Opinion
C/A 5:23-4010-DCC-KDW
07-30-2024
Joshua Jerel White, Plaintiff, v. Michael Rasar, Deputy Jackson, and Savannah Kiers[1], Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge
Joshua Jerel White (“Plaintiff”), proceeding pro se, was a pre-trial detainee incarcerated in the Barnwell County Detention Center during the time he alleges Defendants violated his civil rights. See ECF Nos. 1; 35. On January 22, 2024, Plaintiff filed a Motion for Summary Judgment. ECF No. 66. Defendants filed a response opposing Plaintiff's Motion, ECF No. 68. Plaintiff subsequently filed an Amended Motion for Summary Judgment, ECF No. 78, and Defendants filed a response to this Motion, as well. ECF No. 84. On February 2, 2024, Defendants filed their own Motion for Summary Judgment. ECF No. 67. Plaintiff filed a document styled as an Objection on April 18, 2024. ECF No. 89. Defendants filed a Reply on April 24, 2024. ECF No. 90. A few days later, Plaintiff filed what he styled as a “Second Objection to Defendant's Summary Judgment.” ECF No. 92. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), this Magistrate Judge is authorized to review pretrial matters in cases involving pro se litigants and submit findings and recommendations to the District Court. This matter is now ripe for review.
Plaintiff has since amended his Complaint twice, with the operative Complaint now being his Second Amended Complaint, ECF No. 35.
I. Factual Allegations
According to the allegations within Plaintiff's Second Amended Complaint, Plaintiff was incarcerated at the Barnwell County Detention Center (“BCDC”) from September of 2022 through July 2023. ECF No. 35 at 10. Plaintiff alleges that Defendants Michael Rasar, Savannah Kearse, and Deputy Jackson used unnecessary force against him, falsely accused him of a crime, and subjected him to punishment in violation of his due process rights. ECF No. 35 at 3. Plaintiff alleges that in March 2023, while he was housed at BCDC, Defendant Kearse opened his cell door to deliver lunch, and Plaintiff asked her about attending a mental health appointment. Id. Plaintiff claims he was told he did not have an appointment that day. Id. Defendant Kearse then called for first responders and attacked Plaintiff by pulling him. Id. Plaintiff responded by pulling away from Defendant Kearse and asking her to stop, at which point Defendant Kearse hit him. Id. Plaintiff put his hands up to protect himself, resulting in Defendant Kearse's glasses breaking in the process. Id. Plaintiff then walked back into his cell and Defendants Rasar, Sgt. Hall, and Sgt. Neal followed him. Id. Plaintiff alleges Defendant Rasar had a “loaded glock pistol in his pocket,” and Sgt. Hall had a taser. Id. Plaintiff alleges Defendant Rasar told Plaintiff if he moved, he would be shot, before placing Plaintiff in a restraint chair. Id. As a result of this incident, Plaintiff was charged with assault and battery and malicious injury to property. Id. Plaintiff alleges that on April 25, 2023, he was found not guilty of these charges. Id. Plaintiff further alleges Defendant Kearse was later fired by BCDC. Id.
Plaintiff further alleges that while incarcerated at BCDC, Deputy Jackson was aware that Plaintiff's cell flap did not open, but she placed his food tray on the floor for several days in a row instead of opening his door and handing him his meal. Id. at 3-4. The inmate next to Plaintiff would then eat his food and when Plaintiff complained, he was not provided a replacement meal. Id. at 4. Plaintiff claims his cell was uninhabitable because the toilet and water did not work, and when he filed grievances for a work order, they went unanswered. Id. Plaintiff alleges one cell he was housed in had no water, no toilets, and feces and urine on the floor. Id. at 5. He further alleges the heat was off in the winter of 2022, and he was denied cleaning supplies to clean his living area, which he alleges was the responsibility of Defendant Rasar. Id. His room also had night lights and an emergency intercom that did not work. Id. at 4. Plaintiff alleges Defendant Rasar, Sgt. Hall and Sgt. Neal threw out his belongings,and Defendant Rasar confiscated Plaintiff's legal mail and would not give him his mail back. Id. Finally, Plaintiff states that he was verbally sexually abused by Defendant Kearse. Id. at 5. As a result of these events, Plaintiff alleges he suffered mental stress and anxiety attacks, as well as a bruised eye from the altercation with Defendant Kearse. Id. at 11. Plaintiff alleges he was never provided medical treatment for his eye. Id.
Sgt. Hall and Sgt. Neal are not named Defendants.
As it relates to the allegations concerning excessive force, the court has the benefit of video footage in this case. Two different videos, depicting the same events but at different camera angles have been provided to the court. These videos capture the altercation between Plaintiff and Defendant Kearse, as well as the time period when Defendant Rasar, Sgt. Neal and Sgt. Hall return to Plaintiff's cell after the incident. See Lola Max Cameras 1 and 2, attached as Exhibits 4 and 5 to Defs.' Motion at ECF No. 67-6. The contents of the video will be considered as applicable below.
II. Summary Judgment Standard
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own argument, affidavit, or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).
Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc.Servs., 901 F.2d 387, 391 (4th Cir. 1990).
III. Analysis
A. Plaintiff's Motion for Summary Judgment and Amended Motion for Summary Judgment
Plaintiff filed a document he styled as a Motion for Summary Judgment on January 22, 2024. ECF No. 66. This document, in essence, reiterates the claims he has alleged against Defendants. Moreover, Plaintiff filed a more-detailed document styled as an Amended Motion for Summary Judgment on March 25, 2024. ECF No. 78. Thus, the undersigned finds that Plaintiff's initial Motion, ECF No. 66, is denied as moot. The court has otherwise considered the substance of Plaintiff's Amended Motion for Summary Judgment. Within his Amended Motion, Plaintiff again reiterates his claims against Defendants. Defendants filed a document in opposition to Plaintiff's Amended Motion for Summary Judgment. ECF No. 84. Defendants state that their own Motion for Summary Judgment addresses many of Plaintiff's claims. However, they point out that Plaintiff attaches several documents to this filing that bear upon the issues addressed in Defendants' Motion for Summary Judgment.
