United States District Court, D. South Carolina, Beaufort Division
PATRICK MICHAEL DUFFY UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's objections to
Magistrate Judge Bristow Marchant's Report and
Recommendation (“R & R”) (ECF Nos. 49 &
43). In his R & R, Magistrate Judge Marchant recommends
granting Defendants' motion for summary judgment. For the
reasons stated herein, the Court overrules Plaintiff's
objections, adopts the R & R, and grants Defendants'
motion for summary judgment.
action arises out of a November 2012 incident that occurred
at the Broad River Correctional Institute, in which Defendant
Davenport allegedly sprayed Plaintiff with chemical
munitions. Plaintiff alleges that, after that incident, he
was denied medical treatment, he was given nutraloaf, he was
denied soap, towels, toilet paper, or rags to clean himself
off, and he was left in his cell with no clothing or blanket
for three days. Defendants contend that the chemical
munitions were necessary because Plaintiff was holding on to
the food flap of his cell and thereby endangering the
corrections officers' safety. In contrast, Plaintiff
alleges that he was assaulted for no apparent reason.
Magistrate Judge makes only a recommendation to this Court.
The R & R has no presumptive weight, and the
responsibility for making a final determination remains with
the Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). Parties may make written objections to the Magistrate
Judge's proposed findings and recommendations within
fourteen days after being served with a copy of the R &
R. 28 U.S.C. § 636(b)(1). This Court must conduct a de
novo review of any portion of the R & R to which a
specific objection is made, and the Court may accept, reject,
or modify the Magistrate Judge's findings and
recommendations in whole or in part. Id.
Additionally, the Court may recommit the matter to the
Magistrate Judge with instructions. Id. A
party's failure to object is taken as the party's
agreement with the Magistrate Judge's conclusions.
See Thomas v. Arn, 474 U.S. 140 (1985). Absent a
timely, specific objection-or as to those portions of the R
& R to which no specific objection is made-this Court
“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
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed.R.Civ.P. 72 advisory committee's
se filings are held to a less stringent standard than
those drafted by attorneys, Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978), and federal district courts
must construe such pleadings liberally to allow the
development of potentially meritorious claims, see Hughes
v. Rowe, 449 U.S. 5, 9 (1980) (per curiam). The liberal
construction requirement, however, does not mean courts can
ignore a clear failure to allege facts that set forth claims
cognizable in federal district court. See Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir.
makes a number of objections to the R & R, but they boil
down to six objections. First, he contends that it was improper
for Magistrate Judge Marchant to take judicial notice of the
South Carolina Department of Corrections'
(“SCDC”) grievance procedure and another case
Plaintiff has filed with this Court. Second, he repeatedly
argues that an administratively closed grievance is not
appealable and therefore he was not required to file a Step 2
appeal. Third, he claims that the Defendants' failure to
respond to his grievance in accordance with SCDC policy
should preclude them from asserting that he failed to exhaust
his administrative remedies. Fourth, he objects to Michael
Tindal's affidavit as hearsay because Tindal was not the
person listed as closing Plaintiff's grievance. Fifth,
Plaintiff objects to footnote four of the R & R,
contending that the date in the R & R is not accurate
because he did not receive a response to his complaint until
August 8, 2013. Finally, Plaintiff generally objects to the R
& R's recommendation to dismiss his state-law claims.
The Court will address each objection seriatim.
objects to Magistrate Judge Marchant's decision to take
judicial notice of SCDC's grievance procedure and
Plaintiff's other case before this Court. The Court will
address each in turn.
Judge Marchant took judicial notice of SCDC's grievance
procedure in the process of making his recommendation that
the Court grant Defendants' motion for summary judgment.
Plaintiff objects, stating that the SCDC policy does not
apply to administratively closed grievances. The Court does
not share that concern. This Court has previously held that
it is appropriate to take judicial notice of SCDC's
grievance procedures, and the Court sees no error in the
Magistrate Judge's decision to do so here. See Jones
v. Hartwig, No. 8:13-cv-334-DCN, 2014 WL 101983, at *5
(D.S.C. Jan. 8, 2014). Indeed, SCDC's grievance procedure
is frequently implicated in § 1983 litigation. See,
e.g., Byrd v. Stirling, 144 F.Supp.3d 803, 808 (D.S.C.
2015); Branton v. Ozmint, No. 8:08-cv-2306-GRA-BHH,
2009 WL 1457144, at *2 (D.S.C. May 22, 2009); Jones v.
Kay, No. 4:07-cv-3480-SB, 2007 WL 4294216, at *5 (D.S.C.
Dec. 5, 2007); Jenkins v. S.C. Dep't of Corrs.,
No. 0:05-cv-2800-HFF, 2006 WL 1083563, at *5 (D.S.C. Apr. 18,
2006). Accordingly, Magistrate Judge Marchant's decision
to take judicial notice of the grievance procedure was
appropriate, and Plaintiff's objections to that decision
Judge Marchant also took judicial notice of Plaintiff's
other case before this Court, Brooks v. Davenport,
No. 9:15-cv-3195-PMD-BM (D.S.C.). Plaintiff objects, citing
opinions holding that factual findings in one case are not
admissible for their truth in other cases. See Wyatt v.
Terhune, 315 F.3d 1108, 1114 n.5 (9th Cir. 2003),
overruled on other grounds by Albino v. Baca, 747
F.3d 1162 (9th Cir. 2014); Holloway v. Lockhart, 813
F.2d 874, 879 (8th Cir. 1987). However, Magistrate Judge
Marchant did not rely on facts from Plaintiff's other
case in making his decision in this case. Instead, he merely
noted that the grievance in Plaintiff's other case was
returned to Plaintiff on May 20, 2013. Accordingly,
Plaintiff's objection is overruled.
Exhaustion of SCDC's ...