Putnam v. Smith

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA Austin Putnam, ) C/A No.: 1-22-3270-RMG-SVH ) Plaintiff, ) ) vs. ) ) ORDER AND NOTICE Deputy Smith, ) ) Defendant. ) ) Austin Putnam (“Plaintiff”), proceeding pro se and in forma pauperis, filed this complaint pursuant to 42 U.S.C. § 1983 against Deputy Smith (“Defendant”), alleging violations of his civil and constitutional rights.

Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge.

I. Factual and Procedural Background Plaintiff alleges Defendant assaulted him on July 27, 2022, when Defendant threw a roll of toilet paper at him, hitting him in the face. [ECF No. at 1]. Plaintiff notified the supervisors that he did not feel safe around Defendant, but Defendant escorted Plaintiff to a hearing on August 15, 2022.

He states that he would be charged with assault if he had thrown the roll of toilet paper at Defendant. .

II. Discussion A. Standard of Review Plaintiff filed his complaint 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 a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. , 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). , 490 U.S. 319, 327 (1989).

A complaint 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). Pro se complaints are held to a less stringent standard than those drafted by attorneys. , 574 F.2d 1147, 1151 (4th Cir. 1978). In evaluating a pro se complaint, the plaintiff’s allegations are assumed to be true. ., 529 F.2d 70, 74 (2d Cir. 1975). 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 the plaintiff could prevail, it should do so. A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. , 551 U.S. 89, 94 (2007).

The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. ., 901 F.2d 387, 390–91 (4th Cir. 1990). Although the court must liberally construe a pro se complaint, the United States Supreme Court has made it clear a plaintiff must do more than make conclusory statements to state a claim. , 556 U.S. 662, 677‒78 (2009); , 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint’s factual allegations, not its legal conclusions. , 556 U.S. at 678‒79.

B. Analysis The United States Supreme Court has held that “significant injury” is not a requirement for a claim of excessive force under the Eighth or Fourteenth Amendments. , 503 U.S. 1, 4 (1992). However, in , 559 U.S. 34, 37–38, the Court clarified: This is not to say that the “absence of serious injury” is irrelevant to the Eighth Amendment inquiry. , 503 U.S. 9. “[T]he extent of injury suffered by an inmate is one factor that may suggest ‘whether the use of force could plausibly have been thought necessary’ in a particular situation.” . The extent of injury may also provide some indication of the amount of force applied. As we stated in , not “every malevolent touch by a prison guard gives rise to a federal cause of action.” 503 U.S. at 9. “The Eighth Amendment's prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” ., at 9–10 (some internal quotation marks omitted). An inmate who complains of a “‘push or shove’” that causes no discernible injury almost certainly fails to state a valid excessive force claim. ., at 9 (quoting , 481 F.2d 1028, 1033 (2d Cir. 1973)). (some citations omitted). Here, Plaintiff has not shown that Defendant’s alleged action in throwing a roll of toilet paper at him constitutes more than a “push or shove” causing no discernable injury. While Plaintiff may have a civil claim for assault he can file in state court, he has not shown he has shown a violation of constitutional magnitude. Therefore, this case is subject to summary dismissal.

NOTICE CONCERNING AMENDMENT Although Plaintiff has failed to allege sufficient facts to support a claim, he may be able to cure deficiencies in his complaint through amendment. , 807 F.3d 619 (4th Cir. 2015). Plaintiff may file an amended complaint by November 7, 2022, along with any appropriate service documents. Plaintiff is reminded an amended complaint replaces the original complaint and should be complete in itself. , 238 F.3d 567, 572 (4th Cir. 2001) (“As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.”) (citation and internal quotation marks omitted). If Plaintiff files an amended complaint, the undersigned will conduct screening of the amended complaint pursuant to 28 U.S.C. § 1915A. If Plaintiff fails to file an amended complaint or fails to cure the deficiencies identified above, the undersigned will recommend to the district judge that the claims be dismissed without leave for further amendment.

IT IS SO ORDERED.

SP Ut Slalger October 17, 2022 Shiva V. Hodges Columbia, South Carolina United States Magistrate Judge