The undersigned has reviewed Plaintiff's filings. Within the Amended Motion, Plaintiff further sets forth an array of case law, some of which is tangentially relevant to the issues presented in this litigation. For example, there are several instances where Plaintiff cites to a case from the Eastern District of Arkansas, Finney v. Hutto, regarding excessive force claims. He further refers to a case that discusses protocol from the Alabama Department of Corrections. See Laube v. Campbell, 333 F.Supp.2d 1234 (M.D. Ala. 2004). Case law is firmly established in this district regarding the claims alleged by Plaintiff; therefore, the undersigned will consider the case law cited by Plaintiff only where appropriate. Plaintiff's arguments are otherwise difficult to decipher in that he sets forth a multitude of cases and refers back to his allegations, as well as attaches a copy of what appears to be his Second Amended Complaint to the document. Further, to the extent Plaintiff lists his grievances and argues they were not responded to by Defendants, the undersigned notes there is no constitutional right to participate in grievance proceedings. Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Moreover, throughout his Amended Motion for Summary Judgment, Plaintiff makes statements suggesting this case should go to trial and that Defendants' dispositive motion (which he terms a Motion to Dismiss) should be denied. See ECF No. 78 at 10. For this reason, Plaintiff's filing is, in substance, a response to Defendants' Motion for Summary Judgment, which was filed prior to Plaintiff's Amended Motion. To the extent Plaintiff relies upon this document to seek summary judgment in his favor, the undersigned recommends denying his Motion. However, the undersigned will consider additional arguments made in this filing to the extent they bear upon or factor into the undersigned's analysis of Defendants' Motion for Summary Judgment.
Plaintiff also states he wants to be granted a “Motion for Injunction or Summary Judgment.” To establish the need for an injunction, the party seeking the injunction must show: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). A preliminary injunction is never awarded as of right. Id. at 24. Should this statement be read to request injunctive relief, the undersigned finds Plaintiff has failed to establish the requisite showing. Thus, the undersigned recommends denying any request for injunctive relief.
B. Defendants' Motion for Summary Judgment
The undersigned has next considered the issues raised in Defendants' Motion for Summary Judgment. Where appropriate, the undersigned has considered both sets of Plaintiff's “objections” that he submitted to the Motion, as well as his documents styled as his own Motion for Summary Judgment and Amended Motion for Summary Judgment. At the outset, the undersigned finds that to the extent Plaintiff alleges he is bringing claims in the interest of the “general population,” aside from being a conclusory allegation, Plaintiff may not do so in this case. See Laird v. Tatum, 408 U.S. 1 (1972); Flast v. Cohen, 392 U.S. 83, 99 (1968) (the gist of the question of standing is whether “the person whose standing is challenged is a proper party to request an adjudication of a particular issue.”). Second, to the extent Plaintiff seeks to impose supervisory liability on the part of any of the Defendants, the undersigned finds that Plaintiff has failed to allege or otherwise establish such a theory of liability.Finally, the undersigned observes that Plaintiff brought his claims against these Defendants in their official capacity only. See ECF No. 35. The undersigned will now consider the merits of Plaintiff's claims.
Supervisory officials may be held liable in certain circumstances upon a “recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (quoting Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir. 1984)). To establish supervisory liability under § 1983 one must show: (1) the “supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a ‘pervasive and unreasonable risk' of constitutional injury”; (2) the “supervisor's response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices,'”; and (3) there was an “affirmative causal link between the supervisors inaction and the particular constitutional injury suffered by the plaintiff.” Shaw, 13 F.3d at 799 (internal citation omitted). Plaintiff makes no such cognizable allegations in his Second Amended Complaint.
Eleventh Amendment immunity need not be raised by a court sua sponte. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 481 (4th Cir. 2005).
1. Excessive Force
Defendants argue that Plaintiff's allegations that one or more Defendants violated his constitutional rights by employing excessive force against him are subject to summary judgment. Plaintiff alleges that on February 16, 2023, Defendant Kearse attacked him, and he sustained a bruise to the area around his eye. Under 42 U.S.C. § 1983, relief may be sought when a plaintiff alleges the violation of a right secured by the Constitution by a person acting under color of state law. Westv. Askins, 487 U.S. 42, 48 (1988). The Due Process Clause of the Fourteenth Amendment “protects a pretrial detainee from the use of excessive force that amounts to punishment.” Kingsley v. Hendrickson, 576 U.S. 389, 405 (2015) (quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). Because Plaintiff was a pretrial detainee at the time of the alleged violation, Plaintiff's excessive force claim is properly brought under the Due Process Clause of the Fourteenth Amendment. Coney v. Davis, 809 Fed.Appx. 158, 159 (4th Cir. 2020). To succeed on such a claim, Plaintiff, as a pretrial detainee, need only show that the alleged use of force purposely or knowingly used against him was objectively unreasonable. Kingsley, 576 U.S. at 397. In deciding whether the force was objectively unreasonable, the court must consider the evidence “from the perspective of a reasonable officer on the scene, including what the officers knew at the time, not with the 20/20 vision of hindsight.” Id. The court need also account for the legitimate interests that stem from the need to manage the facility in which an individual is detained, appropriately deferring to policies and practices needed to preserve internal order and discipline and maintain institutional security. Id. Some factors to consider when deciding the reasonableness or unreasonableness of the use of force is the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made to temper or limit the force; the severity of the security problem; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting. Id. (quoting Graham, 490 U.S. at 396).
The court has within its possession video evidence of the altercation that provides two different camera angles of the same area. Defendants have also provided the affidavit of Tahirah Cohen, a captain at BCDC, who identifies the officers within the video. See Affidavit of Tahirah Cohen, attaches as Exhibit 3 to Defs.' Motion, ECF No. 67-3. Though the videos do not contain sound, they depict the following series of events, as described below.
