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Creel v. Hudson

United States District Court, S.D. West Virginia, Charleston Division

September 12, 2017

KRISTOPHER D. CREEL, Plaintiff,
v.
CORPORAL HUDSON, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, UNITED STATES DISTRICT JUDGE

         Pending before the Court are the Proposed Findings and Recommendation (“PF&R”) of United States Magistrate Judge Dwane L. Tinsley and Plaintiff's objections thereto. (ECF Nos. 76, 77.) The PF&R addresses the parties' pending cross-Motions for Summary Judgment. (ECF Nos. 56, 60.) For the reasons that follow, the Court ADOPTS the PF&R and OVERRULES Plaintiff's objections. Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. Plaintiff's Motion for Summary Judgment is DENIED.

         I. BACKGROUND

         Plaintiff Kristopher Creel is a West Virginia inmate. On February 19, 2014, he filed the instant Complaint alleging claims under 42 U.S.C. § 1983. The claims arise from three separate altercations between Plaintiff and correctional officers at the Mount Olive Correctional Complex (“MOCC”). Each altercation ended with force being used against Plaintiff by MOCC correctional officers. On May 6, 2013 and June 7, 2013, Plaintiff alleges that correctional officers used a pepper-ball gun and chemical agents against him for refusing to obey orders. On September 26, 2013, Plaintiff alleges that he was escorted from his cell to a shower while a search of his cell was conducted. After directing Plaintiff to lean against the shower door to facilitate removal of his leg shackles, Plaintiff claims that Defendant Blagg grabbed him by the neck, slammed him onto the shower floor, and delivered several blows to Plaintiff's face, head, and body.

         Plaintiff sued each correctional officer directly involved in the altercations described above as well as MOCC Warden David Ballard and former West Virginia Corrections Commissioner Jim Rubenstein. The five-count Complaint alleges excessive force arising from the May 6, June 7, and September 26, 2013 incidents (Counts One, Two, and Three, respectively), “repeated” violations of due process related to the confiscation of Plaintiff's personal property incidental to his placement on disciplinary segregation (Count Four), and supervisory liability (Count Five).

         Because Plaintiff proceeds pro se, this action was referred to the Magistrate Judge for pretrial proceedings. After a period of discovery, Defendants filed a join Motion for Summary Judgment on September 14, 2016. Plaintiff filed his own Motion for Summary Judgment on January 20, 2017.

         The Magistrate Judge filed the PF&R on August 9, 2017, recommending that Defendants' motion be granted in part and denied in part and that Plaintiff's motion be denied. As to all claims associated with the incidents of May 6 and June 7, 2013, the Magistrate Judge found that Plaintiff did not exhaust his administrative remedies prior to filing suit and recommended judgment in favor of Defendants. As to Count Three, the Magistrate Judge reasoned that genuine issues of material fact remain and the claim should proceed to trial. To the extent the due process claims alleged in Count Four have been exhausted via the administrative process, the PF&R recommends dismissal for failure to state a claim upon which relief can be granted. With these proposals, the only supervisory liability claim that remained was that related to the incident of September 26, 2013. The Magistrate Judge found that material factual disputes remain as to Ballard's liability for that incident. Finding the same could not be said with respect to the claims against Rubenstein, the Magistrate Judge recommended entry of summary judgment in favor of this Defendant.

         Plaintiff filed timely objections on August 24, 2017. Defendants have not objected to the Magistrate Judge's findings and recommendation. Thus, the cross-Motions for Summary Judgment, the PF&R, and the objections are ready for disposition.

         II. LEGAL STANDARDS

         A. Review of the PF&R

         “The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). The Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely objections constitutes a waiver of de novo review. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not conduct a de novo review when a party “makes general and conclusory objections that do not direct the Court to a specific error in the Magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

         B. Legal Sufficiency of the Complaint

         The Magistrate Judge engaged in sua sponte review of Count Four of the Complaint and thus invoked the standard applicable in testing the sufficiency of pleadings under Federal Rule of Civil Procedure 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court observed that a case should be dismissed for failure to state a claim upon which relief can be granted if, viewing the well-pleaded factual allegations in the complaint as true and in the light most favorable to the plaintiff, the complaint does not contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. While the complaint need not assert “detailed factual allegations, ” it must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Id. at 555. Elaborating on the Twombly holding in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court explained that “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678-79.

         C. Summary Judgment Standard

         Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. That rule provides, in relevant part, that summary judgment should be granted if “there is no genuine issue as to any material fact.” Summary judgment is inappropriate, however, if there exist factual issues that reasonably may be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ. Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). When evaluating such factual issues, the Court must view the evidence “in the light most favorable to the [party opposing summary judgment].” Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

         The moving party may meet its burden of showing that no genuine issue of fact exists by use of “depositions, answers to interrogatories, answers to requests for admission, and various documents submitted under request for production.” Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). Once the moving party has met its burden, the burden shifts to the nonmoving party 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If a party fails to make a sufficient showing on one element of that party's case, the failure of proof “necessarily renders all other facts immaterial.” Id. at 323.

         “[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 256. “The mere existence of a scintilla of evidence” in support of the nonmoving party is not enough to withstand summary judgment; the judge must ask whether “the jury could reasonably find for the plaintiff.” Id. at 252.

         III. DISCUSSION

         Plaintiff's objections are set forth in three parts. The Court takes up each ...


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