Cutner v. Tutt

Filing 38

ORDER RULING ON REPORT AND RECOMMENDATION 35 . The Defendants Motion for SummaryJudgment is GRANTED, and Plaintiffs claims are DISMISSED with prejudice. Signed by Honorable G Ross Anderson, Jr 10/11/2012.(kric, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Lamont Cutner, #185864,

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)
Plaintiff,
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)
v.
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)
Sgt. Joey Tutt,
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)
Defendant.
)
________________________________ )

C/A No.: 6:12-cv-760-GRA-KFM

ORDER
(Written Opinion)

This matter comes before the Court for review of United States Magistrate
Judge Kevin McDonald’s Report and Recommendation made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(d) of the District of South
Carolina, and filed on August 30, 2012. Plaintiff Lamont Cutner, an inmate with the
South Carolina Department of Corrections (SCDC) proceeding pro se, filed this action
on March 16, 2012, pursuant to 42 U.S.C. § 1983. ECF No. 1. Defendant Joey Tutt, a
Sergeant and Contraband Officer at SCDC’s McCormick Correctional Institution
(MCI) moved for summary judgment on June 15, 2012. ECF No. 27. An order
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), was issued by the
magistrate judge on June 15, 2012. ECF No. 29. Plaintiff filed his response in
opposition to Defendant’s motion on July 2, 2012 and Defendant filed a reply on July
12, 2012. See ECF Nos. 31 & 33.
Under established procedure in this judicial district, Magistrate Judge
McDonald made a careful review of the pro se complaint pursuant to the procedural
provisions of 28 U.S.C. § 1915, 28 U.S.C. § 1915A, and the Prison Litigation Reform

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Act. Magistrate Judge McDonald recommends that this Court grant Defendant’s
Motion for Summary Judgment. Neither party objected to the magistrate judge’s
Report and Recommendation. For the reasons discussed herein, this Court adopts
the magistrate judge’s recommendation in its entirety and grants Defendant’s Motion
for Summary Judgment.
Standard of Review
Plaintiff brings this claim pro se. This Court is required to construe pro se
pleadings liberally. Such pleadings are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This
Court is charged with liberally construing a pleading filed by a pro se litigant to allow
for the development of a potentially meritorious claim. Boag v. MacDougall, 454 U.S.
364, 365 (1982). A court may not construct the plaintiff's legal arguments for him,
Small v. Endicott, 998 F.2d 411 (7th Cir.1993), nor is a district court required to
recognize “obscure or extravagant claims defying the most concerted efforts to
unravel them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir.1985), cert.
denied, 475 U.S. 1088 (1986).
Background
Plaintiff is a state prisoner currently incarcerated at McCormick Correctional
Institution (MCI). See Report and Recommendation, ECF No. 35. He filed the instant
action, alleging violation of his constitutional rights pursuant to 42 U.S.C. § 1983, on
March 16, 2012. ECF No. 1. In his complaint, Plaintiff alleges that Defendant
punched and kicked him during an incident, thereby violating his right to be free from
excessive force as guaranteed by the Eighth Amendment to the United States

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Constitution. Specifically, Plaintiff alleges that on July 26, 2011, Defendant and other
officers prepared to search his cell for contraband in the Special Management Unit at
MCI. Plaintiff alleges that after complying with Defendant’s instructions to back up to
the door to be handcuffed, the other officers entered his cell while Defendant threw
him against the wall to frisk him. Then Plaintiff alleges that Defendant threw him on
the bed and punched him three times and then threw him to the floor and kicked him
in the back of the neck. Plaintiff claims he ran out of the cell at that point to the “rock
area” where other officers placed him in leg irons. He alleges that he later saw a
nurse who gave him medication for neck pain and that x-rays showed that “something
was wrong” with his neck.
Defendant describes the incident much differently and denies punching or
kicking the plaintiff. According to Defendant, he ordered Plaintiff and his cellmate to
turn and be handcuffed at the door. The cellmate complied, but Plaintiff refused, and
instead flushed what appeared to be a cell phone down the toilet. After he finally
came to the door and was handcuffed, Plaintiff became belligerent when Defendant
entered the cell and attempted to frisk him. Plaintiff was escorted out of the cell and
was maced by another officer after spitting in the officer’s face. (Tutt aff. ¶¶ 7–17).
With his motion for summary judgment, Defendant provides MCI’s medical records for
Plaintiff in which the nurse reported Plaintiff claimed he was “hit in the face” and
“kicked in the chest and side,” but noting no injuries except for a “small, superficial
abrasion” on his lower right leg. See ECF No. 27-4. Also provided are findings by a
doctor that Plaintiff’s subsequent x-rays were normal. See ECF No. 27-6.

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In response to Defendant’s motion, Plaintiff filed his own declaration that
changed the facts originally alleged in his complaint. Instead of being kicked while in
his cell as he initially claimed, Plaintiff declared: “Someone tripped me up as I was
walking toward the stairs. I fell, that’s when Sgt. Tutt started kicking me . . .” (p. decl.
¶ 5).
Plaintiff was charged with and convicted of three violations of SCDC policy as
a result of this incident, including possession of contraband, disobeying officers, and
threatening SCDC employees. ECF No. 27-3.
Discussion
Magistrate Judge McDonald recommends granting Defendant’s Motion for
Summary Judgment. See Report and Recommendation, ECF No. 35.
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 this Court. Mathews v. Weber, 423 U.S. 261, 270–71
(1976). This Court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and this
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)(1). This Court may
also "receive further evidence or recommit the matter to the magistrate with
instructions." Id. “The failure to file objections to the report and recommendation
waives any further right to appeal.” Smith v. Detroit Fed’n of Teachers Local 231, 829
F.2d 1370, 1373 (6th Cir. 1987); see Carter v. Pritchard, 34 F. App’x 108, 108 (4th
Cir. 2002) (per curiam). Furthermore, in the absence of specific objections to the

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Report and Recommendation, this Court is not required to give any explanation for
adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
In this case, objections were due on September 17, 2012. Neither the defendant nor
the

plaintiff

filed

any

objections

to

the

magistrate

judge’s

Report

and

Recommendation.
After a review of the record, this Court finds that the magistrate judge’s Report
and Recommendation accurately summarizes the case and the applicable law.
Accordingly, the Report and Recommendation is accepted and adopted in its entirety.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary
Judgment is GRANTED, and Plaintiff’s claims are DISMISSED with prejudice.
IT IS SO ORDERED.

October 11, 2012
Anderson, South Carolina

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