At approximately 4:13 p.m., Defendant Kearse enters the hallway where Plaintiff's cell is located to deliver lunch. She begins delivering Styrofoam lunch containers to the inmates in that area. See Lola Max Camera 1 at 00:47-1:15, Exhibit 4, ECF No. 67-6. When Defendant Kearse reaches Plaintiff's cell, she opens the door and hands him his lunch container; however, after she hands him the tray, Plaintiff exits his cell. See Lola Max Camera 1 at 1:19-1:24. Defendant Kearse places her arm out to prevent Plaintiff from exiting his cell door, but Plaintiff grabs her arm and pushes past her. See Lola Max Camera 1 at 1:25-1:26. Defendant Kearse uses her walkie talkie as Plaintiff walks away from his cell. See Lola Max Camera 1 at 1:30-1:31. Plaintiff moves out of the view of the camera and Defendant Kearse, who is also partially out of view, reaches her hand out toward Plaintiff. See Lola Max Camera 1 at 1:31. The other camera angle, however, depicts Defendant Kearse reach toward Plaintiff's collar before he quickly turns around and begins an altercation with Defendant Kearse. See Lola Max Camera 2 at 1:31-32, Exhibit 5, ECF No. 67-7. Plaintiff now has his right hand near Plaintiff's face, and his left hand is holding Defendant Kearse's right arm. See Lola Max Camera 1 at 1:32. Defendant Kearse's right hand, still holding the walkie talkie, is in Plaintiff's face. Id. Plaintiff is then able to put his hand on the left side of her head and pin her against the wall. See Lola Max Camera 1 at 1:33-34, Lola Max Camera 2 at 1:32. Defendant Kearse drops her walkie talkie. At this point, Plaintiff is able to overpower Defendant Kearse and pushes her toward the end of the hallway. See Lola Max Camera 2 at 1:36. While both Defendant Kearse and Plaintiff have their hands up, Defendant Kearse loses her glasses. See Lola Max Camera 2 at 1:36-37. Defendant Kearse swings towards Plaintiff but she does not appear to make contact, and Plaintiff swings back at Defendant Kearse, hitting her in the face. See Lola Max Camera 1 at 1:39. Plaintiff is then able to back Defendant Kearse into a corner. See Lola Max Camera 2 at 1:39-43. Defendant Kearse grabs onto Plaintiff's prison uniform as they continue to tussle. See Lola Max Camera 2 at 1:47. Plaintiff pushes Defendant Kearse before walking back toward his cell. See Lola Max Camera 2 at 1:50. The entire altercation lasts approximately one minute. Plaintiff does not appear to exhibit any signs of visible pain or otherwise appear to have incurred any injuries. Plaintiff then remains near his cell, while Defendant Kearse picks up her walkie talkie and uses it to contact someone. See Lola Max Camera 1 at 1:552:02. Another officer, Shannon Glover, enters the hallway and speaks to Plaintiff briefly before placing Plaintiff back in his cell. See Lola Max Camera 1 at 3:30-3:36.
After having the benefit of reviewing the video footage in this case, the undersigned finds that the video clearly supports Defendants' version of events. In Scott v. Harris, the Supreme Court stated, “when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” 550 U.S. 372, 379 (2007). Here, the undersigned finds that the video evidence blatantly contradicts Plaintiff's version of the altercation between him and Defendant Kearse. Moreover, the video evidence shows that the force employed by Defendant Kearse was not objectively unreasonable. A reasonable officer would likely protect himself or herself if an inmate was physically aggressive and outside of the confines of his cell, particularly in this case where the officer is a female and the inmate, who is male, is approximately her same height and size. Further, Defendant Kearse is responsible for ensuring discipline and order, and it is clear from the video that Plaintiff had left the confines of his cell and was moving about the facility. Once Plaintiff placed his hands on Defendant Kearse, the undersigned finds it reasonable that she would engage with some measure of force in that case. The amount of force used was not excessive but appeared commensurate with the amount of force one would use to protect herself in an altercation. Defendant Kearse did not appear to physically injure Plaintiff, and the altercation ended quickly. Finally, Defendant Kearse clearly perceived Plaintiff's moving past her and outside his cell as a threat, given that she attempts to prevent him from doing so prior to the altercation and she immediately uses her walkie talkie. In considering the Kingsley factors and reviewing the evidence of record, the court finds there is but one reasonable interpretation of the video, and for the reasons explained above, the undersigned recommends granting summary judgment as to the excessive force claim against Defendant Kearse.
As to the allegation that Defendant Rasar threatened Plaintiff and pointed a loaded purple Glock handgun during the incident that occurred at his cell on February 16, 2023, the undersigned has also reviewed the video footage wherein Defendant Rasar, Sgt. Neal and Sgt. Hall enter the hallway at approximately 4:26 p.m., ten minutes after the altercation. Defendant Rasar walks to Plaintiff's cell and begins pointing at Plaintiff through the cell window while Plaintiff's cell door is closed. See Lola Max Camera 1 at 13:49-13:57. Defendant Rasar then opens Plaintiff's cell door and all three officers enter Plaintiff's cell. See Lola Max Camera 13:57. Sgt. Hall brought a restraint chair with him and placed it outside the cell. Sgt. Neal exits Plaintiff's cell to retrieve the restraint chair, while Sgt. Hall holds open the cell door. See Lola Max Camera 1 at 14:38. While the officers are inside the cell, they throw out a Styrofoam lunch container inside a clear bag, a second Styrofoam lunch container, a cup, and a clear plastic bag. See Lola Max Camera 1 at 19:0219:41. The officers then leave Plaintiff's cell at approximately 4:33 p.m. Plaintiff alleges the gun (or pistol as he sometimes refers to it) is visible in Defendant Rasar's left pocket. ECF Nos. 89 at 1; 92 at 3. The undersigned does not find there to be any conclusive video evidence that Defendant Rasar was carrying a gun in his left pocket. In reviewing both camera angles, Defendant Rasar is seen moving and walking, but a clear gun outline is not readily visible. Plaintiff has simply not presented any evidence that Defendant Rasar pointed a gun at him, nor was it depicted in any manner on video. Accordingly, the undersigned recommends granting summary judgment to Defendant Rasar as to this claim.
