Opinion
C. A. 1:22-3638-DCC-SVH
11-17-2023
Christopher Cummings, Plaintiff, v. Detective Christopher Lyons, Sheriff Anthony Dennis, and Captain Wheeler Sweat, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Christopher Cummings (“Plaintiff”) alleges excessive force was used when he was arrested on June 27, 2020, and that he was not provided appropriate medical care during the 2i days he was detained thereafter. The sheriff and two officers involved in the incident seek summary judgment, arguing dismissal is appropriate.
As a pretrial detainee proceeding pro se and in forma pauperis, Plaintiff sues William “Billy” Lyons (“Lyons”), Sheriff Anthony Dennis (“Dennis”), and Captain Wheeler Sweat (“Sweat”) (collectively “Defendants”). Liberally construed, Plaintiff's amended complaint appears to assert claims pursuant to 42 U.S.C. § 1983 for violations of his Fourth and Fourteenth Amendment rights. [ECF No. 9].
Lyons has submitted evidence that Plaintiff has named the incorrect Sumter County police officer and that he is the person Plaintiff intended to name. [See ECF No. 30-2 ¶¶ 7-8 (“I, not the named Defendant Detective Christopher Lyons, responded to the incident with Plaintiff on June 27, 2020. I am not aware of any Detective Christopher Lyons that worked with or for the City of Sumter Police Department in 2020.”)]. The undersigned employs the correct name of defendant and directs the clerk of court to correct the caption.
The case is before the court on the summary judgment motions filed by Dennis and Sweat [ECF No. 29] and Lyons [ECF No. 30]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if he failed to respond adequately to Defendants' motions. [ECF No. 31]. The motions are fully briefed [ECF Nos. 38, 39] and ripe for disposition.
All pretrial proceedings in this case were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.). Because the motions are dispositive, this report and recommendation is entered for review by the district judge. For the following reasons, the undersigned recommends the district judge grant Defendants' motions for summary judgment.
I. Factual Background
Ten days before his arrest, Plaintiff went to the emergency room on June 17, 2020, after having fallen off a ladder and sustaining neck and ankle injuries as follows:
DIAGNOSIS ....
FINAL: PRIMARY: C2 anterior-inferior vertebral body fracture,
ADDITIONAL: Chest wall contusion,
Contusion/abrasion of left upper arm, Medial malleolus fracture left ankle, Minor head injury, Possible left fibular head fracture, Right unilateral C6 facet fracture, That is post fall from ladder ....
RADIOLOGY INTERPRETATION ....
NECK: Cervical spine CT shows, fracture of C2, fracture of C6, Other findings: Fracture of the anterior inferior corner of C2 as well as fracture with slight comminution and displacement of the right C6 facet that involves the bony surroundings of the right C6 vertebral foramen no abnormal subluxation ....[ECF No. 30-10]
On June 27, 2020, Sumter County police dispatch received an anonymous call regarding a possible incident of domestic violence. [ECF No. 30-2 ¶ 9, ECF No. 30-3 (911 call recording)].The tip reported that a female and male were in a parked vehicle and the female needed help. See Id. Detective Jeffrey Hansen (“Hansen”) responded to the scene and attempted to contact the male and female, approaching them with his body camera activated. [ECF No. 30-2 ¶ 10, see also ECF No. 30-2 at 6-9 (incident report); ECF No. 30-4 (Hansen body camera evidence)].
Although Plaintiff alleges he was arrested on October 6, 2020 [see ECF No. 9-1 at 1], there is no evidence in the record of his arrest on that day. Instead, the record indicates June 27, 2020, is the relevant day in question.
Lyons has filed with the court two electronic folders, one labelled “Exhibit B (Hansen BWC from DV Call),” discussed above, and one labelled “Exbibit B to Affidavit of Lyons,” containing 26 various videos. Whereas the former folder is labelled consistently with the other exhibits filed by Lyons and contains the relevant body camera evidence as labeled, the court relies on this evidence as representing the intended exhibit and disregards the latter folder that appears to have been inadvertently submitted. See Fed.R.Civ.P. 53(c)(3) (“The court need consider only the cited materials ”).
