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Pumphrey v. Coakley

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

January 30, 2018

WILLIAM C. PUMPHREY, Plaintiff,
v.
JOE COAKLEY, et al., Defendants.

          PROPOSED FINDINGS AND RECOMMENDATION

          OMAR J. ABOULHOSN UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is Defendants' “Renewed Motion to Dismiss, or in the Alternative, Motion for Summary Judgment” (Document No. 90), filed on June 5, 2017. The Court notified Plaintiff pursuant to Roseboro v. Garrison, 528 F.2d 304 (4th Cir. 1975), that Plaintiff had the right to file a response to Defendants' Motion and submit Affidavit(s) or statements and/or other legal or factual material supporting his claims as they are challenged by the Defendants in moving to dismiss. (Document No. 93.) Plaintiff filed his Response in Opposition on June 19, 2017. (Document No. 97.) Having examined the record and considered the applicable law, the undersigned has concluded that Defendants' Motion should be granted in part and denied in part. Specifically, the undersigned recommends that Defendants' Renewed Motion be (1) denied as to Plaintiff's alleged failure to exhaust administrative remedies; (2) denied as to Plaintiff's claim of excessive force against Defendant Coleman and Defendant Harvey; (3) denied as to Defendants' request for Plaintiff's IFP status be revoked; and (4) granted as to Plaintiff's claim of conspiracy, audio torture, food tampering, verbal abuse, sexual harassment, invasion of privacy, mail tampering/access to court, violation of the administrative remedy process, and failure to intervene.

         FACTUAL AND PROCEDURAL HISTORY

         On October 28, 2015, Plaintiff, acting pro se and an inmate at FCI Beckley, filed his Complaint in this matter for alleged violations of his constitutional and civil rights pursuant to Bivens v. Six Unknown Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 24 L.Ed.2d 619 (1971).[1] (Document No. 2 and 2-1.) Plaintiff names the following as defendants: (1) Joe Coakley, Warden; (2) O. Gibson, Special Housing Unit Lieutenant; (3) J.D. James, Correctional Officer; (4) J. Bailey, Correctional Officer; (5) B. Coleman, Correctional Officer; (6) T. Toney, Correctional Officer; (7) D. Duncan; (8) C. Spencer, Correctional Officer; (9) A. Lester, Correctional Officer; (10) F. Riffle, Correctional Officer; (11) C. Honaker, Correctional Officer; (12) S. Denny, Correctional Officer; (13) J. Grogan, Correctional Officer; (14) D. Akers, Correctional Officer; (15) Unit Manager Snow; (16) Dr. Weaver, Psychologist; (17) J. Ford, Correctional Officer; (18) J. Williams, Correctional Officer; (19) E. Harvey, Correctional Officer; (20) Correctional Officer Head; (21) Unit Manager Smith; and (22) Correctional Officer Knoll. (Id.) Specifically, Plaintiff alleges that Defendants subjected him to cruel and unusual punishment. (Document No. 2-1.) First, Plaintiff alleges that Defendant Coakley “ordered his subordinates to conspire to systematically torture [Plaintiff] using an elaborate system of devices to play repeated parts of irritating, nonsensical music.” (Id., p. 4.) Plaintiff contends that the music was “played over and over, twenty-four hours a day, seven days a week, at varying volumes.” (Id.) Plaintiff further explains that a “soundtrack is played simultaneously that sometimes overlap the music with unearthly moans and groans, gun fire, explosions, children screaming in pain and terror.” (Id., p. 5.) Plaintiff alleges that the foregoing keeps him “on edge and [his] nerves frayed” and “exacerbates serious pre-existing health issues.” (Id.) Specifically, Plaintiff contends that he is suffering from the following: sleep deprivation, stomach distress (pain, burning, bowel incontinence, sporadic vomiting), debilitating headaches, short-term memory loss, and early dementia-like symptoms. (Id., p. 6.)

