Geter v. Goode

Filing 5

REPORT AND RECOMMENDATIONS recommending 1 Complaint filed by Rishard Lewis Geter, be dismissed without prejudice and without issuance and service of process. Objections to R&R due by 5/2/2006. Signed by Judge Bruce Howe Hendricks on 4/12/06. (kmca)

Geter v. Goode

Doc. 5

8:06-cv-01077-HFF

Date Filed 04/12/2006

Entry Number 5

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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA Rishard Lewis Geter, Plaintiff, vs. Officer FNU Goode of the Spartanburg County Detention Facility, Defendant. ________________________________________ ) C/A No. 8:06-1077-HFF-BHH ) ) ) ) Report and Recommendation ) ) ) ) ) ) )

The plaintiff, Rishard Lewis Geter, ("Plaintiff") proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983.1 Plaintiff is a pretrial detainee at the Spartanburg County Detention Center, and files this action without prepayment of the filing fee under 28 U.S.C. § 1915. The complaint names a government officer and/or employee as defendant,2 and claims excessive force. The complaint should be dismissed without prejudice. Pro Se and In Forma Pauperis Review Under established local procedure in this judicial district, a careful review has been made of the pro se complaint pursuant to the procedural provisions of 28 U.S.C. § 1915; 28 U.S.C. § 1915A; and the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996). This review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995) (en banc), cert. denied, 516 U.S. 1177 (1996); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).

Pursuant to the provisions of 28 U.S.C. §636(b)(1)(B), and Local Rule 73.02(B)(2)(d), D.S.C., the u n d e r s ig n e d is authorized to review such com p la in t s for relief and subm it findings and recom m e n d a t io n s to t h e District Court. Title 28 U.S.C. § 1915A (a) provides that "[t]he court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a com p la in t in a civil action in which a prisoner seeks r e d r e s s from a governm e n t a l entity or officer or em p lo ye e of a governm e n t a l entity."
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The complaint herein has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action "fails to state a claim on which relief may be granted" or is "frivolous or malicious." § 1915(e)(2)(B)(i), (ii). 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, 31 (1992). Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989); Allison v. Kyle, 66 F.3d 71 (5th Cir. 1995). The Plaintiff is a pro se litigant, and thus his pleadings are accorded liberal construction. Hughes v. Rowe, 449 U.S. 5 (1980); Estelle v. Gamble, 429 U.S. 97 (1976); Haines v. Kerner, 404 U.S. 519 (1972); Loe v. Armistead, 582 F. 2d 1291 (4th Cir. 1978); Gordon v. Leeke, 574 F. 2d 1147 (4th 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Hughes, 495 U.S. 5. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F. 2d 387 (4th Cir. 1990). Discussion Plaintiff alleges Defendant Officer FNU Goode ("Defendant") used excessive force against him. Excessive force claims of pre-trial detainees are governed by the Due Process Clause of the Fourteenth Amendment. Riley v. Dorton, 115 F.3d 1159, 1166 (4th Cir. 1997). Under the Fourteenth Amendment, the analysis is "whether the force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the purpose of causing harm." Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir. 1998). Although there is no requirement that an 2

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inmate suffer "serious" or "significant" pain or injury to demonstrate that a malicious or sadistic use of force was employed, he must allege "more than a de minimis pain or injury." Norman v. Taylor, 25 F.3d 1259, 1263 n. 4 (4th Cir.1994). "[A]bsent the most extraordinary circumstances, a plaintiff cannot prevail on an Eighth Amendment excessive force claim if his injury is de minimis." Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir.1998). "Extrordinary circumstances are present when the force used [is] of a sort repugnant to the conscience of mankind . . . or the pain itself [is] such that it can properly be said to constitute more than de minimus injury." Taylor, 155 F.3d at 483-4. As noted by the United States Court of Appeals for the Second Circuit, "not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Boddie v. Schnieder,105 F.3d 857, 862 (2d Cir.1997) (internal quotation and citation omitted). "Indeed, not even every malevolent touch by a prison guard gives rise to a federal cause of action." Id. Plaintiff alleges a dispute arose over the breakfast tray which Defendant served him, and Plaintiff attempted to return the food tray through the hatch on the cell door. Plaintiff alleges Defendant said he did not have time and repeatedly kicked the hatch on the cell door while Plaintiff's hand was lodged inside. Plaintiff was treated at Spartanburg Regional Hospital for a "superficial abrasion and scarred tissue" on his right ring finger. He also alleges as a result of the incident, he is "in a very traumatic psychological state." He is seeking damages for pain and suffering and psychological trauma and jail time for Defendant. Plaintiff describes his injuries as a "superficial abrasion and scarred tissue" on his right ring finger. Plaintiff does not allege he suffered any significant injury. Further, the force used by Defendant is not repugnant to the conscience of mankind so as to constitute extraordinary circumstances. Accordingly, the

Plaintiff's claims alleging excessive force under § 1983 should be dismissed for failure to state a claim.

