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Jerome anderson v. Lt. Gary L. Davies; Sgt. "Jane Doe"; Cpl/Ofc. "John Doe"; and

March 28, 2012

JEROME ANDERSON,
PLAINTIFF,
v.
LT. GARY L. DAVIES; SGT. "JANE DOE"; CPL/OFC. "JOHN DOE"; AND SHERIFF BRUCE BRYANT, DEFENDANTS.



The opinion of the court was delivered by: Cameron Mcgowan Currie United States District Judge

OPINION and ORDER

This matter is before the court on Plaintiff's pro se complaint, filed in this court pursuant to 42 U.S.C. § 1983.

In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this matter was referred to United States Magistrate Judge Joseph R. McCrorey for pre-trial proceedings and a Report and Recommendation ("Report"). On February 17, 2012, the Magistrate Judge issued a Report recommending that Defendants' motion for summary judgment be granted and this matter be dismissed with prejudice. The Magistrate Judge advised Plaintiff of the procedures and requirements for filing objections to the Report and the serious consequences if he failed to do so. The time for filing objections expired, and this court issued an Order directing Plaintiff to submit objections, if he so wished, by Wednesday, March 14, 2012.*fn1 Plaintiff was warned that failure to comply with the Order would result in this case being dismissed with prejudice for failure to prosecute.

On March 14, 2012, this court received a letter from "Linda Davis," indicating that Plaintiff was currently incarcerated in the York County Detention Center (YCDC), that he wished to continue to pursue this action, and that he needed additional time to file objections. ECF No. 56. The Clerk of Court telephoned Davis and informed her that Plaintiff was responsible for contacting the court to provide a change of address (a responsibility of which he has been specifically advised via written order) and for seeking any additional time he might require for submission of objections. Davis indicated that she would relay the information to Plaintiff.

On March 19, 2012, Plaintiff mailed a letter indicating that he was currently incarcerated in the YCDC and that he wished this court to "reconsider" the Report's recommendation that Defendants be granted summary judgment. Letter at 1 (ECF No. 59, filed Mar. 20, 2012). The court considers Plaintiff's letter an objection to the Report.

The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that "in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.") (citation omitted).

For the reasons discussed below, except for "John Doe," all Defendants are dismissed from this action with prejudice. The complaint shall be amended to correctly identify A. Keith McClure as "John Doe," and this matter will, after certain procedural matters are addressed, proceed to trial during the term of court beginning June 29, 2012.

II.DEFENDANTS TO BE DISMISSED

A.SHERIFF BRUCE BRYANT

Neither Defendants' motion nor the Report specifically address Plaintiff's claims against Defendant Sheriff Bruce Bryant in his individual capacity.*fn2 It is well-settled that Plaintiff must include allegations against a specific individual to properly allege § 1983 liability, and it must be affirmatively shown that the official charged acted personally in the deprivation of Plaintiff's rights. Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977). Plaintiff makes no contention that Defendant Bryant participated in the incident on August 30, 2008.

Neither does Plaintiff allege a claim against Bryant based on supervisory liability. It is well settled that "supervisory officials may be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates." Baynard v. Malone, 268 F.3d 228, 235 (4th Cir. 2001) (quoting Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994)). Such liability is not based on ordinary principles of respondeat superior, but rather is premised on "a recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care." Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984). In order to establish supervisory liability under § 1983, a plaintiff must demonstrate:

(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed 'a pervasive and unreasonable risk' of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show 'deliberate indifference to or tacit authorization of the alleged offensive practices'; and (3) that there was an 'affirmative causal link' between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff."

Randall v. Prince George's Cnty., Md., 302 F.3d 188, 206 (4th Cir. 2002). "A pervasive risk of harm (under this principle) may not ordinarily be shown by pointing to a single incident or isolated incidents," Withers v. Levine, 615 F.2d 158, 161 (4th Cir. 1980), nor is a "(s)howing that individual officers violated a person's constitutional rights on an isolated occasion . . . sufficient to raise an issue of fact whether adequate training and procedures were provided." McClelland v. Facteau, 610 F.2d 693, 697 (10th Cir. 1979).

