MEMORANDUM OPINION

GLEN E. CONRAD, Chief District Judge.

Adib Eddie Ramaz Makdessi, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. The court denied defendants' motion for summary judgment as to Makdessi's claim that on November 29, 2012, at Keen Mountain Correctional Center, a group of prison officials handcuffed him behind his back to retaliate against him for a pending lawsuit, knowing that their actions would cause serious pain to his injured shoulder. Makdessi having waived his right to a jury trial, the court referred the case to U.S. Magistrate Judge Pamela Meade Sargent, pursuant to 28 U.S.C. § 636(b), for conduct of appropriate proceedings.

Judge Sargent conducted a court proceeding on December 10, 2014, in Abingdon, in which she heard testimony from the parties' witnesses and viewed their evidence, including four hours of surveillance camera footage of the incident from two different cameras. The case is presently before the court on Judge Sargent's report and recommendation ("the report") and plaintiff's objections thereto.

The magistrate judge makes only a recommendation to this court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Although the district court may give a magistrate judge's proposed findings and recommendations "such weight as [their] merit commands and the sound discretion of the judge warrants," the authority and the responsibility to make an informed final determination remains with the district judge. United States v. Raddatz, 447 U.S. 667, 682-83 (1980) (internal quotation marks and citation omitted). Therefore, in performing a de novo review, the district judge must exercise "his non-delegable authority by considering the actual testimony, and not merely by reviewing the magistrate's report and recommendations." Wimmer v. Cook, 774 F.2d 68, 76 (4th Cir. 1985).

Makdessi objects to the report's omission of particular evidence he presented.1 In light of these objections, the court has specifically reviewed the evidence Makdessi has highlighted. The court also conducted de novo review of the hearing transcript and exhibits, including the camera footage discussed by the parties during the hearing.

Finding that the weight of the evidence fully supports all of the factual findings of the report and the legal conclusions of the report regarding Makdessi's retaliation claim, the court will overrule Makdessi's objections and adopt Judge Sargent's factual findings and her legal conclusions regarding the retaliation claim. Makdessi simply did not prove by a preponderance of the evidence that at the time of the November 2012 shakedown for a suspected zipgun at Keen Mountain, the defendant officers had knowledge of his then-pending lawsuit concerning past events at Wallens Ridge. Accordingly, he failed to prove that defendants' actions that day were motivated by his exercise of a constitutionally protected right, as required to prove a § 1983 claim of retaliation. See Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994).

The court also concludes that Judge Sargent's findings of fact and conclusions of law are correct as to Makdessi's Eighth Amendment deliberate indifference claim. The United States Court of Appeals for the Fourth Circuit recently reemphasized the constitutional analysis for such claims in Thomas v. Young:

No. 7:14CV00510, 2015 WL 3727012, at *1-2 (4th Cir. June 16, 2015). Although Judge Sargent filed her report before the Makdessi and Thomas decisions issued, the court concludes that her findings and conclusions are consistent with their tenets.

Related to the deliberate indifference claim, Judge Sargent made findings of fact and conclusions of law that Defendants Johnson, Pope, and Ayers conducted the search of Makdessi's cell, and Defendant Kelly was present as one of several supervisory officers; that Makdessi had no medical order for front cuffing, but officers had discretion to cuff to the front or back; that Makdessi was cuffed to the back, as were several other inmates in his pod; that from Makdessi's behavior and the medical record he allegedly displayed, the officers were not aware of a substantial risk that cuffing him to the back placed him at a substantial risk of serious harm to his shoulder; and that the officers were not deliberately indifferent. In his objections, Makdessi complains that the report omits the following facts in his favor: (a) he told the officers he would suffer pain from being cuffed to the back; (b) as he showed the court during the hearing, he is unable to place his hands together behind his back, so the officers had to physically force his hands close enough to cuff them to the back; (c) when they did so, he "started screaming from the pain, [he] started causing a little bit of a disruption" (Transcript 150, ECF No. 126); (d) that Inmate Donovan Starling testified of hearing Makdessi in a confrontation with Defendant Kelly;2 (e) Defendant Pope remembered a KMCC inmate showing him paperwork about a shoulder injury and causing a disruption to be cuffed to the front;3 (f) Makdessi's medical records since the November 2012 shakedown, along with Dr. Hopkins' testimony at the hearing, prove the defendants' actions caused Makdessi to develop arthritis in his shoulder;4 and (g) the defendants must have known of Makdessi's past shoulder injuries from information entered in "CORIS," the interagency computer system containing offender information.5 Having reviewed the hearing evidence, the court concludes that Makdessi's objections to Judge Sargent's findings and conclusions must be overruled as outweighed or discredited by other evidence in the record, including the video footage reviewed and discussed at length during the hearing.

The court agrees with Judge Sargent that even assuming, as Makdessi testified, he showed the shakedown officers a portion of his medical record regarding his complaints of shoulder pain in March 2012, that record did not put the officers on notice that he would suffer serious harm if cuffed to the back. (See Plaintiff's Exhibit 7.) Makdessi had no medical order requiring that he be cuffed to the back. Because of a prior incident, Keen Mountain's standard procedure was to cuff inmates to the back during a cell search, and the video indicates that although many inmates remained cuffed to the front during the entire shakedown process on the lower tier, other inmates besides Makdessi and his cell mate were cuffed to the back during the cell search process. In any event, the video is consistent with officers' testimony that Makdessi did not "scream" or otherwise cause a disruption from which the officers must have known that cuffing him to the back would cause him serious harm. The behavior of officers, other inmates, Makdessi himself, and the patrol dog present in the unit, as shown on the video footage, does not suggest that any such a disturbance occurred. The video shows Makdessi and his cell mate, cuffed to the back, calmly standing at their cell door for more than half an hour.6 In light of the contradictory video footage, the court cannot find credible Makdessi's testimony that he screamed in pain while cuffed behind his back or Starling's account that he heard Makdessi complaining.

Based on the factual findings in the report and the court's own de novo review of the record as reflected in this opinion, the court concludes that Makdessi has failed to prove his case by a preponderance of the evidence. Therefore, the court will enter judgment for the defendants. An appropriate order will enter this day.

The Clerk is directed to send copies of this memorandum opinion and accompanying order to plaintiff and to counsel of record for the defendants.