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Silva v. Rogers

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

July 11, 2016

Tyron Cardell Silva, Plaintiff,
v.
Capt. C. Rogers, Lt. G. Mickens, Sgt. T. Prioleau, Sgt. M. Williams, Officer W. Jones, Officer C. McCinico, Officer P. James, Officer Lucus, Defendants.

          Tyron Cardell Silva, Plaintiff, Pro Se.

          Capt C Rogers, Defendant, represented by David Cornwell Holler, Lee Erter Wilson James Holler and Smith.

          Lt G Mickens, Defendant, represented by David Cornwell Holler, Lee Erter Wilson James Holler and Smith.

          Sgt T Prioleau, Defendant, represented by David Cornwell Holler, Lee Erter Wilson James Holler and Smith.

          Sgt M Williams, Defendant, represented by David Cornwell Holler, Lee Erter Wilson James Holler and Smith.

          Officer W Jones, Defendant, represented by David Cornwell Holler, Lee Erter Wilson James Holler and Smith.

          Officer C McCinico, Defendant, represented by David Cornwell Holler, Lee Erter Wilson James Holler and Smith.

          Officer P James, Defendant, represented by David Cornwell Holler, Lee Erter Wilson James Holler and Smith.

          Officer Lucus, Defendant, represented by David Cornwell Holler, Lee Erter Wilson James Holler and Smith.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER, Magistrate Judge.

         The Plaintiff, appearing pro se and in forma pauperis, brings this action under Title 42, United States Code, Section 1983. The Plaintiff is currently in the custody of the South Carolina Department of Corrections ("SCDC") and currently housed at Ridgeland Correctional Institution. This matter is before the court on Defendants' Motion for Summary Judgment. (Dkt. No. 32.) On December 30, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Plaintiff was advised of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 33.) The Plaintiff responded to the Defendant's Motion on January 25, 2016, with an affidavit (Dkt. No. 38) and on March 11, 2016, with the Plaintiff [sic] Objection to Defendants [sic] Motion for Summary Judgment. (Dkt. No. 45.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. For the reasons stated herein, the undersigned recommends that the Defendants' Motion for Summary Judgment be granted.

         ALLEGED FACTS[1]

         On June 15, 2013 at approximately 8:30 p.m., the Plaintiff called for Officer W. Jones and requested to speak with him outside of the Plaintiff's cell. Jones took the Plaintiff out of the cell, and they spoke in the hallway. The Plaintiff told Jones that other inmates were planning to kill the Plaintiff and that he needed to be placed in protective custody. Jones relayed the information to his supervisor, Capt. C. Rogers, who denied the Plaintiff's request. Lt. G. Mickens and Sgt. T. Prioleau arrived to assist Jones in returning the Plaintiff to his cell. The Plaintiff told Mickens that other inmates had homemade keys to the cells and were planning to kill him that night. Mickens told the Plaintiff nothing could be done that night. The Plaintiff refused to go back to his cell. Mickens told the Plaintiff to return to his cell or the officers would use force to return him to his cell. Mickens, Prioleau, and Jones each pulled out their mace. The Plaintiff then ran towards the prison yard.

         The Plaintiff ran to the plaza gate where eight (8) officers were able to surround him. The Plaintiff was twice told by Rogers to return to his cell. The Plaintiff continued telling the officers he could not return to his cell because other inmates would use homemade keys to enter his cell and kill him. After the Plaintiff continued to refuse to return to his cell, Rogers directed Prioleau to get a 37mm wood baton.[2] Rogers then ...


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