REPORT AND RECOMMENDATION

THOMAS E. ROGERS, III, Magistrate Judge.

I. INTRODUCTION

Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights under the Fourteenth Amendment. Presently before the court are Defendants Southern Health Partners, Inc. (SHP) and Charles A. Bush, M.D.'s Motion for Summary Judgment (ECF No. 115) and Defendants Thomas Fox, J. Duncan, and Horry County's Motion for Summary Judgment (ECF No. 135). Because Plaintiff is proceeding pro se, he was advised by separate Orders (ECF Nos. 118, 136) pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motions could result in dismissal of his Complaint. Plaintiff timely filed a Response (ECF No. 126) to the first motion, but not to the second motion. As to the second motion, the undersigned entered an Order (ECF No. 139) directing Plaintiff to file a response within ten days and warning him that a failure to file said response may result in a recommendation that Plaintiff's claims against those Defendants be dismissed for failure to prosecute. Plaintiff has not filed a response. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC.1

II. RULE 41(b) DISMISSAL

As stated above, Plaintiff has failed to respond to Defendants Fox, Duncan, and Horry County's Motion for Summary Judgment. "The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them, and this authority includes the power to order dismissal of an action for failure to comply with court orders. Fed.R.Civ.P. 41(b)." Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). "Federal courts possess an inherent authority to dismiss cases with prejudice sua sponte." Gantt v. Maryland Division of Correction, 894 F.Supp. 226, 229 (D.Md. 1995) (citing Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); White v. Raymark Industs., Inc., 783 F.2d 1175 (4th Cir.1986); Zaczek v. Fauquier County, Va., 764 F.Supp. 1071, 1074 (E.D.Va.1991)).

The Fourth Circuit, in Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978), recognizing that dismissal with prejudice is a harsh sanction which should not be invoked lightly, set forth four considerations in determining whether Rule 41(b) dismissal is appropriate: (1) the degree of personal responsibility on the part of the plaintiff; (2) the amount of prejudice to the defendant caused by the delay; (3) the presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal. Id. at 70.

Subsequently, however, the Fourth Circuit noted that "the four factors . . . are not a rigid four-pronged test." Ballard, 882 F.2d at 95. "Here, we think the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case from those cited by appellant. . . . In view of the warning, the district court had little alternative to dismissal. Any other course would have placed the credibility of the court in doubt and invited abuse." Id. at 95-96.

In the present case, Plaintiff is proceeding pro se and, thus, is entirely responsible for his actions. It is solely through Plaintiff's neglect, and not that of an attorney, that Plaintiff has failed to prosecute this case. Plaintiff received two warnings from the court, in the Roseboro order and in the ten-day order, that a failure to respond to the second motion for summary judgment, filed by Defendants Fox, Duncan, and Horry County, could result in a dismissal of his claims. Because of Plaintiff's failure to respond to the second motion for summary judgment, the undersigned concludes he has abandoned his claims against Defendants Fox, Duncan, and Horry County. No other conclusion is reasonable. Accordingly, it is recommended that Plaintiff's claims against Defendants Fox, Duncan, and Horry County be dismissed for failure to prosecute pursuant to Fed.R.Civ.P. 41(b).

III. DR. BUSH AND SHP'S MOTION FOR SUMMARY JUDGMENT

A. Facts

During the times relevant to this action, Plaintiff was a pretrial detainee at the J. Rueben Long Detention Center (detention center) and Dr. Bush was the medical director and physician providing services at the J. Rueben Long Detention Center pursuant to a contract with Southern Health Partners, Inc. (SHP). Bush Aff. ¶ 1 (ECF No. 114-1). Plaintiff alleges that he was taken to the detention center after being discharged from Grand Strand Hospital on August 19, 2013, where he had been treated for two (2) months due to a car accident in June 2013. Am. Compl. Section IV (ECF No. 92). Plaintiff alleges he suffered a "broken back, broken neck, broken left ankle and severe nerve damage to his right arm and hand," which he alleges were not properly cared for once he arrived at the detention center, namely because he did not receive outside physical therapy. Am. Compl. Section IV p.14-20 (ECF No. 92). Plaintiff alleges that he received medications; went to the hospital to be examined after reporting a fall in his cell; and was sent back for follow up with the orthopedic specialist who had treated him after the accident. Am. Compl. Section IV p.14-20 (ECF No. 92). Plaintiff also acknowledges that he was seen by the detention center "Doctor and Head nurse" on a "bi-weekly" basis. Am. Compl. Section IV p.14-20 (ECF No. 92).