Hansen's body camera evidence shows him getting out of his car and approaching the vehicle, and Plaintiff immediately beginning to run, with Hansen directing him to stop. [See ECF No. 30-4 at 22:21:55-22:22:50]. Hansen briefly pursues Plaintiff, eventually catching up to him, and, with the assistance of Sergeant Jeremy Van Allen (“Van Allen”), who also responded to the scene, quickly takes Plaintiff to the ground to place him under arrest, immediately standing him back up, and placing handcuffs on him. [ECF No. 30-4 at 22:21:55-22:22:50, ECF No. 30-2 ¶ 10].
In the video, Plaintiff was not wearing a neck or ankle brace or showing any other outward signs of injury and calmly, but repeatedly, complains to Hansen about his neck being broken, his neck hurting, and perhaps his leg being hurt, although the audio is unclear. [See ECF No. 30-4 at 22:22:5022:26:25]. As time passes, Plaintiff appears increasingly uncomfortable. See id.
Lyons attests as follows, as confirmed by his body camera:
EMS was on scene shortly after the Plaintiff was detained, as they were dispatched after the original domestic violence call was received. Plaintiff was assessed by EMS on scene for the alleged injuries he asserted he had received from a previous incident. From the scene, EMS took Plaintiff to Prisma Health Tuomey Hospital [in a neck brace] to further evaluate his previous injuries.[ECF No. 30-2 ¶¶ 12-13, see also ECF No. 30-4].
The record indicates that shortly after Plaintiff was taken to the hospital, he left the hospital; Van Allen saw Plaintiff walking back home and informed Plaintiff that he was under arrest. [ECF No. 30-2 ¶¶ 14-15, ECF No. 30-2 at 7 (“After arriving at Prisma Health Tuomey, Christopher left and attempted to walk back home. Christopher was spotted at the corner of Loring Dr and Bowman Dr by Sgt Van Allen.”)]. Van Allen directed Plaintiff not to run, but Plaintiff proceeded to run from him. See id.
Plaintiff's June 27, 2020 hospital records are not in the court record.
Lyons attests that Hansen and Van Allen “caught up with Plaintiff in a ditch and Plaintiff was then again put in handcuffs and placed under arrest.” [ECF No. 30-2 ¶ 16]. Van Allen's body camera evidence shows Van Allen in his car, pull over, spot Plaintiff as he is walking along a rural road that runs parallel to a drainage ditch that appears to be about six feet deep. [ECF No. 30-5 at 23:03:13-23:05:55]. Van Allen tells Plaintiff repeatedly to get on the ground and that he is under arrest for domestic violence. See id. In response, Plaintiff repeatedly yells he did not do anything and maneuvers into the bottom of ditch. See id. He appears to be holding a neck brace in his hand. See id. As Van Allen and Hansen place handcuffs on Plaintiff and walk him out of the ditch, Plaintiff repeatedly states his neck is broke and complains about his ankle. See id.
As Lyons attested, and confirmed by Van Allen's and Lyon's body camera evidence, “after Plaintiff was brought out of the ditch, I approached Plaintiff and had a conversation with him regarding the reasons he was under arrest.” [ECF No. 30-2 ¶ 17; see also ECF No. 30-5 at 23:05:55-23:09:51, ECF No. 30- 6(1) at 23:04:20-23:10:51, ECF No. 30-6(2)].
As also attested to by Lyons and confirmed by the body camera evidence, “[w]hile I was trying to explain to Plaintiff why he was under arrest, he began belligerently yelling and flailing around on the ground,” repeatedly refusing to be assisted in standing up or being placed in the police vehicle; however, based on video evidence, at no point did Lyons or anyone else place his leg or knee on Plaintiff's neck nor did Lyons arrest Plaintiff, restrain him, or touch him. [ECF No. 30-2 ¶ 18; see also ECF No. 30-5 at 23:05:55-23:09:51, ECF No. 30-6(1) at 23:04:20-23:10:51, ECF No. 30-6(2)].
Based on body camera evidence submitted, eventually other officers maneuvered Plaintiff, who refused to stand up or get into the police vehicle, off the ground and into the back of a police vehicle. [See ECF No. 30-5 at 23:05:5523:09:51, ECF No. 30-6(1) at 23:04:20-23:10:51, ECF No. 30-6(2)].
