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Lahens v. United States

United States District Court, N.D. West Virginia

September 11, 2017

PIERRE LAHENS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant, and TERRY O'BRIEN, J. GILLEY, SIX UNKNOWN NAMED OFFICERS OF USP HAZELTON SPECIAL TASK FORCE, Consolidated Defendants.

          Bailey Judge.

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT, UNITED STATES MAGISTRATE JUDGE

         I. Procedural History

         On March 25, 2016, the pro se Plaintiff, an inmate incarcerated at FMC Springfield in Springfield Missouri, initiated this case by filing a complaint pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §2671, et seq. Plaintiff's FTCA complaint was originally filed on a Bivens[1] form complaint from this district. ECF No. 1. In the complaint, Plaintiff alleged that intentional acts, including assault and battery, as well as negligence, were committed upon him by employees of the United States, while he was incarcerated at Hazelton U.S.P., causing him to sustain certain physical injuries, that the officers failed to protect him, and that he was denied medical care for his injuries afterward.[2]

         The Plaintiff was granted permission to proceed as a pauper on April 19, 2016, and paid his initial partial filing fee on May 31, 2016. ECF Nos. 9 & 11. On June 27, 2016, Plaintiff filed a Motion for Consolidation of Both Cases in the instant case as well as the Bivens action addressing the same claims. ECF No. 13. By Order entered June 30, 2016, Plaintiff was notified of the potential consequences of pursuing both a FTCA and a Bivens case and directed to notify the court within fourteen days if he still wished to proceed on both cases. ECF No. 14. On July 21, 2016, Plaintiff filed his Notification, indicating his desire to pursue both cases. ECF No. 17. By Order entered September 6, 2016, Plaintiff's motion to consolidate was granted. ECF No. 20. By further Order entered on September 13, 2016, Plaintiff was directed to proceed solely on his FTCA claim because resolution of its merits would resolve the Bivens action, and he was further directed to file his FTCA claims on court-approved form FTCA complaint within thirty days. ECF No. 23.

         By Order entered October 19, 2016, Plaintiff was directed to show cause why his case should not be dismissed for failure to prosecute. ECF No. 27. On October 24, 2016, Plaintiff moved for an extension of time to file his FTCA complaint on a court-approved form. ECF No. 28. By Order entered October 26, 2016, Plaintiff was granted the requested extension. ECF No. 29. On December 12, 2016, Plaintiff filed his court-approved form FTCA complaint. ECF No. 34.

         On December 13, 2016, the undersigned conducted a preliminary review of the file and determined that summary dismissal was not appropriate at that time. Thus, the Clerk was directed to issue summonses and forward copies of the complaint to the United States Marshal Service for service of process. ECF No. 35. On February 8, 2017, the Defendant moved for an extension of time. ECF No. 41. By Order entered February 9, 2017, Defendant's motion was granted. ECF No. 42. On March 30, 2017, the Defendant filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment with a memorandum and exhibits in support. ECF Nos. 45 & 46. Because Plaintiff was proceeding pro se, on April 5, 2017, a Roseboro Notice was issued. ECF No. 48. Plaintiff filed a Motion to Amend Defendant's Names on April 10, 2017. ECF No. 49. On April 24, 2017, Plaintiff moved for an extension of time to respond to Defendant's dispositive motion. ECF No. 52. By Order entered April 26, 2017, Plaintiff was granted the extension. ECF No. 53. On June 8, 2017, Plaintiff filed an Incorporated Memorandum of Law in Support of Opposition to Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment. ECF No. 56.

         This case is before the undersigned for review, Report and Recommendation pursuant to LR PL P 2.

         II. The Pleadings

         A. The Complaint

         In the complaint, the Plaintiff asserts claims of negligence, assault and battery, excessive force, failure to protect, and failure to provide adequate medical care. ECF No. 34 at 6 - 7.

         Specifically, Plaintiff alleges that on July 27, 2014, while incarcerated at USP Hazelton, he was shot in the arm, chest and leg by oleoresin capsicum (“OC”) pepper balls fired by the USP Hazelton Special Task Force, who, in an attempt to break up a fight between two inmates in the dining hall, fired indiscriminately into a group of 15-20 prisoners, including Plaintiff, who were in a corridor near the dining hall and who were uninvolved in the inmate-on-inmate altercation and were merely attempting to return to their units after receiving their meal trays and/or medications. ECF No. 34-1 at 4 - 5. Plaintiff alleges that other BOP officers “remained marching and looking on” while the USP Hazelton Task Force officers “indiscriminately” fired pepper balls upon inmates, including him, who were not posing a threat, and thus those officers were negligent for failing to provide protection to him. ECF No. 34 at 7 & 10.