The medical records reveal that Plaintiff was first seen by the medical staff at the detention center on the day of his arrival, August 19, 2013. Pl. Medical Records pp. 47-51 (ECF No. 50-3)2. He was in a wheelchair, wearing a walking boot on his left leg and a splint on his right arm, and reported to staff that he had a broken neck, fractured back, broken right arm, and broken left foot. Pl. Medical Records p. 48; Bush Aff. ¶ 3. Plaintiff also reported having high blood pressure, so he was placed on blood pressure checks and started on blood pressure medication. Pl. Medical Records pp. 48, 50-51, 92-93. With regard to his reported injuries, the staff placed him on wound care to monitor circulation to his foot and hand, since they were in a boot and splint, and also obtained an authorization to acquire Plaintiff's medical records from the hospital to determine what care and medications he had been receiving for the last two (2) months, and what needed to be done going forward. Pl. Medical Records p. 48-49, 66, 92-93. Plaintiff was also recommended to be assigned to C1, a special needs housing area, to accommodate his wheelchair. Pl. Medical Records p. 48-49. Medications were ordered: famotidine, risperidone, metoprolol tartrate, and enalapril maleate. Pl. Medical Records p. 4-7, 47, 68, 84, 92-93. The records reflect Plaintiff received these and other medications during the course of his detainment. Pl. Medical Records pp. 4-13.

Plaintiff submitted various sick call requests for pain and other issues during his detention, and each one was responded to by the medical staff (including adding medication, obtaining authorization for Plaintiff to have a second mattress to try and make him comfortable, and arranging an orthopedic follow-up). Pl. Medical Records pp. 24-25, 38-40, 42-43, 91-92. In response to Plaintiff's complaint of a fall and pain on August 26, 2013 (asserting that he needed 24-hour care), the medical staff had Plaintiff transported to the hospital for evaluation. Pl. Medical Records pp. 38, 65, 83; Bush Aff. ¶ 8. The emergency department discharged Plaintiff after seeing him. Pl. Medical Records pp. 37-38, 56-58, 70. The medical staff at the Detention Center obtained the medical records from that visit in an effort to determine if any different or additional treatment was ordered by the emergency room physician. Pl. Medical Records pp. 37-38, 56-58, 70. The only instruction was for Plaintiff to follow up with the Detention Center medical staff the next day for a recheck of his complaints, which was done. Pl. Medical Records p. 56-57.

The medical staff, upon noticing some swelling in Plaintiff's leg and wrist a few days later, again placed Plaintiff on daily "wound care" checks to monitor circulation. Plaintiff remained on these daily checks until September 9, 2013. Pl. Medical Records pp. 26-30, 35-36, 91.

The medical staff also, in an effort to ensure Plaintiff's injuries were adequately addressed, arranged for an orthopedic appointment for Plaintiff, which took place on September 11, 2013. Pl. Medical Records p. 61; Bush Aff. ¶ 9. After the appointment, the medical staff sought the records from the examination, looking again for any follow-up dates or instructions. Pl. Medical Records pp. 59-60. The specialist's records reflected "no pain, numbness or tingling down the legs other than from ankle fracture." Pl. Medical Records pp. 59-60. No new course of care was ordered. Pl. Medical Records pp. 59-60; Bush Aff. ¶ 9.

In addition to these outside visits and in-house visits with the nurses, the Detention Center physician, Dr. Bush, monitored Plaintiff's care and condition, seeing Plaintiff on a weekly basis and then, when improvement was noted, seeing Plaintiff every other week. Bush Aff. ¶ 4; Pl. Medical Records pp. 16-23, 90-91. Dr. Bush reviewed Plaintiff's hospital records from the accident, which indicated Plaintiff had suffered a left ankle fracture, an injury to his right hand, transverse process fractures and a superior endplate fracture in a few spinal bones, but suffered no spinal cord injury. Bush Aff. ¶ 3. He had been treated for these injuries at the hospital during the two months prior to his arrival at the jail. Bush Aff. ¶ 3. The injury to his hand involved severe damage to the radial nerve, resulting in a diagnosis of radial palsy. Bush Aff. ¶ 3. This can lead to weakness, numbness, an inability to extend fingers, make a fist, or grasp. Bush Aff. ¶ 3. It is the type of injury that does not always heal, and it is not uncommon for there to be continued numbness, loss of motor function and weakness to the hand and wrist as a result. Bush Aff. ¶ 5.

