United States District Court, D. South Carolina, Greenville Division
ORDER AND OPINION
Angelo Ham (“Plaintiff”) brings this action
pursuant to 42 U.S.C. § 1983. (ECF No. 1 at 4.)
Plaintiff, proceeding pro se and in forma
pauperis, filed the action alleging the use of excessive
force, as well as cruel and unusual punishment, in violation
of 28 U.S.C. § 1983. (Id.) Plaintiff claims he
was injured and denied prompt medical treatment, thus
depriving him of his rights under the Eighth Amendment of the
United States Constitution. (ECF No. 1-2.) For the reasons
set forth herein, the court ACCEPTS the
Magistrate Judge's Report and Recommendation
(“Report”) (ECF No. 70) and
GRANTS Defendants' Motion for Summary
Judgment (ECF No. 47) as to all remaining claims.
Additionally, the court ACCEPTS the
Magistrate Judge's Report (ECF No. 70) and
DENIES all pending nondispositive motions
(ECF Nos. 52, 67) as moot.
FACTUAL AND PROCEDURAL BACKGROUND
commenced this § 1983 action on June 18, 2018, asserting
claims for deliberate indifference, excessive force, and
cruel and unusual punishment. (ECF No. 1 at 4.) Plaintiff
asserted all claims against the following
defendants: former Warden Michael Stephan, Unit
Manager Dedric Williams, Sgt. Eartha Mae Williams, Colonel
Gregory Wells, Dr. John McRee, Officer Galloway, and Officer
Smithana (collectively, “Defendants”).
December 12, 2018, Defendants filed their Motion for Summary
Judgment. (ECF No. 47). On July 22, 2019, the Magistrate
Judge, issued a Report in which he recommends granting
Defendants' Motion for Summary Judgment. (ECF No. 70.)
Additionally, the Magistrate Judge recommends denying all
pending nondispositive motions as moot. (Id. at 15.)
Objections to the Report were due on August 8, 2019. (ECF No.
70.) Plaintiff timely filed objections to the Report on
August 7, 2019. (ECF No. 72.) Defendants did not file
objections to the Report. This matter is now ripe for review.
STANDARD OF REVIEW
magistrate judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The magistrate judge makes only a
recommendation to this court, and the recommendation has no
presumptive weight. See Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The responsibility to make a final
determination remains with this court. Id. at 271.
As such, the court is charged with making de novo
determinations of those portions of the Report to which
specific objections are made. 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. Id. Additionally, as Plaintiff is
a pro se litigant, the court is required to
liberally construe his arguments. Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978).
to the Report must be specific. Failure to file specific
objections constitutes a waiver of a party's right to
further judicial review, including appellate review, if the
recommendation is accepted by the district judge. See
United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984). In the absence of specific objections to the Report of
the magistrate judge, this court is not required to give any
explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983).
review, the court finds that Plaintiff has raised one
specific objection: the Magistrate Judge erred in his
recommendation granting summary judgment in favor of
Defendants for his “failure to protect” claim.
(ECF No. 72 at 1.) As such, the court will only address this
objection. See Camby at 199 (court not required to
give any explanation for adopting recommendation in the
absence of specific objections).
Plaintiff's objection to the Magistrate Judge's
recommendation to dismiss Plaintiff's failure to protect
claim, which Plaintiff first raised in his response (ECF No.
58) to Defendants' Motion for Summary Judgment. Plaintiff
contends that the Magistrate Judge's determination that
the claim “was not pled in the Complaint and is thus
not properly before the court” was not a proper basis on
which to dismiss the claim. (ECF No. 72 at 1.) Plaintiff
further argues that “although he never clearly stated
or argued a failure to protect claim, [he] did, in fact,
argued (sic) and stated (sic) that the (sic) Defendants
violated his Eighth Amendment [rights] which constituted
cruel and unusual punishment.” (Id. at 2).
court first addresses whether the absence of a failure to
protect claim in Plaintiff's Complaint is a
proper basis to grant summary judgment as to that claim. It
is a proper basis. United States v. Drennan, 121
F.3d 701, 1997 WL 543379, *5 (4th Cir. Sept. 5, 1997)
(“It is well settled that arguments raised for the
first time in a reply brief are waived.”). While
Plaintiff has articulated one of the Magistrate's
Judge's reasons for his recommendation, Plaintiff omits
the other portion of the record, which the court addresses
addition to the Magistrate Judge's determination that the
failure to protect claim fails on procedural grounds, the
Report explains that Plaintiff's failure to protect claim
also fails as a matter of law.
the Report states:
To succeed on a claim for failure to protect, a prisoner must
show: (1) “that he is incarcerated under conditions
posing a substantial risk of serious harm” and (2) that
prison officials exhibited deliberate ...