Opinion
C/A No.: 1:19-2885-RMG-SVH
07-02-2020
Herbert D. York, Plaintiff, v. Andrea Capers, Tiffany Jones, and Dasia Williams, Defendants.
REPORT AND RECOMMENDATION AND ORDER
Herbert D. York ("Plaintiff"), proceeding pro se and in forma pauperis, brought this action pursuant to 42 U.S.C. § 1983, asserting violations of his constitutional rights against Andrea Capers ("Capers"), Tiffany Jones ("Jones"), and Dasia Williams ("Williams") ("Defendants") related to Capers's use of her taser on Plaintiff on September 16, 2019 when he was housed as a pretrial detainee at the Florence County Detention Center ("FCDC").
This matter is before the court on Capers and Jones's motion for summary judgment [ECF No. 78] and Williams's motion for summary judgment [ECF No. 87]. 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 Nos. 79, 88]. The motions having been fully briefed [ECF Nos. 90, 95, 96, 98], they are ripe for disposition. Also before the court are Plaintiff's multiple discovery motions. [ECF Nos. 85, 91, 92, 97], and Plaintiff's motion for extension of time to file a supplemental response to Defendants' motions [ECF No. 93; see also ECF No. 95].
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.). Because the summary judgment motion is dispositive, this report and recommendation is entered for review by the district judge. For the following reasons, the undersigned denies Plaintiff's motions and recommends the district judge grant in part and deny in part Capers and Jones's motion for summary judgment and grant Williams's motion for summary judgment. I. Factual Background
A. Plaintiff's Version of Events
Plaintiff alleges that on September 16, 2019, between approximately 7:30 a.m. and 8:30 a.m., Williams was releasing inmates from their respective cells for recreation. [ECF No. 98-1 at 1]. Plaintiff was located on "D Pod Cell #110" at FCDC. Id. Williams walked by Plaintiff's cell and stated, smiling, "I told you I was going to have the last laugh," apparently indicating that she would not be releasing Plaintiff for recreation. Id.
Between May 26, 2020, and June 10, 2020, Plaintiff filed a response in opposition to Defendants' motions for summary judgment [ECF No. 90] and three "supplements." [ECF Nos. 95, 96, 98]. Plaintiff's last supplement is the most comprehensive response to Defendants' motions and includes a verified affidavit that also provides the most comprehensive statement of his version of events. [See ECF Nos. 98, 98-1, see also ECF Nos. 90, 95, 96]. Therefore, the court summarizes Plaintiff's version of events based on this last-submitted verified affidavit, although all arguments and evidence submitted by Plaintiff have been considered by the undersigned. [See ECF No. 98-1, see also ECF No. 90 at 1-3 (Plaintiff's version of events, verified), ECF No. 90-1 at 1, 9 (Plaintiff's version of events, verified), ECF No. 96 at 2 (unverified)].
Plaintiff alleges that he "hit the intercom button" in his cell to ask the officer control station why he was not allowed to have recreation. Id. Williams informed Plaintiff that another officer, Josie Royal ("Royal"), had determined Plaintiff was not to have recreation. Id. Plaintiff then asked to speak to the supervisor in charge. Id.
Plaintiff's cellmate then "began hitting the door." Id. Plaintiff saw Capers and Jones talking to Williams, and then both "Capers and Jones began walking towards my cell D110 with their M26 taser[s] drawn." Id. Plaintiff alleges that because his cell door was open, "I close[d] it being in fear of my life and went to the back of [the] cell," where Plaintiff's cellmate was also located. Id. Plaintiff alleges that moments later, Capers and Jones entered the cell, with tasers still draw, and, without comment, Capers tased Plaintiff, "causing [him] pain." Id. at 1-2. Plaintiff alleges that Capers stated, "lay your monkey ass down" and "roll your monkey ass over." Id. at 2. Plaintiff was then placed in handcuffs and taken to a maximum segregation unit. Id.
B. Defendants' Version of Events
On the day in question, Williams was working in Plaintiff's section of the FCDC, and Capers and Jones were located in a different section. [ECF No. 78-2 at 1, ECF No. 78-8 ¶ 1, ECF No. 78-9 ¶ 1].
Williams was pulling inmates to go to recreation. [ECF No. 78-2 at 1]. Plaintiff began pressing the intercom button and yelling out his cell door, and Williams went to his cell and explained that his recreation had been taken away the night before by Royal. Id. Plaintiff began banging and kicking the cell door and threatening Williams. Id.
