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Miller v. Rubenstein

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

January 31, 2018

ANDRE MILLER, Plaintiff,
v.
COMMISSIONER JIM RUBENSTEIN, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOSEFH R. GOODWIN UNITED STATES DISTRICT JUDGE.

         Pending before the court is Defendant Austin Peters' Motion for Summary Judgment [ECF No. 79]. The plaintiff filed a response [ECF No. 90], and the defendant filed a reply [ECF No. 94]. The matter is ripe for adjudication. For the reasons stated herein, the Motion is GRANTED in part and DENIED in part.

         I. Background

         The plaintiff, Andre Miller, is currently incarcerated in an administrative segregation unit at Mount Olive Correctional Complex (“MOCC”). Compl. ¶ 1 [ECF No. 2]. On January 21, 2015, correctional officers discovered that the plaintiff had alcohol in his cell. Mem. Law Supporting Def. Austin Peters' Mot. Summ. J. Ex. A, at 3 (“Pl.'s Dep.”) [ECF No. 80-1]. When the plaintiff returned from recreation that day a corporal, Wendy Hight, approached the plaintiff and told him that his alcohol had been confiscated. Id. The plaintiff told her that he was “not worried about that” but asked why the inmates' clean laundry was laying on the floor in the hallway. Id. at 4. Defendant Hight responded “F your laundry.” Id. In response, the plaintiff kicked his door one time. Id. Defendant Hight then left the pod. Id. The parties, through unsworn incident reports, affidavits, and depositions, provide different accounts of what happened next.

         The plaintiff claims that, approximately twenty to twenty-five minutes later while locked in his solitary confinement cell, he heard the sound of a cell door being kicked on the upper tier of his pod. Compl. ¶ 12; Pl.'s Dep. 4; Pl.'s Resp. Opp'n Def. Rubenstein & Def. Ballard's Mot. Summ. J Ex. 1. (“Taylor Aff.”) [ECF No. 88-1].[1]Shortly after the kicking began, Correctional Officers Brandon Mooney, Anthony Kidd, and Austin Peters approached the plaintiff's cell door with the Phantom Cell Buster.[2] Compl. ¶ 14; Pl.'s Dep. 3. Officer Kidd directed Officer Peters to “pop the bean hole.”[3] Pl.'s Resp. Opp'n Def. Rubenstein & Def. Ballard's Mot. Summ. J Ex. 3 (“Pl.'s Aff.”) [ECF No. 88-3]. When the plaintiff heard this, he grabbed a pillow, and then his mattress, to try to block the opening. Id. The plaintiff asked them, “What did I do?” Id. The officers responded, “We're spraying you boy, we'll teach you bout [sic] kicking on our shift!”[4] Id. The plaintiff insisted that he had not kicked his door. Pl.'s Dep. 3. Other inmates joined in, yelling that the plaintiff had not been the inmate kicking the door. Id.; Taylor Aff.; Pl.'s Resp. in Opp. Def. Rubenstein & Def. Ballard's Mot. Summ. J Ex. 2 (“Hess Aff.”) [ECF No. 88-2]. In fact, Steven Taylor, another inmate, was yelling that he had been the one kicking his door. Taylor Aff. The officers talked with the plaintiff for a few moments, during which the plaintiff insisted repeatedly that he had not been kicking the door. Pl.'s Aff. 3. According to the plaintiff, “it looked like they were going to stop.” Id.

         The unsworn incident reports of three of the officers involved contest the version of events provided by the plaintiff. According to Defendant Hight, the plaintiff began to kick his door as she originally exited the pod. Def. Wendy Hight's Mot. Summ. J. Ex. 4 (“Hight Rep.”) [ECF No. 83-4]. As she entered the control tower, she saw the light corresponding to the plaintiff's cell flash on and off, indicating that he was still kicking his door.[5] Id. At this time, she and Officer Peters allegedly returned to the plaintiff's cell and gave him a verbal command to stop kicking his door “or there would be consequences to his actions.” Id.; Def. Wendy Hight's Mot. Summ. J. Ex. 6 (“Peters Rep.”) [ECF No. 83-6]. Approximately 40 minutes later, the officer in the control tower notified the officers that the plaintiff's cell door was showing as unsecured on the control panel. Hight Rep.; Peters Rep.; Def. Wendy Hight's Mot. Summ. J. Ex. 5 (“Kidd Rep.”) [ECF No. 83-5]. Officers Kidd, Mooney, and Peters arrived at the plaintiff's cell to find that he had barricaded himself in with his mattress and multiple layers of clothing and that he was continuously kicking his door. Peters Rep.; Kidd Rep. They instructed the plaintiff to cease his disruptive behavior. Peters Rep.; Kidd Rep. When he refused, they left to retrieve the Phantom OC Cell Buster and instructed another officer to notify Defendant Hight of the plaintiff's “continuous disruptive behavior.” Peters Rep.; see Kidd Rep. According to Officer Kidd, they again “tr[ied] loud verbal commands to stop kicking his door at which time he did comply.” Kidd Rep. There is no mention of the plaintiff's cooperation in the incident reports of the other officers.

