Ferola v. Byars et al

Filing 136

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; denying 118 Motion for Summary Judgment; granting 131 Motion to Continue this case to the July 2016 term of court. Signed by Honorable R Bryan Harwell on 4/8/2016.(cwhi, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Michael J. Ferola,

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Plaintiff,
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v.
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Officer Fulton,
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Defendant.
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________________________)

Civil Action No.: 9:13-cv-02413-RBH

ORDER

This case, filed by Plaintiff pursuant to 42 U.S.C. § 1983, is before the Court for consideration
of the following matters: (1) a motion for summary judgment filed by Defendant and a Supplemental
Report and Recommendation issued by the Magistrate Judge; (2) two motions in limine filed by
Plaintiff; and (3) a motion for a continuance filed by Defendant. See ECF Nos. 118, 125, 127, 128, &
131.
Discussion
I.

Motion for Summary Judgment & Supplemental Report and Recommendation
On February 5, 2016, Defendant filed a motion for summary judgment. ECF No. 118. On

March 16, 2016, United States Magistrate Judge Bristow Marchant issued a Supplemental Report and
Recommendation (R & R), made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02
for the District of South Carolina.1 See R & R, ECF No. 125. The Magistrate Judge recommends that
the Court deny Defendant’s motion for summary judgment. R & R at 12.
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the Court.

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The R & R sets forth in detail the relevant facts and legal standards.

Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those
portions of the R & R to which specific objections are made, and it 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).
Neither party has filed objections to the R & R. In the absence of objections to the R & R, the
Court is not required to give any explanation for adopting the Magistrate Judge’s recommendations.
See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The Court reviews only for clear error in the
absence of an objection. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (stating that “in the absence of a timely filed objection, a district court need not conduct 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’” (quoting Fed. R. Civ. P. 72 advisory committee’s note)).
After a thorough review of the record in this case, the Court finds no clear error. Accordingly,
the Court adopts and incorporates by reference the R & R of the Magistrate Judge. The Court will deny
Defendant’s motion for summary judgment.
II.

Plaintiff’s Motions in Limine
On March 28, 2016, Plaintiff filed two motions in limine. See ECF Nos. 127 & 128. In his first

motion in limine, Plaintiff seeks to exclude evidence of the following at trial: (1) Plaintiff’s past
convictions and the circumstances leading to his current imprisonment, (2) Plaintiff’s disciplinary
history during imprisonment, (3) Plaintiff’s grievance history (except the several grievances filed
against Defendant) during imprisonment, and (4) Plaintiff’s litigation history. ECF No. 127. In his
second motion in limine, Plaintiff seeks an order from the Court permitting him to attend trial in civilian
attire and without restraints. ECF No. 128.
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On April 4, 2016, Defendant filed responses to both of Plaintiff’s motions in limine. ECF Nos.
132 & 133. Regarding Plaintiff’s first motion, Defendant opposes Plaintiff’s motion to exclude to the
extent that it is overly broad. ECF No. 132 at 1. Regarding Plaintiff’s second motion, Defendant has
no objection to Plaintiff being allowed to wear civilian clothes in trial so long as this procedure can be
safely coordinated with the South Carolina Department of Corrections (SCDC) and there is no valid
security risk deemed by SCDC; however, Defendant states he cannot consent to Plaintiff not wearing
restraints and that this decision should be left to SCDC’s discretion and judgment.
Having carefully considered Plaintiff’s motions in limine and Defendant’s respective positions,
the Court will reserve its ruling on both motions until closer to trial.
III.

Defendant’s Motion for a Continuance
On April 4, 2016, Defendant filed a motion for a continuance of the trial in this matter until June

19, 2016. ECF No. 131. Defendant states that his counsel is involved in jury selection for another case
in federal court (in Columbia, South Carolina) beginning on May 4, 2016, and that counsel has
protection for the week of June 6, 2016 for family vacation. Id. at 1.
Having carefully considered Defendant’s motion, the Court will grant it and continue the trial
in this case until the July 2016 term of court.
Conclusion
For the foregoing reasons, the Court (1) adopts and incorporates by reference the R & R [ECF
No. 125] of the Magistrate Judge and DENIES Defendant’s motion for summary judgment [ECF No.
118]; (2) RESERVES its ruling on Plaintiff’s motions in limine [ECF Nos. 127 & 128]; and (3)
GRANTS Defendant’s motion for a continuance [ECF No. 131] and CONTINUES this case to the July
2016 term of court.
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IT IS SO ORDERED.
Florence, South Carolina
April 8, 2016

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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