United States District Court, N.D. West Virginia
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
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se 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.
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.
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.
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
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).
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).
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).
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).
the magistrate judge did not expressly consider qualified
immunity, the defendants raise the issue in their motion to
dismiss or, alternatively, for summary judgment. ...