As attested by Lyons, after Plaintiff was placed in the back of the police vehicle to be taken to the Sumter County jail for booking, “Plaintiff started violently kicking at the rear passenger side window of the vehicle he was being transported in,” and officers stopped the vehicle to secure Plaintiff's legs with straps. [ECF No. 30-2 ¶¶ 20-21, see also ECF No. 30-7 at 23:19:05-23:21:15].
Upon Plaintiff's arrival at the detention center, as attested by Sweat and confirmed by Hansen's body camera evidence, Plaintiff walked with assistance into the detention center from the sally port, after an extended period of Plaintiff placing himself on the floor after exiting the police vehicle and refusing to get up or be assisted up; however, at no point did Sweat or any other officer “drag” Plaintiff. [ECF No. 29-14 ¶ 6, see also ECF No. 30-7 at 23:29:0523:43:45]. While Plaintiff was in the sally port, a nurse examined him. [ECF No. 30-2 ¶ 25, see also ECF No. 30-7 at 23:29:05-23:43:45]. Also, while Plaintiff was in the sally port and prior to booking, one of the officers identified Plaintiff as Christopher Cummings, and not Kevin Nixon, as Plaintiff claimed to be. [ECF No. 30-2 ¶ 23, ECF No. 30-7 at 23:29:05-23:43:45].
As attested by Lyons, “[a]t that time, it was also discovered that Plaintiff had a bench warrant from the Sumter Police Department and a contempt of circuit court warrant from the Sumter County Sheriff's Office.” [ECF No. 30-2 ¶ 24].
On July 2, 2020, Plaintiff was tested for tuberculosis. [ECF No. 29-12 at 15]. On July 5, 2020, an initial 14-day health assessment was completed for Plaintiff. Id. at 10. Although the “overall health impression” was assessed as good, the assessment also notes that the patient needed to be referred to the facility's doctor and for mental health assessment and notes what appears to be Plaintiff's complaints about his neck and ankle. Id. at 12, 14.
The record indicates that Plaintiff thereafter was provided an intake mental health screening on July 7, 2020, in which Plaintiff complained he was not sleeping well and was tired. [ECF No. 29-12 at 5]. The record also indicates Plaintiff may have been examined on July 15, 2020, at his request by a family nurse practitioner. Id. at 3.
The July 15, 2020 medical note incudes the following note: “Cast cut off by city cops Neck brace removed upon entrance to jail.” [ECF No. 29-12 at 3]. This note is unclear, as none of the video footage indicate Plaintiff had a cast or was wearing a neck brace during the relevant period except when emergency services originally transported him to Prisma Health Tuomey Hospital.
As a result of the events of June 27, 2020, Plaintiff was charged with domestic violence 3rd degree, resisting arrest, false information to law enforcement, and public disorderly conduct. [ECF No. 30-8]. In April 2021, Plaintiff was indicted for domestic violence 3rd degree and resisting arrest. [ECF No. 30-9]. On July 17, 2023, Plaintiff pled guilty to both charges. https://publicindex.sccourts.org/Sumter/PublicIndex/CaseDetails.aspx (last visited August 31, 2023, search term “2021GS4300247”).
The court takes judicial notice of the disposition of Plaintiff's criminal case. Phillips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (finding that a court may “properly take judicial notice of matters of public record”).
II. Discussion
A. Standard on Summary Judgment
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 nonmoving 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. 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 (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 (4th Cir. 1990).
B. Analysis
1. Eleventh Amendment Immunity
Plaintiff asserts claims pursuant to 42 U.S.C. § 1983. A civil action brought pursuant to 42 U.S.C. § 1983 provides a means to vindicate violations of rights, privileges, or immunities secured by the Constitution and laws of the United States, but the statute is not, itself, a source of substantive rights. Albright v. Oliver, 510 U.S. 266, 271 (1994). “Section 1983 imposes liability on any person who, under the color of state law, deprives another person ‘of any rights, privileges, or immunities secured by the Constitution and laws.'” Doe v. Kidd, 501 F.3d 348, 355 (4th Cir. 2007) (citing 42 U.S.C. § 1983). “Under 42 U.S.C. § 1983, a plaintiff must establish three elements to state a cause of action: (1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law.” Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997).
The Eleventh Amendment provides “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. Amend. XI. The United States Supreme Court has long held the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001).
