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Searcy v. Wimmer

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

March 22, 2018

SGT. JOSEPH WIMMER, in his individual capacity, Defendant.



         Pending before the court is the defendant's Motion for Summary Judgment [ECF No. 59]. 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) and the Standing Order of this court entered on April 18, 2014 [ECF No. 4]. For reasons appearing to the court, it is hereby ORDERED that the referral of this matter to the Magistrate Judge is WITHDRAWN. For the reasons stated below, the defendant's Motion [ECF No. 59] is DENIED.

         I. Factual and Procedural Background[1]

         The plaintiff, Webb B. Searcy, is an inmate housed at the Mount Olive Correctional Complex (“MOCC”) in Mount Olive, West Virginia. This matter is proceeding on Searcy's verified Amended Complaint [ECF No. 15]. The Amended Complaint alleges that, on June 3, 2013, Searcy attempted to enter MOCC's commissary as it was closing. Searcy got halfway through the doorway when the defendant, Sgt. Joseph Wimmer, “turned and put his left hand up and violently pushed [him] back.” Am. Compl. 4, ¶ 6 [ECF No. 15]. Searcy asked Wimmer why he had pushed him and stated that it was an assault. Id. at 4, ¶¶ 7-8. Wimmer responded by using a racial slur and telling Searcy he better learn to shut his mouth. Id.

         Searcy then threatened to report the incident. Id. at 4-5, ¶ 9. Wimmer again told him to shut up and then “pushed [him] so hard that [he] lost [his] balance and busted [his] head open and lost consciousness for approximately 60 to 90 seconds.” Id. at 4-5, ¶ 10.[2] Wimmer then stood over Searcy and stated, “I told you to shut up. . . .” Id. at Ex. 4. He again used expletives and racial slurs to address the unconscious plaintiff. Id. Searcy contends that when he regained consciousness, he was disoriented, in extreme pain, and the back of his head was bleeding. Id. at 5, ¶ 11. Wimmer was “standing over top of [him] with a look of both anger and satisfaction that he had caused [him] bodily harm.” Id. According to Searcy, he feared being assaulted again, so he went back to his housing unit to report Wimmer's actions. Id. at 5, ¶ 12.

         Searcy alleges that two other inmates, Robert Cummings and Eric Holmes, and the commissary manager, Laura Ellis, witnessed this incident. Id. at 5, ¶ 13. Among other documents attached to the Amended Complaint, Searcy included his own affidavit and the affidavits of inmates Cummings and Holmes, which mirror his allegations. See Id. at Exs. 2, 4, 10. He also attached two inmate medical services request forms, dated June 4, 2013 and June 13, 2013, respectively, detailing his alleged injuries. Id. at Exs. 8, 9. Searcy also attached a grievance dated June 3, 2013, concerning this incident. Id. at Ex. 1(a). Searcy further claims that Wimmer filed a false disciplinary violation report against him with respect to this incident, which was subsequently dismissed after commissary manager Laura Ellis testified that Wimmer had lied and that he assaulted Searcy without provocation. Id. at 5, ¶ 14, Ex. 3.

         Searcy's Amended Complaint alleges that Wimmer's conduct constitutes an excessive use of force in violation of the Eighth Amendment of the United States Constitution. He seeks monetary damages from Wimmer in his individual capacity and an order requiring any necessary medical treatment for injuries sustained from this incident. Id. at 6, Count One, 8-9.[3]

         On April 13, 2017, Wimmer filed a Motion for Summary Judgment [ECF No. 59] and a Memorandum of Law in support thereof [ECF No. 60], asserting that Searcy's Eighth Amendment claim fails as a matter of law and that Wimmer is entitled to qualified immunity. Wimmer's motion documents largely assert that Searcy has not demonstrated any credible evidence to support the version of facts set forth in his Amended Complaint. Wimmer argues that the force used against Searcy on June 3, 2013, was “minor physical contact” necessary to gain his compliance with the order prohibiting him from entering the commissary because it was closed. Sgt. Joseph Wimmer's Mem. Supp. Mot. Summ. J. 4, 9-11 (“Wimmer's Mem.”) [ECF No. 60]. Wimmer further contends that Searcy has not substantiated that he suffered any injury from this incident. Id. at 11.

         Wimmer's motion documents include eleven exhibits consisting of Wimmer's affidavit [ECF No. 59-1]; the violation report prepared by Wimmer after this incident on June 3, 2013 [ECF No. 59-2]; Searcy's June 3, 2013 grievance concerning this incident [ECF No. 59-3]; a transcript of Searcy's disciplinary hearing on July 17, 2013 [ECF No. 59-4]; two inmate medical services request forms dated June 4, 2013, and June 13, 2013 [ECF No. 59-5]; an affidavit of Donna Warden, Health Services Administrator for Wexford Health Sources, Inc., indicating that Searcy never submitted the two inmate medical services request forms [ECF No. 59-6]; Searcy's responses to the defendants' discovery requests and various certificates of service related thereto, and an affidavit of Tom Chandler, records custodian for the MOCC post office, concerning Searcy's outgoing legal mail [ECF Nos. 59-7-59-10][4]; and copies of case law relied upon in Wimmer's brief [ECF No. 59-11].

         As supported by his affidavit, Wimmer asserts that, at approximately 7:30 p.m., while he was assisting in closing the commissary, Searcy attempted to come in to make a purchase. Wimmer's Mem. Ex. A, at 1 [ECF No. 59-1]. Wimmer advised Searcy that the commissary was closed and to step back from the door. Id. at 2. Searcy then lunged forward with his right shoulder attempting to push his way in, so Wimmer placed his left hand on Searcy's right shoulder and pushed him back from the door. Id. Searcy then backed away and stated “don't you ever put your [expletive] hands on me! That's assault.” Id.

         Wimmer denies using a racial slur or that any second use of force occurred. Id. He further states that Searcy did not request any medical treatment at that time, and he is not aware of him requesting any such treatment thereafter. Id. at 3. Wimmer contends that his version of the facts is more consistent with the allegations of Searcy's initial Complaint and is further supported by Searcy's grievance filed on the date of the incident and the testimony provided by Searcy, Cummings, and Ellis at the disciplinary hearing on July 17, 2013. Id. at 2-3; see Wimmer's Mem. Ex. C; Wimmer's Mem. Ex. D.

         Pursuant to the holding in Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Searcy was advised of his right and obligation to file a response to any motion for summary judgment filed by the defendant. Order [ECF No. 56]. On November 28, 2017, Searcy filed a Brief in Opposition to the Motion for Summary Judgment [ECF No. 66], a Declaration in support thereof [ECF No. 67], and a Statement of Disputed Facts [ECF No. 68] (collectively referred to herein as “Searcy's Response”). Searcy's Response echoes the allegations of his Amended Complaint and asserts that there is a material factual dispute concerning what force was used and why.

         On December 4, 2017, Wimmer filed a Reply, reiterating his position that Searcy has not offered more than a scintilla of evidence to support his version of the facts and that nothing in his Response creates a genuine issue of material fact. Reply [ECF No. 72]. Accordingly, Wimmer again asserts that he is entitled to judgment as a matter of law on Searcy's claim against him. This matter is ripe for adjudication.

         II. ...

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