Jenkins v. Bittinger et al

Filing 20

ORDER RULING ON REPORT AND RECOMMENDATION: The Court ADOPTS the Report and Recommendation of the Magistrate Judge (Dkt. No. 14 ) as the Order of the Court; DISMISSES all claims against Defendants Bittinger, West, and Martin; DISMISSES violation of policy claims against Defendant Hooper; and RECOMMITS this matter to the Magistrate Judge for further proceedings. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 10/31/2016. (mcot, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

Bobby C. Jenkins,
Plaintiff,

v.
Mr. Bittinger, Eric S. Hooper,
Charles West, Walter Marin,
Defendants.

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Civil Action No. 5:16-2649-RMG

ORDER

This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending summary dismissal of all claims against Defendants Martin, Bittinger, and
West, and summary dismissal of policy-violation claims against Defendant Hooper. For the
reasons set forth below, the Court adopts the Report and Recommendation and dismisses those
claims.

I.

Background
Plaintiff Bobby Jenkins, proceeding pro se, alleges he was falsely charged with and

disciplined for an incident occurring on March 1, 2016.

He alleges that Defendant West

improperly filed several disciplinary charges against him, that Defendant Bittinger improperly
"stacked" the charges and conducted an unconstitutional disciplinary hearing resulting in a loss of
good-time credits and other sanctions, that Defendant Hooper did not follow South Carolina
Department of Corrections policy when handcuffing Plaintiff in the "Alpha" area of Evans
Correctional Institution, and that Defendant Hooper used excessive force by spraying chemical
munitions in Plaintiff's face and by striking him. Plaintiff seeks declaratory and injunctive relief

including removal of the disciplinary convictions from his prison record and placement into the
general prison population. He also requests compensatory and punitive damages.
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II.

Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation

has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making
a de novo determination of those portions of the Report and Recommendation to which specific
objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U .S.C. § 636(b)(1). This Court
may also "receive further evidence or recommit the matter to the magistrate judge with
instructions." Id
When a proper objection is made to a particular issue, "a district court is required to
consider all arguments directed to that issue, regardless of whether they were raised before the
magistrate." United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he
district court's decision whether to consider additional evidence is committed to its discretion, and
any refusal will be reviewed for abuse." Doe v. Chao, 306 FJd 170, 183 & n.9 (4th Cir. 2002).
"[A ]ttempts to introduce new evidence after the magistrate judge has acted are disfavored," though
the district court may allow it "when a party offers sufficient reasons for so doing." Caldwell v.
Jackson, 831 F. Supp. 2d 911,914 (M.D.N.C. 2010) (listing cases).

The Prison Litigation Reform Act ("PLRA") permits an indigent litigant to commence an
action in federal court without prepaying the administrative costs of proceeding with the lawsuit.
28 U.S.C. § 1915(a)(I). To protect against possible abuses of this privilege, the statute allows the
court to dismiss the case upon finding that the action is "frivolous or malicious," "fails to state a
claim on which relief may be granted," or "seeks monetary relief against a defendant who is
immune from such relief." 28 U.S.c. §1915(e)(2)(B). A finding of frivolity can be made where
the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25,
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31 (1992). Under 28 U.S.C. §1915(e)(2)(B), a claim based on a meritless legal theory may be
dismissed sua sponte "at any time." Neitzke v. Williams, 490 U.S. 319, 324-25 (1989).
The PLRA, at 28 U.S.C. § 1915(g) contains a "three strike" provision:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
or proceeding under this section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an action or appeal in a court
ofthe United States that was dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
"[I]f a prisoner has already had three cases dismissed as frivolous, malicious, or for failure to state
a claim for which relief may be granted, the prisoner generally may not proceed [in forma
pauperis] but rather must pay up-front all filing fees for his subsequent suits." Blakely v. Wards,

738 F.3d 607,609 (4th Cir. 2013). After receiving three strikes, a plaintiff must pay the full filing
fee for almost any non-habeas civil action he might wish to file. Id. at 610.
With respect to a failure to state a claim, "Rule 12(b)(6) authorizes a court to dismiss a
claim on the basis of a dispositive issue oflaw." Neitzke, 490 U.S. at 326. The "complaint must
contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544,570 (2007)). "[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions." Id "Unless otherwise specified, a dismissal for
failure to state a claim under Rule 12(b)(6) is presumed to be both ajudgment on the merits and to
be rendered with prejudice." McLean v. United States, 566 F.3d 391,396 (4th Cir. 2009).
Pro se pleadings are given liberal construction and are held to a less stringent standard than

formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89,94 (2007); De'Lonta v.
Angelone, 330 F.3d 630, 633 (4th Cir. 2003). However, giving "liberal construction" does not

mean that the Court can ignore a prisoner's clear failure to allege facts that set forth a cognizable

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claim. "Principles requiring generous construction of pro se complaints ... [do] not require ...
courts to conjure up questions never squarely presented to them." Beaudett v. City ofHampton,
775 F.2d 1274, 1278 (4th Cir.1985).

