United States District Court, D. South Carolina, Orangeburg Division
KENNETH D. RIVERA, Plaintiff,
SERGEANT LEONARD and OFFICER PONDER, Defendants.
C. NORTON UNITED STATES DISTRICT JUDGE
matter is before the court on United States Magistrate Judge
Kaymani D. West’s report and recommendation
(“R&R”) that the court grant defendants
Sergeant Leonard and Officer Ponder’s
(“defendants”) motion for summary judgment. For
the reasons set forth below, the court adopts the R&R and
grants defendants’ motion for summary judgment.
Kenneth D. Rivera (“Rivera”), proceeding pro
se, was a pre-trial detainee at Greenville County
Detention Center (“GCDC”) during the time period
relevant to this action. Rivera’s claims arise out of
an alleged altercation with defendants at GCDC on February 5,
2015. Compl. 3. Rivera alleges that Officer Ponder and
Sergeant Leonard threatened him with “caustic
gas” and assaulted him because he would not get out of
the shower. Id. at 4. According to defendants,
Rivera was transferred to SCDC on March 9, 2015 “after
pleading guilty to charges of armed robbery, possession of a
weapon during a violent crime, and possession of a firearm by
a person convicted of a violent crime.” Defs.’
Mot. 1. Rivera filed suit on March 13, 2015, bringing causes
of action pursuant to 28 U.S.C. § 1983 for violations of
his Eighth and Fifth Amendment rights. Rivera seeks: (1)
a declaration that the actions and omissions described in his
complaint violated his rights under the constitution; (2) a
preliminary and permanent injunction ordering defendants to
stop using excessive force; (3) compensatory damages in the
amount of $10, 000.00 against both defendants; (4) punitive
damages in the amount of $10, 000.00 against both defendants;
(5) a jury trial; (6) costs; and (7) any additional relief
this court deems just, proper, and equitable. Id. at
filed a motion for summary judgment on September 15, 2015.
Rivera filed a response in opposition to the motion on
September 23, 2015, and defendants replied on October 5,
2015. The magistrate judge issued an R&R on February 16,
2016, recommending that the court dismiss Rivera’s
claims for failure to exhaust his available administrative
remedies. Rivera filed timely objections to the R&R on
February 25, 2016. Defendants replied to Rivera’s
objections on March 11, 2016, and Rivera filed a sur-reply on
March 18, 2016. The motion has been fully briefed and is ripe
for the court’s review.
Objections to R&R
court is charged with conducting a de novo review of
any portion of the magistrate judge’s R&R to which
specific, written objections are made. 28 U.S.C. §
636(b)(1). A party’s failure to object is accepted as
agreement with the conclusions of the magistrate judge.
See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). In
absence of a timely filed objection to a magistrate
judge’s R&R, this 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, 315
(4th Cir. 2005) (citing Fed.R.Civ.P. 72 advisory
committee’s note). The recommendation of the magistrate
judge carries no presumptive weight, and the responsibility
to make a final determination rests with this court.
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The
court may adopt the portions of the R&R to which the
plaintiff did not object, as a party’s failure to
object is accepted as agreement with the conclusions of the
magistrate judge. Thomas, 474 U.S. at 149-50. This
court may accept, reject, or modify the report of the
magistrate judge, in whole or in part, or may recommit the
matter to him with instructions for further consideration. 28
U.S.C. § 636(b)(1).
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“[S]ummary judgment will not lie if the dispute about a
material fact is ‘genuine, ’ that is, if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. At the
summary judgment stage, the court must view the evidence in
the light most favorable to the nonmoving party and draw all
reasonable inferences in his favor. Id. at 255.
Pro Se Plaintiff
proceeds pro se in this case. Federal district
courts are charged with liberally construing complaints filed
by pro se litigants to allow the development of a
potentially meritorious case. See Hughes v. Rowe,
449 U.S. 5, 9-10 (1980). Pro se complaints are
therefore held to a less stringent standard than those
drafted by attorneys. Id. Liberal construction,
however, does not mean that the court can ignore a clear
failure in the pleading to allege facts that set forth a
cognizable claim. See Weller v. Dep’t of Soc.
Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
move for summary judgment, arguing that: (1) there is no
genuine issue of material fact; (2) Rivera failed to exhaust
his administrative remedies; (3) there is no evidence that
defendants used excessive force; (4) there is no evidence
that defendants denied Rivera medical treatment; (5) there is
no evidence that defendants violated Rivera’s Fifth
Amendment rights when he was housed in a segregated cell; (6)
defendants are entitled to qualified immunity from
Rivera’s claims against them in their individual
capacity; (7) Rivera’s request for preliminary and
permanent injunctions are legally defective; and (8)
defendants are entitled to an order granting summary judgment
as a matter of law. Defs.’ Mot. 3-4. The magistrate
judge recommends that ...