat a recurrence of bone cancer, but that medical providers have prescribed a different and inferior medication. Additionally, he claims that the United States Parole Commission violated his Fifth Amendment due process rights by revoking his parole based upon state charges; the staff at Federal Medical Center Butner is retaliating against him, in violation of his First Amendment rights, by planning to transfer him to another facility; and the staff at Federal Correctional Center Coleman ("FCC Coleman"), where he was confined prior to FMC Butner, was negligent by not providing him with cancer treatments for several months while he was incarcerated there. Wishard has also been pursuing an Administrative Tort Claim in relation to the care he received while at FCC Coleman. Wishard has additionally filed a motion for summary judgment [D.E. 11] and a motion for entry of default [D.E. 14].

         On January 13, 2017, Judge Numbers issued his Order and M&R and (1) allowed Wishard's FTCA claim to proceed, (2) recommended dismissal of Wishard's constitutional claims, and (3) recommended that Wishard's motions for preliminary injunction, entry of default, and summary judgment be denied. On February 1, 2017, Wishard filed objections to the Order and M&R [D.E. 16], accompanied by a 63-page exhibit [D.E 16-1].

         In the Order and M&R, Judge Numbers summarized the factual allegations as follows:

Wishard is serving a 24-month sentence at the Federal Medical Center Butner ("FMC Butner"), after a parole revocation. See https://www.bop.gov/inmateloc/ (last visited December 19, 2016). Prior to February 23, 2015, when United States Marshals Service arrested Wishard for allegedly violating his parole, he was receiving zoledronic acid-reclast as treatment for his bone cancer. As a result of this treatment, Wishard claims, his cancer went into remission. He maintains that he experienced "100% positive results" from the medication with no metastasis, bone or joint pain, side-effects, or allergic reactions. See Pet'r's Ex. at 22, D.E. 1-1. When the Marshals Service arrested Wishard, it also obtained his medical records. Wishard received his medication each month while in the Marshal's custody. See id.
On July 15, 2015, after the United States Parole Commission revoked his parole, Wishard was transferred, along with his medical records, to FCC Coleman in Florida to serve his sentence. See Id. at 23. The staff at Coleman knew of Wishard's medical condition and the prescribed treatment, but failed to administer it. See Id. On October 8, 2015, Wishard notified Assistant Warden Camren that he was not receiving his prescribed treatment. See Id. at 24. On October 22, 2015, the BOP transferred Wishard to FMC Butner. See id.
Once at Butner, Wishard underwent bone scan procedure. He had a medical consultation with oncologist Dr. Carden, who told him that the cancer had returned and spread. Dr. Carden told Wishard he would prescribe Pamidronate to treat the recurrence of his cancer. See Id. at 25. Wishard claims that this medication "has been proven to be of inferior quality to zoledronic acid- reclast." See Id. at 25-26. Since treatment commenced with Pamidronate, Wishard has suffered side effects "such as severe tightening of [his] chest[, ] swelling of [his] throat[, ] severe bone, joint and muscle pain[, ] pain in [his] ribs on both sides[, ] and [in his] arms[, ] legs and lower back." Id. at 26. Dr. Carden has not responded to Wishard's complaints about these side effects. See Id. at 26, 28-29. During one of his examinations, Wishard claims that a member of the medical staff told him that the prison was preparing to transfer him to another facility, an action Wishard deems to be retaliatory in nature. D.E. 5 at 3-4.
Wishard has also been pursuing an Administrative Tort Claim in relation to the care he received while at FCC Coleman. Included among the documents with Wishard's Second Amended Complaint is the Government's response to his allegations. D.E. 10-1 at 50. The Government's response outlines the medical care that Wishard received while at FCC Coleman and contends that the care was appropriate. Id. It appears to call into question whether Wishard's cancer has, in fact, recurred. Id. The Government also notes that zoledronic acid is not a cancer treatment, but, instead, is used "to reduce the frequency of skeletal (bone) complications that can be caused by the underlying cancer." Id. at 51. Finally, the Government maintains that the medication prescribed for Wishard at Burner is equally effective as his preferred medication. Id. The response concludes by asserting the Government's position that Wishard has received appropriate medical care for all of his injuries and he is not entitled to any damages. Id. at 52.

Order and M&R [D.E. 15] 2-3.

         STANDARD OF REVIEW

         "The Federal Magistrates Act requires a district court to make a de novo determination of those portions of the magistrate judge's report or specified proposed findings or recommendations to which objection is made." Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (emphasis, alteration, and quotation omitted); see 28 U.S.C. § 636(b). Absent a timely 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 recommendations. Diamond, 416 F.3d at 315 (quotation omitted). The court does not perform a de novo review where a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.