         It is undisputed that when Defendant Hight entered the pod, she instructed Correctional Officer Kidd to deploy a burst of pepper spray into the plaintiff's cell, though the method in which she did so is not clear. Compare Pl.'s Aff. 11 (stating that Hight “jumped in there and is like, spray his f***ing ass.”); Hess Aff. (“Then about that time Cpl Hights [sic] came in saying f***ing spray him.”), with Hight Rep. (“It was at this time (due to the prior incident of the door showing unsecured) I believed that the safety of the Officers and the Security of the Facility was in jeopardy and instructed COI Kidd to utilize the Phantom Oleoresin Capsicum Cell Buster in I/M Miller's cell to regain control of the situation.”); Kidd Rep. (“At this time Corporal Wendy Hight did enter Pod 4 . . . and instructed me to deliver one three second burst of the Phantom Oleoresin Capsicum Cell Buster . . .”). Officer Kidd obeyed. Kidd Rep. According to the plaintiff, the officers stood by and laughed as he struggled to breathe. Taylor Aff; Resp. in Opp. Def. Rubenstein & Def. Ballard's Mot. Summ. J Ex. 3 (“Miller Aff.”) [ECF No. 88-3]. Hight asked “how [does] the colored boy like that?” Miller Aff. The plaintiff was strip-searched and placed into mechanical restraints. Hight Rep. He was then taken to the Multi-Purpose Room to be assessed by the medical staff. Id. However, he refused medical treatment and decontamination. Hight Rep.; Pl.'s Dep. 5-6. Days later, the plaintiff filed a “sick call” complaining of watering eyes, burning on his face, itching on his body, and several facial scars. Pl.'s Dep. 6.

         On June 23, 2016, the plaintiff filed a five-count Complaint alleging: (1) United States Constitutional violations, (2) West Virginia Constitutional violations, (3) Assault and Battery, (4) Intentional Infliction of Emotional Distress, and (5) Negligence. Compl. [ECF No. 1]. On October 12, 2016, the court entered an order dismissing the plaintiff's West Virginia Constitutional claim (Count 2), pursuant to the plaintiff's request. Order [ECF No. 20]. Thus only Counts One, Three, Four, and Five remain.

         II. Legal Standard

         To obtain summary judgment, the moving party must show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case.” Lester v. Gilbert, 85 F.Supp.3d 851, 857 (S.D. W.Va. 2015) (quoting News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010)). “A genuine issue of material fact exists if . . . a reasonable fact-finder could return a verdict for the non-movant.” Runyon v. Hannah, No. 2:12-1394, 2013 WL 2151235, at *2 (S.D. W.Va. May 16, 2013) (citations omitted); Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991) (“Disposition by summary judgment is appropriate . . . where the record as a whole could not lead a rational trier of fact to find for the non-movant.”). The moving party bears the burden of showing that “there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

         In considering a motion for summary judgment, the court will not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp., 477 U.S. at 322-23. The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or unsupported speculation, without more, are insufficient to preclude the granting of summary judgment. See Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013); Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997).

         III. Discussion

         Defendant Peters moves for summary judgment as to all claims made against him in the Complaint: (1) § 1983, (2) West Virginia Constitutional Claims, (3) Assault & Battery, (4) Intentional Infliction of Emotional Distress, and (5) Negligence. Additionally, the defendant moves for summary judgment regarding the plaintiff's request for punitive damages. He also asserts qualified immunity for the § 1983 and negligence counts.

         a. 42 ...


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