Green v. Byrs et al

Filing 108

ORDER RULING ON REPORT AND RECOMMENDATION. The Court agrees with the conclusions of the Magistrate Judge. Accordingly, the Court adopts and incorporates the Report and Recommendation 102 by reference in this Order. Accordingly, Defendants Motion for Summary Judgment (ECF No. 71 ) is GRANTED and this action is DISMISSED with prejudice as to all Defendants and in its entirety. Signed by Honorable Mary G Lewis on 02/26/2013. (dsto, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
DuJuan Green, #106568,

) Civil Action No. 4:11-2473-MGL
)
Plaintiff, )
)
vs.
)
ORDER AND OPINION
)
SCDC Director Byrs; Warden McCall;
)
Assoc Warden Mauney; Assoc Warden
)
Claytor; Lt. Monroe; Lt. Byrd; Lt. Golden;
)
Lt. C. Williams; Lt. McCauley; Major Bush;
)
C/O Tucker; Sgt. Pay; Lt. Harold; Nurse
)
Gene; Nurse Enloe; and Mr. Turner,
)
)
Defendants. )
__________________________________ )
On September 16, 2011, Plaintiff DuJuan Green (“Plaintiff”), proceeding pro se, filed
this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. At all
times relevant to the allegations raised in the Complaint, Plaintiff was an inmate housed at
Perry Correctional Institution (“PCI”) within the South Carolina Department of Corrections
(“SCDC”). On February 6, 2012, Defendants filed a motion for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure seeking to dismiss Plaintiff’s action as a
matter of law. (ECF No. 52.) Defendants filed a amended motion for summary judgment on
February 29, 2012 (ECF No. 61) and a second amended motion for summary judgment on
April 19, 2012 (ECF No. 71). A Roseboro Order done in accordance with Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975) was entered on April 19, 2012 which provided Plaintiff
with an explanation of dismissal/summary judgment procedures. (ECF No. 73.) Plaintiff filed
a response in opposition to Defendants’ amended motion for summary judgment on March
9, 2012 (ECF No. 64) and a response in opposition to Defendants’ second amended motion

for summary judgment on June 26, 2012. (ECF No. 92.) Defendants filed replies in support
of their motions for summary judgment on March 15, 2012, and on June 26, 2012. (ECF No.
94). Defendants’ first amended motion for summary judgment was found moot pursuant to
a text order entered on April 19, 2012. (ECF No. 72.)
In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this
matter was referred to United States Magistrate Judge Thomas E. Rogers, III, for pretrial
handling.

On January 7, 2013, Magistrate Judge Rogers issued a Report and

Recommendation (“Report”) recommending that the Court grant Defendants’ Motion for
Summary Judgment in its entirety and dismiss this action as to all Defendants. (ECF No. 102
at 21.) Plaintiff filed objections to the Report and Recommendation on January 7, 2013.
(ECF No. 104.) Defendants filed a response to Plaintiff’s Objections to the Report and
Recommendation on January 29, 2013. (ECF No. 106.)
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court.
recommendation has no presumptive weight.

