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Sandifer v. Tanner

United States District Court, Eastern District of Louisiana

May 7, 2015

ROBERT E. SANDIFER
v.
ROBERT C. TANNER, ET AL.

ORDER AND REASONS

Plaintiff, Robert E. Sandifer objects to the Magistrate Judge’s Report and Recommendation recommending dismissal of Plaintiff’s 42 U.S.C. § 1983 petition for failure to state a claim upon which relief can be granted. The Court, having independently considered the complaint, the record, the applicable law, the Magistrate Judge's Report and Recommendation, and the untimely objections to the Magistrate Judge's Report and Recommendation, hereby approves the Magistrate Judge's Report and Recommendation and adopts it as its opinion herein. IT IS ORDERED that the findings of the Magistrate Judge be AFFIRMED and Petitioner’s 42 U.S.C. § 1983 petition be DISMISSED WITH PREJUDICE.

I. PROCEDURAL HISTORY

Plaintiff, Robert E. Sandifer, a state prisoner, filed this civil action pursuant to 42 U.S.C. § 1983. He names as defendants: Warden Robert C. Tanner; Assistant Warden Wayne Cook; Dr. Casey McVea.[1] On January 23, 2015, the Magistrate Judge issued a Report and Recommendation, recommending that the complaint be dismissed with prejudice as “frivolous and/or for failing to state a claim on which relief may be granted.”[2]Plaintiff objects.

I. FACTUAL ALLEGATIONS

In his lawsuit, plaintiff claims that he has been denied adequate medical care. Petitioner alleges as follows: On August 13, 2013, plaintiff consulted Dr. McVea, the prison doctor, concerning a rash. After conducting an examination, Dr. McVea diagnosed plaintiff as having an allergic reaction to an unknown substance and prescribed a topical cream. When that cream failed to resolve plaintiff’s condition, Dr. McVea prescribed a different cream. Although plaintiff requested to see a specialist Dr. McVea refused.

Plaintiff later sent a letter of complaint to Assistant Warden Cook. On September 23, 2014, Cook responded, stating:

I have received your letter of complaint that you have made several sick calls about your rash, and it has not improved. You stated that you have had blood work done as well as other tests, and you are requesting that you be allowed to see a specialist. I checked and you are scheduled to see Dr. McVea tomorrow. He is the Medical authority at RCC and is competent and compassionate. Hopefully he will be able to find a solution to your problem. Only Dr. McVea is able to make a specialist referral. I am sorry that I cannot provide you with a more favorable response, but perhaps your visit tomorrow will find a solution for your discomfort.[3]

Plaintiff then sent a letter to Warden Tanner. On September 29, 2014, Cook responded stating:

Your letter to Warden Tanner regarding your medical problem has been forwarded to me for a response. Your complaint is that your condition has not improved since your visit with Dr. McVea. You stated that you have not received the results of various tests that have been conducted. You indicated that you are also requesting that you be allowed to see a specialist. Neither Warden Tanner nor I are medical doctors. Dr. McVea is the Medical Authority at RCC and is competent and compassionate. Hopefully, he will be able to find a solution to your problem. He alone is able to make a specialist referral. If you are continuing to experience a problem with a rash, you will need to make another sick call. I am sorry that I cannot provide you with a more favorable response.[4]

Plaintiff next filed a formal administrative grievance. However, prior to receiving a response, he again saw Dr. McVea on October 1, 2014. At that visit, Dr. McVea agreed to schedule a dermatology consultation.

On October 14, 2014, Warden Tanner denied plaintiff’s administrative grievance, stating:

Response to requested dated, received in this office 9/10/2014. Your complaint has been reviewed and investigated. A review of your medical record has also been conducted.
According to your medical record, you made a sick call on July 15, 2014, complaining of having a rash under your arms, chest, and hands. When Dr. Casey McVea, Health Care Authority, reviewed this health care encounter, he ordered that you be scheduled a routine appointment to see him. This appointment was scheduled for September 24, 2014. However, because of Dr. McVea attending a conference, this appointment was rescheduled for October 1, 2014. During your appointment on October 1, 2014, Dr. McVea prescribed Benadryl three times a day and Dove soap. Dr. McVea ...

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