         Plaintiff contends that Defendant Coakley and Gibson “are the architects and orchestrators of this bizarre and illegal behavior.” (Id., pp. 5, 7 - 8.) Plaintiff claims that Defendant Gibson “controls and operates the devices that play the audio soundtracks throughout his workday and upon his departure, he leaves orders and instructions for his confederates to do likewise.” (Id.) Plaintiff further explains that Defendant Gibson “has on more than one occasion tried to have [Plaintiff's] wheelchair taken.” (Id.) Plaintiff contends that Defendant Gibson comes to his “door numerous times a day to beat, bang and/or kick it.” (Id., p. 7.) Plaintiff alleges that these actions have caused him “to clench [his] jaw throughout the day and grind [his] teeth at night” resulting in the loss of eleven fillings. (Id.) Plaintiff further contends that his “headaches and spinal pain” are exacerbated by Defendant Gibson's deliberate actions. (Id.) Finally, Plaintiff asserts that Defendant Gibson threatens his physical safety, tampers with his food, tampers with his mail, and intentionally “wrecks his cell” during shake downs. (Id., pp. 7 - 10.)

         Plaintiff alleges that Defendants James, Bailey, Coleman, Toney, Duncan, Spencer, Lester, Riffle, Honaker, Denny, Grogan, Ford, Williams, Head, and Smith conspire with Defendant Gibson to cause Plaintiff physical, psychological and emotional harm by engaging in above described conduct. (Id., pp. 10 - 19, 23 - 25.) Plaintiff further states that Defendant James, Spencer, and Riffle placed Plaintiff's life in imminent danger by spreading false rumors that Plaintiff is a child molester. (Id., pp. 11, 16 and 18.) Plaintiff complains that Defendant James makes “unwanted sexual innuendoes and overtones while [Plaintiff] is in the shower.” (Id., pp. 11 - 12.) As to Defendant Coleman, Plaintiff further alleges that Defendant Coleman entered his cell and hit Plaintiff in the face without just cause. (Id., p. 14.) Plaintiff contends that Defendant Coleman's improper action caused swelling and bruising to Plaintiff's face and eye. (Id.) As to Defendant Harvey, Plaintiff further claims that Defendant Harvey verbally threatens him, intentionally injures Plaintiff's wrists when placing handcuffs on him, and intentionally injures Plaintiff's lower extremities when pushing him through the prison in his wheelchair. (Id., p. 24.)

         Plaintiff contends that Defendants Akers, Snow, and Weaver are aware of the cruel and unusual behavior of the foregoing Defendants, but fail to take any corrective action. (Id., pp. 20 -22.) Plaintiff contends that Defendant Akers tampers with his mail and interferes with his attempts to exhaust his administrative remedies. (Id., p. 20.) Plaintiff claims that although Defendant Weaver is aware of the “torturous conduct” by the foregoing Defendants, Defendant Weaver “deliberately makes a false diagnosis” to cover up the inappropriate conduct. (Id., p. 22.) Plaintiff requests monetary damages and injunctive relief.[2] (Id., p. 27.)

         By Order entered on December 16, 2015, United Magistrate Judge R. Clarke VanDervort granted Plaintiff's Application to Proceed Without Prepayment of Fees and directed the Clerk to issue process.[3] (Document No. 6.) On February 12, 2016, Defendants filed their “Motion to Dismiss, or in the Alternative Motion for Summary Judgment” and Memorandum in Support. (Document Nos. 44 and 45.) First, Defendants argued that “Plaintiff failed to exhaust his administrative remedies on any of his allegations.” (Document No. 45, pp. 13 - 19.) Second, Defendants contended that “Plaintiff's claim that staff used an elaborate system of devices to torture him by sending irritating music, moans, screams and gunfire sounds into his cell through the vents fails to state a claim, lacks merit, and should be stricken.” (Id., pp. 19 - 21.) Third, Defendants asserted that “Plaintiff's claim of being struck by Officer Coleman fails to state a claim and lacks merit.” (Id., pp. 21 - 23.) Fourth, Defendants claimed that “Plaintiff's additional claims fail to state a claim, lacks merit, and should be stricken. (Id., pp. 23 - 26.) Fifth, Defendants argued that “Plaintiff cannot recover for emotional or psychological damages without a showing of physical injury.” (Id., pp. 26 - 27.) Sixth, Defendants argued that they were entitled to qualified immunity. (Id., pp. 27 - 29.) Finally, Defendants argued that this “Court should revoke Plaintiff's IFP status based on his litigious misconduct.” (Id., pp. 30 - 31.)

