United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
R. GOODWIN, UNITED STATES DISTRICT JUDGE.
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the Magistrate Judge is WITHDRAWN.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]
Factual and Procedural Background
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.
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. 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.
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.
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.
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.
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]; and copies of case law relied upon in
Wimmer's brief [ECF No. 59-11].
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.”
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.
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.
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.