United States District Court, D. South Carolina
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge
Richard Mark Kough is an inmate in custody of the South
Carolina Department of Corrections (SCDC). At the time of the
underlying events, Plaintiff was housed at Kirkland
Correctional Institution (KCI) in Columbia, South Carolina.
Plaintiff, proceeding pro se, filed a complaint on July 27,
2015, alleging that Defendants Captain G. Pack and Sergeant
R. Brown, correctional officers at KCI, violated his rights
under the Eighth Amendment through (1) use of excessive force
and (2) denial of medical care. Plaintiff brings this action
pursuant to 42 U.S.C. § 1983. In accordance with 28
U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this
matter was referred to United States Magistrate Judge Kaymani
D. West for pretrial handling.
November 14, 2016, Defendants filed a motion for sanctions
based on Plaintiff's refusal to respond to questions at
his deposition. Plaintiff filed a response to Defendants'
motion on November 30, 2016, to which Defendants filed a
reply on December 6, 2016. On December 12, 2016, Defendants
filed a motion for summary judgment. On December 13, 2016,
pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), Plaintiff was advised of the
summary judgment procedures and the possible consequences if
he failed to respond adequately. On December 27, 2016,
Plaintiff filed a motion to extend time to respond to
Defendants' motion. The Magistrate Judge granted
Plaintiff an additional period of time until February 17,
2017, to respond.
February 13, 2017, upon motion of Plaintiff, Defendants
provided Plaintiff with a second copy of their motion for
summary judgment. The Magistrate Judge thereupon extended
Plaintiff's time to respond to March 24, 2017. On March
22, 2017, Defendants' counsel informed the court that
Plaintiff was being treated for mental health issues. When
Plaintiff failed to respond to Defendants' motion for
summary judgment, the court issued an order on April 17,
2017, instructing counsel to file a status report no later
than May 17, 2017, as to Plaintiff's condition. The court
informed the parties that it would consider at that time
whether to dismiss the case without prejudice or to set a new
deadline for Plaintiff to respond to Defendants' motion.
On May 17, 2017, counsel informed the court that Plaintiff
was still incarcerated at the Gilliam Psychiatric Hospital
located at Kirkland Correctional Institution. On May 19,
2017, the Magistrate Judge granted Plaintiff one final
opportunity to file a response to Defendants' motion for
summary judgment on or before June 19, 2017. On June 12,
2017, Plaintiff filed a “Motion to Invoke Court
Order.” Plaintiff informed the court that he
is psychologically/mentally incompetent due [to] the current
state of his mental illness. Therefore the plaintiff moves
the Court to act on it's previously issued order stating
that said Court will dismiss the plaintiff's claim
without prejudice with leave to refile outside of the
ECF No. 150.
30, 2017, the Magistrate Judge issued a Report and
Recommendation in which she reviewed the allegations of the
complaint and evidence produced by Defendants. Regarding
Plaintiff's excessive force claim, the Magistrate Judge
viewed a DVD depicting Plaintiff refusing to comply with
Defendant Pack's orders for Plaintiff to leave a gated
recreation area. Defendant Brown administered a tear-gas
spray toward Plaintiff's face, after which Plaintiff
voluntarily left the field, was stripped down to his
underwear for purposes of a shower, and escorted to a cell.
The Magistrate Judge determined that the amount of force used
by Defendants was reasonable under the circumstances, see
Iko v. Shreve, 535 F.3d 225, 238 (4th Cir.
2008) (setting forth subjective and objective components a
court must consider in analyzing an excessive force claim),
and constituted a good-faith effort to maintain or restore
discipline. Accordingly, the Magistrate Judge recommended
that Defendants' motion for summary judgment be granted
as to this issue.
Plaintiff's denial of medical care claim, the Magistrate
Judge noted that the medical records showed Plaintiff
received medical attention three times the same day after the
use of force incident. The Magistrate Judge also found that
Plaintiff failed to allege Defendants knew of a specific
injury from the incident and refused to either treat
Plaintiff or assist Plaintiff in receiving treatment.
Accordingly, the Magistrate Judge determined that (1)
Plaintiff did not meet the pleading requirements of
Fed.R.Civ.P. 8, and (2) Plaintiff failed to offer any
evidence to support a finding he suffered a serious injury as
a result of Defendants intentionally or recklessly
disregarding his medical needs or delaying his treatment.
See Farmer v. Brennan, 511 U.S. 825 (1994).
According, the Magistrate Judge recommended that
Defendants' motion for summary judgment be granted as to
this issue. The Magistrate Judge also recommended that
Defendants' motion for sanctions be denied as moot.
13, 2017, Plaintiff moved for an extension of time to file
objections to the Report and Recommendation. The court
granted Plaintiff until August 14, 2017, to file objections.
On August 7, 2017, Plaintiff informed the court that he
wished to respond to Defendants' motion for summary
judgment, but that SCDC had lost his original copy. On August
14, 2017, Plaintiff again moved for an extension of time to
file objections to the Report and Recommendation. Plaintiff
The Plaintiff now offers the following reasons for cause of
said second extention. The Plaintiff having been seperated
from his legal work when he was admitted to a psychiatric
hospital for inpatient treatment and hadn't received a
replacement copy of said motion until 8/9/17. This only
allowed the plaintiff 5 days to prepare a response. Therefore
the plaintiff is now asking the court for a 30 day extention
ECF No. 160 (errors in original).
court granted Plaintiff's motion and informed him no
further extensions would be granted. Plaintiff filed no
objections to the Report and Recommendation.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight. The
responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270
(1976). This court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
Magistrate Judge. 28 U.S.C. § 636(b)(1). This court may
also receive further evidence or recommit the matter to the
Magistrate Judge with instructions. Id. In 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).
court has thoroughly reviewed the record and discerns no
clear error. The court concurs in the Report and
Recommendation and incorporates it herein by reference.
Defendants' motion for summary judgment (ECF No. 100) is