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Berryman v. Mullen

United States District Court, N.D. West Virginia

January 23, 2019

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

          MEMORANDUM OPINION AND ORDER REJECTING THE REPORT AND RECOMMENDATION [DKT., 169] AND DENYING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DKT. NO. 155]

          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 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).

         I. BACKGROUND[1]

         As it 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).

         A. Berryman's Bivens Claim

         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. The Defendants' Motion

         On 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.

         The 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.

         C. ...


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