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Berryman v. Mullen

United States District Court, N.D. West Virginia

August 17, 2017

MICHAEL BERRYMAN, Plaintiff,
v.
OFFICER CHRISTOPHER MULLEN; OFFICER JOHN DOE 1, BOP Officer; OFFICER JOHN DOE 2, BOP Officer; LT. JERALD RIFFLE; OFFICER BRAD BROWN; OFFICER JOHN BRADY; FOUR UNKNOWN BOP OFFICERS; and PA CHRISTOPHER MEYER, Defendants.

          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].

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

         On March 23, 2016, the plaintiff, Michael Berryman (“Berryman”), filed this Bivens[1] 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).

         I. BACKGROUND[2]

         A. The Complaint

         While 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 unconscious again.

         After 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.[3] 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).

         The 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.

         In his 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.

         B. The Defendants' Motion

         After 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).

         In 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).

         C. Report and Recommendation

         Magistrate 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 admitted.”

         Furthermore, 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 17-18.

         The 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 dismissed.

         Magistrate 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 ...


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