III.

Discussion
The Court agrees with the Magistrate Judge's recommendation that claims against

Defendant Martin be summarily dismissed because Plaintiff fails to make any factual allegations
regarding him. See, e.g., Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) ("Where a complaint
alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the
defendant except for his name appearing in the caption, the complaint is properly dismissed.").
The Court also agrees with the recommendation that claims against Defendants Bittinger and West
be summarily dismissed because those claims relate to disciplinary proceedings resulting in a loss
of good-time credits. Judgment for Plaintiff on those claims would implicitly question the validity
of a particular ground for denying Plaintiff's release short of serving his maximum term of
confinement. His claim therefore cannot be raised in a § 1983 action, but must be raised in habeas
action, which is subject to the strict requirement that other avenues of relief be exhausted:
Some cases are hybrids, with a prisoner seeking relief unavailable in habeas,
notably damages, but on allegations that not only support a claim for recompense,
but imply the invalidity either of an underlying conviction or of a particular ground
for denying release short of serving the maximum term of confinement. . . .
[W]here success in a prisoner's § 1983 damages action would implicitly question
the validity of conviction or duration of sentence, the litigant must first achieve
favorable termination of his available state, or federal habeas, opportunities to
challenge the underlying conviction or sentence. . .. [I]n the circumstances of a
§ 1983 action claiming damages and equitable relief for a procedural defect in a
prison's administrative process, where the administrative action taken against the
plaintiff could affect credits toward release based on good time served . . .
conditioning the right to bring a § 1983 action on a favorable result in state litigation
or federal habeas serve[s] the practical objective of preserving limitations on the
availability ofhabeas remedies. Federal petitions for habeas corpus may be granted
only after other avenues of relief have been exhausted.
Muhammad v. Close, 540 U.S. 749, 750-51 (2004).
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Plaintiff alleges Defendant Hooper did not follow corrections policy when restraining
Plaintiff in the "Alpha" area ofthe prison on March 1,2016. The Magistrate Judge recommends­
and the Court agrees--that claim should be summarily dismissed because alleged policy violations
are not constitutional violations actionable under § 1983. Keeler v. Pea, 782 F. Supp. 42, 44
(D.S.C. 1992) (violations of prison policies that fail to reach the level of a constitutional violation
are not actionable under § 1983). Plaintiffs claim that Defendant Hooper used excessive force
against him in the March 1, 2016 incident is a plausibly pleaded Eighth Amendment claim. The
Magistrate Judge does not recommend summary dismissal of that claim.
Plaintiff objects that the claim against Defendant Hooper regarding Plaintiff's restraint in
the "Alpha" area should not be dismissed as a policy-violation claim because that claim is an
Eighth Amendment deliberate indifference claim. According to Plaintiff, Defendant Hooper
attempted to placed him in restraints in the "Alpha" area while the other "Alpha" inmates were
"out"-presumably meaning out of their cells and able to assault a helpless, restrained inmate.
Plaintiff alleges that he refused to cooperate with being restrained under those circumstances
because he feared for his life, and that Defendant Hooper responded to his noncooperation with
excessive force. Although "[t]he Eighth Amendment imposes a duty on prison officials 'to protect
prisoners from violence at the hands of other prisoners' ... [t]o make a valid claim under the
Eighth Amendment, a prisoner must, .. allege a serious or significant physical or emotional injury
resulting from the challenged conditions," Brown v.

N.c. Dep't Corr., 612 F.3d 720, 722-23 (4th

Cir. 2010) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994». There is no allegation Plaintiff
was injured by other prisoners-according to Plaintiff, he refused to be placed in a position of
vulnerability to violence from other prisoners and was consequently subjected to excessive force
by Defendant Hooper.

He therefore has pleaded an excessive force, but not a deliberate

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indifference claim, against Defendant Hooper. Plaintiffs objections make no mention ofany other
claims the Magistrate Judge recommended dismissing.

IV.

Conclusion
For the foregoing reasons, the Court ADOPTS the Report and Recommendation of the

Magistrate Judge (Dkt. No. 14) as the Order of the Court; DISMISSES all claims against
Defendants Bittinger. West, and Martin; DISMISSES violation ofpolicy claims againt Defendant
Hooper; and RECOMMITS this matter to the Magistrate Judge for further proceedings.
AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Court Judge
2016
October J
Charleston, South Carolina

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