Wambach v. Blackwell et al

Filing 56

AMENDED ORDER RULING ON REPORT AND RECOMMENDATION. Defendant's motion for summary judgment 31 is hereby DISMISSED without prejudice with leave to refile and this case is returned to the Magistrate Judge for further proceedings consistent with this Order. Signed by Honorable Henry F Floyd on 9/30/2011. (mcot, ) (Main Document 56 replaced on 9/30/2011) (alew, ). Modified on 9/30/2011 to replace with document per chambers (alew, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
FREDDY LUDWIG WAMBACH,
Plaintiff,

§
§
§
vs.
§ CIVIL ACTION NO. 1:10-1022-HFF-SVH
§
S. BLACKWELL, R.N., and T. MURRAY, in §
their individual and official capacities,
§
Defendants.
§
AMENDED ORDER
This case was filed as a 42 U.S.C. § 1983 action. Plaintiff is proceeding pro se. The matter
is before the Court for review of the Report and Recommendation (Report) of the United States
Magistrate Judge suggesting that Defendants’ motion for summary judgment be granted with regard
to Plaintiff’s claim against Murray for excessive force and denied as to Plaintiff’s claim against
Blackwell for alleged deliberate indifference to his serious medical needs. The Report was made
in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.
The 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 Magistrate Judge filed the Report on July 21, 2011, and Defendants filed their objections
to the Report on August 4, 2011. Plaintiff failed to file any objections.
After carefully reviewing the Report, the objections, and the record in this case, the Court
has come to the firm opinion that the more prudent course is to dismiss Defendants’ motion for
summary judgment without prejudice with leave to refile so as to allow more briefing and the
submission of additional evidence, if any, on Plaintiff’s deliberate indifference claim. Because of
the circumstances present here, namely concerning Plaintiff’s ability to present his claim, the
Magistrate Judge shall consider appointing counsel to assist Plaintiff with his case. Thereafter, the
Magistrate Judge shall issue a scheduling order allowing for supplemental briefing with specifics
about Plaintiff’s complaints of his injuries, evidence of those injuries, if any, and all other matters
that the Magistrate Judge finds necessary to develop the record fully.
As such, Defendants’ motion for summary judgment is hereby DISMISSED without
prejudice with leave to refile and this case is returned to the Magistrate Judge for further proceedings
consistent with this Order.
IT IS SO ORDERED.
Signed this 30th day of September, 2011, in Spartanburg, South Carolina.

s/ Henry F. Floyd
HENRY F. FLOYD
UNITED STATES DISTRICT JUDGE

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NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified of the right to appeal this Order within thirty days from the date
hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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