Barefoot v. Polk , 242 F. App'x 82 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6628
CHARLES ROBERT BAREFOOT, JR.,
Plaintiff - Appellant,
versus
MARVIN POLK; DCC BOARD; CHAPLAIN MONTGOMERY;
HAROLD SMALLS; RONNIE RAYNOR; BOYD BENNETT;
UNKNOWN DEFENDANTS; HELEN MALEAEL; LIEUTENANT
BYNUM; SERGEANT CROSBY; LIEUTENANT CLAYBURN;
CAPTAIN THOMAS; HATTIE PIMPONG; OFFICER
CLAYTON; OFFICER JAMES; OFFICER HARRIS;
OFFICER AVERY; SERGEANT PANTER,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:07-cv-03029-D)
Submitted: June 27, 2007 Decided: July 13, 2007
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Charles Robert Barefoot, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Robert Barefoot, Jr., appeals the district court
order and judgment dismissing his civil rights complaint as
frivolous under 28 U.S.C. § 1915(e) (2000). Although we find
Barefoot’s complaint is a rambling document that is poorly
executed, we find that his claims of excessive force and the denial
of his right to freely exercise his religious beliefs cannot be
dismissed as frivolous. Accordingly, we vacate the district
court’s order and judgment and remand for further proceedings.
Pro se filings “however unskillfully pleaded, must be
liberally construed.” Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th
Cir. 1994) (citing Haines v. Kerner, 404 U.S. 519 (1972);
Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)). A pro se
litigant’s complaint should not be dismissed unless it appears
beyond doubt that the litigant can prove no set of facts in support
of his claim that would entitle him to relief. Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978); see also 28 U.S.C.
§§ 1915(e)(2)(B), 1915A (2000) (outlining screening process for
indigent or prisoner complaints). We review a district court’s
dismissal of a claim as frivolous for abuse of discretion. Nagy v.
FMC Butner, 376 F.3d 252, 254-55 & n.* (4th Cir. 2004).
In his complaint, Barefoot claimed that one of the named
defendants had a group of eight to ten African American men assault
him by hitting him with night sticks, kicking him in the groin and
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punching his face. Barefoot alleged the assault was in retaliation
for him having been a Klu Klux Klan supporter. We find that this
claim of excessive force or cruel and unusual punishment depending
on whether Barefoot was a pretrial detainee or a prison inmate is
not frivolous. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979);
Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). The due
process rights of a pretrial detainee are “at least as great as the
Eighth Amendment protections available to a convicted prisoner.”
City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244
(1983).
Barefoot also claims that he was forcibly given a PPD
injection to screen for tuberculosis despite the fact that his
religious beliefs forbid the injections of foreign substances and
that he was denied the right to possess a cross and to practice his
religion as others are able to do. We also find that this is not
a frivolous claim under the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C.A. § 2000c et seq. (West
2003 & Supp. 2007). See, e.g., Jolly v. Coughlin, 76 F.3d 468, 476
(2d Cir. 1996).
Accordingly, we vacate the district court’s judgment and
remand for further proceedings.* We dispense with oral argument
*
We note that Barefoot fails to allege anything against most
of the named defendants. The district court may want to direct
Barefoot to file an amended complaint specifying allegations
against each defendant.
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because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED
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