Orange v. Patterson et al
ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 57 Motion for Summary Judgment; denying 67 Motion for Issuance of Subpoena. This case is DISMISSED with prejudice. Signed by Honorable R Bryan Harwell on 12/11/2015.(cwhi, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Dennis Patterson, Division of Operation
for SCDC; Levern Cohen, Warden
Ridgeland CI; Mary Montoth, IGC;
Investigator Hembrick; Randell Williams; )
and Terrell Housey,
Civil Action No.: 9:14-cv-03614-RBH
Plaintiff Travis Orange, a state prisoner proceeding pro se, filed a complaint and amended
complaint pursuant to 42 U.S.C. § 1983 against the above named Defendants alleging violations of his
constitutional rights. See ECF Nos. 1 & 28. The matter is before the Court for review of the Report
and Recommendation (R & R) of United States Magistrate Judge Bristow Marchant 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. 72. The Magistrate Judge recommends that the Court grant Defendants’ motion for summary
judgment and dismiss Plaintiff’s case. Id. at 7-8, 23.
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). The Court is charged with making a de novo
The Magistrate Judge reviewed Plaintiff’s complaint pursuant to the screening provisions of 28 U.S.C.
§§ 1915(e)(2) and 1915A. The Court is mindful of its duty to liberally construe the pleadings of pro se litigants. See
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). But see Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985) (“Principles requiring generous construction of pro se complaints are not, however, without limits.
Gordon directs district courts to construe pro se complaints liberally. It does not require those courts to conjure up
questions never squarely presented to them.”).
determination of those portions of the R & R 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).
No parties have 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.
Camby v. Davis, 718 F.2d 198, 199-200 (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 [ECF No. 72] of the Magistrate Judge. It is
therefore ORDERED that Defendants’ motion for summary judgment [ECF No. 57] is GRANTED
and that this case is DISMISSED with prejudice.2 The Court directs the Clerk to CLOSE this case.
IT IS SO ORDERED.
Plaintiff also filed a motion to subpoena records from the South Carolina Department of Corrections on
October 30, 2015; the docket indicates the motion has not yet been ruled upon. See ECF No. 67. However, the
discovery phase of this case had expired before Plaintiff filed the motion. Local Civil Rule 26.04 requires that
pretrial discovery in a civil case exempt under Federal Rule of Civil Procedure 26(a)(1)(B) must be completed within
ninety days after the joinder of issues. Local Civil Rule 26.04 (D.S.C.); see Fed. R. Civ. P. 26(a)(1)(B) (exempting
from initial disclosure an action filed by a person who is in state custody). “Joinder of issues occurs when the basic
factual and legal questions raised by the parties ‘crystallize’ i.e., when [the] defendant answers or otherwise responds
to the allegations set forth in [the] plaintiff’s complaint.” Bachman v. M. Lowenstein & Sons, Inc., 85 F.R.D. 10, 12
(D.S.C. 1979). Here, joinder of the issues occurred at the latest on March 31, 2015, when Defendants filed and
served their answer to Plaintiff’s amended complaint. See ECF No. 45. Pretrial discovery therefore closed on June
29, 2015, four months before Plaintiff filed his motion to subpoena. Accordingly, to the extent Plaintiff’s motion
is not moot, the Court DENIES Plaintiff’s motion [ECF No. 67] as untimely. See Cash v. Thomas, No.
CIV.A.6:12-1278-DCN, 2013 W L 1826619, at *1 (D.S.C. Apr. 8, 2013) (applying Local Civil Rule 26.04 to a
§ 1983 plaintiff’s “‘motion to subpoena witnesses for declarations and affidavits’” and denying it as untimely because
it was “an attempt to conduct discovery at this late stage of litigation”).
Florence, South Carolina
December 11, 2015
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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