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Duckett v. Fuller

United States District Court, D. South Carolina, Greenville Division

March 19, 2015

Lewis Duckett, Plaintiff,
Marcia Fuller, Mrs. Ball, Michael L. Fair, S.C. District 6, Boyd H. Parr Defendants.


J. MICHELLE CHILDS, District Judge.

Plaintiff Lewis Duckett ("Plaintiff") filed this pro se action pursuant to 42 U.S.C. § 1983. Plaintiff alleges a violation of the Eighth Amendment prohibition of cruel and unusual punishment by Defendants South Carolina Department of Corrections ("SCDC") Dietician Marcia Fuller, Kershaw Correctional Institution Cafeteria Supervisor Cassandra Ball, Legislative Audit Counsel Michael L. Fair, Director of Poultry Products and Inspection Boyd H. Parr, and Greenville County State Senate S.C. District 6 (collectively "Defendants") for "not providing certain vitamins and nutrients and/or allow service of insufficient portions of food and/or drinks that wouldn't yield necessary vitamins and nutrients" and failing to investigate, audit, or inspect SCDC food service after complaints via letter about these allegations. (ECF No. 2.) This matter is before the court on Defendants Fuller and Ball's Motion to Dismiss, or in the alternative, For a More Definite Statement (ECF No. 37).

In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to United States Magistrate Judge Kevin F. McDonald for pre-trial handling. On March 19, 2014, the Magistrate Judge issued a Report and Recommendation recommending the court summarily dismiss the case against Defendants Fair, Parr, and S.C. District 6 ("the Dismissal Report"). (ECF No. 28.) This review considers Plaintiff's Objection to Magistrate's R&R Received 3-24-14 ("Objections"), filed April 10, 2014. (ECF No. 34.) Additionally, on September 25, 2014, the Magistrate Judge issued a Report and Recommendation ("Report") recommending the court deny Defendants Fuller and Ball's Motion to Dismiss. (ECF No. 45.) For the reasons set forth herein, the court ACCEPTS the Magistrate Judge's Dismissal Report (ECF No. 28), but REJECTS the Magistrate Judge's Report (ECF No. 45). The court thereby DISMISSES the case against Defendants Fair, Parr, and S.C. District 6 and GRANTS Defendants Fuller and Ball's Motion to Dismiss (ECF No. 37).


The court concludes upon its own careful review of the record that the factual and procedural summations in the Magistrate Judge's Reports are accurate, and the court adopts these summaries as its own. ( See ECF Nos. 28, 45.) The court will only recite herein facts pertinent to this analysis.

Plaintiff is incarcerated at Kershaw Correctional Institution within the SCDC. (ECF No. 2 at 2.) Plaintiff originally filed this Complaint on August 23, 2013, along with 90 other plaintiffs. See McFadden v. Fuller, Civil Action No. 5:13-cv-02290-JMC, ECF No. 1 ("McFadden II"). On November 22, 2013, this court issued an Order severing all plaintiffs in the case, resulting in 91 individual cases, and leaving Plaintiff as the sole plaintiff in this action. ( See ECF No. 1; see also McFadden II at ECF No. 30.) The Complaint alleges the food provided by the SCDC to prisoners did not provide the proper nutrients, resulting in "loss of vision and/or loss of energy, nerve damages [ sic ], muscular weakness, burning and itching of the eyes, sensitivity of eyes to light, cracking or soreness at the corner of the lips; and/or indigestion, diarrhea, depression, nausea, fatigue, skin eruptions, weaken immune system; and/or extreme hunger pain, head aches [ sic ], constipation; and/or bleeding gums, coldness, weight gain, weight loss, soft or bleeding gums, decaying teeth and loss of hair." (ECF No. 2 at 3.) Plaintiff also alleges Defendant Parr "provided no reasonable assistance in inspection" by Plaintiff of the meat products used by the SCDC nor "information on the effect this product may have on an individual after long term use." ( Id. ) Further, Plaintiff alleges Defendant Fair "provided no reasonable assistance in examining SCDC financial records to determine whether money provided to SCDC to provide meat products for Plaintiffs' diet is used to buy daily recommended meat products." ( Id. at 4.) Plaintiff seeks an unspecified amount of monetary damages and declaratory and injunctive relief "declaring that SCDC feeding offal [organ meat] in the place of beef and extremely small portions or no fruit and vegetables violates the 8th Amendment of the U.S. Constitution and thus ordering gradual change to daily recommended foods that are balanced and nutritious." ( Id. at 6.)

On March 19, 2014, the Magistrate Judge issued the Dismissal Report, recommending the court dismiss claims as to Defendants Fair, Parr, and S.C. District 6. (ECF No. 28.) The Magistrate Judge found that Fair, a state senator and member of the Senate Finance Committee, "is authorized only to perform performance audits, not financial audits, of state agencies and their programs." ( Id. at 5.) Further, the Magistrate Judge found that as Plaintiff's requests for Fair to examine SCDC's financial records "plainly involve Defendant Fair's legislative activities, " any claims against Defendant Fair are barred by absolute legislative immunity. ( Id. ) The Magistrate Judge further found that Defendant Parr, as Director of Clemson University's Livestock Poultry Health Extension, which includes the South Carolina Meat and Poultry Inspection Department, has no legal responsibility to regulate the content of meals provided by the SCDC. ( Id. at 6.) Finally, as S.C. District 6 is a geographical area, it is not a person, and thus cannot be sued under § 1983. ( Id. at 5.) Plaintiff timely filed his Objections to the Dismissal Report on April 10, 2014. (ECF No. 34.)

Defendants Fuller and Ball filed the Motion to Dismiss on April 21, 2014 (ECF No. 37), arguing Plaintiff's claims were barred by res judicata, as they had been litigated in the prior case of McFadden v. Butler, Civil Action No. 3:10-cv-03104-JMC ("McFadden I"). On September 25, 2014, the Magistrate Judge issued the Report recommending the court deny Defendants' Motion. (ECF No. 45.) The Magistrate Judge found that Plaintiff's claims were not barred by res judicata or collateral estoppel, as Defendants argued. ( Id. at 6.) The Magistrate Judge found that because McFadden I involved claims and Defendants at Kirkland Correctional Institution and 28 months had elapsed between the time the Complaint in McFadden I was filed and the original submission of the Complaint in this case, "it could not be said that the plaintiff could have raised the claims in the above-captioned case in the earlier case." ( Id. at 7-8.)

Plaintiff timely filed his Objections to Magistrate R&R Received Sept. 30, 2014, on October 16, 2014. (ECF No. 51.) However, Plaintiff did not object to any of the Report's findings regarding the recommendation to deny Defendants' Motion, and merely reiterated arguments he has made previously. Defendants Fuller and Ball did not file any objections to the Report.


The Magistrate Judge's Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Matthews v. Weber, 423 U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those portions of the Report to which specific objections are made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge's recommendation, or recommit the matter with instructions. See 28 U.S.C. § 636 (b)(1).

Objections to a Report and Recommendation must specifically identify portions of the Report and the basis for those objections. Fed.R.Civ.P. 72(b). "[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, 316 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note). Failure to timely file specific written objections to a Report will result in a waiver of the right to appeal from an Order from the court based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). If the plaintiff fails to properly object because the objections lack the requisite specificity, then de novo review by the court is not required.

As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments that, under the mandated liberal construction, it has reasonably found to ...

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