Wall v. China et al
ORDER adopting 57 Report and Recommendation of Magistrate judge Bruce Howe Hendricks, denying 35 Motion for Summary Judgment. Signed by Honorable Richard M Gergel on 1/23/13.(hhil, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Billy Eugene Wall, Jr.,
CIA No. 2:12-618-RMG
Capt. Charles Fraser, Colleton County
Detention Center; Officer Thomas
Richberg, Colleton County Detention
Center; and Officer Joe Waring; Colleton
County Detention Center; individually
and in their official capacities,
This matter is before the Court on the Report and Recommendation of the Magistrate
Judge (Dkt. No. 57) recommending that the Court deny Plaintiffs motion for summary judgment
(Dkt. No. 35). For the reasons set forth below, the Court agrees with and adopts the Report and
Recommendation of the Magistrate Judge as the order of the Court.
Plaintiff Billy Eugene Wall, Jr. ("Plaintiff'), a self-represented pre-trial detainee at the
Colleton County Detention Center, filed this action pursuant to 42 U.S.C. § 1983 alleging
violations of his constitutional rights.
Pursuant to 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2)(d)-(e) DSC, this case was referred to a United States Magistrate Judge for all pretrial
proceedings. On April 5, 2012, the Magistrate Judge granted Defendants' motion for extension
of time to file their Answer. (Dkt. Nos. 16, 20). The Magistrate Judge directed Defendants to
file their Answer by April 28, 2012, but Defendants filed their Answer on April 30,2012. (Dkt.
Nos. 20, 23). On August 23, 2012, Plaintiff filed a motion for summary judgment on the basis of
Defendants' untimely Answer. (Dkt. No. 35). On August 31, 2012, Defendants moved for an
extension of time to respond to Plaintiffs motion, which the Magistrate Judge granted. (Dkt.
Nos. 37, 38). On October 31,2012, Defendants again moved for an extension of time to respond
to Plaintiffs motion. (Dkt. No. 48). The Magistrate Judge granted the motion and required
Defendants to file a response to the motion by January 4, 2013. (Dkt. No. 49). On December
18,2012, Defendants again requested additional time to respond to Plaintiffs motion. (Dkt. No.
53). The Magistrate Judge denied this request. (Dkt. No. 54). After Defendants failed to timely
respond to Plaintiffs motion for summary judgment, the Magistrate Judge issued a Report and
Recommendation ("R&R") recommending this Court deny Plaintiff s motion for summary
judgment. (Dkt. No. 57). Plaintiff then timely filed objections to the R&R. (Dkt. No. 66).
The Magistrate Judge only makes recommendations to this Court. The recommendations
of the Magistrate Judge have no presumptive weight and the responsibility for making a final
determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The
Court is charged with making a de novo determination of those portions of the Report and
Recommendation to which specific objection is made. Additionally, the Court may "accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate."
28 U.S.C. § 636(b)(l). The Court may also "receive further evidence or recommit the matter to
the magistrate with instructions." Id.
The Court finds that the Magistrate Judge applied sound legal principles to the facts of
this case and therefore adopts the R&R as the order of the Court. Plaintiffs sole basis for his
motion for summary judgment is that Defendants filed their Answer two days after the deadline
set by the Magistrate Judge. l (Dkt. No. 35 at 1). The Magistrate Judge, however, properly
treated Defendants' Answer as a motion to set aside default. (Dkt. No. 57 at 3). The Court finds
the Magistrate Judge properly applied the four factors considered when ruling on a motion to set
aside an entry of default and correctly detennined default should set aside. Colleton Preparatory
Acad. , Inc. v. Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010). The Court therefore
agrees with the Magistrate Judge that summary judgment in favor of the Plaintiff should be
The Court finds Plaintiffs objections unpersuasive. Plaintiff repeats his argument that
because Defendants filed their Answer two days after their deadline that they gave up all rights
to defend the case. However, the Court may, in its discretion, decide to set aside an entry of
default. See id. Plaintiff next asserts that because Defendants failed to timely respond to his
motion for summary judgment that he is entitled to judgment in his favor.
This, too, is a
misstatement of law. See 4 Amigos, LLC v. Carolina Bueno, LLC, C.A. No. 0:10-112-CMC
JRM, 2011 WL 704542, at *1 (D.S.C. Jan. 26, 2011) (citing Custer v. Panamerican Life Ins. Co.,
12 F.3d 410,416 (4th Cir. 1993) ("A party's failure to respond does not automatically entitle the
moving party to summary judgment")). Finally, Plaintiff argues that the defenses raised in
Defendants' Answer lack merit because they were not "specific" and because they "conflicted"
with one another. The Court, however, finds Defendants' Answer was properly pleaded because
it confonns to Rule 8 of the Federal Rules of Civil of Procedure. Rule 8(b) provides that a party
must state in "short and plain tenns" its defenses. Fed. R. Civ. P. 8(b). Rule 8(d) provides that
I The Magistrate Judge ordered Defendants' Answer to be filed by Saturday, April 28, 2012. Defendants filed their
Answer on the following Monday, April 30, 2012. However, Rule 6(a) does not apply unless it is necessary to
compute a time. Fed. R. Civ. P. 6(a). Here, the Magistrate Judge provided Defendants a date certain; no
computation was necessary and Defendants' Answer was therefore untimely. See Meeks v. Powers, CIA No. 8:09
cv-3279-MBS, 2010 WL 4286319, at *2 (D.S.C. Oct. 18,2010); Fed. R. Civ. P. 6(a) advisory committee's note
(2009) ("The time-computation provisions of subdivision (a) apply only when a time period must be computed.
Thp.v do not a
"a party may state as many separate ... defenses as it has, regardless of consistency." Fed. R.
Civ. P. 8(d).
In conclusion, the Court finds that the Magistrate Judge applied sound legal
principles to the facts of this case and therefore adopts the R&R as the order of the Court.
For the reasons stated above, the Court agrees with and adopts the R&R of the Magistrate
Judge as the order of the Court. (Dkt. No. 57). Accordingly, Plaintiffs motion for summary
judgment (Dkt. No. 35) is DENIED.
AND IT IS SO ORDERED.
United States District Court Judge
January 2..3 ,2013
Charleston, South Carolina
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