United States District Court, D. South Carolina, Beaufort Division
PATRICK MICHAEL DUFFY UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff Glen Strickland,
Jr.'s objections to United States Magistrate Judge
Bristow Marchant's Report and Recommendation (“R
& R”) (ECF Nos. 128 & 125). For the reasons
stated herein, the Court adopts the R & R as modified;
grants Defendants' motion to dismiss Plaintiff's
claims against Furmesia Rosier, Derrick McFadden, and Kevin
Flowers; and denies Defendants' motion to dismiss the
claims against the other defendants.
proceeding pro se, has filed suit under 42 U.S.C.
§ 1983 for purported violations of his constitutional
rights while he was a pre-trial detainee at the Greenville
County Detention Center (“GCDC”). He alleges in
his verified complaint that GCDC officers sexually assaulted
and harassed him and used excessive physical force upon him.
He also alleges that he was sexually harassed by other
inmates and that GCDC officers failed to stop the abuse after
he reported it. Strickland seeks monetary damages and the
termination of the officers who allegedly either abused him
or allowed others to abuse him.
first filed his complaint on January 21, 2015. On June 3,
2015, he amended his complaint to name specific officers whom
he alleges abused him or knew about his abuse but did not act
to stop it. On October 25, 2015, two of the named officers
moved to dismiss, asserting that Plaintiff failed to exhaust
administrative remedies and failed to state a claim upon
which relief can be granted. That motion was ultimately
denied on July 25, 2016. On January 9 and February 13, 2017,
Plaintiff again amended his complaint to specifically name
additional officers. On June 23, 2017, nine officers not
included in the October 25, 2015 motion moved to dismiss for
failure to exhaust administrative remedies and failure to
state a claim upon which relief can be granted. Plaintiff
responded on July 7, 2017, and Defendants replied on July 14.
On August 7, the Magistrate Judge issued his R & R
recommending the dismissal of Rosier, McFadden,
Flowers. The Magistrate Judge recommended denying the motion
to dismiss with respect to the other defendants. On August
16, Plaintiff objected to the R & R. Defendants replied
on August 30. Accordingly, this matter is now ripe for
Magistrate Judge makes only a recommendation to this Court.
The R & R has no presumptive weight, and the
responsibility for making a final determination remains with
the Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). Parties may make written objections to the R & R
within fourteen days after being served with a copy of it. 28
U.S.C. § 636(b)(1). This Court must conduct a de novo
review of any portion of the R & R to which a specific
objection is made, and it may accept, reject, or modify the
Magistrate Judge's findings and recommendations in whole
or in part. Id. Additionally, the Court may receive
more evidence or recommit the matter to the Magistrate Judge
with instructions. Id. A party's failure to
object is taken as the party's agreement with the
Magistrate Judge's conclusions. See Thomas v.
Arn, 474 U.S. 140 (1985). Absent a timely, specific
objection-or as to those portions of the R & R to which
no specific objection is made-this Court “must
‘only satisfy itself that there is no clear error on
the face of the record in order to accept the
recommendation.'” Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed.R.Civ.P. 72 advisory committee's
objects only to the Magistrate Judge's recommendation to
dismiss Flowers because Plaintiff failed to state a claim
against him. Plaintiff alleges that Flowers forcefully and
deliberately pinched his forearm while Flowers and another
officer released him from a restraint chair. To survive a
challenge for failure to state a claim, a pleading must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The “complaint must contain
sufficient factual matter, accepted as true, ” to allow
the court to reasonably infer that the “defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)).
Due Process Clause protects a pretrial detainee from the use
of excessive force that amounts to punishment.”
Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). To
prevail on an excessive force claim, “a pretrial
detainee must show only that the force purposely or knowingly
used against him was objectively unreasonable.”
Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473
(2015). A court “cannot apply this standard
mechanically, ” id., and must instead look to
the “facts and circumstances of each particular
case.” Id. (quoting Graham, 490 U.S.
at 396) (internal quotation marks omitted). “A court
must make this determination from the perspective of a
reasonable officer on the scene, including what the officer
knew at the time, not with the 20/20 vision of
hindsight.” Id. A court must also account for
the government's interests that flow from the management
of a detention facility, appropriately deferring to the
judgment of jail officials and the policies and practices
they have developed to maintain order, discipline, and
security. Id. (citing Bell v. Wolfish, 441
U.S. 520, 540 (1979)). In determining whether an officer was
acting objectively unreasonably, a court may consider many
factors including the amount of force used relative to the
need for force, “the extent of the plaintiff's
injury; any effort made by the officer to temper or to limit
the amount of force; the severity of the security problem at
issue; the threat reasonably perceived by the officer; and
whether the plaintiff was actively resisting.”
Id. For example, in Reynolds v. Cannon,
this Court held that an officer who allegedly scratched a
pretrial detainee was entitled to summary judgment. No.
2:16-cv-512-BHH-MGB, 2017 WL 685115, at *5 (D.S.C. Jan. 31,
2017), adopted by 2017 WL 679641 (D.S.C. Feb. 21,
2017). In Reynolds, the plaintiff's only alleged
injuries were scratches to his neck for which he did not
require medical attention. Id. The officer allegedly
scratched the noncompliant plaintiff while searching him.
Court finds that Plaintiff has not alleged that Flowers used
an objectively unreasonable amount of force against him.
Plaintiff only alleges that Flowers forcefully pinched him on
one occasion as he was being removed from a restraint chair.
He does not allege that the pinch resulted in any physical
injury. Such an exertion of force is not excessive,
especially considering the significant deference given to
prison officials in their efforts to maintain control of
inmates. Further, since Flowers was in the process of
removing Plaintiff from a restraint chair, it was reasonable
for Flowers to use some physical force to maintain control
over Plaintiff. Though Plaintiff alleges the pinch was
deliberate and unprovoked, the Supreme Court has recognized
that prison management “may require and justify the
occasional use of a degree of intentional force”
against pretrial detainees. Kingsley, 135 S.Ct. at
2475 (quoting Johnson v. Glick, 481 F.2d 1028, 1033
(2d Cir. 1973)) (internal quotation marks omitted). The Court
has also long recognized that, while “the state cannot
hold and physically punish an individual except in accordance
with due process of law . . . [t]here is, of course a de
minimis level of imposition with which the Constitution is
not concerned.” Ingraham v. Wright, 430 U.S.
651, 673-74 (1977). The Court finds that a single deliberate
pinch is not an objectively unreasonable use of force.
Accordingly, the motion to dismiss is granted with respect to
the claim against Flowers.
Plaintiff has not otherwise objected to the R & R, the
Court notes that the motion to dismiss the claims against the
officers was evaluated with reference to Eighth Amendment
precedents on excessive force, sexual assault, and deliberate
indifference. In Kingsley, the Supreme Court
explained that precedents that deal with the Eighth
Amendment's Cruel and Unusual Punishment Clause do not
control claims brought by pretrial detainees because, unlike
convicted prisoners, pretrial detainees “cannot be
punished at all.” 135 S.Ct. at 2475. The Court
explained that while convicted prisoners must establish both
an objective and a subjective element in order to have a
valid Eighth Amendment excessive force claim, a pretrial
detainee need only satisfy the objective element to have a
valid Fourteenth Amendment excessive force claim.
Id. at 2473. The Supreme Court has also explained
that pretrial detainees “retain at least those
constitutional rights that [the Court has] held are enjoyed
by convicted prisoners.” Bell, 441 U.S. at
545. Consequently, pretrial detainees have the right to be
free from any use of excessive force, sexual assault, or
deliberate indifference that has been found to violate the
Eighth Amendment rights of a convicted prisoner. See,
e.g., Williamson v. Rogers, No.
0:15-cv-4755-MGL-PJG, 2017 WL 2703858, at *3-4 (D.S.C. June
2, 2017) (granting defendant's motion to dismiss pretrial
detainee's claim against prison officials for deliberate
indifference by looking to the objective prong of the
deliberate indifference test applied to convicted prisoners),
adopted by 2017 WL 3085761 (D.S.C. July 20, 2017),
appeal docketed No. 17-6922 (4th Cir. July 20,
2017). Therefore, while the R & R analyzed
Plaintiff's claims under the Eighth ...