A plaintiff “is not entitled to monetary damages under § 1983 against Defendant in their official capacities.” Moneyhan v. Keller, 563 Fed.Appx. 256, 258 (4th Cir. 2014) (citing Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (holding that Eleventh Amendment bars suits against non-consenting state, its agencies, and its officers acting in their official capacities)). However, suits for damages against state officials sued in their individual capacity are not barred by the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21, 30-31 (1991) (“[T]he Eleventh Amendment does not erect a barrier against suits to impose ‘individual and personal liability' on state officials under § 1983.”) (citation omitted).
Accordingly, the undersigned recommends the district judge grant Defendants' motions for summary judgment as to Plaintiff's claims against them in their official capacities. To the extent that Plaintiff asserts claims against Defendants in their individual capacity [see ECF No. 1], they are addressed below.
2. Excessive Force Claim
The court analyzes claims of excessive force by law enforcement in the course of an arrest under the Fourth Amendment's “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 (1989). Determining whether the force used to carry out a particular arrest is “unreasonable” under the Fourth Amendment requires “balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Tennessee v. Garner, 471 U.S. 1, 8 (1985). The outcome of this balancing test necessarily depends on the facts and circumstances of the particular case. Id. at 8-9 (holding question is “whether the totality of the circumstances justifie[s] a particular sort of search or seizure”). The court considers factors including the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396. Further, the analysis “must embody allowances for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain and rapidly evolving-about the amount of force that is necessary in a particular situation.” Unus v. Kane, 565 F.3d 103, 117 (4th Cir. 2009) (citation omitted); see also Jones v. Buchanan, 325 F.3d 520, 530-31 (4th Cir. 2003) (holding the extent of injuries to the plaintiff “is another consideration in determining whether force was excessive”).
Additionally, under the qualified immunity defense, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity ensures that “[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Whether an officer is entitled to qualified immunity is a question of law for the court and, when there are no relevant disputed material facts, a court should rule on the qualified immunity issue at the summary judgment stage. Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005) (“Ordinarily, the question of qualified immunity should be decided at the summary judgment stage.”).
To resolve a qualified immunity defense, the court must (1) determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendant's conduct violated a constitutional right, and (2) determine whether the right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts may address the two prongs of the qualified immunity analysis in whichever order is appropriate in light of the circumstances of the particular case. Id.
Here, Plaintiff alleges he suffered from three specific incidents of excessive force: (1) when Lyons twice put his leg or knee on Plaintiff's neck, and (2) when Sweat “dragged” him upon Plaintiff's arrival to the detention center. [See ECF No. 9 at 3-4, ECF No. 9-1 at 1, 3]. However, Plaintiff has failed to submit any evidence in support of his allegations, and he has failed to respond to Defendants' motions for summary judgment as to any excessive force claim. [See ECF No. 38].
Independently, the undisputed evidence submitted by Defendants directly contradicts Plaintiff's allegations, including the body camera evidence that recorded the relevant period of time. In reviewing the evidence related to a motion for summary judgment, the court considers undisputed facts, as well as the disputed facts viewed in the light most favorable to the nonmoving party. Nonetheless, “[w]hen 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.” Scott v. Harris, 550 U.S. 372, 380 (2007). Thus, when the record contains video footage that is not open to more than one interpretation and contradicts the non-movant's assertions, the court “view[s] the facts in the light depicted by the videotape.” Id. at 381.
The body camera evidence submitted by Defendants shows Lyons speaking to Plaintiff, but never touching him, and shows no one, including Sweat, dragging Plaintiff into the detention center. Additionally, a review of all the evidence does not indicate any officer, Lyons and Sweat included, employed excessive force to arrest and detain Plaintiff on June 27, 2020.
Accordingly, the undersigned recommends the district judge grant Defendants' motions for summary judgment as to Plaintiff's excessive force claims.
