United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge
Robert Earl Morning brought this action, which was removed
from state court, against the seven above-captioned
defendants alleging claims under 42 U.S.C. § 1983 and
state law. All defendants except Defendant Ken Carlisle
Rogers answered and filed a motion for summary judgment. The
matter is before the Court for consideration of the
parties' objections to the Report and Recommendation
(“R & R”) of United States Magistrate Judge
Thomas E. Rogers, III. The Magistrate Judge recommends that the
Court grant in part and deny in part the motion for summary
judgment, and that the Court dismiss Defendant Rogers without
Review of the R & R
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it 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. §
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
judgment is appropriate when no genuine issue of material
fact exists and the moving party is entitled to judgment as a
matter of law. Reyazuddin v. Montgomery Cty., Md.,
789 F.3d 407, 413 (4th Cir. 2015); see Fed. R. Civ.
P. 56(a) (“The court shall grant summary judgment 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.”). “A party asserting that a fact
cannot be or is genuinely disputed must support the assertion
by: (A) citing to particular parts of materials in the record
. . .; or (B) showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1). The facts and
inferences to be drawn from the evidence must be viewed in
the light most favorable to the non-moving party,
Reyazuddin, 789 F.3d at 413, but the Court
“cannot weigh the evidence or make credibility
determinations.” Jacobs v. N.C. Admin. Office of
the Courts, 780 F.3d 562, 569 (4th Cir. 2015).
“the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). “A dispute of
material fact is ‘genuine' if sufficient evidence
favoring the non-moving party exists for the trier of fact to
return a verdict for that party.” Seastrunk v.
United States, 25 F.Supp.3d 812, 814 (D.S.C. 2014). A
fact is “material” if proof of its existence or
nonexistence would affect disposition of the case under the
applicable law. Anderson, 477 U.S. at 248.
summary judgment stage, “the moving party must
demonstrate the absence of a genuine issue of material fact.
Once the moving party has met his burden, the nonmoving party
must come forward with some evidence beyond the mere
allegations contained in the pleadings to show that there is
a genuine issue for trial.” Baber v. Hosp. Corp. of
Am., 977 F.2d 872, 874-75 (4th Cir. 1992) (internal
citation omitted). Summary judgment is not warranted unless,
“from the totality of the evidence, including
pleadings, depositions, answers to interrogatories, and
affidavits, the [C]ourt believes no genuine issue of material
fact exists for trial and the moving party is entitled to
judgment as a matter of law.” Whiteman v.
Chesapeake Appalachia, L.L.C., 729 F.3d 381, 385 (4th
Cir. 2013); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
case arises from an incident during which First Sergeant Ken
Rogers of the Dillon County Sheriff's Office
(“DCSO”) allegedly used excessive force when
arresting Plaintiff by pepper spraying, slapping,
leg-shackling, and tasing him, and when DCSO deputies James
Jackson, Andrew Miller, and Richard Day allegedly failed to
protect Plaintiff from Rogers' actions. Due to his
alleged actions, Rogers was arrested and charged with
misconduct in office and assault and battery, and he
ultimately pleaded guilty to misconduct in office. Plaintiff
has sued the aforementioned four officers in their individual
and official capacities, as well as Sheriff Major Hulon in
his official capacity, the DCSO, and Dillon County. In his
amended complaint, Plaintiff asserts thirteen causes of
action pursuant to 42 U.S.C. § 1983 and state law. All
defendants except Rogers have answered and filed a motion for
Magistrate Judge recommends that the Court (1)
deny summary judgment as to Plaintiff's
§ 1983 bystander liability claim against Day and gross
negligence claim against the DCSO, (2) grant
summary judgment as to all other claims against Dillon
County, the DCSO, Hulon, Jackson, Miller, and Day, (3)
find the issue of the DCSO's liability
under the South Carolina Tort Claims Act
(“SCTCA”) should remain pending; and (4)
dismiss Rogers pursuant to Federal Rule of
Procedure 4(m). See R & R [ECF No. 47] at p. 18.
Thus, based on the Magistrate Judge's recommendation, the
only remaining defendants would be Day and the DCSO. The
parties have filed limited objections to the R & R.
the Court notes there is no objection to the dismissal of
Dillon County, Hulon, Jackson, and Miller. Finding no clear
error in the R & R as to these four defendants, the Court
will dismiss them from this case with prejudice. The
parties' objections relate only to Day,
the DCSO, and Rogers.
Magistrate Judge recommends denying summary judgment as to
Plaintiff's § 1983 bystander liability claim against
Day. R & R at pp. 8-14. Day makes two objections to this
recommendation. See Defs.' Objs. [ECF No. 52] at
Whether Plaintiff Adequately Pleaded a § 1983 Bystander