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Wilborn v. Graham

United States District Court, N.D. Georgia, Atlanta Division

October 4, 2017

JAMES WILBORN, Plaintiff,
v.
LT. GRAHAM and OFFICER DOZIER, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Magistrate Judge Russell G. Vineyard's Final Report and Recommendation (“Final R&R”) [32] recommending granting Lieutenant Graham's Motion for Summary Judgment [25]. The Magistrate Judge also recommends dismissing Plaintiff's claims against Officer Dozier for lack of service of process.

         I. BACKGROUND[1]

         On November 22, 2015, Plaintiff, a prisoner, proceeding pro se, filed his Complaint [1] in the form of a one-page handwritten letter. On December 2, 2015, the Magistrate Judge ordered [2] Plaintiff to file an amended complaint. Shortly thereafter, Plaintiff filed his amended Civil Rights Complaint pursuant to 42 U.S.C. § 1983 [3] (“Amended Complaint”), naming DeKalb County Jail, Sheriff Jeffrey Mann, Lieutenant Graham, and Officer Dozier as defendants. Plaintiff alleges that, on April 25, 2014, while he was handcuffed, Officer Dozier “snatched” him, choked him, and “rammed” his head against a concrete wall. ([3] at 4, 6). Plaintiff also claims that Lieutenant Graham twice tased him, without reason, while Plaintiff “was soaking wet.” ([3] at 7-8). Plaintiff claims that he “was denied proper medical attention and therapy” and never received the results of an x-ray. ([3] at 9). Plaintiff seeks monetary relief. ([3] at 4).

         On December 18, 2015, the Magistrate Judge screened Plaintiff's Amended Complaint and issued a Non-Final Report and Recommendation [7] (“Non-Final R&R”), recommending that Defendants DeKalb County Jail and Sherriff Jeffrey Mann be dismissed as defendants in the action, that Plaintiff's excessive force claims be allowed to proceed, and that Plaintiff's deliberate medical indifference claim be dismissed. On October 4, 2016, the Court adopted the Magistrate Judge's Non-Final R&R. On October 6, 2016, the Magistrate Judge entered an order [13] directing service on defendants. Defendant Officer Dozier did not return the executed Waiver of Service form he was served. Defendant Officer Dozier is no longer employed by DeKalb County and no forwarding address for him was provided. ([21]). On February 28, 2017, the Court entered an order directing Plaintiff to provide, within twenty-one days, a valid address for Officer Dozier. ([24] at 2).

         On March 21, 2017, Defendant Lieutenant Graham filed his Motion for Summary Judgment alleging that he is entitled to qualified immunity. ([25.1] at 2). On April 19, 2017, Defendant Lieutenant Graham filed his Statement of Material Facts [30] in support of his Summary Judgment Motion. On May 2, 2017, Plaintiff filed his Response to Statement of Material Facts [31] (“Response”), which the Magistrate Judge has construed as a response in opposition to Lieutenant Graham's motion for summary judgment. ([32] at 1).

         On May 19, 2017, the Magistrate Judge issued his Final R&R. The Magistrate Judge recommended granting Defendant Lieutenant Graham's Summary Judgment Motion on Plaintiff's excessive force claim because Defendant Graham is entitled to qualified immunity. ([32] at 7-10). The Magistrate Judge also recommended dismissing Plaintiff's excessive force claim against Defendant Officer Dozier because of lack of service of process. ([32] at 12-13). No objections to the Final R&R have been filed.

         II. LEGAL STANDARD

         A. Review of Magistrate Judge's R&R

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). Where, as here, no party has objected to the report and recommendation, a court conducts only a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).

         B. Pro se Pleading Standard

         Plaintiff filed his Amended Complaint pro se. “A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks omitted). Nevertheless, a pro se plaintiff must comply with the threshold requirements of the Federal Rules of Civil Procedure. See Beckwith v. Bellsouth Telecomms. Inc., 146 F. App'x 368, 371 (11th Cir. 2005). “Even though a pro se complaint should be construed liberally, a pro se complaint still must state a claim upon which the Court can grant relief.” Grigsby v. Thomas, 506 F.Supp.2d 26, 28 (D.D.C. 2007). “[A] district court does not have license to rewrite a deficient pleading.” Osahar v. U.S. Postal Serv., 297 F. App'x 863, 864 (11th Cir. 2008).

         C. Summary Judgment Standard

         Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the moving party has met this burden, the nonmoving party must demonstrate that summary judgment is inappropriate by designating specific facts showing a genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d ...


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