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Bates v. Saad

United States District Court, N.D. West Virginia

January 9, 2018

JENNIFER SAAD, Warden, FCI Hazelton; R. MULAC, Correctional Officer, FCI Hazelton; R. SMITH, Correctional Officer, FCI Hazelton; C. FLOYD, Correctional Officer, FCI Hazelton; J. SQUIRES, Correctional Officer, FCI Hazelton; M. DOYLE, Correctional Officer, FCI Hazelton; and UNKNOWN PARTIES, Defendants.

          Stamp, Judge.



         The pro se Plaintiff, Donald Choya Bates (“Bates”) an inmate incarcerated at USP McCreary in Pine Knot, Kentucky, initiated this Bivens[1] action by filing a civil rights complaint on October 25, 2016, along with a motion to proceed in forma pauperis (“IFP”) and supporting documents. ECF Nos. 1, 2, 3, & 4. By entered October 31, 2016, Bates was granted leave to proceed IFP and directed to pay an initial partial filing fee. ECF No. 6. On November 17, 2016, Bates paid the requisite fee. ECF No. 9.

         Thereafter, on December 13, 2016, Magistrate Judge James E. Seibert conducted a preliminary review of the complaint and entered an Order directing the Clerk to issue a sixty (60)-day summons to each defendant and to have the United States Marshal Service effect service on each. ECF No. 11. Also in that Order, Bates was given an additional thirty days in which to identify the John and/or Jane Doe defendants or risk their dismissal from the case. Id. On December 27, 2016, Bates moved for appointment of counsel. ECF No. 16. By Order entered January 5, 2017, Plaintiff's motion for appointed counsel was denied. ECF No. 18. On February 14, 2017, the Defendants moved for an extension of time and consolidated response date. ECF No. 28. By Order entered the next day, the Defendants' motion was granted. ECF No. 29. On April 5, 2017, the Defendants filed a second motion for an extension of time. ECF No. 32. By Order entered April 24, 2017, the Defendants were granted a second extension. ECF No. 34. On May 5, 2017, Defendants filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment with a memorandum in support. ECF Nos. 36 & 37. Because the Plaintiff was proceeding pro se, the undersigned issued a Roseboro[2] notice, advising the Plaintiff of his right to file a response to the Defendants' dispositive motion. ECF No. 39. On June 2, 2017, Plaintiff moved for an extension of time. ECF No. 42. By Order entered June 12, 2017, Plaintiff was granted the extension. ECF No. 44. On June 19, 2017, Plaintiff filed a letter motion for a second extension of time. ECF No. 45. On June 26, 2017, Plaintiff filed a motion for discovery. ECF No. 47. By separate Orders entered July 3, 2017, the Defendants were directed to respond to Plaintiff's motion for discovery and Plaintiff was granted the second extension of time. ECF Nos. 48 & 49. On July 7, 2017, the Defendants filed a response in opposition to Plaintiff's motion for discovery. ECF No. 50. On July 31, 2017, Plaintiff filed his response, titled Plaintiff's Reply to Defendant[']s[] Motion to Dismiss or, in the Alternative, for Summary Judgment. ECF No. 53. By Order entered September 15, 2017, this case was reassigned from Magistrate Judge James E. Seibert to Magistrate Judge Michael J. Aloi.

         Accordingly, this case is now before the undersigned for review, report and recommendation pursuant to LR PL P 2.

         I. Contentions of the Parties

         A. The Complaint

         In the complaint, the Plaintiff raises claims of excessive force and destruction of personal property arising out of a December 10, 2015 assault by FCI Hazelton staff member who accused him of not saying “good morning.” ECF No. 1 at 9. Plaintiff contends he was grabbed by the top front of his shirt or neck, thrown to the floor of his cell, kicked and punched, jumped on, and taken to an outside stairwell where he was dragged backwards down the stairs and the beating and kicking of his face and head continued, even though he was handcuffed and not resisting. Id. at 6 and 9. Plaintiff alleges that after the assault, he was placed into a holding cell for “numerous hours, ” not fed anything and not provided with medical care. Id. at 12. He contends that all of his legal and personal property was destroyed by “officer R. Mulac or whoever packed my property” and he never received it. Id. He asserts that he was “sent to a USP from a lower security” institution, because they “jacked up my points beyond the norm, ” transferring him far away from his family. Id. Finally, he alleges that staff participated in creating a false incident report against him to punish him further by blaming him for the altercation, resulting in the loss of 40 days good time and other sanctions. Id. at 10.

