United States District Court, D. South Carolina, Florence Division
Bobby C. Jenkins, Plaintiff,
Mr. Bittinger, Eric S. Hooper, Charles West, Walter Marin, Defendants.
Richard Mark Gergel United States District Court Judge.
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
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 Plaintiffs 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
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."
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 F.3d
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).
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)(1). 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, 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
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 of the 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.
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.
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 of law." 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 a judgment on the merits
and to be rendered with prejudice." McLean v. United
States, 566 F.3d 391, 396 (4th Cir. 2009).
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 claim. "Principles requiring generous
construction of pro se complaints, .. [do] not
require .. . courts to ...