United States District Court, S.D. West Virginia, Charleston Division
KRISTOPHER D. CREEL, Plaintiff,
CORPORAL HUDSON, et al., Defendants.
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, UNITED STATES DISTRICT JUDGE
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
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
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).
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.
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.
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.
Review of the PF&R
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).
Legal Sufficiency of the Complaint
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.
Summary Judgment Standard
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).
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.
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.
objections are set forth in three parts. The Court takes up