United States District Court, D. South Carolina, Charleston Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION,
GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFF'S FED. R.
CIV. P. 54(D) MOTION
GEIGER LEWIS UNITED STATES DISTRICT JUDGE.
brings claims under 42 U.S.C. § 1983 and the South
Carolina Tort Claims Act, promulgated at S.C. Code Ann. Â§
15-78-10 through 15-78-220. He seeks both compensatory and
punitive damages. Plaintiff is proceeding pro se.
matter is before the Court for review of the Report and
Recommendation (Report) of the United States Magistrate Judge
suggesting Defendants' motion for summary judgment be
granted in part and denied in part. Specifically, the
Magistrate Judge recommends Defendants' motion be denied
as to Plaintiff's June 8, 2012, excessive force claims
against Defendants Wright and Sear and granted as to all
other claims. The Magistrate Judge also suggests
Plaintiff's Fed.R.Civ.P. 54(d) motion be denied. The
Report was made in accordance with 28 U.S.C. § 636 and
Local Civil Rule 73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those portions of the Report to which a specific objection is
made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. §
Magistrate Judge filed the Report on January 26, 2017, and
Defendants filed their objections on February 20, 2017. The
Court notes Plaintiff failed to file any objections to the
Report. ''[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, 315
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
committee's note). Moreover, a failure to object waives
appellate review. Wright v. Collins, 766 F.2d 841,
845-46 (4th Cir. 1985). The Court is satisfied there is no
clear error on the face of the record as it relates to
Plaintiff's claims. Thus, it will adopt those portions of
the Report unfavorable to Plaintiff without further
Defendants object to the Magistrate Judge's discussion of
Defendant Wright's second administration of pepper spray
because, according to Defendants, ''these factual
allegations . . . are not relevant to the actual
recommendations of the Report.'' Objections 2 n.3.
Although it is the first administration of pepper spray, and
not the second one, at issue here, the Magistrate Judge
evidently provided this information to give the Court a brief
overview of the all of the relevant facts. Defendants are in
no way harmed by the recitation. Consequently, the Court will
overrule this objection.
''Defendants object to the recommendation that
Plaintiff properly and fully exhausted his administrative
remedies prior to filing this action. Specifically,
Defendants object to that portion of the Report that analyzes
exhaustion of administrative remedies with regard to
Defendant Sears.'' Id. at 5.
Court has reviewed Plaintiff's Grievance No. LCI 1254-12,
the gravamen of which is: ''[o]n 6-8-2012 at about
12:25 a.m. Lt. Wright came to Mr. Gilbert's cell (247
B-wing of SMU) and maliciously sprayed 225 grams mace
chemicals into Mr. Gilberts face, head, and back, without
just cause, w[h]ile Mr. Gilbert was in handcuffs.''
ECF No. 36-4 at 11. The Court agrees with Defendants to the
extent Plaintiff's grievance fails to state any
allegations against Defendant Sears or describe any conduct
attributable to him. As such, the Court concludes Plaintiff
neglected to exhaust his administrative remedies as to
Defendant Sears and thus will dismiss Defendant Sears from
''Defendants object to the provisions of the Report
that recommend that Defendants' Motion for Summary
Judgment should be denied as to Defendants Wright and Sears
in their individual capacities.'' Objections 7
(emphasis omitted). ''Specifically, Defendants object
to the Report's recommendation that Plaintiff has set
forth sufficient evidence to constitute a genuine issue of
material fact as to whether he was deprived of a right,
privilege, or immunity secured by the Constitution of laws of
the United States in relation to the allegations of excessive
force against Defendants Wright and Sears.''
Id. (emphasis omitted). Because the Court has
dismissed Defendant Sears from this action due to
Plaintiff's failure to exhaust administrative remedies as
to claims against him, the Court will address only the
allegations with respect to Defendant Wright. At the summary
judgment stage, a court must view the facts in the light most
favorable to Plaintiff, the non-moving party. Miller v.
Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc)
(stating, in an excessive force case, the inmate was to
''have the credibility of his evidence as forecast
assumed, his version of all that is in dispute accepted,
[and] all internal conflicts in it resolved favorably to
him'' (citation omitted)).
state an Eighth Amendment claim, an inmate must demonstrate:
(1) that objectively the deprivation suffered or harm
inflicted ''was 'sufficiently serious, ' and
(2) that subjectively the prison officials acted with a
'sufficiently culpable state of mind.'''
Johnson v. Quinones, 145 F.3d 164, 167 (4th
Cir.1998) (quoting Wilson v. Seiter, 501 U.S. 294,
298 (1991)). With respect to the objective component, the
inmate must demonstrate the ''nature'' or
amount of force employed ''was nontrivial.''
Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (per
curiam). With respect to the subjective component, the inmate
must show ''wantonness in the infliction of
pain.''' Iko v. Shreve, 535 F.3d 225,
239 (4th Cir. 2008) (quoting Whitley v. Albers, 475
U.S. 312, 322 (1986)).
determining whether the pain inflicted was unnecessary and
wanton, the Court should consider ''whether force was
applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very
purpose of causing harm.'' Whitley, 475 U.S.
at 320-21 (citation omitted). ''Such factors as the
need for application of force, the relationship between the
need and the amount of force that was used, and the extent of
injury inflicted are relevant to that ultimate
determination.'' Id., 475 U.S. at 321
(alteration in original omitted) (citation omitted).
''When prison officials maliciously and sadistically
use force to cause harm, contemporary standards of decency
always are violated . . . whether or not significant injury
is evident.'' Hudson v. McMillian, 503 U.S.
1, 9 (1992) (internal citation omitted).
Magistrate Judge recommended Defendant Wright be denied
summary judgment on Plaintiff's Eighth Amendment claims,
concluding Defendant Wright's first use of pepper spray,
administered after Plaintiff had complied with a verbal
directive to present himself at the cell window to be
handcuffed, could be considered the excessive use of force.
Report at 21-22. The Court agrees with this suggestion.
to Plaintiffs complaint, after Defendant Wright opened the
cell's food serving window, Defendant Wright ordered
Plaintiffs cell mate and Plaintiff to stand against the cell
wall, and the inmates complied. Comp. ¶ 11, Dkt. No. 1.
Then, Defendant Wright said, ''I've been looking
for a reason to get you two again, now that you've given
me the chance, I will do this the right way. It's not
going to be like the last time, you will get charged for this
one!" Id. Defendant Wright does not directly
deny he threatened Plaintiff and his cell mate, but avers: AI
deny all of Plaintiffs' allegations that claim that I
continued to harass them and threaten their lives."
Defendant Wright's Aff. ¶ 6, Dkt. No. 36-7.
Wright claims when he looked into the cell, he saw Plaintiff
using a contraband cell phone, and radioed for assistance.
Wright Aff. ¶ 5. Plaintiffs complaint fails to mention a
cell phone, but in his deposition, he stated he was in bed,
and his cell mate was using a cell phone. Pl.'s Dep.
77:6-7. After Defendant Sears and others responded to