Strickland v. Ford et al

Filing 59

ORDER adopting 54 Report and Recommendations of Magistrate Judge Bristow Marchant. The Court overrules Plaintiff's and Defendants' objections (ECF Nos. 56, 56-1, & 57). Defendants Ford, Williams, Cohen, Burton, Br yant, Myrick, and Fuller's motion for summary judgment (ECF No. 37 ) is granted, and all claims asserted against these Defendants are dismissed. With respect to the claims on which summary judgment is being granted due to Plaintiff's failu re to exhaust his administrative remedies, the dismissal is without prejudice. (See ECF No. 54 at 49, 23.) All other dismissed claims are dismissed with prejudice. The remaining Defendants' motion to dismiss for lack of service (ECF No. 36 ) is granted, and the case is dismissed in toto. Signed by Honorable Bruce Howe Hendricks on 09/12/2019. (egra, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISON

Glen Strickland, Jr.,

)
)
Plaintiff, )
vs.
)
)
Lt. Deangelo Ford, Sgt. James Williams,
)
Warden Cohen, Associate Warden
)
Burton, Lt. Bryant, Sgt. Smalls, Sgt.
)
McKurstry, Sgt. Hancock, Sgt. Rubeo,
)
Sgt. Myrick, Sgt. Fuller and Sgt. Strand,
)
)
Defendants. )
)

Civil Action No. 9:18-503-BHH

OPINION AND ORDER

Plaintiff Glen Strickland, Jr. (“Plaintiff”), a frequent filer of pro se litigation in this
Court, brought this civil 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
Rule 73.02 for the District of South Carolina, this matter was referred to United States
Magistrate Judge Bristow Marchant for pretrial handling. The matter is now before this
Court for review of the Report and Recommendation (“Report”) issued by the Magistrate
Judge on May 2, 2019. (ECF No. 54.) In his Report, the Magistrate Judge recommends
that the Court grant Defendants Ford, Williams, Cohen, Burton, Bryant, Myrick, and
Fuller’s motion for summary judgment (ECF No. 37) and dismiss all claims asserted
against these Defendants. (ECF No. 54 at 23.) In addition, the Magistrate Judge
recommends that the Court grant the remaining Defendants’ motion to dismiss for lack of
service (ECF No. 36) and dismiss the case in toto. (ECF No. 54 at 23.) The Report sets
forth in detail the relevant facts and standards of law, and the Court incorporates them
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here without recitation.1
BACKGROUND
Magistrate Judge Marchant issued the Report on May 2, 2019. (ECF No. 54.)
Plaintiff filed objections on May 17, 2019. (ECF Nos. 56, 56-1.) Defendants Ford,
Williams, Cohen, Burton, Bryant, Myrick, and Fuller filed an objection to the Report insofar
as it failed to address whether this action should be counted as a strike against Plaintiff
pursuant to the provisions of the Prison Litigation Reform Act. (ECF No. 57.) The matter
is ripe for consideration and the Court now issues the following ruling.
STANDARD OF REVIEW
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 Mathews 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 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). 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.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005).

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As always, the Court says only what is necessary to address the parties’ objections against the already
meaningful backdrop of a thorough Report and Recommendation by the Magistrate Judge; exhaustive
recitation of law and fact exist there.

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DISCUSSION
The Magistrate Judge first found that, under Federal Rule of Civil Procedure 4(m),
Defendants McKurstry, Smalls, Strand, Rubeo, and Hancock are all entitled to dismissal
as party Defendants because they have never been served with process in this case.
(ECF No. 54 at 3.) Accordingly, the Magistrate Judge concluded that these Defendants’
motion to dismiss (ECF No. 36) should be granted. Plaintiff did not object to this
conclusion and the Court finds no error in the Magistrate Judge’s analysis or
recommendation. Consequently, the recommendation is adopted.
The Magistrate Judge next found that Plaintiff exhausted his administrative
remedies with respect to three of the nine grievances he filed while at Ridgeland
Correctional Institution (“RCI”), and that of these three exhausted grievances, only two—
RCI-379-15 and RCI-61-16—reference Plaintiff’s claims against a properly served
Defendant. (ECF No. 54 at 5–6.) Accordingly, the Magistrate Judge concluded that, other
than the claims noted in those two grievances, the moving Defendants are entitled to
dismissal of the claims asserted against them in this lawsuit. (Id. at 7.) Plaintiff did not
object to this conclusion and the Court finds no error in the Magistrate Judge’s analysis
or recommendation. Therefore, the recommendation is adopted.
The Magistrate Judge next reviewed the allegations contained in RCI-379-15
(claims of harassment) and RCI-61-16 (November 2015 incident). (Id. at 7–23.) With
respect to the November 2015 incident, the Magistrate Judge found that, even assuming
Plaintiff’s version of events to be true for purposes of summary judgment, the force used
against Plaintiff was not sufficient to create a genuine issue of fact as to whether Plaintiff’s
constitutional rights were violated, and concluded that the claim should be dismissed. (Id.

