Toscani v. Drago et al

Filing 78

ORDER Adopting 70 Report and Recommendation that Defendants' 46 Motion for Summary Judgment is GRANTED. Signed by Honorable Mary G Lewis on 8/23/13. (kmca)

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Nico Coty Toscani,
Plaintiff,
vs.
Dr. Paul C. Drago; Dr. John B. Mcree;
Warden Willie Eagleton; Major West;
RN Linda C. Tyler; Nurse Krystal S.
Hill; RN Kelly M. Morton; HCA Amy L.
Smith; RN Patricia D. Perry; CCC
Michele D. Fox; RN Lisa Neely; Sgt.
Gaddy,
Defendants.
______________________________

) Civil Action No.: 8:12-3244-MGL
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ORDER AND OPINION
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At the time of the underlying events, Plaintiff Nico Coty Toscani (“Plaintiff”) was an
inmate in the custody of the South Carolina Department of Corrections housed at Evans
Corrections Institution in Bennettsville, South Carolina. Plaintiff proceeding pro se and
informa pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his
constitutional rights. (ECF No. 1.)
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d)
D.S.C., this matter was referred to United States Magistrate Judge Jacquelyn D. Austin
for Pretrial Handling and a Report and Recommendation (“Report”). Defendants moved
for summary judgment on February 27, 2013 (ECF No. 46), which the Magistrate Judge
forwarded to Plaintiff with a notice that failure to respond could result in the dismissal of his
Complaint, as required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975). (ECF No.
47.) On March 11, 2013, Plaintiff moved for an extension of time to respond to the motion
for summary judgment (ECF No. 53) that the court granted on March 12. 2013. (ECF No.

54.) Plaintiff filed a response in opposition to Defendants’ motion for summary judgment
on May 6, 2013. (ECF No. 64.)
The Magistrate Judge issued a Report on July 12, 2013, in which she found that
(1) Plaintiff’s claims for injunctive and /or declaratory relief are moot since he is no longer
incarcerated at Evans Correctional Institution; (2) Plaintiff failed to demonstrate a genuine
issue of material facts remains as to whether Defendants were deliberately indifferent to
Plaintiff’s medical needs or to Plaintiff’s safety; and (3) Defendants are entitled to qualified
immunity. Accordingly, the Magistrate Judge recommended that Defendants’ motion for
summary judgment be granted. (ECF No. 70.) The Report sets forth in detail the relevant
facts and standards of law on this matter and the court incorporates without a recitation.
The Report was mailed to Plaintiff on July12, 2013 (ECF No. 71), along with a
notice of his right to file specific objections to the Report. (ECF No. 70-1.) On July 26,
2013, Plaintiff requested and was granted an extension of time to respond to the Report.
(ECF Nos. 72 & 74.) Plaintiff filed objections on August 19, 2013. (ECF No. 76.)
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the court.
recommendation has no presumptive weight.

The

The responsibility to make a final

determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549,
46 L.Ed.2d 483 (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 to her with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the untimely filing of objections.
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Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). The district 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.” Id.

Moreover, in the absence of objections to the 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).
DISCUSSION
The Report sets forth in detail the relevant facts and standards of law on this matter
and the court incorporates without a recitation. Plaintiff filed his objections in a timely
fashion, but the objections do not direct the court to a specific error in the Magistrate
Judge’s Report. Plaintiff objects to all the Report complaining generally that the Magistrate
Judge failed to consider the relevant facts and reiterated the allegations of his Complaint
as to the manner in which he claims he was allegedly treated by Defendants. In other
words, Plaintiff fails to make specific objections supported by evidence or legal argument,
that might direct the court to a specific error in the Magistrate Judge’s Report. Because
general objections to a Magistrate Judge's Report, such as those set forth above, fail to
direct the Court's attention to any specific portion of the Report, they are tantamount to a
failure to object. Howard v. Secretary of Health & Human Servs., 932 F.2d 505, 509 (6th
Cir.1991). Because Plaintiff failed to file specific objections, the court reviews the Report
only for clear error, and finds none. See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
CONCLUSION
The court finds that the Magistrate Judge prepared an extensive and detailed Report
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and Recommendation and also appropriately addressed Plaintiff’s arguments.

The

Magistrate Judge clearly and particularly explained why Plaintiff’s claims do not rise to a
constitutional violation. The court has accepted all of Plaintiff’s factual allegations as true.
Nevertheless, upon review of the Report, the applicable law and the parties’ submissions,
the court finds no error in the Report and adopts it and incorporates it herein by reference.
As such, Defendants’ motion for summary judgment is GRANTED.
IT IS SO ORDERED.

s/ Mary G. Lewis
United States District Judge

Spartanburg, South Carolina
August 23, 2013

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