Branham v. Spivey et al

Filing 78

ORDER RULING ON REPORT AND RECOMMENDATION. The court adopts the Report and Recommendation 72 and incorporates it herein. Defendants' Summary Judgment Motion 61 is GRANTED and this action is dismissed with prejudice. Signed by Honorable Timothy M Cain on 8/2/2012. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
George Stanley Branham, II,

)
)
Plaintiff,
)
)
v.
)
)
)
Director Peggy Spivey,
)
Major Murry Hudson,
)
Major Crystal Hodge,
)
and Captain Mrs. Blackmon,
)
)
)
Defendants.
)
________________________________ )

C/A No. 5:11-1216-TMC

ORDER

Plaintiff George Stanley Branham, II, (“Branham”) an inmate proceeding pro se,
seeks relief pursuant to 42 U.S.C. § 1983. In accordance with 28 U.S.C. § 636(b) and
Local Rule 73.02, D.S.C., all pre-trial proceedings were referred to a magistrate judge.
On June 25, 2012, Magistrate Judge Kaymani D. West issued a Report and
Recommendation ("Report") recommending that Defendants’ Summary Judgment
Motion be granted. (Dkt. # 72). Branham timely filed objections and Defendants filed a
response to those objections. (Dkt. # 74, 76). For the reasons below, the court adopts
the Report and grants Defendants’ Motion for Summary Judgment.
Standard of Review
Review of Magistrate Judge's Report
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 to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the
absence of objections to the Magistrate Judge’s Report, this court is not required to

provide an explanation for adopting the recommendation. See Camby v. Davis, 718F.2d
198, 199 (4th Cir. 1983). Rather, "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) (quoting
Fed. R. Civ. P. 72 advisory committee's note). Furthermore, failure to file specific written
objections to the Report results in a party's waiver of the right to appeal from the
judgment of the district court based upon such recommendation. 28 U.S.C. § 636(b)(1);
Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985);
United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
Summary Judgment Standard
The court shall grant a summary judgment motion, if after reviewing the
pleadings, depositions, interrogatories, and affidavits, it is satisfied that no genuine
issues of material fact exist and that the movant is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56; Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir.1984). The
party moving for summary judgment bears the initial burden of pointing to the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Higgins v. Scherr, 837 F.2d 155, 157 (4th Cir.1988). The burden then shifts to the
non-moving party to come forward with facts sufficient to create a triable issue of fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); White v. Rockingham
Radiologists, Ltd., 820 F.2d 98, 101 (4th Cir. 1987). The facts and inferences to be
drawn from the evidence must be viewed in the light most favorable to the non-moving
party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir.1991).
Discussion
Upon review, the court finds that most of Branham's objections are non-specific,
2

unrelated to the dispositive portions of the Magistrate Judge's Report, or merely restate
his claims. However, the court was able to glean one specific objection. Branham
objects to the Magistrate Judge’s finding that he failed to exhaust his administrative
remedies. This objection is without merit.
Pursuant to 42 U.S.C. § 1997(e) (a), “[n]o action shall be brought with respect to
prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.” This “exhaustion requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they
allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532
(2002).

Defendants have the burden of showing that Plaintiff failed to exhaust his

administrative remedies. See Anderson v. XYZ Correctional Health Services, Inc., 407
F.3d 674, 683 (4th Cir. 2005) (holding inmate's failure to exhaust administrative
remedies is an affirmative defense to be both pled and proven by the Defendant).
To meet this burden, Defendants submitted an affidavit from the Director of
Kershaw County Detention Center (“KCDC”) stating there were no grievances in
Branham’s file regarding these two claims. In response, Branham presented evidence
in the form of declarations from two inmates stating that Branham filed several
grievances regarding medical neglect and past abuse or harassment. The Magistrate
Judge found the inmates’ declarations vague and general and did not specifically
reference the claims Branham raises in his Amended Complaint. The Magistrate Judge
concluded Branham had not exhausted his administrative remedies in regard to his
claims of excessive force and deliberate indifference to his medical needs as to his
kidney stones.
Branham contends the Magistrate Judge erred by deciding a question of fact
3

when she accepted the Defendants’ affidavit from the KCDC Director.

Further,

Branham contends he submitted a staff request in which he asked for copies of his
grievances which he argues he would not have done if the grievances did not exist.
Reviewing the evidence, the court agrees with the Magistrate Judge’s analysis and
conclusion that these particular claims are barred for failure to exhaust.
As noted above, in determining a motion for summary judgment, the court is to
consider whether “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Rule 56(c), Fed.R.Civ.P. The Magistrate Judge correctly considered the
affidavit filed by Defendants and the declarations filed by Branham. In her affidavit, the
Director of the KCDC stated there were no grievances in Branham’s file regarding these
two claims. In the declarations from the two inmates, the inmates merely state the
Director of KCDC and her staff will not respond to Branham’s grievances. As the
Magistrate Judge concluded, the inmates’ declarations do not provide Branham with
any support that he filed grievances in regard to any particular claims.

Moreover,

Branham’s argument that the grievances must exist because he submitted a staff
request asking for copies of his grievances does not establish anything other than
Branham filed a request for copies of grievances. As he has not provided any evidence
that he filed grievances on these particular claims, the court finds that his objection is
without merit and concludes, as did the Magistrate Judge, that Defendants' Motion for
Summary Judgment should be granted on these claims as Plaintiff failed to exhaust his
administrative remedies.
Branham's remaining arguments set forth in his objections merely restate his
claims and are non-specific. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982)
4

(“Courts have . . . held de novo review to be unnecessary in . . . situations when a party
makes general and conclusory objections that do not direct the court to a specific error
in the magistrate's proposed recommendation). The court has reviewed the Report and
finds no error. The Magistrate Judge thoroughly reviewed all of Branham's claims and
correctly applied the law and concluded that Defendants are entitled to summary
judgment. Accordingly, after review, the court finds that Branham's objections are
without merit.
Conclusion
Based on the foregoing, the court adopts the Report and Recommendation and
incorporates it herein. Defendants’ Summary Judgement Motion (Dkt. # 61) is
GRANTED and this action is dismissed with prejudice.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
August 2, 2012
Anderson, South Carolina

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.

5