For his part, Defendant Rasar denies ever pointing a gun at Plaintiff, and he denies that he carries a functional firearm withing the housing areas of BCDC. See Affidavit of Michael Rasar at 2, attached as Exhibit 10 to Defs.' Motion, ECF No. 67-10.
Plaintiff further alleges he was placed in a restraint chair, and in his response to summary judgment suggests that it is a constitutional violation to place an inmate in a restraint chair when the inmate poses no suicide risk. See ECF Nos. 78 at 6; 90 at 1; 92 at 1. The use of a restraint chair does not in and of itself constitute an excessive use of force, as the use of devices such as restraint chairs have repeatedly found to be constitutional when used appropriately. Coleman v. McMillian, No. 12-916, 2014 WL 1249290, at * 5 (D.S.C. Mar. 26, 2014); Singleton v. Brown, No. 9:15-cv-2723-JMC-BM, 2016 WL 11200707, at *15 (D.S.C. Sept. 14, 2016), report and recommendation adopted, No. 9:15-CV-02723-JMC, 2017 WL 942177 (D.S.C. Mar. 10, 2017), aff'd, 714 Fed.Appx. 307 (4th Cir. 2018). As an initial matter, Plaintiff provides no evidence to show that Plaintiff was kept in the restraint chair for an excessive period of time. Second, Plaintiff implies that a restraint chair is only appropriate when an inmate is suicidal, but such is not the case. Placement of recalcitrant inmates in a restraint chair as a way to maintain “order and control” is not necessarily a violation of the constitution. Coleman, 2014 WL 1249290, at * 5. Here, the video evidence establishes that Plaintiff had just gotten into an altercation with an officer, and these officers were called to help quell the disturbance. Plaintiff has not otherwise established that the use of the restraint chair was excessive. Accordingly, the undersigned recommends granting summary judgment as to this allegation against Defendants.
Finally, as to Plaintiff's allegation regarding the use of pepper spray and taser use by Sgt. Dunbar and Corporal Chavis, the undersigned finds these claims are without merit. As an initial matter, these individuals are not named in this action. Further, to the extent Plaintiff alleges these vague allegations somehow establish a constitutional claim against these Defendant officers, Plaintiff's allegations appear to stem from a disciplinary report filed with Defendants' Motion. See Jail Records at 15, Exhibit 5, ECF No. 67-5. According to this report, on June 22, 2023, Plaintiff became physically combative with deputies. Specifically, Plaintiff attempted to elbow another deputy and Corporal Chavis. See Jail Records at 15. Plaintiff also attempted to kick an officer and backwards head-butt him in the face. Id. Ultimately, Plaintiff was able to trip this officer, causing him to fall and hit his head multiple times. Id. The officers in the area tried to regain control and compliance, but Plaintiff continued to knee and strike deputies. Id. Corporal Chavis made the decision to employ a taser for approximately three seconds to Plaintiff's abdomen. Id. This report does not state that Plaintiff was in handcuffs, and Plaintiff does not otherwise refute the allegations within the report. The undersigned finds that the use of the taser one time for approximately three seconds was objectively reasonable under the circumstances because it was clearly employed to regain control and to ensure officer safety. See Kingsley, 576 U.S. at 400-01. Thus, to the extent Plaintiff asserts Defendants are somehow responsible, the undersigned recommends dismissing this claim as it is without merit.
2. Unlawful Search of Plaintiff's Cell
Defendants argue that Plaintiff's contention that his cell was searched by Defendant Rasar and its contents removed does not state a constitutional violation. In support of this argument, Defendants provide the BCDC Inmate Rules and Regulations as an exhibit to their Motion. See Inmate Handbook, attached as Exhibit 7 to Defs.' Motion, ECF No. 67-9. The Inmate Handbook states that, “searches or inspections of inmates, cells . . . may be conducted at any time for health, safety, or security reasons. Exhibit 7 at 2, ECF No. 67-9. Defendants argue that because he had attacked an officer, the employees at BCDC had a justifiable security reason to search Plaintiff's cell. Further, Defendant Rasar states that during, or right after, the altercation with Defendant Kearse, Plaintiff's cell was searched and Defendant Rasar (and Sgt. Hall and Sgt. Neal) removed contraband, but they did not, to his knowledge, remove any legal material. See Affidavit of Michael Rasar at 2, attached as Exhibit 10 to Defs.' Motion, ECF No. 67-10. In reviewing the video provided to the court, Defendant Rasar and another officer removed several items from Plaintiff's cell, including a plastic bag with what appears to be a Styrofoam lunch container inside, another Styrofoam lunch container, a cup, and a clear plastic bag. See Lola Max Video 1 at 19:02-19:41, Exhibit 4, ECF No. 67-6. It is not readily apparent that any paperwork was disposed of at that time.
Plaintiff responds that he is entitled to a limited expectation to privacy protected by the Fourth Amendment, and that searches may not be conducted unless there is a legitimate security reason. ECF No. 78 at 5. Plaintiff suggests Defendant Rasar searched his cell looking for evidence to use against him “at trial” and hinder Plaintiff's case; however, Plaintiff does not indicate what legal matter he is referring to in his filing. Regardless, the undersigned will address Plaintiff's allegations regarding his legal documents below.