Capers and Jones allege they heard Plaintiff yelling and went to his section. [ECF No. 78-8 ¶ 1, ECF No. 78-9 ¶ 2]. Plaintiff began using expletives, and the decision was made that Plaintiff "should be removed from this general population area and put in segregation due to his behavior and disruption." [ECF No. 78-8 ¶ 2, see also ECF No. 78-9 ¶ 2].
In the jail incident report, Williams states she called Capers using a radio, instructing Capers to report to Plaintiff's unit to remove him from it. [ECF No. 78-2 at 1]. Defendants do not address this inconsistency.
Williams was instructed to open Plaintiff's door, and Capers and Jones directed Plaintiff to move forward with his hands presented for cuffing to be escorted to segregation. [ECF No. 78-8 ¶ 3, see also ECF No. 78-9 ¶¶ 3-4]. Plaintiff threatened all the officers and slammed the door. [ECF No. 78-8 ¶ 3, see also ECF No. 78-9 ¶ 3].
As argued by Williams, and not contested by Plaintiff, "the Jail Incident Report and [other defendants' affidavits] . . . make it clear . . . that Williams was not present at Plaintiff's cell at the time the taser was deployed as she had been instructed by Defendant Capers to open the cell door from the officer's desk." [ECF No. 87-1 at 6, see also ECF No. 78-2 at 1, ECF No. 86-3 at 2].
Williams was instructed to open the door again, and Plaintiff was told to back away from the door. [ECF No. 78-8 ¶ 4, see also ECF No. 78-9 ¶ 4]. Plaintiff charged toward the door at Capers and Jones. [ECF No. 78-8 ¶ 4, see also ECF No. 78-9 ¶ 4]. Capers deployed her taser, hitting Plaintiff in the left side. [ECF No. 78-8 ¶ 4, see also ECF No. 78-9 ¶ 4]. Plaintiff was wearing thick clothing, and medical could not locate anywhere the prong penetrated his skin. [ECF No. 78-8 ¶ 4]. The prong fell off as Plaintiff was handcuffed and led out of the unit. [ECF No. 78-8 ¶ 4, see also ECF No. 78-9 ¶ 5]. The taser was activated for a 5-second burst during the incident. [ECF No. 78-8 ¶ 4, ECF No. 78-9 ¶ 4, ECF No. 78-3]. II. Discussion
Jones further attests that Plaintiff "is known to us for creating disturbances," "is well known to us for causing problems and disruptions," has been on suicide watch, has been a "frequent visitor to the Detention Center since at least 2015," and "is known to eat foreign objects and say he is suicidal in an attempt to manipulate his housing." [ECF No. 78-9 ¶¶ 2, 6].
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 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. 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. Defendants' Motions for Summary Judgment
a. Excessive Force Claim - Capers and Jones
"[C]laims of post-arrest excessive force against an arrestee or pre-trial detainee . . . are governed by the Due Process Clause of the Fourteenth Amendment, which prohibits before conviction 'the use of excessive force that amounts to punishment.'" Sawyer v. Asbury, 537 F. App'x 283, 290 (4th Cir. 2013) (citing Graham v. Connor, 490 U.S. 386, 395 & n.10 (1989)).
To prevail on a Fourteenth Amendment excessive force claim, "a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable." Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015). "In determining whether the force was objectively unreasonable, a court considers the evidence 'from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.'" Duff v. Potter, No. 16-6783, 2016 WL 6518876, at *2 (4th Cir. Nov. 3, 2016) (quoting Kingsley, 576 U.S. at 397). In determining if the force was reasonable, courts may consider:
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 by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.Id. (citing Kingsley, 576 U.S. at 397). "Because the standard is an objective one, the court is not concerned with the officers' motivation or intent." Id. (citation omitted). Whether the force was objectively reasonable must be viewed in "full context," because segmenting the events in analysis "misses the forest for the trees." Id. (quoting Smith v. Ray, 781 F.3d 95, 101 (4th Cir. 2015)).
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 at hand. Id.
Here, Plaintiff's "version of events . . . is significantly different from the Defendants' version," Duff, 665 F. App'x at 244, precluding grant of summary judgment to Capers and Jones. Almost all material facts are in dispute, including whether Plaintiff threatened the officers, whether instructions were given to Plaintiff prior to force being employed, whether Plaintiff failed to comply with those instructions, and whether Plaintiff charged the cell door. A reasonable jury could conclude based on Plaintiff's version of events that Capers and Jones employed force unreasonably, particularly where Plaintiff alleges (1) he was tased with no warning and after no orders or instructions were given and that (2) he posed no harm to others or himself and was instead secured in his cell.
