Brandon Smith v. Officer Owens, No. 14-6126 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6126 BRANDON JEROD SMITH, Plaintiff - Appellant, v. OFFICER OWENS; OFFICER DIXON; LIEUTENANT CARICO, Defendants - Appellees. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (7:13-cv-00060-SGW-PMS) Submitted: May 30, 2014 Before NIEMEYER Circuit Judge. and MOTZ, Decided: Circuit Judges, and June 10, 2014 DAVIS, Senior Affirmed by unpublished per curiam opinion. Brandon Jerod Smith, Appellant Pro Se. Richard Carson Vorhis, Senior Assistant Attorney General, Richmond, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Brandon Jerod Smith appeals the district court s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. reviewed the record and find no reversible error. We have Accordingly, we deny Smith s motion for appointment of counsel and affirm for the reasons stated by the district court. Smith v. Owens, No. 7:13-cv-00060-SGW-PMS (W.D. Va. Dec. 18, 2013). We note that our holding with respect to Smith s excessive force claim is determined by the deferential standard of review. district Following a bench trial, this court may reverse a court s erroneous. factual findings only if they are clearly Roanoke Cement Co. v. Falk Corp., 413 F.3d 431, 433 (4th Cir. 2005). The area of the prison in which Smith alleges the assault took place - the kitchen hallway is not covered by the prison s surveillance system, so the district court s findings as to the incident were assessments of witness credibility. necessarily based on [W]hen a district court's factual finding in a bench trial is based upon assessments of witness credibility, such finding is deserving of the highest degree Norfolk of appellate Dredging deference. Co., 531 F.3d Evergreen 302, (quotation marks and citation omitted). 2 308 Int l, (4th S.A. Cir. v. 2008) Because the district court s factual findings are not clearly erroneous, we must affirm those findings and the judgment in favor of defendants. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 3

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