Marcus A. Joseph, Plaintiff-appellant, v. J.p. Gillespie, Chief, Kirkland Correctional Institution, Inhis Individual and Official Capacity; Donald Ruger,correctional Officer, Kirkland Correctional Institution, Inhis Individual and Official Capacity; Sergeant Keith,correctional Officer, Kirkland Correctional Institution, Inhis Individual and Official Capacity; Raymond Mckenzie,sergeant, Kirkland Correctional Institution, in Hisindividual and Official Capacity; Larry Fowler, Deputywarden, Kirkland Correctional Institution, in His Individualand Official Capacity, Defendants-appellees, 72 F.3d 127 (4th Cir. 1995)

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US Court of Appeals for the Fourth Circuit - 72 F.3d 127 (4th Cir. 1995) Submitted Nov. 21, 1995. Decided Dec. 12, 1995

Appeals from the United States District Court for the District of South Carolina, at Charleston. Joseph F. Anderson, Jr., District Judge. (CA-93-2604-2-17AJ)

Marcus A. Joseph, Appellant Pro Se. James M. Brailsford, III, E. Meredith Manning, ROBINSON, McFADDEN & MOORE, P.C., Columbia, South Carolina, for Appellees.



Before HAMILTON and MOTZ, Circuit Judges, and CHAPMAN, Senior Circuit Judge.



In No. 95-6817, Marcus A. Joseph appeals from a district court's final order adopting a magistrate judge's recommendation and granting summary judgment against Joseph in his 42 U.S.C. § 1983 (1988) suit. We affirm that order in part, vacate in part, and remand. In No. 95-7048, Defendants below appeal the district court's order denying their motion to amend the final order to impose sanctions against Joseph or to award them attorneys fees. We affirm that order.

The district court's final order is proper with respect to all of Joseph's claims except those regarding excessive use of force and denial of medical needs. We affirm with regard to the former on the reasoning of the district court. Joseph v. Gillespie, No. CA-93-2604-2-17AJ (D.S.C. Apr. 11, 1995).

With regard to the excessive force and denial of medical needs claims, however, we vacate the district court's order. At the time the magistrate judge recommended granting summary judgment, affidavits from Joseph and Defendants directly contravened each other. Joseph claimed two Defendants severely beat him for his refusal to submit to a search of his hair and denied him medical attention even though he requested it. Defendants claimed that they did not use excessive force, that Joseph was not injured, and that Joseph refused medical attention. The magistrate judge was required to construe the record in favor of Joseph and was enjoined from making credibility determinations. Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991); Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). The magistrate judge ignored these constraints in making a recommendation that summary judgment be granted. Further, the district court failed to correct the error even though Joseph noted the existence of genuine issues of material fact in his objections to the recommendation.

We review the district court's order denying Defendants' motion to amend for imposition of sanctions or costs for abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (sanctions); Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 174 (4th Cir. 1994). The district court found no abuse of the court or frivolity in the proceedings that merited sanctions or imposition of attorneys fees, and we find no abuse of discretion in that decision. See Hughes v. Rowe, 449 U.S. 5, 14-16 (1980).

Thus, we affirm in part and vacate in part the district court's final order and remand for further proceedings not inconsistent with this opinion. We express no opinion on the merits of the two remaining claims. We affirm the district court's order denying the motion to amend. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.


No. 95-7048--AFFIRMED