Plaintiff's claim that his cell was illegally searched fails as a matter of law. The Fourth Circuit has established that “persons lawfully arrested on probable cause and detained lose a right to privacy from routine searches of the cavities of their bodies and their jail cells.” Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992). Moreover, the evidence provided to the court shows that Plaintiff was provided with the Inmate Handbook, which expressly addresses BCDC's policy on searching cells. See Jail Records at 7-8, attached as Exhibit 5 to Defs.' Motion, ECF No. 67-5. The search of his cell was incident to an altercation involving a correctional officer. Thus, aside from the fact that Plaintiff has no constitutional protection from a routine search of jail cell, the undersigned finds that the search of Plaintiff's cell was committed for a legitimate safety reason. Accordingly, the undersigned recommends granting summary judgment to Defendant Rasar as to this claim.
3. Unlawful Criminal Charges
Defendants argue they are entitled to summary judgment with respect to Plaintiff's contention that Defendants criminally charged him with assault and battery and malicious injury to property in violation of his constitutional right to due process. Defendants first argue that they were not personally involved with bringing criminal charges against him. Specifically, Defendants assert that they were not responsible for charging him or signing any affidavits upon which an arrest warrant was based. Liability under 42 U.S.C. § 1983 involves a showing that “the official charged acted personally in the deprivation of the plaintiff's rights.” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). Plaintiff has failed to establish these Defendants had any involvement in the securing of these criminal charges.
Second, Defendants argue that while Plaintiff's charges were either nolle prossed or dismissed, Plaintiff fails to establish what type of dismissal occurred in this case. While somewhat unclear to which claim he is referring, Plaintiff alleges that pictures were taken of him, he was fingerprinted, and his name was slandered on the Internet due to “false accusations and criminal charges.” ECF No. 78 at 7. Further, Plaintiff attaches to his Amended Motion for Summary Judgment, a copy of an Order for Destruction of Arrest Records. See ECF No. 78-1 at 1. This court record reflects that Plaintiff's charges, including malicious injury to animals or personal property and assault and battery in the third degree ended by “dismissal nolle prossequi or the defendant was found not guilty.” ECF No. 78-1 at 1. Plaintiff also attached to his original Motion for Summary Judgment additional documents related to these charges, however they provide no additional support for his claims. See ECF No. 66-1 at 6-7. These documents were provided to him during the court process explaining the charges and his corresponding rights but otherwise do not have any bearing upon his claims. Third, Defendants argue that Plaintiff was incarcerated at BCDC for charges stemming from an arrest on October 6, 2022 and did not remain in jail as a result of any of the above charges. See Barnwell County Second Judicial Circuit Public Index, attached as Exhibit 2 to Defs.' Motion, ECF No. 67-2. Accordingly, Plaintiff did not suffer any constitutional injury because of these charges.While Plaintiff alleges these Defendants brought false charges against him, the undersigned finds that he has failed to bring forth any evidence to support this claim. As noted above, Plaintiff fails to allege Defendants were involved in the bringing of these charges, and moreover, he has failed to allege any injury attributable to any involvement on the part of these Defendants related to these criminal charges. Accordingly, the undersigned recommends granting summary judgment to Defendants as to this claim.
To the extent Plaintiff argues that he was slandered as a result of these charges, the undersigned finds he has failed to establish the elements of defamation. Further, defamation and slander are not actionable in a § 1983 action. Paul v. Davis, 424 U.S. 693, 697-710 (1976); Jones v. S.C.D.C., No. 5:12-cv-3554-RBH-KDW, 2013 WL 3880175, at *4 (D.S.C. July 26, 2013) (“[U]nder longstanding South Carolina case law, contents of governmental records-such as judicial proceedings, case reports, published cases, investigative reports, or arrest records-do not give rise to liability for slander or libel.”); see also DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 199-203 (1989) (explaining that 42 U.S.C § 1983 does not impose liability for violations of duties of care arising under a state's tort law).
4. “Sexual Verbal Abuse” Claim
Defendant Kearse argues that she is entitled to summary judgment as to any constitutional violation alleged because of “verbal sexual abuse” on her part. Plaintiff's allegation stems from his contention that Defendant Kearse made a comment that was sexual in nature to him while he was incarcerated. In Plaintiff's Response (and in his Second Amended Complaint), he attaches a copy of an Inmate Grievance detailing this interaction. See ECF No. 89-1. Based on this grievance record, it is Plaintiff's contention that Defendant Kearse came into his unit and stated that, “she has a man with one arm,” and further stated that “his dick is long.” See ECF No. 89-1. Plaintiff contends this is a violation of his constitutional rights, as well as a violation of the Prison Rape Elimination Act (“PREA”). Defendant Kearse denies she made this remark. See Defs.' Motion at 12, ECF No. 67-1.
Even assuming Plaintiff heard Defendant Kearse make such a remark about another individual, this conduct is not actionable as one sounding in a constitutional violation. First, it is well established that the “PREA does not give rise to a private right of action.” Jones v. Greenville Cnty. Det. Ctr., No. 4:21-cv-1587-TLW-TER, 2021 WL 4690999, at *2 (D.S.C. Oct. 7, 2021). Second, verbal threats do not arise to the claim of constitutional magnitude. Sloan v. Lee, No. 133843, 2015 WL 273219, at *18 (D. Md. Jan. 20, 2015) (citing Pink v. Lester, 5 F.3d 73, 75 (4th Cir. 1995); McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001); Henslee v. Lewis, 153 Fed.Appx. 178, 180 (4th Cir. 2005)). Third, while foul language of a sexual nature is certainly unprofessional, it does not give rise to the level of a constitutional violation. Powell v. Temple, No. 1:22-cv-302, 2022 WL 2306762, at *4 (E.D. Va. June 27, 2022). Accordingly, the undersigned recommends finding that Defendant Kearse is entitled to summary judgment as to this claim.
