United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER REJECTING THE REPORT AND
RECOMMENDATION [DKT., 169] AND DENYING THE DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 155]
M. KEELEY UNITED STATES DISTRICT JUDGE
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 for summary judgment on Berryman's
Bivens claim filed by the remaining defendants,
Officer Christopher Mullen, Lt. Jerald Riffle, Officer Brad
Brown, and Officer John Brady (collectively, “the
Defendants”) (Dkt. No. 155). Magistrate Judge Aloi
issued a Report and Recommendation (“R&R”),
recommending that the Court grant the Defendants' motion
(Dkt. No. 169). For the reasons that follow, the Court
REJECTS the R&R (Dkt. No. 169), and
DENIES the defendants' motion for
summary judgment (Dkt. No. 155).
must, the Court recites the facts in the light most favorable
to the non-moving party. See Miller v. Leathers, 913
F.2d 1085, 1087 (4th Cir. 1990) (en banc) (observing that
inmate was entitled to “have the credibility of his
evidence as forecast assumed, his version of all that is in
dispute accepted, [and] all internal conflicts in it resolved
favorably to him” (citation omitted)), cert.
denied, 498 U.S. 1109 (1991).
Berryman's Bivens Claim
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.
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.
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. 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.
The Defendants' Motion
September 21, 2018, the Defendants filed a motion for summary
judgment on Berryman's Bivens claim, alleging
that the Defendants failed to protect him from serious bodily
injury in violation of his Eighth Amendment rights (Dkt. Nos.
155, 156). In support, the Defendants contend that they are
entitled to summary judgment because (1) the fight with Von
Axelson did not cause Berryman serious or significant injury,
and (2) the Defendants did not actually know that Von Axelson
presented a risk to Berryman's safety before the May 8,
2014 fight (Dkt. No. 156 at 20-25). They submit that Berryman
cannot satisfy the first element because he ostensibly
refused medical treatment after the altercation with Von
Axelson, and there is no objective medical evidence that
confirms Berryman's subjective complaints of pain.
Id. at 23-24.
Defendants further contend that Berryman cannot satisfy the
second element because there is no evidence that he reported
his fear of or threats from Von Axelson, and the Defendants
executed declarations denying that they had ever heard it or
received reports about these threats or fears. Had they, the
Defendants would have followed standard procedure by
reporting them to the relevant authorities and separating
Berryman and Von Axelson until the Special Investigative
Services team could conduct an investigation and determine
whether the threats were credible. Id. at 23.
According to the Defendants, they are entitled to qualified
immunity because Berryman cannot satisfy either element of
his failure-to-protect claim. Id. at 24-25.