         As Exhibits, Defendants attached the following: (1) The Declaration of Sharon Wahl (Document No. 44-1, pp. 2 - 4.); (2) A copy Plaintiff's “Inmate Discipline Data Chronological Disciplinary Record” as of January 25, 2016 (Id., pp. 6 - 8.); (3) A copy of the Discipline Hearing Officer Report dated March 30, 2015, regarding Incident Report No. 2692130 (Id., pp. 10 - 12.); (4) A copy of the Incident Report charging Plaintiff with Insolence in violation of Prohibited Act Code 312 (Incident Report No. 2733279) and Supporting Memo (Id., pp. 14 - 16.); (5) A copy of Plaintiff's Injury Assessment dated August 14, 2015 (Id., pp. 18 - 19.); (6) A copy of Registered Nurse [“RN”] Jeff Reports' Memorandum dated August 14, 2015, regarding Plaintiff's Injury Assessment (Id., p. 21.); (7) A copy of Plaintiff's “Administrative Remedy Generalized Retrieval” from March 11, 2015 through December 28, 2015 (Id., pp. 23 - 29.); (8) A copy of the PACER Civil Party Search for Plaintiff (Id., p. 31.); (9) The Declaration of Dr. Jason Weaver (Id., pp. 33 - 37.); (10) A copy of Plaintiff's pertinent BOP psychological records (Id., pp. 39 - 79.); (11) The Declaration of Odie Gibson (Id., pp. 81 - 83.); (12) A copy of a Memorandum from SIA A. Hussion dated August 14, 2015, regarding Inmate Pumphrey (Id., p. 85.); (13) The Declaration of Christopher Head (Id., pp. 87 - 88.); (14) The Declaration of Declaration of Anthony Hussion (Id., pp. 90 - 92.); (15) A copy of a Memorandum from SIA A. Hussion dated August 14, 2015, regarding Inmate Pumphrey (Id., pp. 94 - 95.); (16) The Declaration of Danny Akers (Id., pp. 97 - 98.); (17) The Declaration of Franklin Riffle (Id., pp. 100 - 101.); (18) The Declaration of Jeremy James (Id., pp. 103 - 104.); (18) The Declaration of Jason Bailey (Id., pp. 106 - 107.); (19) The Declaration of Buck Coleman (Id., pp. 109 - 110.); (20) The Declaration of Taylor Toney (Id., p. 112.); (21) The Declaration of Dallas Duncan, Jr. (Id., p. 114.); (21) The Declaration of Charles Spencer, IV (Id., pp. 116 - 117.); (22) The Declaration of Aaron Lester (Id., p. 199.); (23) The Declaration of Charles Honaker (Id., p. 121.); (24) The Declaration of Samuel Denny (Id., p. 123.); (25) The Declaration of Jeremiah Grogan (Id., p. 125.); (26) The Declaration of James Ford (Id., p. 127.); (27) The Declaration of John Williams (Id., p. 129.); (28) The Declaration of Eric Harvey (Id., p. 131.); (29) The Declaration of Joe Coakley (Id., p. 134.); (30) The Declaration of Derek Smith (Id., pp. 136 - 137.); (31) The Declaration of Michael Snow (Id., pp. 139 - 140.); and (32) A copy of Plaintiff's “Judgment in a Criminal Case” as filed in the United States District Court for the District of New Mexico in No. 1:09-cr-01746 (Id., pp. 142 - 148.).

         Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), was issued to Plaintiff on February 16, 2016, advising him of the right to file a response to Defendants' “Motion to Dismiss, or in the Alternative for Summary Judgment.” (Document No. 48.) On April 15, 2016, Plaintiff filed his Response and Memorandum in Support. (Document Nos. 56 and 57.) As Exhibits, Plaintiff attached the following: (1) A copy of Plaintiff's pertinent medical records (Document No. 56-1, p. 1 - 2.); (2) A copy of “Plaintiff's Response to Declaration of Odie Gibson” (Id., pp. 3 - 8.); (3) A copy of “Plaintiff's Response to Declaration of Christopher Head” (Id., pp. 9 - 11.); (4) A copy of “Plaintiff's Response to Declaration of Anthony Hussion” (Id., pp. 12 - 15.); (5) A copy of “Plaintiff's Response to Declaration of Danny Aker” (Id., pp. 16 - 17.); (6) A copy of “Plaintiff's Response to Declaration of Franklin Riffle” (Id., pp. 18 - 19.); (7) A copy of “Plaintiff's Response to Declaration of Buck Coleman” (Id., pp. 20 - 21.); (8) A copy of “Plaintiff's Response to Declaration of Taylor Toney” (Id., p. 22.); (9) A copy of “Plaintiff's Response to Declaration of Dallas Duncan, Jr.” (Id., p. 23.); (10) A copy of “Plaintiff's Response to Declaration of Charles Spencer, IV” (Id., p. 24.); (11) A copy of “Plaintiff's Response to Declaration of Arron Lester” (Id., p. 25.); (12) A copy of “Plaintiff's Response to Declaration of Charles Honaker” (Id., p. 26.); (13) A copy of “Plaintiff's Response to Declaration of Samuel Denny” (Id., p. 27.); (14) A copy of “Plaintiff's Response to Declaration of Jeremiah Grogan” (Id., p. 28.); (15) A copy of “Plaintiff's Response to Declaration of James Ford” (Id., pp. 29 - 30.); (16) A copy of “Plaintiff's Response to Declaration of John Williams” (Id., p. 31.); (17) A copy of “Plaintiff's Response to Declaration of Eric Harvey” (Id., pp. 32 - 33.); (18) A copy of “Plaintiff's Response to Declaration of Joe Coakley” (Id., pp. 34 - 35.); (19) A copy of “Plaintiff's Response to Declaration of Derek Smith” (Id., pp. 36 - 37.); (20) A copy of “Plaintiff's Response to Declaration of Michael Snow” (Id., pp. 38 - 39.); (21) A copy of Plaintiff's Response to Defendants' Exhibit 24 (Criminal Judgment Order) (Id., p. 40.); (22) A copy of “Plaintiff's Response to Declaration of Jeremy James” (Id., pp. 41 - 44.); and (23) A copy of “Plaintiff's Response to Declaration of Jason Bailey” (Document No. 56-2.).

         By Proposed Findings and Recommendation entered on July 18, 2016, the undersigned determined that Plaintiff failed to exhaust his administrative remedies and recommended that Defendants' “Motion to Dismiss, or in the Alternative, Motion for Summary Judgment” be granted. (Document No. 65.) Plaintiff filed his Objections on July 28, 2016. (Document No. 68.) By Memorandum Opinion and Order entered on September 7, 2016, United States District Judge Irene C. Berger adopted the undersigned's recommendation and granted Defendants' “Motion to Dismiss, or in the Alternative, Motion for Summary Judgment” be granted. (Document No. 70.) Plaintiff filed his Notice of Appeal on September 14, 2016. (Document No. 74.) By Per Curiam Opinion entered on April 11, 2017, the Fourth Circuit reversed this Court's dismissal of Plaintiff's Bivens action based upon his failure to exhaust and remanded the case for further proceedings. (Document No. 81.) The Fourth Circuit issued the mandate returning the case to this Court on June 5, 2017. (Document No. 92.)

         On June 5, 2017, Defendants filed their “Renewed Motion to Dismiss, or in the Alternative for Summary Judgment” and Supplemental Memorandum in Support. (Document Nos. 90 and 91.) First, Defendants argue that “Plaintiff failed to exhaust his administrative remedies on any of his allegation, without any credibility determination.” (Id.) Second, Defendants assert that “Plaintiff's claim of torture fails to state a claim for relief.” (Id.) Third, Defendants claim that “Plaintiff's claim of excessive force by Officer Coleman fails to state a claim for relief.” (Id.) Fourth, Defendants argue that “Plaintiff's other alleged constitutional claims involving conspiracy, bystander liability, tampering with mail and food, unwanted sexual innuendos, damage to reputation, etc. fail to state a claim for relief.” (Id.) Fifth, Defendants argue that “Plaintiff may not recover emotional or psychological damages without a showing of physical injury.” (Id.) Sixth, Defendants contend they are entitled to qualified immunity.” (Id.) Finally, Defendants assert that the “court should revoke plaintiff's in forma pauperis status based on his litigious misconduct.” (Id.) In support, Defendants state that they incorporate their previously filed Memorandum of Law, Declarations, and Exhibits (Document Nos. 45 and 44-1.). As additional Exhibits, Defendants attach the following: (1) The Supplemental Declaration of Odie Gibson (Document No. 90, pp. 4 - 5.); (2) A copy of “Plaintiff's Response to Declaration of Odie Gibson” (Id., pp. 6 - 11.); and (3) A copy of a “Memorandum Decision and Order” from the United States District Court for the District of Utah in Pumphrey v. United States, No. 2:14-cv-00144 (Document No. 91, pp. 11 - 17.).

         Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), was issued to Plaintiff on June 5, 2017, advising him of the right to file a response to Defendants' “Renewed Motion to Dismiss, or in the Alternative for Summary Judgment.” (Document No. 48.) On June 19, 2017, Plaintiff filed his “Affidavit Response and Objection to Defendants' Renewed Motion to Dismiss, or in the Alternative for Summary Judgment.” (Document No. 97.) On June 20, 2017, Defendants filed their “Notice of Supplemental Authority” citing Ziglar v. Abbasi, 2017 WL 2621317 (June 19, 2017). (Document No. 98.) On June 21, 2017, Defendants filed their “Notice of Supplemental Authority” citing Matherly v. Andrews, et al., 2017 WL 2467088 (4th Cir. June 8, 2017). (Document No. 99.) On June 29, 2017, Plaintiff filed his “Objection to Defendants' Notice(s) of Supplemental Authority.” (Document No. 102.)

         THE STANDARD

         Motion to Dismiss

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 554, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial 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.” Id. Although factual allegations must be accepted as true for purposes of a motion to dismiss, this principle does not apply to legal conclusions. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. The “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1959. Where a pro se Complaint can be remedied by an amendment, however, the District Court may not dismiss the Complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992).

         Summary Judgment

         Summary judgment is appropriate under Federal Rule of Civil Procedure 56 when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Once the moving party demonstrates the lack of evidence to support the non-moving party's claims, the non-moving party must go beyond the pleadings and make a sufficient showing of facts presenting a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 -87, 106 S.Ct.1348, 89 L.Ed.2d 538 (1986). All inferences must be drawn from the underlying facts in the light most favorable to the non-moving party. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. Summary judgment is required when a party fails to make a showing sufficient to establish an essential element of a claim, even if there are genuine factual issues proving other elements of the claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. Generally speaking, therefore, summary judgment will be granted unless a reasonable jury could return a verdict for the non-moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If no facts or inferences which can be drawn from the circumstances will support Plaintiff's claims, summary judgment is appropriate.

         DISCUSSION

         1. Failure to Exhaust Administrative Remedies:

         In their “Renewed Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, ” Defendants state that “Plaintiff failed to exhaust his administrative remedies on any of his allegations, without a credibility determination.” (Document No. 90, p. 1.) Defendants, however, do not address the above argument in their Supplemental Memorandum of Law in Support of their Renewed Motion. (Document No. 91.) To the extent Defendants are incorporating the same argument as previously set forth in their prior Memorandum of Law (Document No. 45), the undersigned finds that such an argument has already been addressed by this Court and the Fourth Circuit. Specifically, the Fourth Circuit determined that this Court “improperly made a credibility determination” as to whether prison staff delayed or destroyed Plaintiff's mail and refused to provide Plaintiff with material necessary to exhaust his administrative remedies. (Document No. 81.) The undersigned cannot make a finding that Plaintiff failed to exhaust his available administrative remedies without making a credibility determination. Accordingly, the undersigned respectfully recommends that Defendants' “Renewed Motion to Dismiss, or in the Alternative, Motion for Summary Judgment” be denied as to Plaintiff's alleged failure to exhaust.

         2. Section 1985(3) Conspiracy:

         In his Complaint, Plaintiff alleges that Defendants James, Bailey, Coleman, Toney, Duncan, Spencer, Lester, Riffle, Honaker, Denny, Grogan, Ford, Williams, Head, Smith, and Gibson conspired with one another to subject Plaintiff to harm by playing irritating and nonsensical music. (Document No. 2-1, pp. 10 - 19, 23 - 25.) In their Renewed Motion, Defendants argue that the complaint fails to state a conspiracy and Defendants are entitled to qualified immunity. (Document Nos. 44, 45, 90, and 91.) In Response, Plaintiff argues that in filing his form Complaint he complied with the form instructions to “State here, as briefly as possible, the facts of your case. Describe what each Defendant did to violate your constitutional rights.” (Document No. 97, pp. 3 - 4.) Plaintiff states that he followed the Court's instructions and should not be penalized for complying with such. (Id.) Plaintiff states that his claims are “clear, concise, and meritorious.” (Id.)

