United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, GRANTING
DEFENDANTS' MOTION TO DISMISS, CONSTRUED AS A MOTION FOR
SUMMARY JUDGMENT AND OVERRULING PLAINTIFF'S
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se plaintiff, Dallas Michael Acoff
(“Acoff”), filed this civil action asserting
claims under 42 U.S.C. § 1983. The case was referred to
United States Magistrate Judge James E. (STAMPeibert. The
defendants filed a motion to dismiss, which the magistrate
judge construed as a motion for summary judgment under
Federal Rule of Civil Procedure 12(d). Magistrate Judge
Seibert issued a report recommending that the defendants'
motion be granted. The plaintiff filed objections to the
report and recommendation. For the following reasons, the
magistrate judge's report and recommendation is adopted
and affirmed, the defendants' motion to dismiss construed
as a motion for summary judgment is granted, and the
plaintiff's objections are overruled.
alleges that, while incarcerated at the Northern Regional
Jail (“NRJ”), he was beaten and pepper sprayed in
violation of the Eighth Amendment. A tower guard reported
that a group of inmates were congregating around one of the
cells, so Michael Croghan (“Croghan”) went to
investigate. ECF No. 20-1 at 1. At the cell, Croghan smelled
alcohol and attempted to enter the cell to search for it.
Id. However, Acoff blocked the cell entrance while
another inmate flushed the contraband. Id. Croghan
pushed Acoff aside, entered the cell, and searched it.
Id. John R. Gorby (“Gorby”) then ordered
the inmates back to their cells and put them into lockdown.
refused to comply with several orders to be handcuffed and
returned to his cell. Id. Acoff was then pepper
sprayed and ordered to comply again. Id. He
continued to refuse and threw a carton containing milk at the
cell door. Id. Acoff eventually complied, and he was
handcuffed, removed from the cell, and taken to the medical
unit where he was examined by a nurse. Id.
was then taken to the booking room where he was placed into a
restraint chair. Id. Acoff continued to refuse to
comply with commands and thrashed around in the chair until
one of his legs came loose. Id. As the officers
attempted to restrain the loose leg, Acoff continued to
thrash, throwing his head around. Id. Gorby and
another officer attempted to apply pressure to Acoff's
hypoglossal pressure point, under the chin, but it was
ineffective. Id. The officers then successfully
applied pressure to Acoff's jugular notch pressure point,
where the neck and sternum meet, and the officers were able
to strap Acoff's leg down and regain control over him.
Id. During and after this struggle, Acoff yelled at
the officers and made comments that could be interpreted as
vague threats. The defendants provided video of most of the
encounter, which this Court has reviewed and finds to be
consistent with the facts recited above.
defendants filed a motion to dismiss that relies upon
attached incident reports and the video. The magistrate judge
entered a report recommending that the defendants' motion
to dismiss, construed as a motion for summary judgment, be
granted. Acoff then filed timely objections to the 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 Acoff 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).
Rule 12(d), if “on a motion under Rule 12(b)(6) . . .,
matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.” Fed.R.Civ.P. 12(d).
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 the plaintiff. 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).
the magistrate judge did not expressly consider qualified
immunity, the defendants raise the issue in their motion to
dismiss. Accordingly, this Court considers the issue de novo.
“The doctrine of qualified immunity protects government
officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (internal quotation marks omitted). Courts must
consider two steps in determining whether an official is
entitled to qualified immunity. Id. at 232.
“First, a court must decide whether the facts that a
plaintiff has alleged . . . make out a violation of a
constitutional right. Second, . . . the court must decide
whether the right at issue was ‘clearly
established' at the time of the defendant's alleged
misconduct.” Id. Courts need not determine
whether a violation has occurred if the court finds the right
at issue was not clearly defined. Id. at 236.
Eight Amendment forbids ‘the unnecessary and wanton
infliction of pain'” by a prison official. Hill
v. Crum, 727 F.3d 312, 317 (4th Cir. 2013) (quoting
Whitley v. Albers, 475 U.S. 312, 319 (1986)). To
prove an excessive force claim, a plaintiff must show: (1)
that the prison official's use of force was objectively
harmful such that it violates contemporary standards of
decency; and (2) that the prison official's use of force
was not “applied in a good-faith effort to maintain or
restore discipline, ” but was intended to
“maliciously and sadistically . . . cause harm.”
Hudson v. McMillian, 503 U.S. 1, 7 (1992). It is the
nature of the force used, and not the extent of the injury
caused, that serves as the relevant inquiry. Wilkins v.
Gaddy, 559 U.S. 34, 34 (2010). However, “not every
malevolent touch by a prison guard gives rise to ...