                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-2265


NARESH C. ARORA; SUDHA ARORA,

                Plaintiffs - Appellants,

          v.

CAPTAIN    JAMES; REGIONAL MEDICAL CENTER OF ORANGEBURG;
DENMARK TECHNICAL COLLEGE, an agency of state of South
Carolina, a governmental entity; CHIEF WILBUR WALLACE;
DONALD WILLIAMS; JOANN BOYD-SCOTLAND; AMBRISH LAVANIA,
individually (at their personal capacity) and as agents and
employees for Denmark Technical College; DOES 1 - 100, et
al,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Orangeburg.     J. Michelle Childs, District
Judge. (5:14-cv-00018-JMC)


Submitted:   March 31, 2016                      Decided:   May 12, 2017


Before GREGORY,   Chief   Judge,   and   SHEDD    and   KEENAN,   Circuit
Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Naresh C. Arora; Sudha Arora, Appellants Pro Se.    Norma Anne
Turner Jett, NESS & JETT, LLC, Bamberg, South Carolina; Samuel
F. Arthur, III, Carrie Appleton Fox, AIKEN, BRIDGES, NUNN,
ELLIOTT & TYLER, PA, Florence, South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Naresh and Sudha Arora appeal the district court’s order

(1)   adopting    the   magistrate     judge’s    recommendation,        granting

summary    judgment     to   Captain   James     and   The    Regional    Medical

Center     of    Orangeburg     and    Calhoun    Counties       (“TRMC”),    and

dismissing without prejudice * the Aroras’ claims against Denmark

Technical College, Chief Wilbur Wallace, Donald Williams, Joann

Boyd-Scotland, and Ambrish Lavania, and (2) denying the Aroras’

motions for stay and for sanctions.              The Aroras also appeal the

district    court’s     order    overruling      their       objection   to   the

magistrate judge’s denial of their motion to amend the complaint

to add a medical malpractice claim.                We affirm the district

court’s order listed in (1) and (2) for the reasons stated by

the   district    court.      Arora    v.   James,     No.    5:14-cv-00018-JMC

(D.S.C. Apr. 16, 2015; Sept. 24, 2015).

      However, we vacate the district court’s order adopting the

magistrate judge’s order and denying the Aroras’ motion to amend

their complaint.        While “leave to amend should be freely given

when justice so requires,” a district court may deny a motion to



      * Because the Aroras could not cure the defect in their
complaint by amendment, the district court’s order is final and
appealable.    See Goode v. Cent. Va. Legal Aid Soc’y, 807 F.3d
619, 623-26 (4th Cir. 2015) (discussing Domino Sugar Corp. v.
Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir.
1993)).



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amend “when the amendment would be prejudicial to the opposing

party,” when the moving party has acted in bad faith or with a

dilatory motive, or when the amendment would be futile.                             Laber

v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc) (internal

quotation      marks    omitted).           “Generally,      we   review     a    district

court’s denial of a motion for leave to amend for abuse of

discretion, [b]ut where . . . the district court denied such a

motion on grounds of futility, we employ the same standard that

would apply to our review of a motion to dismiss.”                                  United

States ex rel. Ahumada v. NISH, 756 F.3d 268, 274 (4th Cir.

2014).

       In their motion to amend, the Aroras sought to add a state-

law    claim    labeled        medical      malpractice      against      TRMC.      They

alleged    that    TRMC        had    a   duty     to   prevent    trespassers       from

harassing      patients    and       that   TRMC    breached      that    duty    when   it

allowed   Wallace       and     Williams      to    trespass      in     Naresh   Arora’s

hospital room.         The magistrate judge denied this portion of the

motion to amend as futile because the Aroras had failed to file

an    affidavit    of     an    expert      witness     as   required      for    medical

malpractice claims under S.C. Code Ann. § 15-79-125(A) (Supp.

2015).

       The “distinction between medical malpractice and negligence

claims is subtle,” and, thus, “differentiating between the two

types of claims depends heavily on the facts of each individual

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case.”     Dawkins v. Union Hosp. Dist., 758 S.E.2d 501, 503-04

(S.C. 2014) (internal quotation marks omitted).                      In Dawkins, the

Supreme Court of South Carolina held that an action against a

hospital related to “nonmedical, administrative, ministerial, or

routine    care”      sounds       in    ordinary    negligence,       not        medical

malpractice.       Id. at 504.          While the Aroras labeled their claim

as   one   of      medical        malpractice,       the     substance       of     their

allegations     sounds       in     ordinary      negligence.         We     therefore

conclude    that       the        proposed       amendment     was     not        futile.

Accordingly, we vacate the district court order adopting the

magistrate judge’s ruling and remand for further proceedings.

We express no opinion on the merits of the Aroras’ claim.

     We dispense with oral argument because the facts and legal

contentions     are   adequately         presented    in     the   materials       before

this court and argument would not aid the decisional process.



                                                                   AFFIRMED IN PART,
                                                                    VACATED IN PART,
                                                                        AND REMANDED




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