         Plaintiff alleges that he suffered temporary blindness, “discomfort in his lungs from the OC powder residue, and mental and emotional trauma [id. at 6], ” a “permanent loss of skin” on his left arm, “pain in his left arm, chest, and right leg, and a headache, ” “swelling and tenderness to his left arm, ” and instead of receiving medical care or a shower, was returned to his cell for lockdown and did not receive any medical attention for “roughly” 20 hours, and even then, only received an examination of his injuries but no treatment for them. Id. at 12 - 13; see also ECF No. 34-3 at 10. Plaintiff further alleges that a subsequent investigation concluded that the Special Task Force had assaulted him, and that he was innocent of wrongdoing because no charges were filed against him. Id. at 6 - 7.

         Plaintiff asserts that his claims are exhausted and in support, attaches a copy of a November 3, 2015 letter from the DOJ denying his administrative tort claim. ECF No. 34-3 at 7.

         As relief, Plaintiff requests “$1, 500, 000.00 dollars[, ] including court costs and fees for litigating” this case. ECF No. 34 at 9.

         B. The Defendant's Motion

         The Defendant contends that Plaintiff's complaint should be dismissed or summary judgment granted in its favor. In support, they aver that

         1) during July 27, 2014 incident that occurred at approximately 6:15 p.m., the USP Hazelton's “Disturbance Control Team” (“DCT”) attempted to respond to request for assistance from the officers on the scene. ECF No. 46 at 2. En route to the area, in a narrow area of the corridor, the DCT encountered a group of inmates who refused their orders to lie down, thus impeding the DCT's passage through the corridor to the area of the inmate-on-inmate assault. Id. at 3. Plaintiff admits to being among this group of inmates. Id. After those inmates ignored several orders to lie down, the DCT Lieutenant directed the team to saturate the area, using pepper ball launchers. Id. The team then dispersed two 5-8 round bursts against the walls to saturate the area. Id. At no time did any DCT member intend to shoot at any of the inmates; rather, to saturate the area, the officers aimed at the walls and ceilings above the inmates. Id. Approximately twenty seconds after the rounds were deployed, inmates slowly began to comply and lie down on the floor, and the DCT team was able to proceed past them down the corridor to the scene of the inmate fight. Id. No member of the team was made aware on that day that Plaintiff claimed to have been hit with one of the projectiles. Id. By the time the DCT team returned to the corridor to decontaminate the area, Plaintiff and all other inmates had already left the area. Id.

         2) The United States is not liable for assault or battery because its agents did not intend to cause harmful or offensive contact or the apprehension thereof, to Plaintiff or any individual [id. at 7];

         3) the Defendant did not breach its duty to Plaintiff, thus, Defendant was not negligent [id. at 9]; and

         4) Plaintiff's medical negligence claim should be dismissed because Plaintiff failed to file a certificate of merit with his complaint, as required by West Virginia law. Id. at 11.

         C. Plaintiff's Response

         Plaintiff reiterates his claims and arguments, and attempts to refute the United States' arguments on the same. ECF No. 56 at 6 - 18. Further, in response to Defendant's contention that his medical claim should be dismissed because he did not file a [screening] certificate of merit with his complaint, he insists that never raised a FTCA medical negligence claim regarding the denial of timely medical treatment, but rather, his medical claim was one of deliberate indifference to serious medical needs in violation of the Eighth Amendment. Id. at 18.

         III. Standard of Review

         A. Motion to Dismiss

         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal of a case when a complaint fails to state a claim upon which relief can be granted. The Federal Rules of Civil Procedure require only “‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Courts long have cited “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46.

         Plaintiff is proceeding pro se and therefore the Court must liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 - 21 (1972) (per curiam); Erickson v. Pardus, 551 U.S. 89, 94 (2007). While pro se pleadings are held to a less stringent standard than those drafted by attorneys, even under this less stringent standard, a pro se complaint is still subject to dismissal. Haines, supra at 520-21. “[T]he mandated liberal construction afforded to pro se pleadings ‘means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so.'” Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). However, “judges are [] not required to construct a party's legal arguments for him.” Small v. Endicott, 998 F.2d 411, 417 - 8 (7th Cir. 1993).

         Although a complaint need not contain detailed factual allegations, a plaintiff's obligation in pleading “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Accordingly, “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” to one that is “plausible on its face.” Id. at 555, 570. In Twombly, the Supreme Court found that “because the plaintiffs [] have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Id. at 570. Thus, to survive a motion to dismiss, a plaintiff must state a plausible claim in his complaint which is based on cognizable legal authority and includes more than conclusory or speculative factual allegations. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” because courts are not bound to accept as true a legal conclusion couched as a factual allegation. Id. at 678. “[D]etermining whether a complaint states a plausible claim . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, a well-pleaded complaint must offer more than “a sheer possibility that a defendant has acted unlawfully, ” in order to meet the plausibility standard and survive dismissal for failure to state a claim. Id. at 678.

         “A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses.” Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952.

         “Ordinarily, a court may not consider any documents that are outside of the complaint, or not expressly incorporated therein, unless the motion is converted into one for summary judgment.” Alternative Energy. Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001) (cited with approval in Witthohn v. Federal Ins. Co., 164 Fed.Appx. 395 (4th Cir. 2006) (unpublished)). There are, however, exceptions to the rule that a court may not consider any documents outside of the complaint. “Courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular documents incorporated ...


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