While Dr. Bush saw no specific orders for physical therapy in the hospital's discharge instruction, Dr. Bush provided Plaintiff with appropriate exercises to do in the Detention Center. Bush Aff. ¶ 4. Dr. Bush stressed that, as with any physical therapy, Plaintiff's independent work was critical to progress — he had to follow through on a regular basis with the exercises he was being taught in order for them to be most effective. Bush Aff. ¶ 6. At least initially, Plaintiff was not carrying through on the exercises. Pl. Medical Records p. 19-23. Dr. Bush continued to monitor and work with Plaintiff every week until November 26, 2013, when the follow-ups with him moved to every other week because improvement was noted. Pl. Medical Records p. 18; Bush Aff. ¶ 4. Dr. Bush attests that Plaintiff was provided with appropriate exercises to address his injury, which was not the type that warranted in-patient care. Bush Aff. ¶¶ 4-5. Plaintiff received the care generally provided for a radial nerve injury — physical therapy exercises and a splint, which the hospital provided him. Bush Aff. ¶ 3.

When Plaintiff complained of pain and weakness in his knee3, Dr. Bush ordered an x-ray in an effort to determine the cause of Plaintiff's problems. Bush Aff. ¶ 7; Pl. Medical Records pp. 10, 55, 90. The x-ray revealed no signs of fracture or dislocation, but rather natural degeneration — tricompartmental osteoarthritis. Bush Aff. ¶ 7; Pl. Medical Records p. 55. As explained by Dr. Bush, osteoarthritis is a natural degeneration in the joint — it means there is basically no cartilage in the knee, but bone on bone. Bush Aff. ¶7. Physical therapy does not correct or prevent this degeneration. Bush ¶ 7. The most effective solution is a knee replacement once the arthritis progresses to a certain point. Bush Aff. ¶ 7. Plaintiff did not complain to the orthopedist about his knee during his visit, and no other surgery was ever ordered for him. Bush Aff. ¶ 7; Pl. Medical Records pp. 59-61. Dr. Bush ordered a knee extender for Plaintiff to assist him with support and movement while he was in the Detention Center. Bush Aff. ¶ 7; Pl. Medical Records p. 19. Plaintiff continued to be seen as needed by medical staff and receive medications until his release in December 2013. Pl. Medical Records pp. 13, 90.

After he was released from the detention center, Plaintiff received outside treatment in January of 2014 and June through August of 2014. Pl. Exhibits (ECF No. 126-2). Even after receiving physical therapy in January and between June and August of 2014, his records state that he showed "minimal" improvement in his knee. Pl. Exhibits pp. 100, 109. His doctor opined in August of 2014 that surgical intervention may be required, which is consistent with Dr. Bush's opinion that physical therapy does little to help with degeneration of joints and the most effective solution is replacement surgery once the arthritis reaches a certain point. Pl. Exhibits p. 109; Bush Aff. ¶ 7.

B. Standard of Review

Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).

To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.

C. Discussion

Plaintiff argues that Defendants were deliberately indifferent to his serious medical needs and raises his claim pursuant to 42 U.S.C. § 1983. Section 1983 "`is not itself a source of substantive rights,' but merely provides `a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A legal action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). To be successful on a claim under § 1983, a plaintiff must establish two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).

SHP is a private corporation. The Fourth Circuit has addressed private corporation liability under § 1983:

Austin v. Paramount Parks, Inc., 195 F.3d 715, 727-28 (4th Cir. 1999). Plaintiff has not made specific allegations against SHP nor presented evidence showing any policies enacted by SHP that caused Plaintiff harm. SHP is not amenable to suit under § 1983 solely based on SHP being the employer of others. See Austin, 195 F.3d at 728. As such, summary judgment is appropriate at to SHP.

