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Black v. Marano

United States District Court, D. South Carolina

December 13, 2017

David Allen Black, #10671536011220, Plaintiff,
v.
John F. Marano, IV, Defendant.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge

         This is a civil action filed by a pretrial detainee, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. § 1915(e).

         STANDARD OF REVIEW

         Under established local procedure in this judicial district, a careful review has been made of the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).

         The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action "fails to state a claim on which relief may be granted, " "is frivolous or malicious, " or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint "lacks an arguable basis either in law or in fact." Denton, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327.

         This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiffs legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990) (The "special judicial solicitude" with which a [court] should view such pro se complaints does not transform the court into an advocate.).

         DISCUSSION

         Plaintiff sues a Pendelton Police officer in his individual capacity. Plaintiff marked "n/a" on all basis for jursidction questions. (ECF No. 1 at 3-4). Plaintiff asserts his claims arose on September 19, 2017. (ECF No. 1 at 5). Plaintiff alleges he was assaulted with a metal broom stick and sprayed with bleach by two persons who are not named as defendants. (ECF No. 1 at 5). Plaintiff then alleges Defendant Marano reported to the scene. Defendant Marano allegedly denied medical aid and treatment before and after Plaintiff was taken into custody. Defendant Marano allegedly completed an incident report which falsely indicated Plaintiff had no injuries. (ECF No. 1 at 5-6). Plaintiff also alleges Defendant Marano omitted Plaintiffs phone and radio from the property report. (ECF No. 1 at 6). Injuries sustained were blurred vision, loss of taste/smell, and disfigurement of Plaintiff s left shoulder. Plaintiff alleges Marano failed to report to the Detention Center the injuries from the assault. (ECF No. 1 at 6).

         Further, Plaintiff s request for relief indicates he requests monetary damages for each day he was "falsely detained on the illegal written warrants per the First and Fifth Amendment." (ECF No. 1 at 6). Plaintiff requests monetary damages for unreasonable seizure, deprivation of liberty, and deprivation of property of his radio and phone. (ECF No. 1 at 6).

         Public records[1] reflect that Plaintiff was arrested on September 19, 2017 for assault; it is unclear whether it was pursuant to a warrant as Plaintiff alleges. That charge is pending. On October 10, 2017, Plaintiff pled guilty to the following: a different assault charge from arrest date September 8, 2017, a breach of peace charge from arrest date June 6, 2017, and a breach of peace charge from arrest date May 31, 2017. From Anderson County Detention records, Plaintiff is still listed as in custody.

         While details are scarce on Plaintiffs alleged medical deliberate indifference claim, Plaintiffs allegations surpass initial review and by separate order, the court authorizes service of Defendant on this claim.[2]

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Plaintiff sues the officer who arrested him. Some of Plaintiffs allegations would fall under separate claims for false arrest and for malicious prosecution because Plaintiff appears to allege that he was both falsely detained on written warrants and that those warrants were illegal.

         Under § 1983, "a public official cannot be charged with false arrest when he arrests a defendant pursuant to a facially valid warrant." Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998)(internal citations omitted). The Fourth Circuit reiterated that "a false arrest claim must fail where it is made pursuant to a facially valid warrant." Dorn v. Town of Prosperity, 375 Fed.Appx. 284, 286 (4th Cir. 2010) (internal quotations and citations omitted). Based on Plaintiff s allegations, he was arrested pursuant to a facially valid warrant, any false arrest claims must be dismissed.

         A claim that one is wrongfully detained because his arrest was made pursuant to a warrant that was not supported by probable cause, is a claim for malicious prosecution. See Porter field, 156 F.3d at 568; see also Wallace v. Kato,549 U.S. 384, 389-90 (2007). Plaintiff here alleges there was no evidence to support the warrant. To state a malicious prosecution claim, Plaintiff must show at least, that "defendants] have seized [plaintiff] pursuant to legal process that was not supported by probable cause and that the criminal proceedings [have] terminated in [plaintiffs] favor." Burr ell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005)(internal citations and quotations omitted). The U.S. Supreme Court provided in Heck v. Humphrey,512U.S.477(1994) that until a conviction was set aside or charges finally dismissed without the possibility of revival, a § 1983 claim could not be pursued based on allegations of unlawful circumstances surrounding the criminal prosecution. See also Brooks v. City of Winston-Salem, N.C.,85 F.3d 178 (4th Cir. 1996). Under the favorable termination rule, the charges must be terminated "for reasons indicative of the innocence;" courts have held that an unexplained nolle prosequi or disposal of charges for reasons other than innocence do not satisfy the Heck "favorable termination" requirement. Restatement(Second) of Torts § 660 (1977); see also Tucker v. Duncan,499 F.2d 963, 965 (4th Cir. 1974); Wilkins v. DeReyes,528 F.3d 790, 802-03 (10th Cir. 2008); Washington v. Summerville,127 F.3d 552, 558-59 (7th Cir. 1997); Posr v. Court Officer Shield # 207,180 F.3d 409, 418 (2nd Cir. 1999); Jackson v. Gable, 2006 WL 1487047, at *6 (D.S.C. May 25, 2006); Nicholas v. Wal-Mart Stores, Inc.,33 Fed.Appx. 61, ...


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