United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, GRANTING
DEFENDANTS' MOTION TO DISMISS, DENYING PLAINTIFF'S
MOTION FOR DISCOVERY AND OVERRULING PLAINTIFF'S
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se plaintiff filed this civil action
asserting claims under Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971). The case was
referred to United States Magistrate Judge Michael John Aloi.
The defendants filed a motion to dismiss or, alternatively,
for summary judgment, and the plaintiff filed a motion for
discovery. Magistrate Judge Aloi issued a report recommending
that the defendants' motion be granted and that the
plaintiff's motion be denied as moot. The plaintiff filed
timely objections to the report and recommendation.
plaintiff, Donald Choya Bates, raises claims of excessive
force, deliberate indifference to serious medical needs, and
destruction of personal property arising out of an incident
at the federal correctional institution in Hazelton, West
Virginia, ("FCI Hazelton"). The plaintiff alleges
in his complaint that, on December 10, 2015, he was assaulted
by an FCI Hazelton staff member who accused him of not saying
"good morning." ECF No. 1 at 9. The plaintiff
alleges that 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. The plaintiff alleges that
the beating and kicking of his face and head continued even
through he was handcuffed and not resisting. After the
assault, the plaintiff alleges that he was placed in a
holding cell for "numerous hours, " not fed
anything, and not provided with medical care. ECF No. 1 at
12. The plaintiff also alleges that all of his legal and
personal property was destroyed by "[O]fficer R. Mulac
or whoever packed [his] property." Id. Next,
the plaintiff alleges that he was "sent to a USP from a
lower security" institution and transferred far away
from his family because they "jacked up [his] points
beyond the norm." Id. Lastly, the plaintiff
alleges that the staff participated in creating a false
incident report against him, which blamed him for the
altercation and resulted in the loss of 40 days good time and
other sanctions. As a result of the alleged assault, the
plaintiff alleges that he sustained a dislocated or broken
middle finger, injury to his lower back, a swollen right eye,
and bruises and/or scarring to both elbows, knees, wrists,
and his face.
plaintiff maintains that he has exhausted his administrative
remedies with regard to all claims in his complaint. For
relief, the plaintiffs requests $50, 000, 000.00 in
compensation for his personal injuries and $2, 000, 000.00 in
compensation for the destruction of his personal property.
The plaintiff also requests injunctive relief in the form of
dismissal of the incident report and the sanctions against
him, the restoration of his 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.
defendants' motion to dismiss or, alternatively, for
summary judgment, contends that the complaint should be
dismissed because: (1) defendants Saad, Doyle, Floyd, and
Squires had no personal involvement in the plaintiff's
alleged incident of excessive force, and thus they should be
dismissed from this action; (2) the use of force by
defendants Mulac and Smith was a good faith effort to restore
discipline to an unrestrained aggressive inmate, and was not
excessive; (3) the plaintiff's version of events is
discredited by the video and documentary evidence submitted
to the Court for in camera review; (4) as government
officials performing discretionary functions, the defendants
are entitled to qualified immunity; (5) the 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; (6) the
plaintiff's claim that he was left without medical
attention for hours is contradicted by documentary evidence;
and (7) the plaintiff's claim that his property was
destroyed is contradicted by documentary evidence.
response to the defendants' motion, the plaintiff
contends that the defendants have withheld parts of the video
surveillance recording that would reveal the guards
assaulting him. The plaintiff further contends that the sworn
declarations of the prison guards regarding the incident are
conflicting and inconsistent with their statements. Lastly,
the plaintiff argues that the copies of his medical records
produced by the defendants are inconsistent with the
guards' statements. In sum, the plaintiff argues that the
guards "are now attempting to cover up their misconduct
by withholding evidence of the assault that took place in the
stairwell after [the plaintiff] was removed from the housing
unit." ECF No. 53 at 2. The plaintiff also filed a
separate motion for discovery, which asks that the Court
compel the defendants to disclose to the Court the recording
from the camera that is located in the stairwell area where
the alleged excessive force took place.
28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
Because the petitioner filed objections to the report and
recommendation, the magistrate judge's recommendation
will be reviewed de novo as to those findings to
which objections were made. As to those findings to which
objections were not filed, the findings and recommendations
will be upheld unless they are "clearly erroneous or
contrary to law." 28 U.S.C. § 636(b) (1) (A) .
Excessive Force Claims
Eight Amendment forbids 'the unnecessary and wanton
infliction of pain'" by a prison official. Hill
v. Crum, 727 F.3d 312, 317 (4th Cir. 2013) (quoting
Whitley v. Albers, 475 U.S. 312, 319 (1986)) . To
prove an excessive force claim, a plaintiff must show: (1)
that the prison official's use of force was objectively
harmful such that it violates contemporary standards of
decency; and (2) that the prison official's use of force
was not "applied in a good-faith effort to maintain or
restore discipline, " but was intended to
"maliciously and sadistically . . . cause harm."
Hudson v. McMillian, 503 U.S. 1, 7 (1992) . It is
the nature of the force used, and not the extent of the
injury caused, that serves as the relevant inquiry.
Wilkins v. Gaddy, 559 U.S. 34, 34 (2010). However,
"not every malevolent touch by a prison guard gives rise
to a federal cause of action." Id. at 37-38.
Thus, "an inmate who complains of a 'push or
shove' that causes no discernible injury almost certainly
fails to state a valid excessive force claim."
Id. at 38.
the excessive force claim against defendant Saad, this Court
agrees with the magistrate judge that the plaintiff does not
allege any personal involvement on the part of defendant
Saad. See Trulock v. Freeh, 275 F.3d 391, 402 (4th
Cir. 2001) ("In a Bivens suit, there is no
respondeat superior liability. . . . Instead,
liability is personal, based upon each defendant's own
constitutional violations."). Thus, remedy under
Bivens is not available against defendant Saad in
her official capacity, and she must be dismissed with
prejudice from this civil action.
plaintiff does allege that the other defendants named in the
excessive force claim all subjected him to excessive force.
However, this Court agrees with the magistrate judge that a
review of the materials supplied by the defendants
establishes that the force used was applied in good faith and
in an effort to restore discipline and order. In reaching
this conclusion, this Court reviewed the DVD containing the
Vicon surveillance video footage of eight different ...