3. Deliberate Indifference to a Serious Medical Need
The court evaluates actions brought by pretrial detainees pursuant to 42 U.S.C. § 1983 under the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535, 537 n. 16 (1979); Martin, 849 F.2d at 870. Plaintiff's rights under the Fourteenth Amendment are at least as great as Eighth Amendment protections available to prisoners. Martin, 849 F.2d at 870. A pretrial detainee cannot be subject to any form of “punishment.” Belcher v. Oliver, 898 F.2d 32, 34 (4th Cir. 1990). The “precise scope” of this Fourteenth Amendment right remains “unclear.” Martin, 849 F.2d at 871. “But a pretrial detainee makes out a violation at least where he shows deliberate indifference to serious medical needs under cases interpreting the Eighth Amendment.” Mays v. Sprinkle, 992 F.3d 295, 300 (4th Cir. 2021) (citation omitted).
To succeed on a 42 U.S.C. § 1983 claim for deliberate indifference to serious medical needs, Plaintiff must establish both a subjective component and an objective component under the applicable two-part test. Gordon v. Schilling, 937 F.3d 348, 356 (4th Cir. 2019) (citation omitted). As to the objective component, Plaintiff must show he suffered a “serious medical need.” Id. (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “[A] medical condition is serious when it has ‘been diagnosed by a physician as mandating treatment or is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'” Id. (citing Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)).
As to the subjective component, Plaintiff must show “that the defendant . . . acted with ‘deliberate indifference.'” Id. (citing Estelle, 429 U.S. at 104). “The Supreme Court has explained that ‘deliberate indifference entails something more than mere negligence,' but the standard ‘is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.'” Id. at 357 (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)). A defendant acts with deliberate indifference sufficient to establish a deprivation of medical care claim where the defendant has “actual knowledge of the [plaintiff's] serious medical needs and the related risks, but nevertheless disregarded them.” Id. (citing DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018)). “A defendant's subjective knowledge can be proven ‘through direct evidence of [his or her] actual knowledge or circumstantial evidence tending to establish such knowledge, including evidence that [he or she] knew of a substantial risk from the very fact that the risk was obvious.'” Id. (citing Scinto, 841 F.3d at 226)).
Here, assuming Plaintiff suffered serious medical needs concerning the injuries he sustained prior to his arrest after falling from a ladder, he has failed to submit any evidence Defendants were deliberately indifferent to those serious medical needs. Mere negligence, malpractice, or incorrect diagnosis is not enough to establish a constitutional violation. Estelle, 429 U.S. at 106. Similarly, a prisoner's mere disagreement with the care he receives does not meet the standard. See Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999); Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975) (holding questions of medical judgment are not subject to judicial review). While the Constitution “does require that prisoners be provided with a certain minimum level of medical treatment, it does not guarantee to a prisoner the treatment of his choice.” Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988).
Plaintiff has also failed to indicate how the named Defendants were responsible for the medical treatment provided, or not provided, to him while he was detained. [See, e.g., ECF No. 30-2 ¶ 26 (“Once the Plaintiff was accepted into the jail, he was in the care, custody, and control of the Sumter County Sheriffs Office.”), ECF No. 29-14 ¶ 11 (“To the extent this inmate is complaining about the medical care provided to him at the Detention Center, I have no involvement in that, as the medical care for inmate is handled through an independent contractor.”)].
Plaintiff's medical records indicate that, during the time he was detained, he received medical care, and he has failed to submit any evidence in support of his claim for deliberate indifference, other than repeated unsubstantiated allegations that “on the day of [his] arrest [he] was denied medical attention and bore mistreatment . . . for the next twenty one days.” [ECF No. 38 at 1].
Plaintiff repeatedly alleges that after being detained for 21 days, the detention center secured his medical records (indicating this should have been done sooner), he was immediately released after the records were received, and he then had immediate “life changing” surfgery on his neck for a pinched nerve. [See ECF No. 9-1 at 2, 4, ECF No. 38 at 1-2]. However, Plaintiff has failed to submit any evidence in support of these allegations.
Accordingly, the undersigned recommends the district judge grant Defendants' motions for summary judgment as to Plaintiff's claims for deliberate indifference.
Given the recommendation above, it is unnecessary to address Dennis and Sweat's alternative argument that Plaintiff's claims are subject to dismissal for having failed to exhaust his administrative remedies. [See ECF No. 29-1 at 18-19, see also ECF No. 29-13].
III. Conclusion and Recommendation
Accordingly, the undersigned recommends the district judge grant Defendants' motions for summary judgment. [ECF Nos. 29, 30].
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
901 Richland Street
Columbia, South Carolina 29201
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).