Donald Carl Stout v. Preston County Sheriff's Department

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-7231
DONALD CARL STOUT,
Plaintiff – Appellant,
v.
PRESTON COUNTY SHERIFF'S DEPARTMENT; SHERIFF DANIEL
LOUGHRIE; DEPUTY RANDY STOCKETT; OFFICER OKAN, K-9 Dog,
Defendants – Appellees.
Appeal from the United States District Court for the Northern District of West Virginia, at
Clarksburg. Thomas S. Kleeh, Chief District Judge. (1:19-cv-00123-TSK)
Argued: January 26, 2024 Decided: July 11, 2024
Before WILKINSON, NIEMEYER, and BENJAMIN, Circuit Judges.
Affirmed in part and remanded with instructions by unpublished per curiam opinion.
ARGUED: Madeleine Hoss, Benjamin Price, UNIVERSITY OF GEORGIA SCHOOL
OF LAW, Athens, Georgia, for Appellant. Jeffrey Stewart Zurbuch, BUSCH, ZURBUCH
& THOMPSON, PLLC, Elkins, West Virginia, for Appellees. ON BRIEF: Thomas V.
Burch, Appellate Litigation Clinic, UNIVERSITY OF GEORGIA SCHOOL OF LAW,
Athens, Georgia, for Appellant. Peter G. Zurbuch, BUSCH, ZURBUCH & THOMPSON,
PLLC, Elkins, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Donald Carl Stout appeals the district court’s order accepting the recommendation
of the magistrate judge and dismissing his 42 U.S.C. § 1983 complaint for failure to state
a claim. The district court reviewed the magistrate judge’s recommendation under a clear
error standard of review. Because Stout provided objections to the magistrate judge’s
recommendation that were sufficiently specific to warrant de novo review of his excessive
force claim, we remand to the district court with instructions to consider that part of the
magistrate judge’s recommendation de novo. We affirm the district court’s judgment as to
the remaining objections.
I.
Proceeding as a pro se pre-trial detainee, Stout sued the Preston County Sheriff’s
Department along with various officers—Sheriff Daniel Loughrie, Deputy Randy Stockett,
and Officer Okan-canine dog—raising, among other things, a claim that law enforcement
used excessive force during his arrest. Stout alleges he was lying face down on the ground,
not resisting, and being handcuffed when Deputy Stockett released the police canine, who
bit his leg. J.A. 015.
Stout filed three motions to appoint counsel that were denied by the magistrate
judge in June 2019 and July 2020. J.A. 003–006. Defendants moved pursuant to Federal
Rule of Civil Procedure 12(b)(6) to dismiss Stout’s complaint for failure to state a claim.1
1 Deputy Stockett partially moved to dismiss the complaint and filed an answer to
the complaint. J.A. 044–54, 055–60.

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The magistrate judge issued a recommendation for the district court to dismiss the
complaint on January 14, 2021, finding that Stout was non-compliant with law
enforcement’s instruction to get on the ground and place his hands behind his back. J.A.
006, 084–106. Deputy Stockett exercised “only the force necessary” to gain control of
Stout—he released the police canine on Stout, but quickly removed it once Stout was
handcuffed. J.A. 099–101. The magistrate judge’s factual findings were derived from
Stout’s pleadings along with facts from a police report prepared by Deputy Stockett. The
police report was filed as an attachment to the complaint on Stout’s motion to introduce it
as evidence. J.A. 041–43.
On February 3, 2021, Stout filed timely objections to the magistrate judge’s
recommendation. J.A. 006, 107–113. The district court conducted a clear error review of
Stout’s objections, finding a de novo review was not required because the objections were
conclusory, restated the complaint’s allegations, and were not specific to the magistrate
judge’s recommendation. J.A. 130. Finding no clear error, the court adopted the magistrate
judge’s recommendation and dismissed Stout’s complaint for failure to state a claim.
Stout appealed the decision, raising three issues. First, he argues his objections to
the magistrate judge’s recommendation warranted de novo review. Second, he asks this
court to review whether the allegations in the complaint plausibly state an excessive force
claim. Third, he argues the district court abused its discretion when it denied his motions
to appoint counsel. We tailor our discussion to his first contention and decline to address
the merits of the remaining issues.

