Wilborn v. Unnamed Defendant
Filing
35
OPINION AND ORDER adopting Magistrate Judge Russell G. Vineyard's Final Report and Recommendation 32 , granting Defendant's Motion for Summary Judgment 25 and dismissing without prejudice Plaintiff's claims against Defendant Officer Dozier for lack of service of process.. Signed by Judge William S. Duffey, Jr on 10/4/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JAMES WILBORN,
Plaintiff,
v.
1:15-cv-4153-WSD
LT. GRAHAM and OFFICER
DOZIER,
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Russell G. Vineyard’s
Final Report and Recommendation (“Final R&R”) [32] recommending granting
Lieutenant Graham’s Motion for Summary Judgment [25]. The Magistrate Judge
also recommends dismissing Plaintiff’s claims against Officer Dozier for lack of
service of process.
I.
BACKGROUND1
On November 22, 2015, Plaintiff, a prisoner, proceeding pro se, filed his
Complaint [1] in the form of a one-page handwritten letter. On December 2, 2015,
the Magistrate Judge ordered [2] Plaintiff to file an amended complaint. Shortly
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The parties have not objected to the facts set out in the Final R&R, and
finding no plain error, the Court adopts them.
thereafter, Plaintiff filed his amended Civil Rights Complaint pursuant to 42
U.S.C. § 1983 [3] (“Amended Complaint”), naming DeKalb County Jail, Sheriff
Jeffrey Mann, Lieutenant Graham, and Officer Dozier as defendants. Plaintiff
alleges that, on April 25, 2014, while he was handcuffed, Officer Dozier
“snatched” him, choked him, and “rammed” his head against a concrete wall. ([3]
at 4, 6). Plaintiff also claims that Lieutenant Graham twice tased him, without
reason, while Plaintiff “was soaking wet.” ([3] at 7-8). Plaintiff claims that he
“was denied proper medical attention and therapy” and never received the results
of an x-ray. ([3] at 9). Plaintiff seeks monetary relief. ([3] at 4).
On December 18, 2015, the Magistrate Judge screened Plaintiff’s Amended
Complaint and issued a Non-Final Report and Recommendation [7] (“Non-Final
R&R”), recommending that Defendants DeKalb County Jail and Sherriff Jeffrey
Mann be dismissed as defendants in the action, that Plaintiff’s excessive force
claims be allowed to proceed, and that Plaintiff’s deliberate medical indifference
claim be dismissed. On October 4, 2016, the Court adopted the Magistrate Judge’s
Non-Final R&R. On October 6, 2016, the Magistrate Judge entered an order [13]
directing service on defendants. Defendant Officer Dozier did not return the
executed Waiver of Service form he was served. Defendant Officer Dozier is no
longer employed by DeKalb County and no forwarding address for him was
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provided. ([21]). On February 28, 2017, the Court entered an order directing
Plaintiff to provide, within twenty-one days, a valid address for Officer Dozier.
([24] at 2).
On March 21, 2017, Defendant Lieutenant Graham filed his Motion for
Summary Judgment alleging that he is entitled to qualified immunity. ([25.1] at 2).
On April 19, 2017, Defendant Lieutenant Graham filed his Statement of Material
Facts [30] in support of his Summary Judgment Motion. On May 2, 2017, Plaintiff
filed his Response to Statement of Material Facts [31] (“Response”), which the
Magistrate Judge has construed as a response in opposition to Lieutenant Graham’s
motion for summary judgment. ([32] at 1).
On May 19, 2017, the Magistrate Judge issued his Final R&R. The
Magistrate Judge recommended granting Defendant Lieutenant Graham’s
Summary Judgment Motion on Plaintiff’s excessive force claim because Defendant
Graham is entitled to qualified immunity. ([32] at 7-10). The Magistrate Judge
also recommended dismissing Plaintiff’s excessive force claim against Defendant
Officer Dozier because of lack of service of process. ([32] at 12-13). No
objections to the Final R&R have been filed.
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II.
LEGAL STANDARD
A.
Review of Magistrate Judge’s R&R
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make 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). Where, as here, no party has objected to the report and
recommendation, a court conducts only a plain error review of the record. United
States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
B.
Pro se Pleading Standard
Plaintiff filed his Amended Complaint pro se. “A document filed pro se is
to be liberally construed, and a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks
omitted). Nevertheless, a pro se plaintiff must comply with the threshold
requirements of the Federal Rules of Civil Procedure. See Beckwith v. Bellsouth
Telecomms. Inc., 146 F. App’x 368, 371 (11th Cir. 2005). “Even though a pro se
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complaint should be construed liberally, a pro se complaint still must state a claim
upon which the Court can grant relief.” Grigsby v. Thomas, 506 F. Supp. 2d 26,
28 (D.D.C. 2007). “[A] district court does not have license to rewrite a deficient
pleading.” Osahar v. U.S. Postal Serv., 297 F. App’x 863, 864 (11th Cir. 2008).