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at 9–14.) With respect to Plaintiff’s claims of harassment, the Magistrate Judge found
that, assuming the factual allegations set forth in Plaintiff’s complaint to be true for
purposes of summary judgment, the allegations of harassment set forth distasteful
conduct but fail to establish a viable constitutional claim. (Id. at 14–22.) Accordingly, the
Magistrate Judge concluded that Defendants are entitled to summary judgment on the
harassment claims, and those claims should be dismissed. (Id. at 14–22.) Nonetheless,
Magistrate Judge Marchant noted that his findings regarding the harassment claims do
not preclude the possibility that Plaintiff may have some viable state law claim(s) relating
to his harassment allegations, or some further internal prison remedies he may pursue.
(Id. at 22.) However, the Magistrate Judge reiterated that the evidence simply fails to
establish contested issues of fact on claims of a constitutional magnitude. (Id. at 22–23.)
Plaintiff first objects by arguing minor details of the physical interaction between
himself and Defendants Williams, Myrick, Ford, and (unserved Defendant) McKurstry in
November 2015. (See ECF No. 56-1 at 1.) Plaintiff’s rambling, unsupported assertions
fail to point the Court to any specific error in the Magistrate Judge’s reasoning or
conclusions and are unavailing to demonstrate the existence of any genuine issue of
material fact that would prevent the entry of summary judgment. Accordingly, the
objection is overruled.
Plaintiff next objects by quibbling over minor, irrelevant aspects of his many
disagreements with Defendants Ford, Williams, Burton, and Cohen about his housing
assignments at RCI, his participation in out of cell activities, alleged tampering with his
meals, and general harassment directed toward him. (See ECF No. 56-1 at 1–2.) Again,
Plaintiff’s unsupported assertions fail to point the Court to any error in the Magistrate

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Judge’s reasoning or conclusions. Plaintiff has not demonstrated a genuine dispute
regarding a material fact relevant to any harassment claim of constitutional magnitude.
The Court agrees with the sound analysis of the Magistrate Judge and overrules the
objection.
The remainder of Plaintiff’s objections either address a Defendant not named in
this lawsuit (see ECF No. 56 at 1 (referencing “Ofc. Johnson” at Lieber Correctional
Institution)), or lack the specificity and/or relevance to warrant individualized consideration
here (see ECF No. 56-1). Suffice it to say, Plaintiff has not pointed the Court to any error
in the Magistrate Judge’s analysis. Accordingly, Plaintiff’s objections are overruled in toto.
Defendants Ford, Williams, Cohen, Burton, Bryant, Myrick, and Fuller (hereinafter
“Defendants”) did not object to the substance of the Magistrate Judge’s findings and
recommendations regarding disposition of Plaintiff’s claims and dismissal of the case.
(See ECF No. 57.) Accordingly, the only issue still requiring the Court’s consideration is
Defendants’ objection regarding the Report’s failure to address whether this action should
count as a strike against Plaintiff pursuant to the provisions of the Prison Litigation Reform
Act, which the Court will now address de novo.
Defendants argue that this case should be designated as a strike pursuant to 28
U.S.C. §§ 1915(e)(2)(b)(1) and 1915A(b)(1), because the lawsuit is baseless and
constitutes a waste of judicial resources. (See ECF No. 57 at 2–7.) This action is one of
seven pro se lawsuits in this district—six of which have been assigned to the
undersigned—that Plaintiff has filed in forma pauperis alleging similar or identical claims
each time he is transferred to a new confinement facility. (See id. at 4–7 (summarizing
the history of Plaintiff’s lawsuits in the District of South Carolina and identifying repeated

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allegations).) Indeed, the undersigned recently conducted an analysis of whether another
of Plaintiff’s lawsuits assigned to the Court should count as a strike and found that it
should. See ECF No. 48, Strickland v. Robinson, et al., C/A No. 9:18-cv-793 (D.S.C. Sept.
11, 2019). However, the Court finds that the instant case should not count as a strike
against Plaintiff because, though unsuccessful at surviving summary judgment, Plaintiff
had at least a colorable excessive force claim regarding the November 2015 incident and
exhausted his administrative remedies regarding that claim. (See ECF No. 54 at 9–14.)
Accordingly, the Defendants’ objection is overruled.
CONCLUSION
For the reasons set forth above, the Report (ECF No. 54) of the Magistrate Judge
is ADOPTED and incorporated herein. The Court OVERRULES Plaintiff’s and
Defendants’ objections (ECF Nos. 56, 56-1, & 57). Defendants Ford, Williams, Cohen,
Burton, Bryant, Myrick, and Fuller’s motion for summary judgment (ECF No. 37) is
GRANTED, and all claims asserted against these Defendants are dismissed. With
respect to the claims on which summary judgment is being granted due to Plaintiff’s failure
to exhaust his administrative remedies, the dismissal is without prejudice. (See ECF No.
54 at 4–9, 23.) All other dismissed claims are dismissed with prejudice. The remaining
Defendants’ motion to dismiss for lack of service (ECF No. 36) is GRANTED, and the
case is dismissed in toto.
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge
September 12, 2019
Charleston, South Carolina

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