United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER
Margaret B. Seymour Senior United States District Judge
Henry Fletcher (“Plaintiff”) is former state
inmate. Plaintiff, proceeding pro se, brings this
civil rights action pursuant to 42 U.S.C. §
against Jackie Truesdale (guard at Kershaw Correctional
Institution)(“Defendant”). 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 Paige
J. Gossett for pretrial handling. This matter is now before
the court for review of the Magistrate Judge's Report and
RELEVANT FACTS AND PROCEDURAL HISTORY
filed this action on June 19, 2017. ECF No. 1. In his
complaint, Plaintiff alleges that on two instances, Defendant
informed other inmates that Plaintiff was acting as an
informant. Id. at 5. Specifically, Plaintiff asserts
that “Sergeant Jackie Trusdal [sic] was calling me a
snitch in front of other Inmate's [sic] like I be rating
[sic] on them.” Id.
April 12, 2018, Defendant filed a motion for summary
judgment. ECF No. 65. Defendant argues Plaintiff failed to
state a cause of action under the Constitutions of the United
States and South Carolina. Id. at 1. Second,
Defendant asserts that Plaintiff failed to exhaust his
administrative remedies pursuant to 42 U.S.C. § 1997e(a)
and Porter v. Nussle, 534 U.S. 516 (2002).
Id. at 2. Third, Defendant argues that she is immune
from suit in her official capacity pursuant to the doctrine
of sovereign immunity. Id. Fourth, Defendant asserts
that she is immune from suit in her individual capacity
pursuant to the doctrine of qualified immunity. Id.
Fifth, Defendant alleges that she was not deliberately
indifferent to “any serious medical need or injury of
Plaintiff.”Id. Sixth, Defendant argues that
she was not aware of a risk of serious harm to Plaintiff.
Id. at 3. Seventh, Defendant asserts that Plaintiff
has not made a showing of physical injury, as required by 42
U.S.C. § 1997e(a). Id. Eighth, Defendant
contends that Plaintiff's claim is barred by the South
Carolina Tort Claims Act. Id. Ninth, Defendant
asserts that Plaintiff “has failed to properly plead or
establish the prerequisites for an award of declaratory or
injunctive relief . . . .” Id. Tenth,
Defendant alleges that she “was at all times acting
according to and in compliance with specific laws, rules, and
regulations of the State of South Carolina and the SCDC and
is therefore immune from suit due to statutory and/or
regulatory authority.” Id. at 4.
Magistrate Judge issued an order pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975) on April 13,
2018, informing Plaintiff of the summary judgment procedures
and the consequences for failing to respond adequately. ECF
filed a response to Defendant's motion on April 23, 2018.
ECF No. 69. Plaintiff asserts that Defendant's alleged
actions have placed him in grave danger, as “the gangs
have questioned me about this. . . .” Id. at
1. Plaintiff further asserts that he has filed internal
grievances and had witnesses prepare statements. Id.
filed a reply to Plaintiff's response on May 22, 2018.
ECF No. 72. Defendant states that Plaintiff “presented
no affidavits or other evidence” to support his claim.
Id. at 2. Defendant also argues that Plaintiff's
claim is now moot, as he has been released from prison and no
longer suffers an ongoing constitutional violation.
Id. at 4.
filed a sur reply to Defendant's reply on June 19, 2018.
ECF No. 74. In his sur reply, Plaintiff disagrees with
Defendant's contention that his case is moot, and
represents to the court that he continues to live in fear of
gang retaliation. Id. at 1.
October 29, 2018, the Magistrate Judge issued a Report and
Recommendation. ECF No. 75. In her Report, the Magistrate
Judge recommended Plaintiff's claim be dismissed without
prejudice. Id. at 8. The Magistrate Judge held that
Plaintiff failed to exhaust his administrative remedies
before filing his lawsuit, pursuant to 42 U.S.C. §
1997e(a). Id. at 3. Plaintiff filed no objection to
the Report and Recommendation.
November 13, 2018, Defendant filed objections to the Report
and Recommendation. ECF No. 77. In her objections, Defendant
states that she agrees with the Magistrate Judge's
conclusions, indicating that she “does not object to
the recommendation of the Magistrate Judge's Report that
Plaintiff Fletcher's claims should be dismissed . . .
.” Id. at 1. However, Defendant asks that this
court consider the other grounds for dismissal listed in
Defendant's motion for summary judgment, ECF No. 65.
STANDARD OF REVIEW
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight and the
responsibility for making a final determination remains with
the court. Mathews v. Weber, 423 U.S. 261, 270
(1976). The court reviews de novo only those portions of a
Magistrate Judge's Report and Recommendation to which
specific objections are filed and reviews those portions
which are not objected to - including those portions to which
only “general and conclusory” objections have
been made - for clear error. Diamond v. Colonial Life
& Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005);
Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983);
Opriano v. Johnson, 687 F.2d 44, 77 (4th Cir. 1982).
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. § 636(b)(1).