The Fourth Circuit's recent opinion in Brooks v. Johnson, 924 F.3d 104 (4th Cir. 2019), is instructive. In Brooks, the court reversed the district court's grant of summary judgment, where "[a] prison official deployed a taser three times against Altony Brooks when Brooks refused to hold still for an identification photograph," after officers attempted to convince Brooks to let them take a picture for roughly seven and a half minutes. Id. at 107-108.
Brooks concerned an inmate's Eighth Amendment excessive force claim, which involves a more demanding subjective component for a plaintiff to prove, not at issue here under a Fourteenth Amendment objective analysis. See Brooks, 924 F.3d at 113 ("As we have emphasized before, this subjective standard is unlike the 'objective reasonableness' test we apply under the Fourth Amendment."); see also Kingsley, 576 U.S. at 400 (applying Graham's Fourth Amendment reasonableness standard for analyzing claim of excessive force under the Fourteenth Amendment's Due Process Clause and stating "pretrial detainees (unlike convicted prisoners) cannot be punished at all"). Although Plaintiff repeatedly argues the use of force against him was done "sadistically and maliciously," invoking the Eighth Amendment [see, e.g., ECF No. 98 at 3], under the proper analysis applicable to pretrial detainees, Plaintiff need not prove that Defendants acted with a culpable subjective state of mind. See, e.g. Kingsley, 576 U.S. at 395 ("Thus, the defendant's state of mind is not a matter that a plaintiff is required to prove.").
In considering some of the same factors to be considered in this case, the court noted "[t]he record gives no indication that the officers considered any lesser or graduated sanctions against Brooks, jumping instead straight to three rapid-fire deployments of a taser that left Brooks writhing in pain." Id. at 117. Additionally, the court stated as follows:
Perhaps most important, a reasonable jury could find that the third factor — the extent of any threat to safety — bolsters Brooks's account and not the officers'. As the district court recognized, at the time Johnston subjected Brooks to multiple taser shocks, Brooks was handcuffed and surrounded by officers, and presented "no immediate physical safety risk."Id. at 116; see also id. at 118 n. 5 (citing Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 903 (4th Cir. 2016) ("We note, however, that under the Fourth Amendment, our court has held that because a taser deployment is such a serious use of force, a police officer ordinarily may use a taser against a suspect only in 'a situation in which a reasonable officer would perceive some immediate danger,' and not to compel compliance with police commands.")
Taking into account the Fourth Circuit's guidance and accepting Plaintiff's version of events as true, a reasonable jury could find, under the "facts and circumstances" of this "particular case," that Capers and Jones's use of force against Plaintiff was excessive where both Capers and Jones drew their tasers and Capers tased Plaintiff. See Graham, 490 U.S. at 396; see also Smith v. Charleston Cty. Sheriff's Office, C/A No. 2:16-655-BHH, 2019 WL 1306077, at *3 (D.S.C. Mar. 22, 2019) ("The Magistrate Judge correctly noted that it is not excessive force per se for a police officer to draw a taser and point it at an unarmed suspect. However, as with all allegations of excessive force, it is a question of what was reasonable under the circumstances. The Court finds that there is a genuine issue of material fact as to whether Wiedemann pointing his taser at Plaintiff in order to compel him to submit to being handcuffed was reasonable under the specific circumstances presented here.").
Additionally, Capers and Jones are not entitled to qualified immunity on the record currently before the court. As held by the Fourth Circuit, qualified immunity does not override the ordinary rules applicable to summary judgment proceedings. See Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992). "[S]ummary judgment on qualified immunity grounds is improper as long as there remains any material factual dispute regarding the actual conduct of the defendants." Buonocore v. Harris, 65 F.3d 347, 359-60 (4th Cir. 1995).
Here, where "the parties dispute the alleged conduct at issue" and "[w]here a 'dispute of material fact precludes a conclusive ruling on qualified immunity at the summary judgment stage, the district court should submit the factual questions to the jury and reserve for itself the legal question of whether the defendant is entitled to qualified immunity on the facts found by the jury.'" Hewitt v. Bennett, C/A No. 6:19-1927-JFA-KFM, 2020 WL 3420756, at *5 (D.S.C. June 22, 2020) (citing Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005)).
The undersigned recommends allowing Plaintiff's claim for excessive force against Capers and Jones to proceed.
Given the recommendation above, it is unnecessary for the court to address Plaintiff's argument that Defendants violated FCDC policy. [See, e.g., ECF No. 98 at 7, see also ECF No. 90-1 at 2-8].
b. Bystander Liability Claim - Jones and Williams
The Fourth Circuit recognizes a cause of action for bystander liability "premised on a law officer's duty to uphold the law and protect the public from illegal acts, regardless of who commits them." Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411, 416-17 (4th Cir. 2014) (citing Randall v. Prince George's Cnty., 302 F.3d 188, 203 (4th Cir. 2002)). A "bystander officer" can be liable for his or her nonfeasance if he or she: "(1) knows that a fellow officer is violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act." Randall, 302 F.3d at 204.
