United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
E. SEIBERT, UNITED STATES MAGISTRATE JUDGE
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 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.
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.
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.
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.
case is before the undersigned for review, Report and
Recommendation pursuant to LR PL P 2.
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 -
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.
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.
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.
relief, Plaintiff requests “$1, 500, 000.00 dollars[, ]
including court costs and fees for litigating” this
case. ECF No. 34 at 9.
The Defendant's Motion
Defendant contends that Plaintiff's complaint should be
dismissed or summary judgment granted in its favor. In
support, they aver that
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.
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];
Defendant did not breach its duty to Plaintiff, thus,
Defendant was not negligent [id. at 9]; and
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.
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.
Standard of Review
Motion to Dismiss
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.
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).
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.
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.
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