5. Conditions of Confinement
Defendants argue that they are entitled to summary judgment as to Plaintiff's conditions of confinement claims, pointing out that with the exception of the failure to receive his meals, Plaintiff does not specifically allege these Defendants were responsible for the conditions described within his Second Amended Complaint. In response, Plaintiff generally alleges he was subjected to unconstitutional conditions, all of which are evidenced within the grievances filed by Plaintiff.
a. Failure to Receive Food as to Defendant Jackson
Defendant Jackson argues that she is entitled to summary judgment regarding the allegations that she denied Plaintiff food for several days. Plaintiff's specific argument is that Defendant Jackson placed his food tray on the floor, rather than hand the plate to him directly. As a result, another detainee ate his food. Plaintiff also generally alleges Defendant Jackson did not feed him “for days.” Pl.'s Br. at 2, ECF No. 78. Plaintiff alleges that BCDC is required to provide all inmates three meals a day, and he states that he grieved this issue on February 17, 2023.
The evidence in the record shows that on February 17, 2023, one day after the altercation with Defendant Kearse, Plaintiff alleges that on that day and on “this Tuesday past,” Defendant Jackson placed his meal on the floor, rather than hand it to him directly. See Kiosk Records at 16, attached as Exhibit 2 to Defs.' Br. at ECF No. 67-4. As an initial observation, while Plaintiff alleges he was denied food several days in a row, his grievance was written one day after video evidence shows Plaintiff was provided a meal at his cell, just prior to the altercation with Defendant Kearse. Thus, this evidence directly contradicts the allegation that he had been denied food for several days in a row at that point. Further, while Plaintiff argues that Defendant Jackson should have opened his door to hand him his food, BCDC procedure is such that cell doors cannot be unlocked by the feeding officer. Instead, it is unlocked remotely by a control officer. See Affidavit of Savannah Kearse at 2, attached as Exhibit 11 to Defs.' Motion, ECF No. 67-11; see Affidavit of Abrianna Jackson at 1-2, attached as Exhibit 12 to Defs.' Motion, ECF No. 67-12. Finally, the allegation that Plaintiff may have missed one meal does not rise to the level of a cognizable constitutional injury. Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir. 1999). Accordingly, the undersigned finds that as to the claim that Defendant Jackson denied Plaintiff meals or that she violated his rights by not serving him directly, the undersigned recommends granting summary judgment to Defendant Jackson on his claim.
b. General Conditions of Confinement
Plaintiff alleges a multitude of generalized claims suggesting the facility and conditions at BCDC violated his constitutional rights.These include allegations that Plaintiff's cell was uninhabitable due to it having urine and feces on the floor, that his toilet and the water were not working inside his cell, and he was denied the ability to clean his cell. He also alleges there was no heat in the winter, he was denied visitations, and his emergency intercom did not work.However, fatal to Plaintiff's allegations are that he does not allege personal involvement on the part of any Defendants named in this lawsuit. See Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). Aside from this fact, Plaintiff's complaints do not rise to the level of a constitutional violation. Conditions of confinement of pretrial detainees are to be evaluated under the Due Process Clause. Hill v. Nicodemus, 979 F.2d 987, 990-91 (4th Cir. 1992). To prevail on such a claim, a pretrial detainee must show either (1) an expressed intent to punish or (2) a lack of a reasonable relationship to a “legitimate nonpunitive governmental objective, from which a punitive intent may be inferred.” Id. (quoting Martin v. Gentle, 849 F.2d 863, 870 (4th Cir. 1988)). Plaintiff alleges that there was no heat in his cell during the winter. In the grievances related to this Complaint, Plaintiff alleges the air condition was blowing, and he asked for another blanket. See Kiosk Records at 6-9, 13-14, attached as Exhibit 4 to Defs.' Motion, ECF No. 67-4. First, none of these were resolved or responded to by Defendants named in this action. Second, Plaintiff was informed that maintenance would be notified, the temperature would be increased, or he could check with his officer for an additional blanket. Id. Thus, the evidence establishes that the officers responded to Plaintiff and attempted to resolve his issue with the temperature within his cell. Third, Plaintiff has not alleged he suffered any harm as a result of the alleged coldness within his cell. See Lopez v. Robinson, 914 F.2d 486, 492 (4th Cir. 1990) (explaining that the inmates in that case presented no affidavit evidence of any harm suffered by the alleged coldness in the cells). Accordingly, the undersigned recommends granting summary judgment on this ground.
Plaintiff consistently cites to Laube v. Campbell in his filings as support for his contention that he has established a violation of his constitutional rights. However, Laube is a class action case decided in the Middle District of Alabama regarding a women's prison and issues with overcrowding, among other problems. 333 F.Supp.2d 1234 (M.D. Ala. 2004). Laube is factually inapposite to this case, and as such the undersigned does not find its analysis has any bearing on this case. Plaintiff also cites to Taylor v. Riojas, 592 U.S. 7 (2020) to support his conditions of confinement claim. In Riojas, an inmate alleged that for six days he was confined to a “shockingly unsanitary cell,” described as covered nearly floor to ceiling with “massive amount of feces covering the floor, the ceiling, the window and packed inside the water faucet.” 592 U.S. at 53. The inmate in Riojas did not eat or drink for almost four days because he feared contamination. Id. The inmate was then moved to a room that was “frigidly cold” and equipped with only a clogged drain in the floor to dispose of bodily wastes. Id. When he eventually relieved himself, the drain overflowed, and it caused raw sewage to spill on the floor. Id. His cell also lacked a bunk, and he was confined without clothing; thus, the inmate was left to sleep on the floor naked in the sewage. Id. In other words, the facts in Riojas were egregious and not akin to the facts of this case.
Plaintiff did file a multitude of grievances related to these complaints. See ECF No. 35 at 2. The undersigned notes that some of these grievances, which are attached to Defendants' Motion for Summary Judgment, as well as Plaintiff's Amended Motion for Summary Judgment, are dated after the filing of the original Complaint, as well as the Second Amended Complaint.
