Rochester v. Harcuff et al

Filing 20

ORDER denying motions 7 , 14 , 15 and 16 ; and dismissing case without prejudice and without service of process. Signed by Honorable J Michelle Childs on 9/14/2011. (ncha, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Julian E. Rochester, # 171519,

Plaintiff,
vs.
Lieutenant C. Harcuff;
Sgt. Attwood;
Correctional Officer Root;
Correctional Officer Hayne
Correctional Officer Page;
Correctional Officer Phillips;
Correctional Officer Black;
Sgt. Pacy;
Sgt. Ridland;
Correctional Officer L. Grains;
Lt. Byrd;
Sgt. Justice;
Captain Abston;
Major Bush;
W. R. Bytes;
J. N. Haley;
100 Defendants,

Defendants.
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Background of this Case
Plaintiff is an inmate at the Perry Correctional Institution. Plaintiff is under an Order
of Pre-Filing review. See Graham v. Riddle, 554 F.2d 133, 134-135 & n. * (4th Cir. 1977).
See also Order of January 29, 1996, in the matter entitled In Re: Julian Edward Rochester,

Misc. No. 2:95-MC-131, issued by the Honorable William B. Traxler, Jr., who was a United
States District Judge at the time.
In an order (ECF No. 11) filed in this case on September 6, 2011, the magistrate
judge directed Plaintiff to bring this case into “proper form” by submitting Forms USM-285
and summonses. Although Plaintiff submitted Forms USM-285 for some of the Defendants
listed in the caption of this case, Plaintiff failed to submit Forms USM-285 for seven of the
Defendants listed in this case. Additionally, Plaintiff submitted additional summons pages
and Forms USM-285 for persons who were obviously not involved in the alleged incidents
of excessive force. Most of these persons appear to be attorneys or state agencies
involved with Plaintiff’s prior litigation in courts of the State of South Carolina. It appears
that Plaintiff is attempting to piggyback extraneous claims to what would have been a claim
of excessive force.
Excessive force is actionable. Wilkins v. Gaddy, 175 L.Ed.2d 995, 130 S.Ct. 1175
(2010) (superannuating older Fourth Circuit case law on de minimis injuries in excessive
force cases). In Wilkins v. Gaddy, 130 S.Ct. at 1178-80, the Supreme Court held that the
core judicial inquiry when a prisoner alleges that prison officers used excessive force
against the prisoner is not whether a certain quantum of injury was sustained, but rather
whether force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm. See also Hudson v. McMillian, 503 U.S. 1, 4
(1992) (“the use of excessive physical force against a prisoner may constitute cruel and
unusual punishment [even] when the inmate does not suffer serious injury.”).

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This Court would have been inclined to serve this case because of the holding in
Wilkins v. Gaddy. The magistrate judge’s order of September 6, 2011, provided Plaintiff
the opportunity to bring this case into “proper form.” Instead of complying with the terms
of the magistrate judge’s “proper form” order, Plaintiff decided to attempt to pursue
extraneous claims by submitting summons and Forms USM-285 for other persons with
whom Plaintiff has had past state and federal court cases (ECF No. 17). Thereby, Plaintiff
has failed to comply with the magistrate judge’s order of September 6, 2011.

Conclusion
Plaintiff’s Motion for Recusal (ECF No. 15) is DENIED . Bolin v. Story, 225 F.3d 1234
(11th Cir. 2000) (knowledge from prior judicial proceeding not basis for recusal). Plaintiff’s
Motions for Declaratory Judgment (ECF No. 7, ECF No. 14 and ECF No. 16) are DENIED .
The above-captioned case is, hereby, dismissed without prejudice and without
service of process pursuant to the General Order (Misc. No. 3:07-MC-5014-JFA) filed
on September 18, 2007. The Clerk of Court shall “close” the file.
IT IS SO ORDERED.

September 14, 2011
Greenville, South Carolina

s/J. Michelle Childs
United States District Judge

NOTICE OF RIGHT TO APPEAL
Plaintiff is, hereby, notified of the right to appeal this Order within the
time period set forth under Rules 3 and 4 of the Federal Rules of
Appellate Procedure.

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