With respect to Plaintiff's claims against Dr. Bush, because he was a pre-trial detainee the time of the events at issue, his treatment must be analyzed under the Fourteenth Amendment, rather than the Eighth Amendment, which is used to analyze claims of convicted prisoners. Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988); Hill v. Nicodemus, 979 F.2d 987 (4th Cir. 1992). This is of no legal consequence, however, since the Fourteenth Amendment analysis with regard to the provision of medical care is essentially the same as that for the Eighth Amendment-deliberate indifference to a serious medical need. Id. To state a claim for deliberate indifference to serious medical needs, "[a] plaintiff must satisfy two elements . . .: he must show a serious medical need and he must prove the defendant's purposeful indifference thereto." Sires v. Berman, 834 F.2d 9, 12 (1st Cir.1987). In the case of Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (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, 169-73, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). The court stated:

Id. at 103-105 (footnotes omitted).

Despite finding that "deliberate indifference to serious medical needs" was unconstitutional, 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:

Id. at 107. There, 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 (citation omitted), . . . nevertheless, mere negligence or malpractice does not violate the Eighth Amendment." Miltier v. Beorn, 896 F.2d 848, 841 (4th Cir.1990), overruled on other grounds by Farmer v. Brennan, 511 U.S. 825, 840 (1994). 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. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Sosebee v. Murphy, 797 F.2d 179 (4th Cir.1986).

The evidence in the record reveals that Plaintiff was frequently seen by medical staff at the detention center. He acknowledges this fact, but argues that the medical staff never actually did anything to help him during those appointments. However, he received medications, was transported to the hospital for an examination following a fall, had a follow-up appointment with an outside orthopedist, and physical therapy with Dr. Bush weekly and, later, bi-weekly, with directions to perform additional physical therapy on his own. Despite Plaintiff's arguments to the contrary, his discharge instructions did not call for physical therapy, nor did any subsequent outside medical practitioner (at the hospital after his fall or at the follow-up appointment with the orthopedist) recommend any course of treatment for Plaintiff that was different from the treatment he was receiving at the detention center. Plaintiff also complains that he was taken to Conway Hospital rather than Grand Strand Hospital after his fall and that he was not provided the rubber ball that Dr. Bush recommended he use for physical therapy and had to fashion his own rubber ball out of rubber gloves. These complaints present, at most, Plaintiff's disagreements with Dr. Bush's chosen course of treatment. "[A] prisoner does not enjoy a constitutional right to the treatment of his or her choice." De'lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013). Rather, the treatment a prison facility provides must be adequate to address the medical need. Id.; see also Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977) (noting that the right to treatment is "limited to that which may be provided upon a reasonable cost and time basis and the essential test is one of medical necessity and not simply that which may be considered merely desirable."). "An inmate's mere disagreement with the course of treatment provided by medical officers will not support a valid Eighth Amendment claim." Jackson v. Sampson, 536 Fed. Appx. 356 (4th Cir. 2013), citing Russell v. Shaffer, 528 F.2d 318, 319 (4th Cir. 1975). Plaintiff fails to present evidence to show that the treatment he received from Dr. Bush was so inadequate that it rose to the level of a constitutional violation. Other than an increase in the frequency of physical therapy for a few months, the treatment Plaintiff received after he was released from the detention center was similar to the treatment he received from Dr. Bush.4

Plaintiff also complains that he should not have been placed in the general population but should have been housed in a medical wing. However, as explained to Plaintiff in response to a grievance filed by him, his unit (C1) was the most accessible unit for people in wheelchairs. Pl. Exhibits p. 14. He was further instructed not to attempt to get up on his own but to ask an officer for assistance. Pl. Exhibits p. 14. This also fails to rise to the level of deliberate indifference.

In sum, Plaintiff fails to show that Dr. Bush's treatment of Plaintiff was so "grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness." Miltier, 896 F.2d at 85. As such, his claim against Dr. Bush fails as well, and summary judgment is appropriate.

IV. CONCLUSION

For the reasons discussed above, it is recommended that Defendants Southern Health Partners, Inc. (SHP) and Charles A. Bush, M.D.'s Motion for Summary Judgment (ECF No. 115) be granted, that the remaining claims be dismissed pursuant to Rule 41(b) for failure to prosecute, and this case be dismissed in its entirety.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed 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 recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).