Crouchman v. Southern Health Partners et al
ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; denying 25 Motion for Default Judgment; granting 27 Motion to Set Aside Default; granting 28 Motion for Summary Judgment and granting 31 M otion for Summary Judgment; granting 34 Motion to Dismiss for Lack of Jurisdiction. Defendants Bree, Lori, Pipes, Sellman, and Southern HealthPartners are dismissed with prejudice. Defendant Clark is dismissed without prejudice. Signed by Honorable Cameron McGowan Currie on 3/17/2017.(cwhi, ) (Main Document 44 replaced on 3/17/2017) (cwhi, ). Modified on 3/17/2017 to correct document (cwhi, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
C/A. No. 9:16-1762-CMC-BM
Jeffrey William Crouchman,
Southern Health Partners, Sheriff Rick Clark,
Dr. Sellman, Nurse Denise Pipes, Nurse NFN
Lori and NFN Bree,
Opinion and Order
This matter is before the court on Plaintiff’s pro se complaint, filed in this court pursuant
to 42 U.S.C. § 1983, alleging Defendants violated his constitutional rights by denying him
mental health treatment and access to a grievance procedure at Pickens County Detention Center
while he was a pretrial detainee. ECF No. 1. On November 28, 2016, Plaintiff entered a request
for default as to Defendant Clark (ECF No. 23), who had not filed a responsive pleading, and the
Clerk entered default as to this defendant (ECF No. 24). Plaintiff also filed a motion for default
judgment as to Defendant Clark. ECF No. 25. Defendant Clark filed a motion to set aside
default the next day. ECF No. 27. Plaintiff filed a response in opposition on December 6, 2016.
ECF No. 35. Defendant Clark filed a reply on January 3, 2017. ECF No. 36.
On December 1, 2016, Defendant Bree filed a motion for summary judgment. ECF No.
28. A Roseboro Order was mailed to Plaintiff on December 2, 2016, advising him of the
importance of a dispositive motion and the need to file an adequate response. ECF No. 29. On
December 5, Defendants Lori, Pipes, Sellman, and Southern Health Partners filed a motion for
ECF No. 31.
A second Roseboro order was mailed to Plaintiff on
December 6, 2016. ECF No. 32. Defendant Clark filed a motion to dismiss for lack of
jurisdiction and failure to state a claim on December 6, 2016. ECF No. 34. Plaintiff filed a
motion for extension of time to respond to the motions for summary judgment and for lack of
jurisdiction/failure to state a claim on January 11, 2017. ECF No. 37. Although this was
granted, Plaintiff filed no response.1
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this
matter was referred to United States Magistrate Judge Bristow Marchant for pre-trial proceedings
and a Report and Recommendation (“Report”). On January 31, 2017, the Magistrate Judge
issued a Report recommending that Defendant Clark’s motion to set aside default be granted,
Plaintiff’s motion for entry of default judgment be denied, Defendants’ summary judgment
motions be granted and Defendant Clark’s motion to dismiss be deemed moot. ECF No. 41.
The Magistrate Judge advised Plaintiff of the procedures and requirements for filing objections
to the Report and the serious consequences if he failed to do so. Plaintiff has filed no objections
and the time for doing so has expired, and Plaintiff’s copy of the Report has not been returned to
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 the
court. See Matthews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de
novo determination of any portion of the Report of the Magistrate Judge to which a specific
Plaintiff did file a notice of change of address on January 19, 2017. ECF No. 40.
Plaintiff has now been released from custody. He submitted an address change to the court in
advance of the filing of the Report. The Report was sent to that new address and was not
objection is made.
The court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge
with instructions. See 28 U.S.C. § 636(b). The court reviews the Report only for clear error in
the absence of an objection. See Diamond v. Colonial Life & Accident 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 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.”) (citation omitted).
After reviewing the complaint, the motions and any responses, the applicable law, and the
Report and Recommendation of the Magistrate Judge, the court finds no clear error in the
Report’s reasoning. Accordingly, the Report and Recommendation of the Magistrate Judge is
adopted and incorporated by reference, except to the extent it converts Defendant Clark’s motion
to dismiss (ECF No. 34) to a motion for summary judgment.3
Defendant Clark was never properly served; therefore, the court does not have personal
jurisdiction over him. The summons executed as to Defendant Clark filed in the record shows
that Lt. Kristie Leopard was the individual served with process at Pickens County Jail. ECF No.
14. As Plaintiff did not file a response to Defendant Clark’s motion to dismiss or objections to
the Report, the court has no basis from which to determine if Plaintiff served Defendant Clark,
either in his official capacity as Sheriff of Pickens County or in his individual capacity. See
When a motion to dismiss is converted to a motion for summary judgment, “all parties shall be
given reasonable opportunity to present all material made pertinent to such a motion by Rule
56.” Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985). A ‘reasonable opportunity’ requires that
all parties be given an indication by the court that it intends to treat the motion as one for
summary judgment, “with the consequent right in the opposing party to file counter affidavits or
pursue reasonable discovery.” Id.
Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989) (“When a court's personal jurisdiction is
properly challenged by a Rule 12(b)(2) motion, the jurisdictional question thus raised is one for
the judge, with the burden on the plaintiff ultimately to prove the existence of a ground for
jurisdiction by a preponderance of the evidence. . . . when, as here, the court addresses the
question on the basis only of motion papers, supporting legal memoranda and the relevant
allegations of a complaint, the burden on the plaintiff is simply to make a prima facie showing of
a sufficient jurisdictional basis in order to survive the jurisdictional challenge.”) Plaintiff has
failed to carry his burden. Therefore, proper service was not effectuated as to Defendant Clark.
The court finds that Defendant Clark’s motion to dismiss for lack of jurisdiction should be
Defendant Clark’s motion to set aside entry of default is granted, Plaintiff’s motion for
entry of default judgment is denied, Defendants Bree, Lori, Pipes, Sellman, and Southern Health
Partners’ motions for summary judgment are granted, and those defendants are dismissed with
prejudice. Defendant Clark’s motion to dismiss for lack of jurisdiction is granted, and he is
dismissed without prejudice.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
March 17, 2017
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