Fleming v. Greenville County et al

Filing 99

ORDER adopting 96 Report and Recommendation, granting Defendant's 68 Motion for Summary Judgment. Signed by Honorable Mary G Lewis on 3/9/2015. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
ANTHONY RAY FLEMING,
Plaintiff,
vs.
OFFICER J GAULT,
Defendant.

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§ CIVIL ACTION NO. 6:13-3375-MGL-JDA
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ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This case was filed as a 42 U.S.C. § 1983 action. Plaintiff is proceeding pro se. The matter
is before the Court for review of the Report and Recommendation (Report) of the United States
Magistrate Judge suggesting that Defendant’s motion for summary judgment be granted. The Report
was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South
Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). 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 with instructions. 28 U.S.C. § 636(b)(1).

The Magistrate Judge filed the Report on February 4, 2015, and the Clerk of Court entered
Plaintiff’s objections on February 18, 2015. The Court has carefully considered the objections, but
finds them to be without merit. Therefore, it will enter judgment accordingly.
Plaintiff is a state prisoner incarcerated at the Ridgeland Correctional Institution of the South
Carolina Department of Corrections. This action arises out of Defendant’s alleged use of a taser
device on Plaintiff while Plaintiff was being held as a pretrial detainee at the Greenville County
Detention Center in Greenville, South Carolina. Plaintiff seeks both monetary and equitable relief.
According to Defendant, he is entitled to summary judgment inasmuch as Plaintiff failed to
exhaust his administrative remedies as to the alleged taser incident. Having reviewed the record
before it, the Court agrees.
As the Magistrate Judge observed, “Section 1997e(a) of the Prison Litigation Reform Act
. . . provides that ‘no action shall be brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted.’” Report 8 (quoting 42
U.S.C. § 1997e(a)). Here, there is no competent evidence before the Court demonstrating that
Plaintiff exhausted his administrative remedies as to his taser claim. In other words, “Plaintiff has
failed to offer any evidence to support his conclusory allegations [that he submitted a grievance
regarding the alleged taser event] and, therefore, has failed to create a genuine issue of material fact
to survive summary judgment.” Report 11-12 (citing Malik v. Sligh, Civil Action No. 5:11-cv01064-RBH, 2012 WL 3834850, at *4 (D.S.C. Sept. 4, 2012) (holding that Plaintiff’s self-serving
contention that he submitted a grievance was “simply not enough to create a genuine dispute as to
any material fact”) (citing Riley v. Honeywell Technology Solutions, Inc., 323 Fed. App’x 276, 278
(4th Cir.2009) (holding that Plaintiff’s “self-serving contentions” that he was treated unfairly “were
properly discounted by the district court as having no viable evidentiary support”); Nat’l Enters., Inc.

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v. Barnes, 201 F.3d 331, 335 (4th Cir.2000) (holding that a self-serving affidavit was insufficient
to survive summary judgment)). For these reasons, the Court will grant Defendant’s motion for
summary judgment on the basis that Plaintiff failed to exhaust his administrative remedies.
After suggesting to the Court that Plaintiff should grant Defendant’s motion for summary
judgment, the Magistrate Judge instructed Plaintiff that he was allowed to
file specific written objections to this Report and Recommendation
with the District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections are
made and the basis for such objections. ‘[I]n 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 (4th Cir. 2005) (quoting
Fed. R. Civ. P. 72 advisory committee’s note). . . . Failure to timely
file specific written objections to this Report and
Recommendation will result in waiver of the right to appeal from
a 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).
Notice of Right to File Objections to Report and Recommendation 1.
Here, Plaintiff’s objections are not specific. Instead, they generally consist of nothing more
than conclusory assertions and allegations. Perhaps most telling of all, though, is that Plaintiff fails
to object to the Magistrate Judge’s suggestion that he failed to exhaust his administrative remedies
in regards to the alleged taser incident. The closest that he comes to objecting is his conclusory
allegation that he “put in many grievances that went unanswered, or they simply vanished.”
Objections 1. But, this assertion is not specific and is an insufficient basis on which to deny
Defendant’s motion for summary judgment.
After a thorough review of the Report and the record in this case pursuant to the standard set
forth above, the Court overrules Plaintiff’s objections, adopts the Report, and incorporates it herein.

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Therefore, it is the judgment of this Court that Defendant’s motion for summary judgment is
GRANTED.
IT IS SO ORDERED.
Signed this 9th day of March, 2015, in Spartanburg, South Carolina.
s/ Mary G. Lewis
MARY G. LEWIS
UNITED STATES DISTRICT JUDGE

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NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified of the right to appeal this Order within thirty days from the
date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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