Moore v. Padula et al

Filing 136

ORDER RULING ON REPORT AND RECOMMENDATION: The court adopts the Report (ECF No. 122 ). Therefore, the defendants' motion for summary judgment (ECF No. 105 ) is GRANTED. In additional, the plaintiff's pending motion for entry of default (ECF No. 133 ) is DENIED AS MOOT and this case is DISMISSED. IT IS SO ORDERED. Signed by Honorable Timothy M Cain on 1/2/2014. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Tony L. Moore, #275740,
Plaintiff,
vs.
Anthony J. Padula; Ms. Bell; Keith
McBride; and L. Greer,
Defendants.

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Civil Action No. 5:11-1033-TMC

ORDER

Plaintiff, a state prisoner proceeding pro se, filed this action pursuant to 42 U.S.C. §
1983. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter
was referred to a magistrate judge for pretrial handling. Before the court is the magistrate judge’s
Report and Recommendation (“Report”), recommending that the court grant the defendants’
motion for summary judgment and dismiss the case. (ECF No. 122). The plaintiff timely
objected to the Report. (ECF No. 127).1
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 27071 (1976). The court need not conduct a de novo review when a party makes only “general and
conclusory objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In that
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This is the third time this matter has been before the court on a Report and Recommendation on the defendants’
motion for summary judgment. Most recently, on October 18, 2012, the magistrate judge recommended that the
court grant the defendants’ motion. (ECF No. 87). The plaintiff timely objected to the Report (ECF No. 92) and the
court understood part of his objection to state that he had not yet received certain relevant medical records in
discovery. Accordingly, the court denied the defendants’ motion for summary judgment with leave to re-file after
the parties resolved the discovery issue. (ECF No. 98). Almost a full year has passed since the court issued that
order. So, while the plaintiff again states in his objections that he has not received all of his requested documents
from the defendants, the court finds that the parties have had adequate time for discovery, that there is not an
unresolved motion to compel or equivalent motion before the court, and that the defendants have complied to the
best of their abilities with all discovery requests.
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case, the court reviews the Report only for clear error. See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
As set forth above, the plaintiff filed timely objections to the Report. However, his
objections merely restate factual allegations and legal conclusions raised in briefing and fully
addressed in the Report.

The court has thoroughly reviewed the Report, the plaintiff’s

objections, and the record in this case and agrees with the Report’s recommended disposition.
However, the court would like to re-address one of the plaintiff’s claims.
The plaintiff’s most substantive argument lies in his claim for failure to protect. As the
Report indicates, to establish a claim for failure to protect from violence, the plaintiff has to
show that prison officials knew of and disregarded “an excessive risk to [the plaintiff’s] health or
safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, to survive summary judgment, the
plaintiff would have had to provide the court with enough evidence to create a genuine issue of
fact as to that issue. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). This court has independently reviewed the evidence offered by both sides, and without
weighing the evidence or making a finding as to any of the material facts of this case, finds that
the plaintiff has not met his burden.
Accordingly, the court adopts the Report (ECF No. 122). Therefore, the defendants’
motion for summary judgment (ECF No. 105) is GRANTED.

In addition, the plaintiff’s

pending motion for entry of default (ECF No. 133) is DENIED AS MOOT and this case is
DISMISSED.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
January 2, 2014
Anderson, South Carolina
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NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.

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