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Ludwick v. Rubenstein

United States District Court, N.D. West Virginia, Elkins

August 16, 2017

RONALD LEE LUDWICK, JR., Plaintiff,
v.
JIM RUBENSTEIN, Commissioner of Corrections, et al., Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          John Preston Bailey, United States District Judge

         I. Introduction

         On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge Robert W. Trumble [Doc. 87]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Trumble for submission of a proposed report and a recommendation (“R&R”). Magistrate Judge Trumble filed his R&R on July 14, 2017, wherein he recommends this Court dismiss the plaintiff's Amended Complaint as to all defendants, with the exception of Counts I and V against defendant Close and Count V against defendant Shifflett.

         Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Trumble's R&R were due within fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). After being granted a brief extension, plaintiff timely filed his Objections [Doc. 91] on August 3, 2017. Accordingly, this Court will review the portions of the R&R to which the plaintiff objects under a de novo standard of review. The remainder of the R&R will be reviewed for clear error.

         II. Factual and Procedural History

         Plaintiff's Amended Complaint [Doc. 18] asserts five counts: Count I - Excessive force; Count II - Supervisory Liability; Count III - denial of medications; Count IV - violations of both the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and the First and Fourteenth Amendments for destruction and denial of access to his religious materials; and Count V - Retaliation. The plaintiff alleges defendant Close used pepper spray on him on May 30, 2015, which constituted excessive use of force. He further claims defendants seized, destroyed, and deprived him of his religious materials; denied him medications; and harassed and retaliated against him for filing grievances regarding the same.

         Defendants Rubenstein, Plumley, Murphy, and Smith move to dismiss or, in the alternative, for summary judgment [Doc. 52] because plaintiff has failed to assert any personal involvement on their part except for the handling of the grievances.

         Defendants Latham, Feaster, Gsell, Phillips, Davis, and Caughin/Hawthon move for summary judgment [Doc. 66] because the plaintiff has failed to allege any facts implicating them in the alleged violations of his constitutional rights, and plaintiff has failed to show injury or harm caused by them.

         Defendants Kesling, Close, and Shifflett have not filed any motions.

         III. Discussion

         The magistrate judge first notes that the plaintiff's claims against the defendants in their official capacities are improper. A defendant in a Section 1983 action must be a “person” acting under color of state law. However, “neither a State nor its officials acting their official capacities are “persons” under [Section] 1983.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Accordingly, plaintiff's claims against the defendants in their official capacities must be dismissed.

         Having found the official capacity claims to be improper, the R&R proceeds to analyze the plaintiff's claims against the defendants in their individual capacities.

         First, the R&R recommends dismissal of defendants Rubenstein, Plumley, Murphy, Smith, and Kesling because “vicarious liability is inapplicable to Bivens and Section 1983 sutis . . ..” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Rather, the “plaintiff must plead that each Government official defendant, through the official's own individual actions, has violated the Constitution.” Id. Nonetheless, when a supervisor is not personally involved in the alleged wrongdoing, he may be liable under Section 1983 if a subordinate acts pursuant to an official policy or custom for which he is responsible. See Fisher v. Washington Metro. Area Transit Authority, 690 F.2d 1133 (4th Cir. 1982).

         In analyzing the above, the R&R finds that plaintiff's claims against defendants Rubenstein, Plumley, Murphy, Smith, and Kesling are improper as the plaintiff fails to assert personal involvement on their part. Rather, the plaintiff attempts to establish supervisory liability by alleging deliberate indifference; failing to investigate grievances and alleged misconduct; and failing to properly train, supervise, and discipline the Huttonsville guards. Plaintiff fails, however, to meet the prerequisites for establishing supervisory liability. As the R&R points out, the Amended Complaint contains no specific allegations against these defendants other than their handling of ...


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