The

The responsibility to make a final

determination remains with this Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976).
The Court may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the Magistrate Judge. 28 U.S.C. § 636(b)(1). The Court may also receive further
evidence or recommit the matter to the Magistrate Judge with instructions. Id. The Court is
charged with making a de novo determination of those portions of the Report and
Recommendation to which specific objections are made. After conducting a de novo review
of Plaintiff’s objections, and considering the record, applicable law, and the Report and
Recommendation of the Magistrate Judge, the Court concludes that Defendants’ Motion for
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Summary Judgment should be granted.
DISCUSSION
After considering the parties’ submissions, the Magistrate Judge recommends that this
Court grant Defendants’ Motion for Summary Judgment as Plaintiff has failed to show that
Defendants violated any of his constitutional or statutory rights under 42 U.S.C. § 1983.
Plaintiff alleged several claims against some of the Defendants, including claims of excessive
force, deliberate indifference to medical needs, and claims relating to his conditions of
confinement and disciplinary hearing. The Magistrate Judge addressed each claim in detail
as well as defenses raised. (ECF No. 102 at 3.) The Magistrate Judge opined that: 1)
Plaintiff failed to exhaust the SCDC grievance process as to his claims of medical
indifference and that even if he did, he failed to show that a constitutional violation occurred
in accordance with Fourth Circuit’s standards; 2) Plaintiff failed to show that Defendants
Byars, McCall, Claytor, Mauney, and Bush were personally involved in any constitutional
violations and therefore liable on a theory of respondeat superior or supervisory liability; 3)
the allegations of Plaintiff’s complaint fail to support a claim of excessive force and do not
give rise to a genuine issue of fact as to whether constitutionally excessive force was used
against Plaintiff; 4) Plaintiff has not stated a claim for a conditions of confinement claim based
on either his custodial classification or his diet; 5) Plaintiff’s claim alleging a problem with
disciplinary proceedings is subject to summary dismissal and barred by Heck v. Humphrey,
512 U.S. 477 (1994); 6) Defendants are entitled to qualified immunity and Eleventh
Amendment immunity from monetary damages in their official capacity. The Magistrate
Judge also recommends that any pendent state law claims be dismissed, to the extent they
were intended by Plaintiff. (ECF No. 102 at 20.)
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Plaintiff has filed objections to the Report and Recommendation (ECF No. 104) and
this Court will consider them here. As an initial matter, Plaintiff failed to make any specific
objection needed to direct this Court to a particular portion of the Magistrate Judge’s Report
or otherwise challenge the Magistrate Judge’s findings. See Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005)(finding that a “specific written objection” is
required to invoke de novo review by the district court); Howard v. Sec’y of Health & Human
Servs., 932 F.2d 505, 508–09 (6th Cir.1991); Ford v. Reynolds, No. 3:11-67, 2011 WL
2581397, * 2 (D.S.C. 2011); Clark v. Sumter Co., No. 9:07-cv-0791, 2008 WL 350480, *1
(D.S.C. 2008). Additionally, Plaintiff does not appear to address or discuss the viability of his
claims concerning inadequate medical care or the conditions of his confinement, choosing
instead to direct the discussion in his objections to his excessive force claim.
In his objections, Plaintiff provides a narrative further explaining an incident occurring
on July 18, 2011, which forms the basis of his complaint. Plaintiff also interposes several
hypothetical or theoretical questions which appear to be an attempt to create questions of
fact to defeat summary judgment and to suggest that the actions taken by Defendants were
either unconstitutional or otherwise inadequate. Plaintiff claims that certain of the Defendants
omitted information from their reports and forms in an attempt to cover up their actions. (ECF
No. 104 at 3.) Plaintiff further suggests that he did not receive a fair and impartial hearing
before a Disciplinary Hearing Officer concerning certain charges made against him. (ECF No.
104 at 5.) Plaintiff attaches several documents, including incident reports, forms, and
Defendants’ affidavits, in support of his objections.
The Court has reviewed the objections and responses in light of the record in this
case. The Court has also reviewed Plaintiff’s responses in opposition to Defendants’ motions
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for summary judgment and the supporting submissions. Even reading Plaintiff’s objections
liberally in an effort to find a specific challenge to the Magistrate Judge’s Report, the Court
does not find that Plaintiff has stated anything that would make this Court find any error in
the Magistrate Judge’s analysis. Plaintiff has not offered any evidence to support his
allegations that records and evidence presented in this case have been falsified. Plaintiff
makes only a conclusory allegation which this Court need not accept. Goldberg v. B. Green
& Co., Inc., 836 F.2d 845, 848 (4th Cir.1988) (court need not accept conclusory assertions
or naked opinions). Plaintiff’s objections, to the extent his pleading can reasonably be
construed as such, are overruled.
CONCLUSION
After a thorough review of the Magistrate Judge’s Report, Plaintiff’s Objections and
the record in this case, the Court agrees with the conclusions of the Magistrate Judge.
Accordingly, the Court adopts and incorporates the Report and Recommendation by
reference in this Order. Accordingly, Defendants’ Motion for Summary Judgment (ECF No.
71) is GRANTED and this action is DISMISSED with prejudice as to all Defendants and in
its entirety.
IT IS SO ORDERED.

/s/ Mary G. Lewis
United States District Judge
February 26, 2013
Spartanburg, South Carolina

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