Filing 59

ORDER ADOPTING AMENDED REPORT AND RECOMMENDATIONS DKT. 48 , DENYING PLAINTIFFS MOTION FOR AUDIO-VISUAL SPECIALIST DKT. 42 , GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT DKT. 29 , AND DISMISSING CASE WITH PREJUDICE. Signed by District Judge Irene M. Keeley on 2/25/2011. (Copy counsel of record via CM/ECF, pro se plaintiff via certified mail)(jmm) (Additional attachment(s) added on 2/25/2011: # 1 Certified Mail Return Receipt) (jmm).

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-DJJ HARPER v. MALONE Doc. 59 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA ELTON D. HARPER, Plaintiff, v. CIVIL ACTION NO. 1:10CV32 (Judge Keeley) CORRECTIONAL OFFICER R.D. MALONE, Defendant. ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION (DKT. 48), DENYING PLAINTIFF'S MOTION FOR AUDIO-VISUAL SPECIALIST (DKT. 42), GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT. 29), AND DISMISSING CASE WITH PREJUDICE The pro se plaintiff, Elton D. Harper ("Harper"), an inmate in the custody of the Bureau of Prisons ("BOP"), filed this Bivens action against BOP correctional officer R. D. Malone ("Malone"), alleging excessive force. The Magistrate Judge reviewed video footage submitted by Malone and concluded that Malone used no force, let alone excessive force, against Harper. After a de novo review of the evidence and Harper's arguments, the Court agrees that his claim is entirely meritless, and thus dismisses this action. I. FACTUAL BACKGROUND Briefly, the incident in question involves Malone speaking to Harper, who, at the time, was locked inside his cell with an arm extending through the slot used to pass food trays and other items into and out of the cell. Harper alleges that this conversation was a heated argument, and that Malone forcefully jerked his arm and wrist, causing injury. Malone filed a motion to dismiss or for Dockets.Justia.com HARPER v. MALONE ORDER ADOPTING REPORT AND RECOMMENDATION 1:10CV32 summary judgment, stating that no such struggle occurred and that he used no force. Malone supports The surveillance video footage submitted by his version of the incident. Moreover, it unequivocally shows that, although Malone may have made contact with Harper's arm, he did not do so forcefully, much less jerk or yank as Harper alleges. II. ANALYSIS No reasonable fact-finder could conclude that Malone used excessive force against Harper. Harper's request for an audiovisual specialist to review the footage is unfounded, for any lay observer could confidently conclude that Harper's version of events is simply unsubstantiated. An excessive force claim under the Eighth Amendment fails unless the force used is more than de minimis. Wilkins v. Gaddy, 130 S.Ct. 1175, 1178 (Feb. 22, 2010). Even when the evidence is viewed in the light most favorable to Harper, Malone may have gently moved the prisoner's arm while it was extending through the food slot. Such a touch simply cannot sustain any conclusion that the force used, if any, is more than de minimis. CONCLUSION Accordingly, the Court ADOPTS the Amended Report and Recommendation in full (dkt. 48), DENIES Harper's motion for an 2 HARPER v. MALONE ORDER ADOPTING REPORT AND RECOMMENDATION 1:10CV32 audio-visual specialist (dkt. 42), GRANTS Malone's motion for summary judgment (dkt. 29), and DISMISSES this case WITH PREJUDICE. It is so ORDERED. The Court DIRECTS the Clerk prepare to a separate judgment order and to transmit copies of both orders to counsel of record and to the pro se plaintiff via certified mail, return receipt requested. DATED: February 25, 2011. /s/ Irene M. Keeley IRENE M. KEELEY UNITED STATES DISTRICT JUDGE 3

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