         Section 1985(3) provides as follows:

If two or more persons . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or * * * in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having or exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

         Therefore, to state a claim for relief under Section 1985(3), a plaintiff must allege (1) a person's engagement in a conspiracy; (2) for the purpose of depriving, either directly or indirectly, the plaintiff or class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws; (3) the person's act in furtherance of the conspiracy; (4) the plaintiff's injury in his person or property or deprivation of a right or privilege of a citizen of the United States. Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995). Allegations specifying “concrete supporting facts” are required to state a claim for relief under Section 1985(3). Conclusory allegations of conspiracy will not suffice. Simmons v. Poe, 47 F.3d at 1377 (“[W]e have specifically rejected section 1985 claims whenever the purported conspiracy is alleged in a merely conclusory manner, in the absence of concrete supporting facts.”) Additionally, federal agencies and officials in their official capacities are immune from suit, but federal officials can be sued in their individual capacities under Section 1985. Proffitt v. United States, 758 F.Supp. 342, 345 (E.D.Va. 1990)(“[T]he United States is not a person within the meaning of § 1985. * * * Nor can plaintiff recover damages against the individual defendants sued in their official capacities.” (Citation omitted.)); Baird v. Haith, 724 F.Supp. 367, 384 (D.Md. 1988).

         The undersigned finds that Plaintiff has not stated a claim for which relief may be granted under Section 1985(3). Although Plaintiff alleges that he complied with the Bivens Complaint form instructions, the undersigned disagrees. The Bivens Complaint form instructs, in pertinent part, as follows: “State here, as briefly as possible, the facts of your case. Describe what each defendant did to violate your constitutional rights.” These instructions clearly provide that a plaintiff must set forth sufficient facts to state his claim against each defendant. Although the form instructs to “state here, as briefly as possible, the facts of your case, ” this does not indicate that a Plaintiff may omit sufficient facts to state a claim. As to Plaintiff's Section 1985(3) claim, Plaintiff does not allege that Defendants engaged in a conspiracy to deprive him of the equal protection of the laws or of equal privileges and immunities under the laws of the United States. Specifically, Plaintiff has not alleged any facts plausibly suggesting an invidiously discriminatory or racial animus by Defendants. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268, 113 S.Ct. 753, 758, 122 L.Ed.2d 34 (1993)(citing Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)(a plaintiff raising a claim pursuant to Section 1985(3) must allege “some racial, or perhaps otherwise class-based, invidiously discriminatory animus lay behind the conspirators' action”); Trerice, v. Summons, 755 F.2d 1081, 1085 (4th Cir. 1985)(“neither the Supreme Court nor the Fourth Circuit has identified any classes other than racial or religious classes”). Moreover, Plaintiff provides no concrete facts to demonstrate that Defendants came to a mutual understanding or acted jointly in concert to deprive Plaintiff of any constitutional right. Plaintiff's allegations of a conspiracy are conclusory. Accordingly, the undersigned respectfully recommends that Defendants' “Renewed Motion to Dismiss, or in the Alternative, Motion for Summary Judgment” (Document No. 90) be granted as to Plaintiff's Section 1985 claim.

