United States District Court, D. South Carolina, Beaufort Division
OPINION AND ORDER
HOWE HENDRICKS, UNITED STATES DISTRICT JUDGE
Glen Strickland, Jr. (“Plaintiff”), a frequent
filer of pro se litigation in this Court, brought
this civil action pursuant to 42 U.S.C § 1983, alleging
violations of his constitutional rights. (ECF. No. 1.) In
accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule
73.02 for the District of South Carolina, this matter was
referred to United States Magistrate Judge Bristow Marchant
for pretrial handling. The matter is now before this Court
for review of the Report and Recommendation
(“Report”) issued by the Magistrate Judge on May
2, 2019. (ECF No. 54.) In his Report, the Magistrate Judge
recommends that the Court grant Defendants Ford, Williams,
Cohen, Burton, Bryant, Myrick, and Fuller's motion for
summary judgment (ECF No. 37) and dismiss all claims asserted
against these Defendants. (ECF No. 54 at 23.) In addition,
the Magistrate Judge recommends that the Court grant the
remaining Defendants' motion to dismiss for lack of
service (ECF No. 36) and dismiss the case in toto.
(ECF No. 54 at 23.) The Report sets forth in detail the
relevant facts and standards of law, and the Court
incorporates them here without recitation.
Judge Marchant issued the Report on May 2, 2019. (ECF No.
54.) Plaintiff filed objections on May 17, 2019. (ECF Nos.
56, 56-1.) Defendants Ford, Williams, Cohen, Burton, Bryant,
Myrick, and Fuller filed an objection to the Report insofar
as it failed to address whether this action should be counted
as a strike against Plaintiff pursuant to the provisions of
the Prison Litigation Reform Act. (ECF No. 57.) The matter is
ripe for consideration and the Court now issues the following
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 Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo
determination of any portion of the Report of the Magistrate
Judge to which a specific objection is made. The Court may
accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the
matter to the Magistrate Judge with instructions.
See 28 U.S.C. § 636(b). In the absence of a
timely filed objection, a district court need not conduct a
de novo review, but instead must “only satisfy
itself that there is no clear error on the face of the record
in order to accept the recommendation.” Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
Magistrate Judge first found that, under Federal Rule of
Civil Procedure 4(m), Defendants McKurstry, Smalls, Strand,
Rubeo, and Hancock are all entitled to dismissal as party
Defendants because they have never been served with process
in this case. (ECF No. 54 at 3.) Accordingly, the Magistrate
Judge concluded that these Defendants' motion to dismiss
(ECF No. 36) should be granted. Plaintiff did not object to
this conclusion and the Court finds no error in the
Magistrate Judge's analysis or recommendation.
Consequently, the recommendation is adopted.
Magistrate Judge next found that Plaintiff exhausted his
administrative remedies with respect to three of the nine
grievances he filed while at Ridgeland Correctional
Institution (“RCI”), and that of these three
exhausted grievances, only two- RCI-379-15 and
RCI-61-16-reference Plaintiff's claims against a properly
served Defendant. (ECF No. 54 at 5-6.) Accordingly, the
Magistrate Judge concluded that, other than the claims noted
in those two grievances, the moving Defendants are entitled
to dismissal of the claims asserted against them in this
lawsuit. (Id. at 7.) Plaintiff did not object to
this conclusion and the Court finds no error in the
Magistrate Judge's analysis or recommendation. Therefore,
the recommendation is adopted.
Magistrate Judge next reviewed the allegations contained in
RCI-379-15 (claims of harassment) and RCI-61-16 (November
2015 incident). (Id. at 7-23.) With respect to the
November 2015 incident, the Magistrate Judge found that, even
assuming Plaintiff's version of events to be true for
purposes of summary judgment, the force used against
Plaintiff was not sufficient to create a genuine issue of
fact as to whether Plaintiff's constitutional rights were
violated, and concluded that the claim should be dismissed.
(Id. at 9-14.) With respect to Plaintiff's
claims of harassment, the Magistrate Judge found that,
assuming the factual allegations set forth in Plaintiff's
complaint to be true for purposes of summary judgment, the
allegations of harassment set forth distasteful conduct but
fail to establish a viable constitutional claim.
(Id. at 14-22.) Accordingly, the Magistrate Judge
concluded that Defendants are entitled to summary judgment on
the harassment claims, and those claims should be dismissed.
(Id. at 14-22.) Nonetheless, Magistrate Judge
Marchant noted that his findings regarding the harassment
claims do not preclude the possibility that Plaintiff may
have some viable state law claim(s) relating to his
harassment allegations, or some further internal prison
remedies he may pursue. (Id. at 22.) However, the
Magistrate Judge reiterated that the evidence simply fails to
establish contested issues of fact on claims of a
constitutional magnitude. (Id. at 22-23.)
first objects by arguing minor details of the physical
interaction between himself and Defendants Williams, Myrick,
Ford, and (unserved Defendant) McKurstry in November 2015.
(See ECF No. 56-1 at 1.) Plaintiff's rambling,
unsupported assertions fail to point the Court to any
specific error in the Magistrate Judge's reasoning or
conclusions and are unavailing to demonstrate the existence
of any genuine issue of material fact that would prevent the
entry of summary judgment. Accordingly, the objection is
next objects by quibbling over minor, irrelevant aspects of
his many disagreements with Defendants Ford, Williams,
Burton, and Cohen about his housing assignments at RCI, his
participation in out of cell activities, alleged tampering
with his meals, and general harassment directed toward him.
(See ECF No. 56-1 at 1-2.) Again, Plaintiff's
unsupported assertions fail to point the Court to any error
in the Magistrate Judge's reasoning or conclusions.
Plaintiff has not demonstrated a genuine dispute regarding a
material fact relevant to any harassment claim of
constitutional magnitude. The Court agrees with the sound
analysis of the Magistrate Judge and overrules the objection.
remainder of Plaintiff's objections either address a
Defendant not named in this lawsuit (see ECF No. 56
at 1 (referencing “Ofc. Johnson” at Lieber
Correctional Institution)), or lack the specificity and/or
relevance to warrant individualized consideration here
(see ECF No. 56-1). Suffice it to say, Plaintiff has
not pointed the Court to any error in the Magistrate
Judge's analysis. Accordingly, Plaintiff's objections
are overruled in toto.
Ford, Williams, Cohen, Burton, Bryant, Myrick, and Fuller
(hereinafter “Defendants”) did not object to the
substance of the Magistrate Judge's findings and
recommendations regarding disposition of Plaintiff's
claims and dismissal of the case. (See ECF No. 57.)
Accordingly, the only issue still requiring the Court's
consideration is Defendants' objection regarding the
Report's failure to address whether this action should
count as ...