United States District Court, D. South Carolina
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION
GEIGER LEWIS UNITED STATES DISTRICT JUDGE
Andre Jamaal Guyton (Guyton), proceeding pro se, filed this
action pursuant to Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388, 397
(1971), and the Federal Tort Claims Act (FTCA). The Court has
jurisdiction over this matter under 28 U.S.C. § 1331.
Pending before the Court is the Magistrate Judge's Report
and Recommendation (Report) recommending this Court grant in
part and deny in part Defendants United States of America,
Federal Correctional Officer Christopher Barsh, Lieutenant
Carlotta Blackwelder, Captain Joe Morales, and Acting Captain
Curtis Jones's (collectively, Defendants) motion to
dismiss, or in the alternative, for summary judgment. The
Report was made in accordance with 28 U.S.C. § 636 and
Local Civil Rule 73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those portions of the Report to which specific objection is
made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. §
636(b)(1). The Court need not conduct a de novo review,
however, “when a party makes general and conclusory
objections that do not direct the court to a specific error
in the [Magistrate Judge's] proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982); see Fed. R. Civ. P. 72(b).
document filed pro se is ‘to be liberally
construed.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). Courts are not, however, required to
“conjure up questions never squarely presented to
them” or seek out arguments for a party. Beaudett
v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
The Court will address each specific objection to the Report
in turn, but the Court need not-and will not-address any
arguments that fail to point the Court to alleged specific
errors the Magistrate Judge made in the Report. See
Orpiano, 687 F.2d at 47.
Magistrate Judge filed the Report on February 7, 2019.
Defendants filed their objections on February 21, 2019, and
Guyton filed his objection on February 22, 2019. The Court
has carefully reviewed both parties' objections but holds
them to be without merit. Therefore, it will enter judgment
case arises out of an incident that occurred while Guyton, a
federal prisoner, was incarcerated at FCI Edgefield in South
Carolina. Report at 2. According to Guyton, he was being
transported from his cell to the law library when Defendant
Barsh “began grabbing [Guyton]
his legs and inappropriately touching his genitalia while
escorting him to the SHU law library.” Id.
Guyton alleges Barsh violated his Eighth Amendment rights
because Barsh sexually assaulted Guyton by rubbing and
grabbing his genitals in a degrading manner. Guyton further
claims Barsh's sexual assault constitutes negligence
under the FTCA and Defendants Blackwelder, Morales, and
Jones's inaction constitutes negligence under the FTCA.
Id. at 2-3.
Magistrate Judge recommends the Defendants' motion to
dismiss should be (1) granted as to Guyton's
Bivens claim against all Defendants; (2) granted as
to Guyton's FTCA claim against Blackwelder, Morales, and
Jones; and (3) denied as to Guyton's FTCA claim against
the United States of America based on the alleged sexual
assault by Barsh. Report at 16.
purported objection fails to point to any specific alleged
error in the Report and instead asks this Court for leave to
amend his complaint. As the Magistrate Judge accurately
stated in the Report, any amendment based on the facts
alleged in the complaint would be futile because Guyton
cannot state a claim pursuant to Bivens, nor can he allege a
plausible FTCA claim against Defendants Blackwelder, Morales,
and Jones. Therefore, the Court will overrule Guyton's
objection and deny him leave to amend.
object to the Magistrate Judge's recommendations that (1)
Guyton should be excused from filing a Rule 56(d) affidavit,
(2) Defendants' motion should be treated as a motion to
dismiss rather than a motion for summary judgment, (3)
Guyton's FTCA claims should survive Defendants'
motion to dismiss, and (4) Guyton's “assault
claim” should survive Defendants' motion to
dismiss. The Court will address each objection in turn.
first and second objections address whether this Court should
treat Defendants' motion as a motion to dismiss or a
motion for summary judgment. The Magistrate Judge recommends
this Court should treat Defendants' motion as a motion to
dismiss rather a motion for summary judgment. Report at
10-11. “Summary judgment [must] be refused where the
nonmoving party has not had the opportunity to discover
information that is essential to [its] opposition.”
Anderson v. Liberty Lobby, 477 U.S. 242, 250 at n.5
(1986). If a party believes that more discovery is necessary
for it to demonstrate a genuine issue of material fact, the
proper course is to file an affidavit pursuant to Rule 56(d)
of the Federal Rules of Civil Procedure stating, “that
it could not properly oppose a motion for summary judgment
without a chance to conduct discovery.” Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 961
(4th Cir. 1996).
if the opposition to summary judgment “serve[s] as the
functional equivalent of an affidavit and if the nonmoving
party was not lax in pursuing discovery, ” the failure
to file a Rule 56(d) affidavit may be excused. Harrods
Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244
(4th Cir. 2002). Defendants claim Guyton's failure to
file a Rule 56(d) affidavit should not excused because
Guyton's “conclusory statements are insufficient to
be the ‘functional equivalent' of an affidavit or
declaration detailing ‘specified reasons' why he
cannot present facts essential to justify its opposition, as
required by Rule 56(d). Objection at 3. However, Guyton has
opposed Defendants' motion as premature and argued he
“ought to have the opportunity to discover the facts
supporting his claims.” Plaintiff's Response in
Opposition at 2. Given the liberal construction afforded to
pro se litigants, this Court concludes Guyton's
assertions in his response in opposition to Defendants'
motion serves as the “functional equivalent” of a
Rule 56(d) affidavit. Accordingly, the Court will overrule
Defendants' first and second objections and will treat
Defendants' motion as a motion to dismiss rather than a
motion for summary judgment.
next object to the Magistrate Judge's recommendation
Guyton's FTCA claim against the United States based on
Barsh's alleged sexual assault should survive
Defendants' motion to dismiss. Objection at 7. However,
Defendants concede they owed Guyton a duty to provide
reasonable care, and Guyton has alleged Barsh breached that
duty when he sexually assaulted Guyton, and this breach
caused him harm. At this stage of the litigation, the Court
agrees with the Magistrate Judge that Guyton's FTCA claim
against Barsh survives Defendants' motion to dismiss, and
therefore, the Court will overrule Defendants' third
final objection concerns the Magistrate Judge's
recommendation Guyton's assault claim survives
Defendants' motion to dismiss because Defendants failed
to address Guyton's assault claim. Objection at 7.
Specifically, Defendants object “to the Magistrate
Judge's characterization of the FTCA claims.”
Id. The Magistrate Judge, liberally construing
Guyton's complaint, found Guyton asserted three claims
under the FTCA: (1) assault based on Barsh's actions; (2)
negligence based on Barsh's actions; and (3) negligence
based on the remaining defendants' inaction. Report at
13, fn. 5. Defendants ...