United States District Court, N.D. West Virginia, Elkins
ORDER ADOPTING REPORT AND RECOMMENDATION
Preston Bailey, United States District Judge
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
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.
Factual and Procedural History
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
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.
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.
Kesling, Close, and Shifflett have not filed any motions.
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.
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.
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).
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 ...