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Butler v. Bessinger

United States District Court, D. South Carolina, Florence Division

February 20, 2019

Lavadre Butler, #337779, Plaintiff,
v.
Trevor Bessinger, Lisa Young, Gregory Washington, Mr. Esterline, Mr. Suarez, Mr. Braddy, Mr. Shorter, Mr. Williams, Defendants.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE

         Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 178) recommending that the Court grant Defendants' motion for summary judgment (Dkt. No. 144) to dismiss claims as to Defendant Washington and Plaintiffs medical indifference claim, and deny the motion as to Plaintiffs excessive force claim. For the reasons set forth below, the Court adopts in part and declines to adopt in part the R & R as the Order of the Court.

         I. Background

         Plaintiff Lavandre Butler is a pro se incarcerated person alleging pursuant to 42 U.S.C. § 1983 that Defendants violated his constitutional rights by using excessive force and being indifferent to his medical needs while he was confined at the Broad River Correctional Institution. (Dkt. No. 99.) The Court previously dismissed without prejudice Butler's claims against J.C. Wilson pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (Dkt. No. 152.) The Court previously denied Defendants' motion for summary judgment, brought on the grounds that Butler failed to exhaust the available administrative remedies pursuant to the Prison Litigation Reform Act. (Dkt. No. 172.) Defendants' motion for summary judgment is now addressed on its merits. The Magistrate Judge issued an order allowing the parties ten days to file additional responses to the motion for summary judgment, and no responses were filed. Defendants filed objections to the R & R. (Dkt. No. 182.)

         II. Legal Standard

         A. Review of R&R

         The 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, e.g., Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The 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)(C). Where there are specific objections to the R&R, the Court "makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. Where there are no objections to the R&R, the Court reviews the R & R to "only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72 advisory committee's note; see also Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983) ("In the absence of objection ... we do not believe that it requires any explanation.").

         B. Motion for Summary Judgment

         Summary judgment is appropriate if a party "shows that there is no genuine dispute as to any material fact" and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In other words, summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities in favor of the nonmoving party." HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996). The pro se litigant's complaint is afforded a liberal construction. Cruz v. Beto, 405 U.S. 319 (1972).

         The party seeking summary judgment has the initial burden of demonstrating to the Court that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, Ml U.S. 317, 323 (1986). Once the moving party has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. Under this standard, "[c]onclusory or speculative allegations do not suffice, nor does a 'mere scintilla of evidence'" in support of the non-moving party's case. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting Phillips v. CSX Transp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).

         III. Discussion

         A. Defendant Washington

         The Magistrate Judge recommends that all claims against Defendant Washington be dismissed because there is no evidence in the record that he was personally involved in Butler's allegations and he cannot be held liable under a respondeat superior theory under 42 U.S.C. § 1983 for his subordinate employees' conduct absent an official policy or custom. Monell v. Dep 't of Soc. Servs., 436 U.S. 658, 694 (1978); Fisher v. Washington Metro Area Trans. Auth, 690 F.2d 1133, 1142-43 (4th Cir. 1982). Defendants' motion for summary judgment is granted with respect to all claims against Defendant Washington.[1]

         B. ...


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