United States District Court, D. South Carolina, Rock Hill Division
Kentwan L. Lake, Plaintiffs,
Ms. Gardener, Mr. Rennick, Ofc. Trusdale, Mr. Anderson, Ms. Salmon, Ms. Shannon, Ms. Eury, Sgt. Baker, Defendants.
C. Coggins, Jr. United States District Judge
matter is before the Court on a Supplemental Motion for
Summary Judgment by Defendant Mr. Anderson. ECF No. 76. In
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2) (D.S.C.), this matter was referred to United
States Magistrate Paige J. Gossett for pre-trial proceedings
and a Report and Recommendation (“Report”). On
August 21, 2018, the Magistrate Judge issued a Report
recommending that the Motion be granted. ECF No. 101.
Plaintiff filed objections to the Report, Defendant Anderson
filed a Reply, and Plaintiff filed a Sur-Reply. ECF Nos. 108,
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. §
636(b). The Court will review the Report only for clear error
in the absence of an objection. See Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (stating that “in the absence of 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.” (citation omitted)).
Magistrate Judge provides a thorough recitation of the facts
of this case and the applicable law in the Report which the
Court incorporates by reference. The only claim at issue is
Plaintiff's allegations of excessive force against
Defendant Anderson. Tha Magistrate Judge recommends granting
Defendant Anderson's Motion for Summary Judgment; she
determined that the evidence in the record establishes that
Defendant Anderson's use of chemical munitions did not
violate Plaintiff's constitutional rights in light of the
reasonable perception of a threat.
objects to the Magistrate Judge's conclusion. He contends
that Defendant Anderson's use of insulting language is
evidence that he intended to punish Plaintiff. Further, he
argues that Defendant Anderson continued spraying him with
chemical munitions for an extended period of time.
review of the pleadings, the applicable law, the Report, and
the objections, the Court agrees with the findings of the
Magistrate Judge and overrules this objection. With respect
to Plaintiff's argument that Defendant Anderson's
language is evidence of his intent to punish, the Court
agrees with the Magistrate Judge's conclusion that these
comments are evidence that Defendant Anderson attempted to
resolve the issue with verbal directives before employing
force. Regarding Plaintiff's allegation that Defendant
Anderson deployed more chemical munitions than necessary, the
Court finds that allegation is not supported by the record
and agrees with the Magistrate Judge that the amount of
chemical munitionsdeployed appears to have been tempered in
severity to the circumstances and within constitutional
standards. See Robinson v. S.C. Dep't of Corr.,
C/A No. 5:10-2593-HMH-KDW, 2012 WL 851042, at *7 (D.S.C. Mar.
23, 2012) (adopting Report and Recommendation finding
“two short bursts of chemical munitions” totaling
31 grams to be a small amount that was not unconstitutionally
excessive); Plummer v. Goodwin, C/A No.
8:07-2741-TLW-BHH, 2010 WL 419927, at *7 n.4 (D.S.C. Jan. 29,
2010) (adopting Report and Recommendation finding the use of
33.5 grams of chemical munitions to be “not
constitutionally relevant”). There is no indication in
the record that Defendant Anderson used force maliciously and
sadistically to cause harm. See Wilkins v. Gaddy,
559 U.S. 34, 37 (2010); see also Whitley v. Albers,
475 U.S. 312, 322 (1986) (listing four factors to consider
when deciding whether a defendant showed wantonness in the
infliction of pain).
the Court adopts the Report of the Magistrate Judge.
Defendant Anderson's Supplemental Motion for Summary
Judgment is GRANTED.
 Plaintiff appears to object to the
affidavit of Colie Rushton. He fails to provide any support
for his objection; accordingly, his objection to her
affidavit is overruled.
 The Court makes no finding as to the
severity of the injury as it is unnecessary at this
procedural posture. See Farmer v. Brennan, 511 U.S.
825, 834 (1994) (holding that a plaintiff alleging a
violation of his Eight Amendment right must demonstrate: (1)
objectively, the deprivation suffered or injury inflicted was
“sufficiently serious, ” and (2) subjectively,
the prison officials acted with a “sufficiently
culpable state of mind”).
 Plaintiff's Sur-Reply focuses on
whether Defendant Anderson is entitled to Qualified Immunity.
Because the Court grants the Supplemental Motion for Summary
Judgment based on the merits, it is unnecessary to determine
whether he is entitled to ...