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Greene v. Feaster

United States District Court, N.D. West Virginia

August 16, 2017

MICHAEL JERMAINE GREENE, Plaintiff,
v.
SIDNEY FEASTER and DOUG WHITE, Defendants.

         MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, GRANTING DEFENDANTS' MOTION TO DISMISS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT OVERRULING PLAINTIFF'S OBJECTIONS AND DENYING PLAINTIFF'S MOTION FOR VOLUNTARY DISMISSAL

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         The pro se[1] plaintiff, Michael Jermaine Greene (“Greene”), filed this civil action asserting claims under 42 U.S.C. § 1983. The case was referred to United States Magistrate Judge James E. Seibert. The defendants filed a motion to dismiss or, alternatively, for summary judgment. Magistrate Judge Seibert issued a report recommending that the defendants' motion be granted. The plaintiff filed objections to the report and recommendation. He also filed a motion to voluntarily dismiss his complaint. For the following reasons, the magistrate judge's report and recommendation is adopted and affirmed, the defendants' motion is granted, the plaintiff's objections are overruled, and the plaintiff's motion to voluntarily dismiss his complaint is denied.

         I. Background

         Greene alleges that, while incarcerated at the Huttonsville Correctional Facility, he was pepper sprayed then not permitted to timely and thoroughly wash the irritant off. Greene claims that, while in his cell, he repeatedly activated his staff-call light without a response. The defendants then instructed Greene to stop hitting his call light. ECF No. 1-1 at 3. He then repeatedly kicked his cell door. Id. The defendants instructed Greene stop kicking his door. ECF No. 40-2. Greene then continued to kick his door, and the defendants pepper sprayed him. Id. The defendants then removed Greene from his cell and allowed him to shower. Id. Greene was then examined by medical staff and returned to his cell. Id.

         Greene alleges he was not taken to the shower for at least five minutes and that he was not given enough time to shower. He further alleges that the next day he gave a nurse a request for a sick-call note, and that his request “went missing” in retaliation for his earlier noncompliance. Finally, Greene alleges that the incident and lack of followup medical care constitute deliberate indifference of his medical needs. He claims the defendants violated the Eighth Amendment by pepper spraying him, by retaliating, and by being deliberately indifferent to his medical needs.

         The defendants filed a motion to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) or, alternatively, for summary judgment under Rule 56. The magistrate judge entered a report recommending that the defendants' motion be granted as a motion for summary judgment. Greene then filed a motion for voluntary dismissal of his complaint. He also later filed timely objections to the magistrate judge's report and recommendation.

         II. Applicable Law

         Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate judge's recommendation to which objection is timely made. Because Greene filed objections to the report and recommendation, the magistrate judge's recommendation will be reviewed de novo as to those findings to which objections were made. As to those findings to which objections were not filed, those findings and recommendations will be upheld unless they are “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A).

         To survive a motion to dismiss under Rule 12(b)(6), “a [pleading] must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff is plausibly entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The plausibility standard is not a probability requirement, but asks for more than a sheer possibility that a defendant has acted unlawfully.” Hall v. DirectTV, 846 F.3d 757, 765 (4th Cir. 2017). “[C]ourts must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in favor of the plaintiff.” Id. “[A] [pleading] is to be construed liberally so as to do substantial justice.” Id. (internal quotation marks omitted). Further, this Court must liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 2007). However, while the plaintiff's allegations are assumed to be true, Erickson, 551 U.S. at 93, this Court may not ignore a clear failure in the pleading to allege facts that set forth a claim. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990). This Court may not rewrite a complaint to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), construct the plaintiff's legal arguments for him, id., or “conjure up questions never squarely presented” to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         Under Federal Rule of Civil Procedure 56, this Court must grant a party's motion for summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it might affect the outcome of the case. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Id. If the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, ” summary judgment must be granted against that party. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In reviewing the supported underlying facts, all inferences must be viewed in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         The party seeking summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. See Celotex, 477 U.S. at 322-23. “The burden then shifts to the nonmoving party to come forward with facts sufficient to create a triable issue of fact.” Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992). However, “a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Moreover, “[t]he nonmoving party cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (internal quotation marks omitted). The nonmoving party must produce “more than a ‘scintilla'” of evidence “upon which a jury could properly proceed to find a verdict for the party producing it.” Id. (internal quotation marks omitted) (quoting Anderson, 477 U.S. at 251).

         III. Discussion

         While the magistrate judge did not expressly consider qualified immunity, the defendants raise the issue in their motion to dismiss or, alternatively, for summary judgment. ...


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