Similarly, Plaintiff's allegations that his toilet and the water in his cell were not working do not survive summary judgment. Plaintiff filed several grievances alleging his toilet was not working and he “smelled toxic waste.” See Exhibit 4 at 10-11, ECF No. 67-4. However, “the mere smell or presence of human waste or bodily fluids does not rise to the level of a constitutional violation.” Salmons v. W. Reg'l Jail Auth., No. 3:18-cv-1447; 2019 WL 5616916, at *6 (S.D. W.Va. Oct. 30, 2019); see, e.g., Harris v. FNU Connolly, No. 5:14-CV-128-FDW, 2016 WL 676468, at *5 (W.D. N.C. Feb. 18, 2016), aff'd, 667 Fed.Appx. 408 (4th Cir. 2016) (granting summary judgment where plaintiff alleged holding cell was unsanitary because of a “massive amount of urine, feces, and vomit on both the floor and walls in which the plaintiff was forced to live for 30 plus days”); Powell v. Fed. Bureau of Prisons, No. 1:08-cv-00199, 2009 WL 3160124, at *1 (S.D. W.Va. Sept. 25, 2009) (granting motion to dismiss where plaintiff alleged air was “saturated with the fumes of feces, the smell of urine and vomit as well as other stale body odors”).Moreover, Plaintiff's grievances related to this issue span a two-day period; thus, it appears this was a temporary situation. See Harris v. Fleming, 839 F.2d 1232, 1234-35 (7th Cir. 1988) (finding that a prisoner who alleged he was not provided toilet paper for five days and hygiene items for ten days did not make out a conditions of confinement claim in part because the conditions were temporary, affected one inmate, and he suffered no harm). Further, according to Defendant Rasar, when Plaintiff complained one time for cleaning supplies, Defendant Rasar responded and explained that because of his placement in supermax, he was not allowed to personally handle cleaning supplies; however, officers would spray cleaner in his cell prior to recreation and Plaintiff could then wipe down the surfaces. See Rasar Aff. at 4; ECF No. 67-10. Plaintiff apparently did not file a response. Accordingly, the staff's response to handling the spraying of the chemicals while allowing Plaintiff to wipe down the surfaces belies his allegations that he was not allowed to clean his cell. Accordingly, this allegation falls short of proving a constitutional violation, and the undersigned would therefore recommend granting summary judgment to Defendants as to this claim.
In Beverati v. Smith, the Fourth Circuit considered a claim by inmates that when they were initially placed in segregation, their cells were smeared with human feces and urine and were flooded with water from a leaking toilet. 120 F.3d 500, 504 (4th Cir. 1997). The Fourth Circuit, in considering inmates' allegations to support a substantive due process claim, concluded that these conditions were not so atypical that exposure to them for a six-month period imposed a significant hardship on the inmates. Id. Here, Plaintiff provides no allegations or evidence as to the time frame this issue allegedly continued.
Plaintiff alleges his emergency intercom did not work in his cell. See Exhibit 4 at 23, ECF No. 67-4. When Plaintiff grieved this issue, the responding officer explained that maintenance would come fix the intercom. Id. In his Response, Plaintiff asserts that maintenance did not come fix the intercom or the night lights and that this therefore poses a major health risk because Plaintiff could suffer electric shock. See ECF No. 78 at 6. Aside from producing no evidence that this issue was not resolved or that he was in actual danger of electric shock due to a broken intercom or night light, Plaintiff has not alleged that the issues with his intercom were not fixed or otherwise ignored as a means to punish him or that he suffered any harm as a result of the issue with his intercom. Accordingly, the undersigned recommends granting summary judgment to Defendants as to this claim.
Finally, Plaintiff alleges he was denied visitation while housed at BCDC. BCDC utilizes HomeWAV virtual visitation via tablets provided to individuals confined there. In October of 2022, Plaintiff complained of the denial of visitation. See Exhibit 4 at 1-3, 5; ECF No. 67-4.On October 14, 2022, an officer responded to let him know that because he was on disciplinary detention, he was unable to use the platform. Id. at 1-2. In at least one of Plaintiff's grievances, he acknowledges breaking a tablet, which is the way in which virtual visitation functions. Id. at 5. Defendants argue that Plaintiff cannot now complain about the lack of having visitation when he broke the tablet used to allow for visitation. Defs.' Motion at 17; ECF No. 67-1. Aside from Plaintiff's own malfeasance in restricting access to visitation, Defendants argue that visitation is a privilege not a right. The Fourth Circuit has not recognized a constitutional right to prison visitation such that it gives rise to substantive due process protections. Brown v. Dennis, No. 4:21-cv-4053-TMC-TER, 2023 WL 5110438, at *7 (D.S.C. July 18, 2023), report and recommendation adopted, No. 4:21-CV-04053-TMC, 2023 WL 5110263 (D.S.C. Aug. 9, 2023). In Block v. Rutherford, the Supreme Court concluded a that a prohibition on contact visitations for pretrial detainees was “an entirely reasonable, nonpunitive response” to legitimate security concerns, consistent with the Fourteenth Amendment. 468 U.S. 576, 588 (1984). The undersigned also finds that Plaintiff has failed to allege that he was personally denied visitation as a form of punishment. Conditions constitute punishment when there is an “expressed intent to punish.” Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992). Plaintiff simply fails to allege or otherwise show that he was denied visitation as a form of punishment. Accordingly, Defendants are entitled to summary judgment as to this claim.
Plaintiff subsequently complained about the denial of visitation in grievances dated after this lawsuit was filed.
c. Withholding of Mail
Defendants argue they are entitled to summary judgment as to Plaintiff's claims that his mail was withheld. Plaintiff alleges his mail, specifically his legal mail, was withheld or confiscated in violation of his constitutional rights. However, Defendants argue that Plaintiff's claims do not allege any named Defendant had any involvement in the handling of his mail, nor does he allege any harm as a result of any alleged delay in the mail system.
