Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Berryman v. Mullen

United States District Court, N.D. West Virginia

March 9, 2018

MICHAEL BERRYMAN, Plaintiff,
v.
OFFICER CHRISTOPHER MULLEN; LT. JERALD RIFFLE; OFFICER BRAD BROWN; and OFFICER JOHN BRADY, Defendants.

          MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANTS' MOTION TO DISMISS [DKT. NO. 69]

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

         The plaintiff, Michael Berryman (“Berryman”), has pursued two lawsuits in this Court, one pursuant to the Federal Tort Claims Act (“FTCA”) and another pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Both arise out of the same facts and circumstances. The Court has previously dismissed Berryman's FTCA case. Pending is the motion to dismiss this Bivens action filed by the remaining defendants, Officer Christopher Mullen, Lt. Jerald Riffle, Officer Brad Brown, and Officer John Brady.

         The question presented is whether Berryman's Bivens action is precluded by the operation of 28 U.S.C. § 2676, frequently known as the FTCA judgment bar. Because Berryman's FTCA case was dismissed on jurisdictional grounds, the Court concludes that his Bivens claims are not barred. Accordingly, for the following reasons, the Court DENIES the defendants' motion (Dkt. No. 69).

         MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANTS' MOTION TO DISMISS [DKT. NO. 69]

         I. BACKGROUND

         A. Factual Background

         The Court takes the facts from Berryman's Bivens complaint and construes them in the light most favorable to him. De'Lonta v. Johnson, 708 F.3d 520, 524 (4th Cir. 2013).[1] In early May 2014, Berryman was placed in the Special Housing Unit (“SHU”) at United States Penitentiary, Hazelton (“USP Hazelton”), with “inmate Von Axelson” (“Von Axelson”) (Dkt. No. 1 at 11). On May 6 and 7, 2014, Von Axelson threatened Berryman with rape, serious injury, and death if Berryman could not be relocated to another cell. Id. at 11-12. Von Axelson's threats reached their height on the evening of May 7th, when he received word that his father had passed away. Id. at 12. Despite Berryman's repeated pleas to Officer Brown, Officer Brady, Officer Mullen, and other unknown officers, he was not moved to a different cell. Id. at 12-14.

         During the early morning hours of May 8, 2014, Berryman was awakened when Von Axelson began stomping on him. Although able to activate an emergency call button, Berryman was quickly knocked unconscious by his assailant. He regained consciousness sometime during the assault, but as he attempted to protect himself, he was quickly knocked unconscious again. Id. at 14.

         After Berryman regained consciousness the second time, Officer Mullen, who by then had arrived on the scene, helped him to his feet and took him to an observation cell where Berryman was left with paper clothing and bedding.[2] Berryman was awakened later that morning by Physician's Assistant Christopher Meyer, who noted his superficial injuries but left without conducting a full examination Id. at 14-15. As a result of the incident, Berryman claims to have sustained the following injuries:

I have 4 protruding disk [sic] in lower lumbar, severe stenosis in L lumbar, thecal sac encroachments in lower lumbar, sliped [sic] disk in L lumbar, stenosis in cervical spine C3-C7, disk herniation present moderately encroaching upon the thecal sac at the C03/04 level[, ] thecal sac encroachment and Y hard disks/osteophyt[e] complex thecal sac encroaching C6/seven, evidence of remote rib fractures and rib deformity lower left ribs.

Id. at 17.

         B. Procedural Background

         On March 23, 2016, Berryman filed this Bivens action, alleging that the defendants failed to protect him from a dangerous cellmate, violated his due process rights by placing him in punitive segregation, and failed to provide appropriate medical treatment (Dkt. No. 1). Shortly thereafter, on April 14, 2016, Berryman filed a complaint against the United States of America pursuant to the FTCA (Civil No. 1:16cv63, Dkt. No. 1).[3] His FTCA case arose out of the same facts and similarly alleged that various Bureau of Prisons (“BOP”) staff violated his right to procedural due process regarding an institutional violation, deprived him of his “basic human needs” in violation of the Eighth Amendment, and committed medical malpractice. Id. at 10, 16.

         On December 19, 2016, the United States filed a motion to dismiss, or in the alternative, for summary judgment in Berryman's FTCA case (Civil. No. 1:16cv63, Dkt. No. 41). On February 22, 2017, the defendants in this Bivens case also filed a motion to dismiss, or in the alternative, for summary judgment (Dkt. No. 51).

         On August 14, 2017, the Court granted the United States' motion in Berryman's FTCA case, and dismissed the action in its entirety. As relevant to the pending motion to dismiss, the Court reasoned that Berryman's constitutional tort claims were not cognizable under the FTCA pursuant to FDIC v. Meyer, 510 U.S. 471 (1994) (“[T]he United States simply has not rendered itself liable under [the FTCA] for constitutional tort claims.”). The Court further concluded that Berryman's medical malpractice claim failed to comply with West Virginia's statutory requirements for suing health care providers (Civ. No. 1:16cv63, Dkt. No. 66 at 3-6).

         On August 17, 2017, the Court granted in part and denied in part the defendants' motion to dismiss or, in the alternative, for summary judgment in this Bivens action (Dkt. No. 71). As a result, the only claim that remains outstanding is Berryman's allegation that Officer Mullen, Lt. Riffle, Officer Brown, and Officer Brady violated his Eighth Amendment rights by exhibiting deliberate indifference to a known risk of harm. Id. at 5-6, 18.

         Pending is the defendants' motion to dismiss this remaining claim, in which they argue that the dismissal of Berryman's FTCA case against the United States operates to preclude the allegations against them in their individual capacity (Dkt. No. 69). Pursuant to Davis v. Zahradrich, 600 F.2d 458 (4th Cir. 1979), and Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court notified Berryman of his right to respond and directed him to do so within 21 days (Dkt. No. 71 at 19-21). After ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.