         3. Conditions of Confinement:

         As a general matter, the Eighth Amendment prohibits punishments which “involve the unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976)(quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)). “It not only outlaws excessive sentences but also protects inmates from inhumane treatment and conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). Thus, under the Eighth Amendment, sentenced prisoners are entitled to “adequate food, clothing, shelter, sanitation, medical care and personal safety.” Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir. 1978), rev'd on other grounds, Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). See also Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994)(Supreme Court noted that Eighth Amendment imposes certain duties upon prison officials to “ensure that inmates receive adequate food, clothing, shelter and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates.”)(quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984)); Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)(Court held that only those conditions depriving inmates of “the minimal civilized measure of life's necessities” are sufficiently grave to form the basis of an Eighth Amendment violation). The Eighth Amendment “does not mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S. at 349, 101 S.Ct. at 2400. “To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Id. at 347, 101 S.Ct. at 2399; Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995)(citing Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)); Lopez v. Robinson, 914 F.2d 486, 490 (4th Cir. 1990). To establish a violation of the Eighth Amendment in the context of a challenge to conditions of confinement, an inmate must allege (1) a “sufficiently serious” deprivation under an objective standard, and (2) that prison officials acted with “deliberate indifference” to the inmate's health and safety under a subjective standard. Wilson v. Seiter, 501 U.S. 294, 297-99, 111 S.Ct. 2321, 2323 - 2325, 115 L.Ed.2d 271 (1991); also see King v. Rubenstein, 825 F.3d 206, 218 (4th Cir. 2016)(quoting Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993))(“[T]o make out a prima facie case that prison conditions violate the Eighth Amendment, a plaintiff must show both ‘(1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.'”); Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008)(explaining that the above requirements “spring from the text of the amendment itself; absent intentionality, a condition imposed upon an inmate cannot properly be called ‘punishment,' and absent severity, a punishment cannot be called ‘cruel and unusual.'”) To satisfy the objective component, Plaintiff must show that the challenged condition caused or constituted an extreme deprivation. De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003). To demonstrate an “extreme deprivation, ” a plaintiff “must allege a serious or significant physical or emotional injury resulting from the challenged conditions or demonstrate a substantial risk of such serious harm resulting from [his] exposure to the challenged conditions.” Odom v. South Caroline Dept. of Corrections, 349 F.3d 765, 770 (4th Cir. 2003); also see Wilson v. Seiter, 501 U.S. at 298, 111 S.Ct. at 2321(A sufficiently serious deprivation occurs when “a prison official's act or omission . . . result[s] in the denial of the minimal civilized measure of life's necessities.”); White v. Gregory, 1 F.3d 267, 269 (4th Cir. 1991)(“In Strickler, we held that a prisoner must suffer ‘serious or significant physical or mental injury' in order to be ‘subjected to cruel and unusual punishment within the meaning of the' Eighth Amendment.”) To satisfy the subjective component, Plaintiff must demonstrate a “deliberate indifference” to his health and safety by defendants. In particular, Plaintiff must establish that each Defendant “knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, supra, 511 U.S. at 837, 114 S.Ct. at 1979. Plaintiff in this case must therefore allege and establish that each Defendant was aware of the excessive risk to Plaintiff's health or safety and each Defendant disregarded that risk.

         In addition to the above, Plaintiff's claim are governed by the Prison Litigation Reform Act (“PLRA”). 42 U.S.C. § 1997e(e). The PLRA expressly prohibits the filing of civil actions by prisoners “confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). Although the PLRA does not define “physical injury” and the Fourth Circuit has not provided a definition, other courts have held that the “physical injury” need not be significant, but it must be more than de minimis. See Flanory v. Bonn, 604 F.3d 249, 254 (6th Cir. 2010); Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1312-13 (11th Cir. 2002); Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997); Zehner v. Trigg, 952 F.Supp. 1318 (S.D. Ind. 1997). In addition, “[a] plaintiff seeking compensatory damages for emotional distress cannot rely on conclusory statements that the plaintiff suffered emotional distress [or] the mere fact that a constitutional violation occurred, but, rather, the testimony must establish that the plaintiff suffered demonstrable emotional distress, which must be sufficiently articulated.” Knussman v. Maryland, 272 F.3d 625, 640 (4th Cir. 2001)(quoting Price v. City of Charlotte, 93 F.3d 1241, 1254 (4th Cir. 1996)(internal quotation marks omitted)). In light of the foregoing governing standards and principles, the undersigned will consider Plaintiff's claims of audio torture and food tampering.

         A. Audio Torture.

         In his sworn Complaint, Plaintiff alleges that Defendants Coakley, Gibson, James, Bailey, Coleman, Toney, Duncan, Spencer, Lester, Riffle, Honaker, Denny, Grogan, Ford, Williams, Head, and Smith “systematically tortured [Plaintiff] using an elaborate system of devices to play repeated parts of irritating, nonsensical music.” (Document No. 2-1, pp. 4 - 8, 10 - 19, 23 - 25.) Plaintiff further explains that a “soundtrack [was] played simultaneously that sometimes overlap the music with unearthly moans and groans, gun fire, explosions, children screaming in pain and terror.” (Id., p. 5.) Plaintiff contends that the above Defendants operated a device that plays “the audio soundtracks throughout the workday.” (Id.) Plaintiff contends that the music is “played over and over, twenty-four hours a day, seven days a week, at varying ...


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