United States District Court, D. South Carolina, Florence Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE
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
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.)
Review of R&R
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
Motion for Summary Judgment
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).
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)).
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