United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
SHIVA V. HODGES, Magistrate Judge.
Plaintiff Raymond Edward Chestnut, proceeding pro se and in forma pauperis, brings this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971) and the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 1346 and 28 U.S.C. § 2671, et seq. At the time of the incidents giving rise to the complaint, Plaintiff was incarcerated at the Federal Correctional Institution in Bennettsville, South Carolina ("FCI-Bennettsville"),  a facility of the Bureau of Prisons ("BOP"). Plaintiff sues the United States of America ("United States") and correctional officers Thompson, McGirt, and Jones (collectively "Defendants"), alleging claims of excessive force, cruel and unusual punishment, and retaliation.
This matter comes before the court on Defendants' motion to dismiss, or in the alternative, motion for summary judgment. [Entry #40]. The motion having been fully briefed [Entry #43, #45, #59, #60, #61], it is ripe for disposition. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendants' motion for summary judgment.
A. Procedural History
Defendants filed their motion to dismiss, or in the alternative, motion for summary judgment on November 8, 2013. [Entry #33]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the summary judgment procedures and the possible consequences if he failed to respond adequately to Defendants' motion. [Entry #34]. Plaintiff did not properly respond to the motion by the court-ordered deadline, but instead sent letters to the court indicating that he had inadequate paper and research to respond to Defendants' motion. [Entry #36, #37]. On March 5, 2014, the court advised Plaintiff that if he failed to respond by March 19, 2014, the court would recommend dismissal. [Entry #38]. Plaintiff did not respond and on March 24, 2014, the undersigned recommended Plaintiff's action be dismissed with prejudice for failure to prosecute. [Entry #40]. On March 26, 2014, Plaintiff sent a letter to the court inquiring if the court received a copy of his response to Defendants' summary judgment motion that he allegedly provided to prison authorities on March 19, 2014. [Entry #42]. On March 31, 2014, Plaintiff filed a response to Defendants' motion for summary judgment. [Entry #43]. On May 20, 2014, the district judge remanded the case to the undersigned for consideration of Defendants' motion in light of Plaintiff's response in opposition. [Entry #56].
B. Factual History
Plaintiff claims that Thompson and Jones used excessive force against him on October 10, 2011, while moving him to a new cell. [Entry #1 at 2-8]. Specifically, Plaintiff contends that Thompson informed him that he was moving to another singleperson cell, but after Thompson placed Plaintiff in hand restraints, he told Plaintiff that he lied. Id. at 3. Plaintiff then told Thompson he was "full of it." Id. Plaintiff alleges that while he was exiting the cell, Thompson pushed him, causing his head and back to hit the corner of the shower. Id. According to the complaint, Thompson then grabbed Plaintiff by the neck and slapped him. Id. at 4. Plaintiff contends that Thompson left the cell and secured the door. Id. at 4. Plaintiff alleges that a few minutes later, Thompson returned to the cell with Jones. Id. Plaintiff claims that he was backing out of the cell, as instructed, when Jones punched him in the mouth, causing his lip to swell for two days. Id. at 4.
Upon arriving at the new cell, Plaintiff contends that he told Thompson and Jones that he did not want to room with another inmate. Id. at 4-5. Plaintiff alleges Jones pushed him into the cell, causing him to hit his forearm on a table. Id. at 5. Plaintiff alleges when he refused to move away from the door to allow his cellmate to be uncuffed, Thompson and Jones reentered the cell and Thompson placed Plaintiff on his stomach on the bottom bunk. Id. at 5-6. Plaintiff alleges that when he resisted, Thompson choked him and punched him in the stomach and chest while Jones held him by the feet and pressed his knee into Plaintiff's stomach. Id. at 6. Plaintiff contends that while Thompson and Jones began exiting the cell, Plaintiff attempted to prevent the cell door from closing and Jones kicked him in the knee . Id. at 7. Plaintiff alleges Jones and Thompson struggled with him to secure the cell door and Plaintiff's left forearm became caught in the doorway. Id. Plaintiff contends Jones and Thompson noticed his arm was in the doorway, and continued to close the door, causing Plaintiff's arm to be bruised and swollen for seven days. Id.
On December 13-14, 2011, Plaintiff claims that Thompson put a razor blade in his food in retaliation for Plaintiff's filing of a grievance. Id. at 8-10. Plaintiff contends that he cut his mouth on the razor, requiring medical treatment. Id. at 9. Plaintiff alleges McGirt advised him to withdraw grievances he filed against Thompson, and when Plaintiff refused, McGirt and Thompson allegedly filed false "government official documents against [him]." Id. at 10-11. Plaintiff seeks declaratory relief and monetary damages. Id. at 14.
A. Standard on Summary Judgment
The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either 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;" or "showing... that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the ...