A reasonable jury could find that Jones should have intervened to prevent Capers from tasing Plaintiff. Plaintiff alleges that both Capers and Jones approached his cell with tasers drawn and neither of them gave orders prior to Capers tasing him. Taking the evidence in light most favorable to Plaintiff, there is a triable issue of fact as to whether Jones was complicit in the allegedly unlawful and excessive force employed by Capers, and Jones is not entitled to qualified immunity as to this claim for the same reasons as stated above regarding Plaintiff's excessive force claim, where the parties dispute the alleged conduct at issue.
Capers and Jones do not address Plaintiff's bystander liability claim and appear to argue that no such claim has been made. [See ECF No. 78-1 at 6 ("Beyond being present when he was tased, he does not allege any personal involvement by either Williams or Jones."), but see ECF No. 39 ¶¶ 34, 36 (Plaintiff alleging that Jones "fail[ed] to stop defendant Capers and fail[ed] to report such wrongful act caused by A. Capers" and "witness[ed] illegal actions, and fail[ed] to correct the misconduct and encourage[d] the continuation of the misconduct caused by defendant A. Capers.")]. That the complaint does not mention bystander liability or its elements does not mean Plaintiff has not alleged it. See Stevenson v. Seat Pleasant, 743 F.3d 411, 419 (4th Cir. 2014) (affirming district court's conclusion that plaintiff sufficiently pleaded bystander liability even though the complaint did not contain the term "bystander liability" or its elements). Additionally, the undersigned notes that Capers and Jones have not addressed Plaintiff's version of events as alleged in his amended complaint, nor responded to Plaintiff's filings in opposition to their motion.
Plaintiff does not allege Williams was present when Capers tased him, foreclosing a claim for bystander liability as to Williams. Somewhat confusingly, Plaintiff alleges in his amended complaint that Williams did not "try to stop or rather report A. Capers for her wrongful unlawful action towards" and failed "to use reasonable care . . . when she witness[ed] defendant A. Capers use [of] 'excessive force.'" [ECF No. 39 at ¶¶ 25, 35, 37]. However, in his affidavit, Plaintiff states only Capers and Jones, not Williams, went into his cell. [See ECF No. 98-1 at 1]. Finally, Plaintiff does not contest Williams's argument that "the Jail Incident Report and [other defendants' affidavits] . . . make it clear . . . that Williams was not present at Plaintiff's cell at the time the taser was deployed as she had been instructed by Defendant Capers to open the cell door from the officer's desk." [ECF No. 87-1 at 6, see also ECF No. 78-2 at 1, ECF No. 86-3 at 2].
Plaintiff has offered no evidence, or even argument, that Williams "(1) [knew] that a fellow officer is violating an individual's constitutional rights; (2) ha[d] a reasonable opportunity to prevent the harm; and (3) choose[] not to act." Randall, 302 F.3d at 204. Therefore, the undersigned recommends allowing Plaintiff's bystander liability claim to proceed against Jones, but be dismissed as to Williams.
Given the recommendation above, it is unnecessary for the court to address Williams's argument on the question of qualified immunity.
c. Remaining Claims
Defendants argue they are entitled to immunity under the South Carolina Tort Claims Act to the extent any allegations may be construed as arising under that act. [ECF No. 78-1 at 10, ECF No. 87-1 at 11-12]. Plaintiff did not respond to this argument, and the undersigned does not interpret any pleadings as alleging state causes of action. [See ECF No. 39].
To the extent Plaintiff intends to bring a claim for negligence under § 1983 against Williams, or any other defendant, this claim likewise fails. "A cause of action under § 1983 does not lie for negligent conduct by jail authorities." Shelley v. Cty. of Kershaw, C/A No. 3:11-3477-CMC, 2013 WL 3816708, at *1 (D.S.C. July 22, 2013); Daniels v. Williams, 474 U.S. 327, 328 (1986) (holding that "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.").
Defendants also argue they are entitled to Eleventh Amendment immunity regarding any claims brought against them in their official capacity. [ECF No. 78-1 at 9, ECF No. 87-1 at 10-11]. Although Plaintiff references Defendants in their official capacities in some filings, he specifically disavows bringing any such claims. [See ECF No. 96 at 5-6, ECF No. 98 at 1, ECF No. 90 at 4 ("Defendants are not being sued in their official capacity, but . . . in their individual capacity"); see also ECF No. 39 at 2].