Because Plaintiff has failed to state a claim against Sheriff Bryant in his individual capacity, and Sheriff Bryant is entitled to Eleventh Amendment immunity on any official capacity claim, all claims against Sheriff Bryant are dismissed with prejudice.

B.LT.GARY DAVIES

For the reasons stated in the Report, which the court adopts as its findings relating to Defendant Davies, Davies is entitled to summary judgment and all claims against Davies are dismissed with prejudice.

III.SUMMARY JUDGMENT

A.STANDARD

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). It is well established that summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987).

The party moving for summary judgment has the burden of showing the absence of a genuine dispute, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The essence of the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). When the non-moving party has the ultimate burden of proof on an issue, the moving party must identify the parts of the record that demonstrate the plaintiff lacks sufficient evidence. Fed. R. Civ. P. 56(c). In response to the motion, the nonmoving party must then either cite to particular parts of materials in the record or show that the materials cited "do not establish the absence . . . of a genuine dispute . . . ." Fed. R. Civ. P. 56(c)(1)(B); see also generally Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

A party "cannot create a genuine [dispute] through mere speculation or the building of one inference upon another." Beale v. Hardy,769 F.2d 213, 214 (4th Cir. 1985). Therefore, "[m]ere unsupported speculation . . . is not enough to defeat a summary judgment motion." Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).

In deciding a summary judgment motion, the court must look beyond the pleadings and determine whether there is a genuine need for trial. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-53 (1986). If the defendant carries its burden of showing there is an absence of evidence to support a claim, then the plaintiff must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). An issue of fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the plaintiff. Anderson, 477 U.S. at 248. An issue of fact concerns "material" facts only if establishment of the fact might affect the outcome of the lawsuit under governing substantive law. Id. A complete failure of proof concerning an essential element of the plaintiff's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 322-23. Moreover, a "mere scintilla of evidence" in support of an essential element will not forestall summary judgment. Anderson, 477 U.S. at 251.

In this Circuit, verified complaints by pro se prisoners are to be considered as affidavits and may, standing alone, defeat a motion for summary judgment when the allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). Plaintiff has filed a verified Complaint. See ECF No. 1.

B.FACTS

In the light most favorable to Plaintiff, the facts are as follows. On August 30, 2008, Plaintiff was arrested for armed robbery and booked into the York County Detention Center (YCDC). Defendant was placed in a "holding" cell with several other individuals. Defendants contend that Plaintiff became disruptive, which Plaintiff does not specifically deny. Plaintiff maintains that corrections officers, led by Sgt. "Jane Doe,". . . came to my holding cell and ordered me out. I asked why. They said it was not my business. "They" being Sgt Jane Doe. As soon as I stepped out of the holding cell Cpl "John Doe" attacked me from behind with a hand-held tazor [sic]. The pain was unbearable. I fell to the floor being punched and kicked in my sides and back, while on the floor with Cpl John Doe holding the tazor [sic] to my head, he screamed, "Put your hands behind your head nigger!" Me, wanting the terrible pain to stop, managed to scream back, "How can I!" After what seemed to be an eternity, they stopped punching me and Cpl John Doe ceased with the tazor [sic].

Compl. at 3-4 (ECF No. 1, filed Sept. 29, 2010) (emphasis added). He also contends that "Cpl 'John Doe' or one of the others, planted his knee into my upper back as they slammed me to the floor. I haven't been the same since." Id. at 7.

Plaintiff maintains that the taser incident was so severe that he was, after several days, committed to the "Just Care" psychiatric facility in Columbia, South Carolina, where he remained for eight (8) weeks. Id. at 4.

Plaintiff forwarded an affidavit, dated May 5, 2011, to Defendants' counsel, which was subsequently filed as an attachment to Defendants' motion for summary judgment. In Plaintiff's affidavit, he avers that the officers grouped up outside the cell looking in at me. So I asked Sgt 'Jane Doe,' through the plexiglass, 'What are y'all planning on doing?" She then responded . . . 'We're moving you!" . . . I then yelled, "I'm not going anywhere unless you talk to me like I'm somebody!" She then tempered her directive and smiled at me. The cell door slid open and I said, 'That's more ...


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