         Plaintiff alleges that as a result of the assault, he sustained a dislocated or broken middle finger, injury to his lower back, swollen right eye, bruises and/or scarring to both elbows, knees, wrists and face. Id. at 18.

         The Plaintiff maintains that he has exhausted his administrative remedies with regard to his claims. Id. at 4 - 14.

         As relief, he requests $50, 000, 000.00 in compensation for his personal injuries; $2, 000, 000 in compensation for the destruction of all of his personal property; and injunctive relief in the form of the dismissal of the incident report and sanctions against him, restoral of 40 days of lost good time, that he be “restored back to FCI, ” and that all of the officers involved be held accountable for their actions, including “firing” for excessive force. Id. at 18.

         B. The Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment

         The Defendants contend that the Plaintiff's complaint should be dismissed or summary judgment granted in their favor because

1) Defendants Saad, Doyle, Floyd, and Squires had no personal involvement in Plaintiff's alleged incident of excessive force, and thus they should be dismissed from this action;
2) the use of force by Officers Mulac and Smith was a good faith effort to restore discipline to an unrestrained aggressive inmate, and was not excessive;
3) Plaintiff's version of events is discredited by the video and documentary evidence submitted to the Court for in camera review;
3) as government officials performing discretionary functions, Defendants are entitled to qualified immunity;
4) Plaintiff's claims regarding his disciplinary actions over his incident report are not cognizable in a Bivens action but must be brought under 28 U.S.C. § 2241;
5) Plaintiff's claim that he was left without medical attention for hours is contradicted by documentary evidence; and
6) Plaintiff's claim that his property was destroyed is contradicted by documentary evidence. See ECF No. 37 at 5 - 14.

         C. Plaintiff's Response in Opposition

         In his responses, the Plaintiff reiterates his claims and attempts to refute the defendants' arguments on the same, alleging that the Defendants have withheld parts of the video surveillance recording that would reveal the guards assaulting him. ECF No. 53 at 2. Further, he contends that the sworn declarations of the prison guards regarding the incident are conflicting, and inconsistent with the guards' statements. Id. at 3. Finally, he argues that the copies of his medical records produced by the Defendants are inconsistent with the statements of the guards. Id. He asserts that the guards “are now attempting to cover up their misconduct by withholding evidence of the assault that took place in the stairwell after Bates was removed from the housing unit.” Id. at 4.

         I. Standard of Review

         A. Motion to Dismiss

         “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 N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation omitted). 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.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952.

         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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Courts long have cited the “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 [a] claim which would entitle him to relief.” Conley, 355 U.S. at 45-46. In Twombly, the Supreme Court noted that a complaint need not assert “detailed factual allegations, ” but must contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (citations omitted). Thus, the “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” id. (citations omitted), to one that is “plausible on its face, ” id. at 570, rather than merely “conceivable.” Id. Therefore, in order for a complaint to survive dismissal for failure to state a claim, the plaintiff must “allege facts sufficient to state all the elements of [his or] her claim.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 279, 281 (4th Cir. 2002)). In so doing, the complaint must meet a “plausibility” standard, instituted by the Supreme Court, which has held that a “claim has factual plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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.