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II.
“[W]e review the sufficiency of a litigant’s objection de novo.” Elijah v. Dunbar,
66 F.4th 454, 461 (4th Cir. 2023). After a magistrate judge issues a report and
recommendation, any party may object to the report. 28 U.S.C. § 636(b)(1). “If the
grounds for objection are clear, district court judges must consider them de novo . . . .”
Elijah, 66 F.4th at 460; Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) (“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.”). Otherwise,
the district court need only review the magistrate judge’s recommendation for clear error.
Fed. R. Civ. P. 72 advisory committee’s note to 1983 amendment.
This Circuit has recognized that not all objections are clear enough to trigger de
novo review. An objecting party must do more than generally state “I object” to require
de novo review by a district court. Elijah, 66 F.4th at 460 (internal quotation marks
omitted). Objections are sufficiently specific when they “alert[] the district court that [the
litigant] believed the magistrate judge erred in recommending dismissal of those claims.”
Id. (citing Martin v. Duffy, 858 F.3d 239, 246 (4th Cir. 2017)). This is true even where the
objections merely “restate[] all of [the] claims.” Id. However, we are also required to
construe pro se filings liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007). “Thus, when
reviewing pro se objections to a magistrate’s recommendation, district courts must review
de novo any articulated grounds to which the litigant appears to take issue.” Elijah, 66
F.4th at 460–61. “[L]iberal construction allows courts to recognize claims despite various
formal deficiencies, such as incorrect labels or lack of cited legal authority.” Wall v.

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Rasnick, 42 F.4th 214, 218 (4th Cir. 2022) (citing Castro v. United States, 540 U.S. 375,
381–82 (2003)).
In the instant case, our review of Stout’s objections shows that they were specific
enough to warrant de novo review by the district court as to the magistrate judge’s
recommendation to dismiss the excessive force claim. Stout clearly objected to the
magistrate judge’s finding that law enforcement exercised only necessary force during his
arrest, arguing he was already on the ground and handcuffed when the police canine bit his
leg four to five times. J.A. 110–12. Although some of his objections mirror allegations in
the complaint, “[i]t is immaterial that his objections resembled arguments he had made
previously; district courts must solely consider the specificity, not the novelty, of
objections to magistrate recommendations.” Elijah, 66 F.4th at 461. Applying the liberal
construction afforded pro se litigants, we find that Stout “reasonably alert[ed] the district
court of the true ground for the objection[s]” with respect to his excessive force claim. Id.
at 461 (cleaned up).
III.
Because Stout made several specific objections to the magistrate judge’s
recommendation on excessive force, we remand with instructions for the district court to
review de novo this part of the magistrate judge’s recommendation. We affirm the district

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court’s judgment with respect to Stout’s remaining objections to the magistrate judge’s
recommendation.2
AFFIRMED IN PART AND
REMANDED WITH INSTRUCTIONS
2 We decline to address the merits of Stout’s other arguments. First, he asks this
court to review the merits of his excessive force claim. “[W]e generally don’t reach factual
or legal questions in a magistrate judge’s report that were first not subject to de novo review
by the district court.” Elijah v. Dunbar, 66 F.4th 454, 461 (4th Cir. 2023). Accordingly,
we decline to consider the merits of Stout’s excessive force claim, and instead remand with
instructions for the district court to consider the magistrate’s recommendation of the claim
de novo. Second, Stout says the district court abused its discretion when it denied his
requests for counsel. The magistrate judge denied his requests in June 2019 and July 2020.
J.A. 006–009. Stout objected to these orders on February 3, 2021. J.A. 107–08. Parties
generally have fourteen days after being served with a copy of the magistrate judge’s non-
dispositive order to file objections. Fed. R. Civ. P. 72(a). And a party may not assign as
error, a defect in the order not timely objected to. Id. Because Stout’s objection to the
magistrate judge’s orders denying counsel is untimely, he may not now argue that the
decision was in error. Fed. R. Civ. P. 72(a).

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