C.
Summary Judgment Standard
Summary judgment is appropriate where the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter
of law. See Fed. R. Civ. P. 56. The party seeking summary judgment bears the
burden of demonstrating the absence of a genuine dispute as to any material fact.
Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the
moving party has met this burden, the nonmoving party must demonstrate that
summary judgment is inappropriate by designating specific facts showing a
genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282
(11th Cir. 1999). The nonmoving party “need not present evidence in a form
necessary for admission at trial; however, he may not merely rest on his
pleadings.” Id.
“At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those
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facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). Where the record tells two
different stories, one blatantly contradicted by the evidence, the Court is not
required to adopt that version of the facts when ruling on summary judgment. Id.
“[C]redibility determinations, the weighing of evidence, and the drawing of
inferences from the facts are the function of the jury . . . .” Graham, 193 F.3d at
1282. “If the record presents factual issues, the court must not decide them; it must
deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. The party
opposing summary judgment “‘must do more than simply show that there is some
metaphysical doubt as to the material facts . . . . Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial.’” Scott, 550 U.S. at 380 (quoting Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). A party is entitled
to summary judgment if “the facts and inferences point overwhelmingly in favor of
the moving party, such that reasonable people could not arrive at a contrary
verdict.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.
2002) (quotations omitted).
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III.
DISCUSSION
A.
Defendant Lieutenant Graham’s Summary Judgment Motion
The Magistrate Judge found that Plaintiff’s § 1983 claim for excessive force
against Defendant Lieutenant Graham fails because Defendant Lieutenant Graham
is entitled to qualified immunity. ([32] at 7). To obtain qualified immunity, the
official first must show that he was acting within the scope of his discretionary
authority when the alleged unconstitutional events occurred. Brown v. City of
Huntsville, Ala., 608 F.3d 724, 733 (11th Cir. 2010). Where the official does so,
the plaintiff then must satisfy a two-part inquiry to defeat qualified immunity.
Pearson v. Callahan, 555 U.S. 223, 231, 236 (2009). First, the plaintiff’s
allegations must establish a constitutional violation. Brown, 608 F.3d at 734.
Second, the plaintiff must show the right violated was clearly established at the
time the official acted. Id.
The Magistrate Judge found that is “undisputed that Lieutenant Graham
acted within the scope of his discretionary authority at all material times.” ([32] at
8). The Magistrate also found that “the undisputed evidence in the case” showed
“force was necessary because the plaintiff refused to comply with verbal
commands and displayed aggressive and hostile behavior by removing his
clothing, wetting his body, pacing the dayroom, clinching his fists, creaming
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profanity, and kicking the dayroom door.” ([32] at 9). The Magistrate Judge
concluded that “there is no genuine issue for trial, and the force used by Lieutenant
Graham was objectively reasonable and not excessive.” ([32] at 10). The Court
finds no plain error in the Magistrate Judge’s conclusion.
B.
Service on Defendant Officer Dozier
The Magistrate Judge also found that Defendant Officer Dozier was not
properly served and that Plaintiff’s claims against him must be dismissed.
Defendant Officer Dozier did not waive service, and the U.S. Marshals Service
was unable to serve him because he is no longer employed by DeKalb County and
no forwarding address exists. ([21]). On February 28, 2017, the Magistrate Judge
ordered (“February 28, 2017, Order”) Plaintiff to provide a valid address within
twenty-one days. ([24] at 2). The Magistrate Judge advised plaintiff that failure to
timely respond may result in the dismissal of his claim against Defendant Officer
Dozier. (Id.). More than twenty-one days has passed, and Plaintiff has not
provided a valid address or otherwise responded to the Magistrate’s February 28,
2017 Order. ([32] at 11).
At the time Plaintiff filed his action, Rule 4(m) of the Federal Rules of Civil
Procedure provided that a “[i]f a defendant is not served within 120 days after the
complaint is filed, the court—on motion or on its own after notice to the plaintiff—
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must dismiss the action without prejudice against that defendant . . . .” The
Magistrate Judge concluded that more than 120 days had passed since the court
authorized the issuance of the summons and service of the complaint, and thus the
Magistrate Judge recommends dismissing Plaintiff’s claims against Defendant
Officer Dozier. ([32] at 12). The Court holds the Magistrate Judge did not err in
his determination.
IV.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Russell G. Vineyard’s
Final Report and Recommendation [32] is ADOPTED.
IT IS FURTHER ORDERED that Defendant Lieutenant Graham’s Motion
for Summary Judgment [25] is GRANTED.
IT IS FURTHER ORDERD that Plaintiff’s claims against Defendant
Officer Dozier are DISMISSED WITHOUT PREJUDICE for lack of service of
process.
SO ORDERED this 4th day of October, 2017.
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