While the undersigned finds that Plaintiff alleges his mail was withheld, he provides no additional details to support this claim. See Inmate Grievance Kiosk Records, attached as Exhibit 4 to Defs.' Motion, ECF No. 67-4. Within the grievances submitted and responded to by various officers at BCDC related to this allegation, Plaintiff asserts that he is awaiting mail and is unable to receive his mail. See Exhibit 4 at 4, ECF No. 67-4. He further asks for his mail to be picked up, specifically legal mail, and the response he received is that the mail was picked up and passed out that day. See Exhibit 4 at 22, ECF No. 67-4. In other grievances, Plaintiff alleges he sent out legal mail but it was not received, and the correctional officer, in turn, responded that the mail the jail receives is sent out. See Exhibit 4 at 24-27; 29-34, ECF No. 67-4. Finally, in some instances, Plaintiff filed grievances informing the officers that he expected his legal mail to leave the facility by a certain day. Id.
The undersigned agrees with Defendants that Plaintiff has failed to allege any personal involvement on the part of any Defendants to his general claims that his mail was withheld. See Wright, 766 F.2d at 850. Further, as to Plaintiff's contention that his legal mail was withheld, to show a violation of the right of access to the courts, a Plaintiff must show an “actual injury” that hindered his ability to pursue a legal claim. See Lewis v. Casey, 518 U.S. 343, 349-51 (1996); White v. White, 886 F.2d 721, 723 (4th Cir. 1989). To make a showing that Plaintiff's right to access to the courts was violated, he can show that the interference with his legal mail caused him to suffer “actual detriment to a legal proceeding.” Williams v. Crawford, 449 Fed.Appx. 288, 289 (4th Cir. 2011). As it relates to legal mail, to state a claim based on delay or nondelivery of legal mail, an inmate must allege adverse consequences as a basis for the allegation that the “delay or nondelivery deprived him meaningful access to the courts.” Lloyd v. Vincent, No. 4:03-1546-25BH, 2004 WL 3249250, at *4 (D.S.C. Sept. 10, 2004). Plaintiff has failed to allege any such injury, such as a time bar or procedural barrier to filing documents, or that he was otherwise unable to present his claims in a legal proceeding. Accordingly, the undersigned recommends granting summary judgment to Defendants as to this claim.
6. Failure to Obtain Medical Treatment
Defendants argue they are entitled to summary judgment as to Plaintiff's allegations that he was not able to receive medical treatment after suffering an eye injury after the altercation with Defendant Kearse. A pretrial detainee's claim based upon deliberate indifference to a medical need is properly brought pursuant to the Fourteenth Amendment. Moss v. Harwood, 19 F.4th 614, 624 (4th Cir. 2021) (citing Martin v. Gentile, 849 F.2d 863 (4th Cir. 1988)). A pretrial detainee's claim must be evaluated under an objective standard. Short v. Hartman, 87 F.4th 593, 611 (4th Cir. 2023). The Fourth Circuit outlines what a pretrial detainee plaintiff must allege to state such a claim: (1) he had a medical condition or injury that posed a substantial risk of serious harm; (2) the defendant intentionally, knowingly, or recklessly acted or failed to act to appropriately address the risk that the condition posed; (3) the defendant knew or should have known (a) that the detainee had the condition and (b) that the defendant's action or inaction posed an unjustifiably high risk of harm; and (4) as a result, the detainee was harmed. Short, 87 F.4th at 611.
Plaintiff has failed to meet this standard. The constitution requires reasonable medical care to an inmate. Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977). However, Plaintiff has failed to allege that the bruise he contends he incurred because of the altercation was an injury posing a substantial risk of serious harm. Additionally, a review of the video footage of the altercation does not reflect Plaintiff suffering a readily apparent injury. Moreover, as to the incident in question, Plaintiff provides a medical note, apparently signed by a nurse referring to the incident. This note establishes Plaintiff was indeed received some sort of medical attention afterward. See Progress Notes, ECF No. 78-1 at 7. Plaintiff provides no support to establish that these Defendants were responsible for obtaining medical care for him or that their inaction posed an unjustifiably high risk of harm. Aside from general allegations, Plaintiff does not provide any evidence that the named Defendants ignored any request for medical care by Plaintiff. Plaintiff has therefore failed to make any showing that he was not afforded reasonable medical care or that these Defendants' conduct as to Plaintiff's medical care was objectively unreasonable. Thus, the undersigned recommends granting summary judgment, to the extent Plaintiff has sufficiently alleged such a claim, to these Defendants.
7. Qualified Immunity
Finally, the Defendants argue they are entitled to qualified immunity. “Qualified immunity protects officers who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). When a qualified immunity defense is raised, the courts apply a two-part test. First, the court must determine whether the facts viewed in the plaintiff's favor make out a violation of one's constitutional rights, and second, whether the violated right was clearly established at that time. Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (citing Pearson v. Callahan, 555 U.S. 233, 231 (2009)). The Fourth Circuit employs a split burden of proof for the qualified immunity defense. The plaintiff bears the burden of proving the first prong, and the [officer] bears the burden on the second prong. Stanton, 25 F.4th at 233 (citing Henry v. Purnell, 501 F.3d 374, 377-78 & n.4 (4th Cir. 2007)). Here, the undersigned has determined that Plaintiff has failed to establish any constitutional violation on the part of any of the Defendants. Accordingly, the undersigned recommends finding that Defendants are entitled to qualified immunity.
IV. Conclusion and Recommendation
For the reasons stated above, the undersigned recommends denying Plaintiff's Motion for Summary Judgment, ECF No. 66, as moot, for the reasons previously discussed. The undersigned further recommends denying Plaintiff's Amended Motion for Summary Judgment, ECF No. 78, and granting Defendants' Motion for Summary Judgment, ECF No. 67.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
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. [I]n 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 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
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. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).