United States District Court, D. South Carolina, Beaufort Division
matter is before the court for review of the Magistrate
Judge's Report and Recommendation (“Report”)
filed on February 26, 2019 (ECF No. 37). The court
ACCEPTS the Magistrate Judge's Report
and incorporates it herein by reference. For the reasons set
out in the Report, the court GRANTS
Defendants Deputy Brooks, Deputy Tool, Corporal Doolittle,
Lieutenant Hettich, Nurse NFN Brandy, Lieutenant Carlan, and
Corporal Buggs' (collectively, “Defendants”)
Motions for Summary Judgment (ECF Nos. 28, 29) and
DISMISSES Plaintiff Kevin Dearing
Rodger's Complaint (ECF No. 1).
FACTUAL AND PROCEDURAL BACKGROUND
Report sets forth the relevant facts and legal standards,
which this court incorporates herein without a full
recitation. (ECF No. 37 at 1-13.) As brief background, on
February 5, 2018, Plaintiff, proceeding pro se and in forma
pauperis, filed this 42 U.S.C. § 1983 action alleging
that while in detention at the Aiken County Detention Center,
he was physically assaulted and Defendants failed to protect
him and provide him adequate medical care following the
assault. (ECF No. 1 at 6-13.) Plaintiff asserts
Defendants' actions, and lack thereof, were negligent and
violated his constitutional rights. (Id. at 7.) On
October 1, 2018, Defendants filed Motions for Summary
Judgment. (ECF Nos. 27, 28.) On October 2, 2018, the
Magistrate Judge entered a Roseboro order-which was
mailed the same day-advising Plaintiff of the summary
judgment procedures and the consequences of failing to
adequately respond. (ECF No. 29.) On October 12, 2018,
Plaintiff informed the court of a change in his address. (ECF
No. 31.) On October 19, 2018, the court re-mailed its
Roseboro order to Plaintiff. (ECF No. 32.) On
October 26 and November 2, 2018, Plaintiff filed Responses to
Defendants' Motions for Summary Judgment. (ECF Nos. 33,
Magistrate Judge entered her Report on February 26, 2019.
(ECF No. 37.) The Magistrate Judge first found
Plaintiff's failure to protect claim was without merit
Plaintiff . . . presented no evidence to show that . . . any
[of the] Defendant[s] knew that either [of Plaintiff's
assailants] posed a danger to him, or that Plaintiff himself
even knew of or perceived of any such danger (indeed, the
evidence shows that Plaintiff was playing cards with [one of
the assailants] before he was attacked). The evidence further
shows that following the attack, Plaintiff himself submitted
a non-prosecution request, stating that the whole thing had
been a “misunderstanding”. Moreover, . . .
Defendants all attest (and Plaintiff has provided no evidence
to show to the contrary) that they had no personal knowledge
or information that either [of the assailants] was a risk to
the Plaintiff (or anyone else), or were going to assault the
(Id. at 14.) As to Plaintiff's medical claims,
the Magistrate Judge found
Defendants have submitted medical documents and testimonial
evidence (including from medical professionals) showing that
Plaintiff was regularly seen and evaluated by medical
personnel for his complaints, and which refute
Plaintiff's claims. . . . Since the evidence before the
[c]ourt is insufficient to raise a genuine issue of fact as
to whether any named Defendant was “deliberately
indifferent” to Plaintiff's serious medical needs,
the standard for a constitutional claim, Plaintiff's
federal § 1983 medical claim should be dismissed.
at 17.) The Magistrate Judge also found that
“[n]egligence is not a viable claim under §
1983.” (Id. at 3 n.5 (citing Daniels v.
Williams, 474 U.S. 327, 335-36 n. 3 (1986); Harrison
v. Sumter Cty. Sheriff's Dep't, No. 17-3442,
2018 WL 1225108, at * 1 (D.S.C. Mar. 7, 2018)).) Accordingly,
the Magistrate Judge recommends granting Defendants'
Motions for Summary Judgment and dismissing this case.
(Id. at 18.)
STANDARD OF REVIEW
Magistrate Judge's Report and Recommendation is made in
accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02 for the District Court of South Carolina. The
Magistrate Judge only makes a recommendation to this court;
the responsibility to make a final determination remains with
this court. See Mathews v. Weber, 423 U.S. 261,
270-71 (1976). This court engages in a de novo review of
those portions of the Report and Recommendation to which the
parties have made specific objections. See 28 U.S.C.
§ 636(b)(1). See also Fed. R. Civ. P. 72(b)(3).
The court may accept, reject or modify, in whole or in part,
the Magistrate Judge's recommendation or recommit the
matter with instructions. See 28 U.S.C. §
February 26, 2019, as part of the Report, the Magistrate
Judge notified the parties of their right to file objections
by March 12, 2019. (ECF No. 37 at 19.) On February 26, 2019,
the Report was mailed to Plaintiff at the updated address
Plaintiff provided the court on October 19, 2018. (ECF Nos.
38, 39.) The Report was returned as undeliverable on March
14, 2019. (ECF No. 39.) The Clerk of Court for the United
States District Court for the District of South Carolina
searched the South Carolina Department of Corrections Inmate
Locator to determine Plaintiff's location and found he
was no longer in custody. At the beginning of this
litigation, on March 7, 2018, the court entered an order
directing Plaintiff to advise the Clerk of Court, in writing,
“if [his] address change[d] for any reason, so as to
assure that orders or other matters that specify deadlines
for you to meet will be received by you.” (ECF No. 8 at
3.) Thus, apparently, Plaintiff has failed to provide the
court with a correct address. Neither of the parties filed any
objections to the Report by March 12, 2019. In the absence of
objections to the Magistrate Judge's Report, this court
is not required to provide an explanation for adopting the
recommendations without modification. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Absent
objections, the court must only ensure that there is no clear
error on the face of the record in order to accept the
recommendations. Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting
Fed.R.Civ.P. 72 advisory committee's note). If a party
fails to file specific, written objections to the Report, the
party forfeits the right to appeal the court's decision
concerning the Report. 28 U.S.C. § 636(b)(1); Thomas
v. Arn, 474 U.S. 140 (1985); United States v.
Schronce, 727 F.2d 91 (4th Cir. 1984). Accordingly,
since none of the parties filed any objections to the Report,
and the court observes no clear error on the face of the
record, the court accepts the Magistrate Judge's Report.
See Diamond, 416 F.3d at 315; Camby, 718
F.2d at 199.
thorough and careful review of the record, the court finds
the Magistrate Judge's Report and Recommendation provides
an accurate summary of the facts and law in this case. The
court ACCEPTS the Magistrate Judge's
Report and Recommendation (ECF No. 37) and incorporates it
herein by reference. For the reasons set out in ...