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McFarland v. Wimmer

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

March 5, 2018

ROBERT MCFARLAND, Plaintiff,
v.
JOE WIMMER, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOSEPR R. GOODWIN, UNITED STATES DISTRICT JUDGE

         Pending before the court are a Motion to Dismiss filed by defendants David Miller, Charles Legg, and Margaret Clifford [ECF No. 32], a Motion to Dismiss filed by defendant Daniel Hahn [ECF No. 41], and a Motion to Dismiss filed by defendants Nancy Jackson, Tim Perkins, William Sutphin, and Joe Wimmer [ECF No. 45]. By Standing Order, this matter is referred to the Honorable Dwane L. Tinsley, United States Magistrate Judge for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). For reasons appearing to the Court, it is hereby ORDERED that the referral of this matter to the Magistrate Judge is WITHDRAWN.

         I. The Plaintiff's Allegations and the Defendants' Motions to Dismiss.

         On September 3, 2015, the plaintiff filed his pro se Complaint alleging violations of his rights under the Eighth and Fourteenth Amendments to the United States Constitution and Article III, § 5 of the West Virginia Constitution, as well as state law claims of assault and battery, arising out of a use of force against him on March 29, 2014.[1] The plaintiff alleges that he was walking in the dayroom of Stuart Hall, side one, at the Mount Olive Correctional Complex (“MOCC”), when other inmates began clapping because defendant Nancy Jackson was relieved from her assigned post on that unit. Compl. ¶¶ 16-18 [ECF No. 2]. The plaintiff denies that he participated in the clapping. Id. ¶ 19.

         The plaintiff further alleges that, approximately 10-15 minutes later, defendants Joe Wimmer, Tim Perkins, David Miller, Charles Legg, William Sutphin, Margaret Clifford, and Daniel Hahn entered the unit and gave verbal orders for the inmates to “lock down.” Id. ¶ 20. The plaintiff verbally expressed his displeasure with this order, but states that he was complying with it. Id. ¶ 22. The plaintiff further alleges, however, that notwithstanding his attempted compliance, defendant Wimmer, placed him in a rear choke hold and arm bar, without warning, and then slammed the plaintiff's face into a cell door and then slammed his face and chest on the concrete floor. Id. ¶¶ 23, 26. The plaintiff denies that he was a threat to himself, other inmates, staff or state property, and that he never resisted. Id. ¶¶ 24, 25, 27. The plaintiff further alleges that several more minutes passed before he was placed in mechanical restraints. Id. ¶ 29.

         The plaintiff alleges that defendants Wimmer, Perkins and Sutphin were the officers who used physical force against him, and that these defendants repeatedly yelled at him to “fight back” and “now run your fuck'n mouth” in an effort to provoke and belittle him. Id. ¶ 35. He further alleges that the remaining defendants, Miller, Legg, Clifford, Jackson and Hahn, had a realistic opportunity to intervene to prevent or stop the beating, but failed to do so. Id. ¶¶ 32, 33. The plaintiff contends that, as a result of the defendants' conduct, he suffered, and continues to suffer from, swelling to his face and jaw, breathing problems, and sharp pain and limited movement in the right shoulder and arm. Id. ¶ 34. He seeks declaratory and injunctive relief, as well as monetary damages from the defendants, who are sued in both their individual and official capacities.

         On April 28, 2017, defendants David Miller, Charles Legg, and Margaret Clifford, by counsel, filed a Motion to Dismiss [ECF No. 32] and a Memorandum of Law in support thereof [ECF No. 33], asserting that the plaintiff failed to exhaust the available administrative remedies prior to filing his Complaint, that these defendants are entitled to qualified immunity on the plaintiff's claims against them, and that the Complaint fails to state a claim upon which relief can be granted. On June 15, 2017, the plaintiff filed a Response to the Motion to Dismiss filed by defendants Miller, Legg, and Clifford [ECF No. 38], along with a Declaration [ECF No. 39] and a Memorandum of Law [ECF No. 40] disputing each of the defendants' grounds for dismissal. On June 26, 2017, defendants Miller, Legg, and Clifford filed a Reply [ECF No. 43].

         On June 26, 2017, defendant Daniel Hahn filed a Motion to Dismiss [ECF No. 41] and a Memorandum of Law in support thereof [ECF No. 42], which also asserts that the plaintiff failed to exhaust the available administrative remedies prior to filing his Complaint, that Hahn is entitled to qualified immunity on the plaintiff's claims against him, and that the Complaint fails to state a claim upon which relief can be granted. Despite being given additional time to do so, the plaintiff has not responded to this motion.

         On July 6, 2017, defendants Nancy Jackson, Tim Perkins, William Sutphin and Joe Wimmer filed a Motion to Dismiss [ECF No. 45], which similarly asserts that the plaintiff failed to exhaust his administrative remedies, that these defendants are entitled to qualified immunity on the plaintiff's claims against them, and that the Complaint fails to state a claim upon which relief can be granted. On July 24, 2017, the plaintiff filed a Response to this Motion to Dismiss [ECF No. 48] and a Memorandum of Law [ECF No. 49], disputing the defendants' grounds for relief. On August 1, 2017, defendants Jackson, Perkins, Sutphin and Wimmer filed a Reply [ECF No. 52]. The specific arguments of the parties will be discussed as necessary in section III.

         II. Standard of Review

         The defendants have filed Motions to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. However, the plaintiff has filed a Declaration addressing the issue of exhaustion of administrative remedies and attaching one of the prison grievances he filed with respect to the incident that is the subject of his Complaint. Under Federal Rule of Civil Procedure 12(d), “if, on motion under 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). Accordingly, the court will construe the defendants' motions herein as motions for summary judgment under Rule 56.

         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). 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). Although the court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party must offer some concrete evidence from which a reasonable factfinder could find in the nonmovant's favor. Anderson, 477 U.S. at 252.

         III. Discussion

         The threshold issue before the Court is whether the plaintiff properly exhausted the available administrative remedies prior to filing his Complaint. A prison inmate's failure to exhaust administrative remedies is an affirmative defense, and a failure to exhaust administrative remedies warrants judgment as a matter of law for the defendants. Jones v. Bock, 549 U.S. 199, 212 (2007). All of the defendants have raised the failure to exhaust administrative remedies as a ground for dismissal herein. While the exhaustion issue is not jurisdictional, the district court must resolve ...


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