Greene v. Berkeley County Jail et al

Filing 56

ORDER adopting 53 Report and Recommendation of Magistrate Judge Bristow Marchant; granting 35 Motion for Summary Judgment. This case is DISMISSED WITHOUT PREJUDICE so that Plaintiff can pursue any state law or administrative remedies that might be available to him if he wishes to do so. Signed by Honorable Mary G Lewis on 9/18/2014.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
MARCUS D. GREENE,
Plaintiff,
vs.
BERKLEY COUNTY JAIL,
OFFICER MORTON, and
OFFICER BIERING,
Defendants.

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§ CIVIL ACTION NO. 9:13-3157-MGL-BM
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ORDER ADOPTING THE REPORT AND RECOMMENDATION,
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT,
AND DISMISSING PLAINTIFF’S CASE WITHOUT PREJUDICE
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 Defendants’ motion for summary judgment be granted and this case
be dismissed. 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 August 28, 2014, and the Clerk of Court entered
Plaintiff’s objections on September 10, 2014. The Court has considered the objections, but finds
them to be without merit. Therefore, it will enter judgment accordingly.
Plaintiff brought an excessive force claim against Defendants Berkley County Jail, Officer
Morton, and Officer Biering. He seeks both money damages and medical treatment for his chronic
back pain and surgery.
Defendants filed a motion summary judgment that, as noted above, the Magistrate Judge
recommends that the Court grant. As to Defendant Berkley County Jail, the Magistrate Judge
suggests that it be dismissed on the basis that “[i]nanimate objects such as buildings, facilities and
grounds do not act under color of state law, and are not a “person” subject to suit under § 1983.”
Report 7. In regards to Defendants Morton and Biering, the Magistrate Judge states that, “while
Plaintiff may conceivably have a state law claim he could assert arising from th[e] incident, or some
further administrative remedy he could pursue, [he did] not find the evidence before this Court is
sufficient to create a genuine issue of fact as to whether constitutionally excessive force was used
under the circumstances of this case. . . . Plaintiff’s excessive force claim asserted as a constitutional
violation should therefore be dismissed.” Id. at 14. The Court agrees as to the Magistrate Judge’s
recommendation as to each of the defendants.
Attached to the Report is a “Notice of Right to File Objections to Report and
Recommendation.” In the notice is the following pertinent instruction:

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The parties are advised that they may 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. . . . 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.
Report 15 (citations omitted). Nevertheless, instead of making specific objections to the Report,
Plaintiff submitted only this:
ON MAY 5, 2014, DEFENDANTS FILED A MOTION FOR
SUMMARY JUDGMENT[.] A ROSEBORO ORDER WAS
ENTERED BY THE COURT. PLAINTIFF REPLIED THAT A
MATERIAL ISSUE EXIST[S] AND THAT SUMMARY
JUDGMENT WAS NOT APPROPRIATE IN THIS MATTER AND
THAT SUMMARY JUDGMENT SHOULD NOT BE GRANTED
BUT ISSUES EXIST THAT SHOULD BE HEARD BY A JURY
AND DECIDED BY A JURY. THAT VIDEO SHOULD BE
PRESENTED TO A JURY FOR A VERDICT. PLAINTIFF
PRESENTED NO THREAT BUT WAS SINGLED OUT AND
ASSAULTED AND VERBALLY SUBJECTED TO RACIAL
SLURS.
AND SUMMARY JUDGMENT IS NOT APPROPRIATE IF ANY
GENUINE ISSUES AS TO THE FACTS STATED EXIST.
COURT RECORDS OF MOTIONS AND PLAINTIFF[’S]
RESPONSE TO MOTIONS CLEARLY SHOW[] THAT
MATERIAL ISSUES EXIST AND SUMMARY JUDGMENT IS
NOT APPROPRIATE.
CONCLUSION
I DO NOT AGREE WITH THE REPORT AND
RECOMMENDATION AND FOR THE RECORD STATE THAT
SUMMARY JUDGMENT IS NOT APPROPRIATE AND [I] WILL
PURSUE THIS MATTER UNTIL JUSTICE IS DONE.
WHEREFORE[,] HAVING STATED MY POSITION TO THE
REPORT AND RECOMMENDATION, AND THAT SUMMARY
JUDGMENT IS NOT THE APPROPRIATE WAY TO PROCEED.
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Objections 1-2. But, specific objections are necessary to focus the Court’s attention on disputed
issues. See Thomas v. Arn, 474 U.S. 140, 147-48 (1985).
In that Plaintiff’s general objection to the Report do not direct the Court’s attention to any
specific portion of the Report, they are tantamount to a failure to object. See Howard v. Secretary
of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991); see also Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982) (stating that failure to file specific objections to particular conclusions in
the Magistrate Judge’s Report, after being warned of the consequences of failing to object, makes
de novo review by the district court unnecessary). And, a failure to object waives appellate review.
See Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985).
The Court notes that, to the extent that Plaintiff’s statement that he “presented no threat but
was singled out and assaulted and verbally subjected to racial slurs” can be construed as a specific
objection, the Court has made a de novo review of those portions of the Report and record dealing
with that objection. But, inasmuch as the Court agrees with the Magistrate Judge’s treatment of
those issues in the Report, it need not repeat the analysis here.
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.
Therefore, it is the judgment of this Court that Defendants’ motion for summary judgment is
GRANTED and this case is DISMISSED WITHOUT PREJUDICE so that Plaintiff can pursue
any state law or administrative remedies that might be available to him if he wishes to do so.

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IT IS SO ORDERED.
Signed this 18th day of September, 2014, 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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