United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND DENYING
IN PART THE DEFENDANTS' MOTION TO DISMISS OR, IN THE
ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND ROSEBORO
NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69].
M. KEELEY UNITED STATES DISTRICT JUDGE
March 23, 2016, the plaintiff, Michael Berryman
(“Berryman”), filed this
Bivens action, alleging that the defendants
failed to protect him from a dangerous cellmate, violated his
due process rights by placing him in punitive segregation,
and failed to provide appropriate medical treatment (Dkt. No.
1). Pursuant to 28 U.S.C. § 636 and the local rules, the
Court referred the complaint to the Honorable James E.
Seibert, United States Magistrate Judge, for initial review.
Now pending is Magistrate Judge Seibert's Report and
Recommendation (“R&R”), recommending that the
Court grant in part and deny in part the defendants'
motion to dismiss or, in the alternative, for summary
judgment (Dkt. No. 60).
asleep in the Special Housing Unit (“SHU”) at
United States Penitentiary, Hazelton (“USP
Hazelton”) during the early morning hours of May 8,
2014, Berryman was allegedly attacked by his cellmate.
Berryman claims that he was awakened when his cellmate began
stomping on his “left ribcage.” Although able to
activate an emergency call button, Berryman was quickly
knocked unconscious by his assailant. He regained
consciousness sometime during the assault and alleges that,
as he attempted to protect himself, he was quickly knocked
Berryman regained consciousness the second time, Officer
Christopher Mullen (“Officer Mullen”), who had
arrived on the scene, helped him to his feet and took him to
an observation cell where Berryman was left with paper
clothing and bedding. According to Berryman, he was awakened
later that morning by Physician's Assistant Christopher
Meyer (“PA Meyer”), who noted his superficial
injuries but left without conducting a full examination (Dkt.
No. 1 at 14-15).
central allegation of Berryman's complaint that forms the
basis for claims one, two, and three of his complaint is
that, prior to the attack, Berryman had repeatedly advised
the defendants that his cellmate, who had a history of
violence toward other inmates, had threatened variously to
beat, rape, and kill him if Berryman was not moved to another
cell. Id. at 11-14. Berryman alleges that, despite
having notice of this risk, Officer John Doe I, Officer John
Doe II, Lieutenant Jerald Riffle (“Lt. Riffle”),
Officer Brad Brown (“Officer Brown”), Officer
John Brady (“Officer Brady”), Officer Mullen, and
Four Unknown B.O.P. Officers ignored the warning, failed to
respond reasonably, and took no action to prevent the attack.
Id. at 9-10, 16. In his fourth claim, Berryman
alleges that Officer Brown, Lt. Riffle, and the Four Unknown
B.O.P. Officers violated his due process rights by taking his
property, placing him in paper clothing, and subjecting him
to punitive segregation without a hearing. Id. at
16. Finally, he claims that PA Meyer failed to provide timely
and sufficient medical treatment for his injuries.
Id. at 17.
complaint, Berryman describes the following injuries:
I have 4 protruding disk [sic] in lower lumbar, severe
stenosis in L lumbar, thecal sac encroachments in lower
lumbar, sliped [sic] disk in L lumbar, stenosis in cervical
spine C3-C7, disk herniation present moderately encroaching
upon the thecal sac at the C03/04 level[, ] thecal sac
encroachment and Y hard disks/osteophyt[e] complex thecal sac
encroaching C6/seven, evidence of remote rib fractures and
rib deformity lower left ribs.
Id. In his prayer for relief, Berryman seeks a
declaration that his constitutional rights have been
violated, and an award of “compensatory and punitive
damages to the sum of 3, 000, 000 dollars, ”
attorneys' fees and costs, and anything else that the
Court deems just. Id.
The Defendants' Motion
Magistrate Judge Seibert concluded that Berryman's
complaint did not warrant summary dismissal, he directed the
United States Marshals Service to effect service on the
defendants (Dkt. No. 22). The defendants later moved to
dismiss Berryman's complaint or, in the alternative, for
summary judgment (Dkt. No. 51). In the motion, they argued
that 1) they are entitled to qualified immunity, 2) they did
not fail to protect Berryman from an assault, 3) they were
not deliberately indifferent to Berryman's medical
condition, and 4) PA Meyer is immune from suit as a
commissioned officer of the Public Health Service (Dkt. No.
52 at 6-15).
response, Berryman moved to dismiss the defendants'
motion, asserting that he could not adequately oppose it
“until he is granted some limited discovery”
(Dkt. No. 56 at 2). He also submitted a sworn declaration
that many of the individual defendants had falsely stated
that he had never indicated he was in danger (Dkt. No. 56-1).
Report and Recommendation
Judge Seibert thoroughly considered these issues in an
R&R filed on May 15, 2017 (Dkt. No. 60). First, he
reasoned that Berryman's failure-to-protect allegations
stated a cognizable Eighth Amendment claim that the
defendants had been deliberately indifferent to a known risk
of harm. Id. at 13. Because the defendants had not
provided enough evidence, however, Magistrate Judge Seibert
could not “make a determination . . . as to whether
Plaintiff did in fact repeatedly request to be moved; whether
Inmate V.A. did in fact have a known track record for
attacking cellmates; or whether Plaintiff had more
involvement in the May, 2014 incident than the parties have
Magistrate Judge Seibert found that the only evidence of
record was in conflict: Berryman averred that he had
repeatedly advised the defendants of a dangerous situation
and had asked to be moved; the defendants averred that they
were completely unaware Berryman was at risk of harm.
Moreover, the defendants had not provided any medical
records, incident reports, separatee lists, disciplinary
records, or video surveillance tending to support their
contentions. Id. at 15-16. Given that material facts
were in dispute, Magistrate Judge Seibert recommended that
the defendants' motion to dismiss Berryman's
failure-to-protect allegations be denied. Id. at
R&R also construed Berryman's fourth claim - labeled
“due process” - as asserting two constitutional
violations: 1) confinement in punitive segregation without a
hearing in violation of the Fifth Amendment's provision
of due process; and 2) denial of access to regular clothing,
regular bedding, and personal belongings in violation of the
Eighth Amendment prohibition against cruel and unusual
punishment. Id. at 26-32. As to the Fifth Amendment
due process violation, Magistrate Judge Seibert reasoned
that, even assuming Berryman's segregation had been based
on false allegations, he “does not have a
constitutional right to be free from false disciplinary
reports.” Id. at 28-29. As to Berryman's
Eighth Amendment claim, he reasoned that involuntary
confinement in the SHU without regular clothing or personal
belongings does not constitute cruel and unusual punishment.
Id. at 31-32. He therefore recommended that
Berryman's fourth claim against Lt. Riffle, Officer
Brown, Officer Brady, and Four Unknown B.O.P. Officers be
Judge Seibert further concluded that Berryman's fifth
claim, alleging that PA Meyer had failed to timely and
adequately treat his injuries, must be dismissed in its
entirety because, as a commissioned officer of the Public
Health Service, under 42 U.S.C. § 233(a), PA Meyer is
immune from Bivens suits, and can only be sued
pursuant to the Federal Tort Claims Act (“FTCA”).
Id. at 25-26. Finally, Magistrate Judge Seibert
recommended that the Court dismiss all of Berryman's
claims against John Doe I, John Doe II, and the Four ...