Finally, Capers and Jones argue Plaintiff cannot recover against Defendants under any theory of vicarious liability, respondeat superior, or supervisory liability. [ECF No. 78-1 at 4-6]. Williams agrees that Plaintiff "does not state any allegations that Defendant Williams was somehow serving in a supervisory capacity to either of the other Defendants." [ECF No. 87-1 at 4]. Plaintiff does not address these arguments and instead appears to argue that Capers and Jones supervised Williams. [See ECF No. 95-1 at 4]. Thus, to the extent Plaintiff brings any such claims, these claims fail.
In briefing, Plaintiff appears to challenge the constitutionality of his recreation being taken away from him, arguing also that he engaged in a "rightful protest" of this denial of recreation. [See, e.g., ECF No. 95-1 at 2-6]. However, Plaintiff made no allegations in his complaint concerning the suspension of his recreational activities on the day in question and appears to concede that his filed grievance did not address this issue. [See ECF No. 1, ECF No. 95-1 at 5]. Plaintiff also appears to challenge the "custom, practice, and policy" at the FCDC of tasing pretrial detainees as punishment. [ECF No. 96-1 at 2-3]. However, Plaintiff offers no evidence or further argument in support of this position.
2. Plaintiff's Motions
Discovery closed on April 24, 2020. [ECF No. 52]. Between May 20, 2020, and June 5, 2020, Plaintiff filed four motions to compel discovery, as well as made mention of discovery requests in other filings. [See ECF Nos. 85, 91, 92, 97, see also ECF No. 95-3, ECF No. 96-1 at 2].
It appears these motions have been rendered moot in that Plaintiff has received responses to his discovery requests, in some cases following the filing of his motions. [See, e.g., ECF No. 86-3 at 9 (mailed to Plaintiff on May 20, 2020)]. Additionally, Williams represents she has "fully responded to the Plaintiff's discovery requests" and Capers and Jones represent they have produced "any and all documents that could be produced without presenting a security risk to the other inmates and the employees of the detention center in which the Plaintiff was housed." [ECF No. 86 at 2, ECF No. 94 at 1].
Plaintiff states that because he received Williams's discovery responses late, he has been unable to obtain affidavits and declarations from various witnesses. [See ECF No. 96-1 at 2]. However, it is not clear how Williams's discovery responses would impact obtaining witnesses' statements, particularly where Plaintiff had obtained discovery from Capers and Jones.
Plaintiff has not responded to Capers and Jones's representations, and, with regard to Williams, it appears the only remaining discovery dispute between the parties concerns her response to Plaintiff's first request for production. However, as stated by Williams in response to these discovery requests: "Defendant Williams is no longer an employee of the Florence County Sherriff's Office and is therefore not in possession of any records responsive" to Plaintiff's requests. [See ECF No. 86-4].
Although Plaintiff takes issue with this response, [see ECF No. 97-1], Williams has further explained that "[s]he is not personally in possession of the documents requested and does not have access to or control of them." [ECF No. 99 at 1-2].
As it appears that Defendants have fully responded to Plaintiff's discovery requests, Plaintiff's motions to compel, including requests for costs, are denied.
On June 3, 2020, Plaintiff filed an affidavit stating he was not able to discover FCDC's "grievance policies and procedures" and "other detainee's grievances as it relates to excessive use of force with the same parties." [ECF No. 95-3]. However, Plaintiff provides no further details, indicating, for example, why he was unable to timely discover these materials.
Plaintiff has also filed a motion for extension of time to file a supplemental response to Defendants' motions. [ECF No. 93, see also ECF No. 95]. Because Plaintiff has filed three supplements following the filing of this motion [see ECF Nos. 95, 96, 98], and because the court has considered all of these filings, this motion is denied as moot. III. Conclusion and Recommendation
Plaintiff's motion for extension of time is denied as moot. [ECF No. 93]. Plaintiff's discovery motions are denied. [ECF Nos. 85, 91, 92, 97]. For the foregoing reasons, the undersigned recommends the district judge grant in part and deny in part Capers and Jones's motion for summary judgment, allowing Plaintiff's claim against Capers and Jones for excessive force and claim against Jones for bystander liability to proceed and otherwise dismissing all other claims. [ECF No. 78]. The undersigned further recommends the district judge grant Williams's motion for summary judgment [ECF No. 87]. Information is provided below concerning filing objections to this report and recommendation. Plaintiff is directed that, if he chooses to file an objection to this report and recommendation, his objections must be contained within one filing and must be timely filed.
IT IS SO ORDERED AND RECOMMENDED. July 2, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
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).