United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Russell G.
Vineyard's Final Report and Recommendation (“Final
R&R”)  recommending granting Lieutenant
Graham's Motion for Summary Judgment . The Magistrate
Judge also recommends dismissing Plaintiff's claims
against Officer Dozier for lack of service of process.
November 22, 2015, Plaintiff, a prisoner, proceeding pro
se, filed his Complaint  in the form of a one-page
handwritten letter. On December 2, 2015, the Magistrate Judge
ordered  Plaintiff to file an amended complaint. Shortly
thereafter, Plaintiff filed his amended Civil Rights
Complaint pursuant to 42 U.S.C. § 1983 
(“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. (
at 4, 6). Plaintiff also claims that Lieutenant Graham twice
tased him, without reason, while Plaintiff “was soaking
wet.” ( at 7-8). Plaintiff claims that he “was
denied proper medical attention and therapy” and never
received the results of an x-ray. ( at 9). Plaintiff seeks
monetary relief. ( at 4).
December 18, 2015, the Magistrate Judge screened
Plaintiff's Amended Complaint and issued a Non-Final
Report and Recommendation  (“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  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.
(). On February 28, 2017, the Court entered an order
directing Plaintiff to provide, within twenty-one days, a
valid address for Officer Dozier. ( at 2).
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  in support of his Summary Judgment Motion. On May
2, 2017, Plaintiff filed his Response to Statement of
Material Facts  (“Response”), which the
Magistrate Judge has construed as a response in opposition to
Lieutenant Graham's motion for summary judgment. ( at
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. ( 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. ( at 12-13). No objections to the Final
R&R have been filed.
Review of Magistrate Judge's R&R
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).
Pro se Pleading Standard
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).
Summary Judgment Standard
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