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Recommendation Accordingly, it is recommended that the District Court dismiss the complaint in the abovecaptioned case without prejudice and without issuance and service of process. See Denton v. Hernandez, supra; Neitzke v. Williams, supra; Haines v. Kerner, supra; Brown v. Briscoe, 998 F.2d 201, 202-204 & n. * (4th Cir. 1993); Boyce v. Alizaduh, supra; Todd v. Baskerville, supra, 712 F.2d at 74; 28 U.S.C. § 1915A [as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal]. The plaintiff's attention is directed to the notice on the following page.

Respectfully Submitted,

S/Bruce H. Hendricks United States Magistrate Judge April 12, 2006 Greenville, South Carolina

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Notice of Right to File Objections to Magistrate Judge's "Report and Recommendation" & The Serious Consequences of a Failure to Do So
T h e parties are hereby notified that any objections to the attached Report and Recom m e n d a tio n (or Order and R e c o m m e n d a tio n ) m u s t be filed within ten (10) days of the date of service. 28 U.S.C. § 636 and Fed. R. Civ. P. 72(b). T h e tim e calculation of this ten-day period excludes weekends and holidays and provides for an additional three days f o r filing by m a il. Fed. R. Civ. P. 6. A m a g is tr a te judge m a k e s only a recom m e n d a tio n , and the authority to m a k e a f i n a l determ in a t io n in this case rests with the United States District Judge. See Mathews v. W e b e r , 423 U.S. 261, 2702 7 1 (1976); and Estrada v. W itk o w s k i, 816 F. Supp. 408, 410 (D.S.C. 1993). D u r in g the period for filing objections, but not thereafter, a party m u s t file with the Clerk of Court specific, w r itte n objections to the Report and Recom m e n d a tio n , if he or she wishes the United States District Judge to consider a n y objections. Any w r i t t e n objections m u s t specifically identify the portions of the Report and R e c o m m e n d a t io n to w h i c h objections are made and the basis for such objections. See Keeler v. Pea, 782 F . Supp. 42, 43-44 (D.S.C. 1992); and Oliverson v. W e s t Valley City, 875 F. Supp. 1465, 1467 (D.Utah 1995). Failure t o file specific, written objections shall constitute a waiver of a party's right to further judicial review, including appellate r e v ie w , if the recom m e n d a t io n is accepted by the United States District Judge. See United States v. Schronce, 727 F . 2 d 91, 94 & n. 4 (4th Cir.), cert. denied, Schronce v. United States, 467 U.S. 1208 (1984); and W r ig h t v. Collins, 766 F . 2 d 841, 845-847 & nn. 1-3 (4th Cir. 1985). Moreover, if a party files specific objections to a portion of a m a g is t r a t e j u d g e 's Report and Recom m e n d a t io n , but does not file specific objections to other portions of the Report and R e c o m m e n d a tio n , that party waives appellate review of the portions of the m a g is tr a te judge's Report and R e c o m m e n d a t i o n to which he or she did not object. In other words, a party's failure to object to one issue in a m a g is tr a te judge's Report and Recom m e n d a tio n precludes that party from subsequently raising that issue on appeal, e v e n if objections are filed on other issues. Howard v. Secretary of HHS, 932 F.2d 505, 508-509 (6th Cir. 1991). See a ls o Praylow v. Martin, 761 F.2d 179, 180 n. 1 (4th Cir.)(party precluded from raising on appeal factual issue to which it did not object in the district court), cert. denied, 474 U.S. 1009 (1985). In Howard, supra, the Court stated that g e n e ra l, non-specific objections are not sufficient: A general objection to the entirety of the [magistrate judge's] report has the s a m e effects as would a failure to object. The district court's attention is not f o c u s e d on any specific issues for review, thereby making the initial reference t o the [magistrate judge] useless. * * * This duplication of tim e and effort w a s t e s judicial resources rather than saving them, and runs contrary to the p u r p o s e s of the M a g i s t r a t e s Act. * * * W e would hardly countenance an a p p e lla n t 's brief simply objecting to the district court's determination w it h o u t e x p la in in g the source of the error. A c c o r d Lockert v. Faulkner, 843 F.2d 1015, 1017-1019 (7th Cir. 1988), where the Court held that the appellant, who p r o c e e d e d pro se in the district court, was barred from raising issues on appeal that he did not specifically raise in his o b j e c t io n s to the district court: J u s t as a com p l a i n t stating only 'I complain' states no claim, an objection s t a t in g only 'I object' preserves no issue for review . * * * A district judge s h o u ld not have to guess what argum e n t s an objecting party depends on w h e n review in g a [magistrate judge's] report. S e e also Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989)("no de novo review if objections are untim e ly or g e n e ra l" ) , which involved a pro se litigant; and Goney v. Clark, 749 F.2d 5, 7 n. 1 (3rd Cir. 1984)("plaintiff's objections

This notice, hereby, apprises the parties of the consequences of a failure to file specific, written objections. See W r ig h t v. Collins, supra; and Sm a ll
la c k e d the specificity to trigger de novo review"). v . Secretary of HHS, 892 F.2d 15, 16 (2nd Cir. 1989). Filing by m a il pursuant to Fed. R. Civ. P. 5 m a y be a c c o m p lis h e d by m a ilin g objections addressed as follows:

Larry W. Propes, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201

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