         B. Motion for Summary Judgment

         A grant of summary judgment is appropriate “if the movant shows that 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). Motions for summary judgment impose a difficult standard on the moving party because it must be obvious that no rational trier of fact could find for the nonmoving party. Miller v. Fed. Deposit Ins. Corp., 906 F.2d 972, 974 (4th Cir. 1990). In applying the standard for summary judgment, a court must review all evidence “in the light most favorable to the nonmoving party.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The court must avoid weighing the evidence or determining the truth and limit its inquiry solely to a determination of whether genuine issues of triable fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         In Celotex, the Supreme Court held that the moving party bears the initial burden of informing the court of the basis for the motion and of establishing the nonexistence of genuine issues of fact. Celotex, 477 U.S. at 323. Once “the moving party has carried its burden under Rule 56, the opponent must do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party must present specific facts showing the existence of a genuine issue for trial. Id. This means that the “party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of [the] pleading, but . . .must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment. Id. at 248. To withstand such a motion, the nonmoving party must offer evidence from which a “fair-minded jury could return a verdict for the [party].” Id. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987). Such evidence must consist of facts which are material, meaning that they create fair doubt rather than encourage mere speculation. Anderson, 477 U.S. at 248. Summary judgment is proper only “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Matsushita, 475 U.S. at 587 (citation omitted).

         This Court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Haines v. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Erickson, supra at 94; Gordon v. Leeke, supra at 1151, and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Erickson, 551 U.S. at 93 (citing Twombly, 550 U.S. at 555-56). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't. of Social Srvcs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009)(outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions"). The 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 plaintiff could prevail, it should do so; however, a district court may not rewrite a complaint to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999), construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Finally, although Fed.R.Civ.P. 8(c) provides that "all pleadings shall be so construed as to do substantial justice," the Fourth Circuit further holds that a “heightened pleading standard” is highly appropriate in actions against government officials. Randall v. United States, 95 F.3d 339 (4th Cir. 1996). See also Dunbar Corp. v. Lindsey, 905 F.2d 754, 764 (4th Cir. 1990).

         III. Analysis

         A. Excessive Force

         1) Warden Saad

         Liability in a Bivens case is “personal, based upon each defendant's own constitutional violations.” Truloch v. Freeh, 2755 F.2d 391, 402 (4th Cir. 2001) (internal citation omitted). Thus, in order to establish liability in a Bivens case, the plaintiff must specify the acts taken by each defendant which violate his constitutional rights. See Wright v. Smith, 21 F.3d 496, 501 (2nd Cir. 1994); Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3rd Cir. 1988). Some sort of personal involvement on the part of the defendant and a causal connection to the harm alleged must be shown. See Zatler v. Wainbright, 802 F.2d 397, 401 (11th Cir. 1986). Respondeat superior cannot form the basis of a claim for violation of a constitutional right in a Bivens case. Rizzo v. Good, 423 U.S. 362 (1976).

         Here, Plaintiff does not allege any personal involvement on the part of Defendant Saad. He merely names her as a defendant and alleges that after the December 10, 2015 incident, she “never came to see what happened, ” impliedly contending that she condoned the allegedly excessively forceful officers' actions.[3] ECF No. 1 at 12. Elsewhere, he lists her in Claim Five, for “excessive force, physical abuse, loss of property.” Id. at 18. However, he makes no specific allegation against her there either, beyond listing her name with other defendants' names. Accordingly, Plaintiff appears to name Saad only in her official capacity as the warden of FCI Hazelton. However, a suit against government agents acting in their official capacities is considered a suit against the United States itself. See Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“Official-capacity suits . . . ‘generally present only another way of pleading an action against an entity of which an officer is an agent.'”). Thus, remedy under Bivens is not available against this defendant in her official capacity, and she should be dismissed with prejudice as a defendant in this action.

         2) R. Mulac, R. Smith, M. Doyle, C. Floyd, and J. Squires[4]

         Analysis of a claim for use of excessive force begins with “identification of the specific constitutional right allegedly infringed by the challenged application of force.” Graham v. Connor, 490 U.S. 386, 394 (1989). In the context of a claim by a prisoner that he was subjected to excessive force by prison employees, the source of the ban against such force is the Eighth Amendment's ban on cruel and unusual punishments. The validity of the prisoner's claim must “be judged by reference to th[is] specific constitutional standard . . . rather than to some generalized ‘excessive force' standard.” Graham v. Connor, supra at ...

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