Drake v. Jones et al

Filing 76

ORDER RULING ON REPORT AND RECOMMENDATIONS: DENYING 58 Motion for Summary Judgment, filed by Natasha Alston, Brian Taylor, Harry Perez, Scott Jones. Court finds 71 Report and Recommendations to be proper.Signed by Honorable Joseph F Anderson, Jr on 4/12/2010. (mbro, )

U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA

H o b a rt P. Drake,

) ) P l a in tif f , ) v. ) ) S g t. Scott Jones; Sgt. Brian Taylor; ) O ff icer Natasha Alston; Officer Harry ) P e re z ; Two Officers as John Doe, et al.; ) o f f ic ia l and individual capacity, ) ) D e f e n d a n ts . ) _________________________________ )

C /A No. 6:09-908-JFA-WMC

ORDER

P lain tiff , Hobart P. Drake, a state prisoner proceeding without assistance of counsel, b rin g s this action pursuant to 42 U.S.C. Section 1983. He claims that the defendants used e x c es s iv e force on him in violation of the Eighth Amendment to the United States C o n s titu tio n while he was incarcerated at the Lieber Correctional Institution. The plaintiff s e e k s actual damages. T h e Magistrate Judge assigned to this action 1 has prepared a Report and R e c o m m e n d a tio n and opines that the defendants' motion for summary judgment2 should be

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (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, 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. See 28 U.S.C. § 636(b)(1). An order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying plaintiff of the summary dismissal procedure and possible consequences if he failed to adequately respond to the motion for summary judgment. Plaintiff responded to the motion.
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d en ied. The Report sets forth in detail the relevant facts and standards of law on this matter, a n d the court incorporates such without a recitation and without a hearing. T h e plaintiff was advised of his right to file objections to the Report and R e c o m m e n d a tio n , which was entered on the docket on March 9, 2010. However, plaintiff d id not file any objections to the Report. T h e plaintiff's claims center around an incident where the plaintiff was discovered by s o m e of the defendants to be making illegal alcohol in his prison cell. During the

c o n f ro n ta tio n , the defendants discharged chemical munitions on the plaintiff, who was then c h a rg e d with assault and battery on an officer and possession of alcohol. The plaintiff asserts th a t defendants' version of the confrontation is factually in dispute. In their motion for summary judgment, the defendants contend that they are entitled to qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). However, the M a g is tra te Judge opines that the plaintiff has a constitutional right to be free from cruel and u n u s u a l punishment under the Eighth Amendment. Further, the Magistrate Judge finds that th e re are genuine disputes of material fact and that the court cannot say as a matter of law th a t the subjective element of an Eighth Amendment claim cannot be met in this case. The M a g is tra te Judge suggests that the court deny defendants' motion for summary judgment b a s e d on qualified immunity. A f te r a careful review of the record, the applicable law, and the Report and R e c o m m e n d a tio n , the court finds the Magistrate Judge's recommendation to be proper. The d e f en d a n ts ' motion for summary judgment is hereby denied.

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T h is matter is hereby set for trial in the July 2010 term of court with jury selection to o c c u r on July 12, 2010. The parties will be seasonably notified of the date for a pretrial c o n f ere n c e, which will occur prior to jury selection. IT IS SO ORDERED.

A p ril 12, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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