United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge
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).
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).
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
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.).
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).
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).
records 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.
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.
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.
§ 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
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,