United States District Court, S.D. West Virginia, Charleston
PROPOSED FINDINGS AND RECOMMENDATION
L. TINSLEY UNITED STATES MAGISTRATE JUDGE
matter is assigned to the Honorable John T. Copenhaver, Jr.,
Senior United States District Judge, and it is referred to
the undersigned United States Magistrate Judge for submission
of proposed findings and a recommendation for disposition,
pursuant to 28 U.S.C. § 636(b)(1)(B). Pending before the
court is the defendants' Motion to Dismiss (ECF No. 11).
ALLEGATIONS AND PROCEDURAL HISTORY
plaintiff's Complaint contends that, on March 26, 2018,
he was subject to cruel and unusual punishment in violation
of the Eighth Amendment and denied due process of law in
violation of the Fourteenth Amendment when the defendants, as
part of a Special Response Team (“SRT”), entered
his pod at the Mount Olive Correctional Complex
(“MOCC”), removed him and several other inmates
for a surprise cell search, and placed them, in full
restraints, in one-man recreation yard cages for over two
the plaintiff alleges that the SRT team shut off the water in
his cell around 7:00 a.m. and it remained off until 6:00 p.m.
After searching a number of other cells in his pod, two
unknown officers conducted a strip search of the plaintiff,
placed him in handcuffs and shackles with his hands behind
his back, removed him from his cell, and led him to a pod
table, where he was “chained to it without
incident.” (ECF No. 2 at 1-2, ¶¶ 1-10). While
the plaintiff was chained to the table, an incident occurred
in which another inmate in the pod was sprayed with a
chemical agent by correctional officers. According to the
plaintiff, at that point, defendant Richard Toney then
yelled, “That's it, I've had enough! Get them
all out of here!” (Id. at 3, ¶ 13).
Scott Smith and Mike Buzzard then unchained the plaintiff and
took him to the recreation yard and placed him in a one-man
cage, which, according to the defendants, is the same set up
the inmates use on a daily basis for recreation and making
phone calls. (Id. at 7, ¶¶ 14-15 and Appx.
B-F; ECF No. 11 at 3). The plaintiff claims that he leaned
against the cage to have his restraints removed (as they are
generally removed during recreation time) and told defendant
Buzzard that the restraints were really tight and were not
double-locked. Nonetheless, Buzzard refused to remove or
adjust them and instead instructed the plaintiff to
“talk to the Cpt.” (ECF No. 2 at 7, ¶¶
16-18). Other inmates made similar complaints about their
restraints. (Id. at 8, ¶ 19).
plaintiff later asked defendant Toney to remove his handcuffs
because they were hurting his wrists and shoulders, but Toney
also refused and said, “not my call, ask Frame.”
(Id., ¶ 21). The plaintiff further contends
that he was “left outside” in shorts and a
t-shirt in approximately 40-degree weather. (Id. at
8-9, ¶¶ 24-25).
to the Complaint, all of the correctional officers left the
recreation area, leaving seven inmates locked in the cages
and still in restraints. (Id., ¶ 23). After
approximately 20 minutes, several of the officers, who are
not specifically identified, came back to the recreation yard
and taunted the inmates, making comments such as
“How's the weather in here? Air's a little
cold, huh?” and “Why's nobody laughing now?
Are you not having fun anymore?” (Id. at 9,
¶¶ 27, 30). The plaintiff again informed the
officers that his handcuffs were too tight, that he
couldn't feel his hand, and that his shoulders were
hurting too. (Id., ¶ 28). Other inmates
complained about their restraints and the temperature as
well. (Id., ¶ 31). Again, the correctional
officers failed to intervene and left the recreation area.
(Id. at 10, ¶¶ 32, 33).
Complaint further alleges that, after another hour in the
recreation cage, he and other inmates yelled for help because
he had to go to the bathroom, but no one came to assist him.
(Id., ¶¶ 34-36). The plaintiff urinated on
himself after his calls to the SRT team members went
unanswered. (Id., ¶ 37). The Complaint further
alleges that, after another hour of being in severe pain and
soaked in urine, he was somehow able to call his mother on
the telephone to seek help from the prison. (Id. at
10-11, ¶ 38).
plaintiff was returned to his cell at approximately 3:30 p.m.
When Nurse Kelly Foster came around for “pill pass,
” the plaintiff complained to her about swelling and
bruising on his wrists. She provided him with Motrin, but the
plaintiff alleges that the pain and swelling of his hand
continued. (Id., ¶¶ 40-44). At
approximately 7:30 p.m., the plaintiff showed his wrist and
hand to Correctional Officer Stover, who took pictures, filed
a report, and contacted the medical unit to bring the
plaintiff an ice pack to relieve his pain and swelling.
(Id., ¶¶ 46-47). The plaintiff filed a
sick call request complaining that his shoulders were popping
and grinding, that he was in severe pain, and that he was
unable to open his swollen right hand. (Id., ¶
48). The plaintiff also filed three grievances detailing the
alleged incidents giving rise to his alleged injuries.
(Id., ¶ 49).
March 28, 2018, Nurse Foster evaluated the plaintiffs
injuries and referred him to see Dr. Lye. She also ordered
Motrin for his pain. (Id, ¶¶ 50-51). On
March 29, 2018, the plaintiff was seen by Dr. Lye, who
ordered an x-ray of his right hand on March 30, 2018.
(Id., ¶¶ 52-53). On April 3, 2018, the
plaintiff again saw Nurse Foster, who ordered more Motrin for
pain, and again referred him to see Dr. Lye. (Id.,
¶¶ 56-58). On April 13, 2018, the plaintiff again
saw Dr. Lye who ordered x-rays of his shoulders, which were
taken on April 17, 2018. (Id., ¶¶ 62, 63).
On May 3, 2018, the plaintiff saw Dr. Lye for a follow-up and
he was placed on long-term pain medication for the pain in
his shoulders. (Id., ¶ 64).
plaintiff claims that, as a result of his approximately two
hours of restraint on March 26, 2018, he has suffered the
following injuries and seeks monetary compensation therefore:
. daily pain and lack of natural motion in
both shoulders, requiring pain and anti-inflammatory
medication. (Id., ¶¶ 65-66).
. his dominant, right hand goes numb after
only minutes of use, and his range of motion and grip have
suffered. (Id., ¶ 67).
. lack of ability to perform everyday
activities using his right hand. (Id., ¶ 68).
. scars on both ankles from the leg
restraints. (Id., ¶ 69).
. emotional and psychological injuries.
(Id., ¶ 70).
August 22, 2018, the defendants filed the instant Motion to
Dismiss (ECF No. 11) and Memorandum of Law in support thereof
(ECF No. 12). The motion documents assert that the defendants
are immune from suit in their official capacities under the
Eleventh Amendment and that the plaintiff's Complaint
fails to state any plausible federal constitutional claims
against them in their individual capacities.
August 29, 2018, the plaintiff filed a Response in opposition
to the defendants' Motion to Dismiss (ECF No. 18). The
plaintiff's Response clarifies that his claims are not
based upon his initial placement in the restraints. Rather,
his claims are grounded in his placement in a locked cage
with exposure to the weather, the tightness of the restraints
causing him pain and injury, and the failure of the
defendants, including the supervisors, to intervene to remedy
these issues during the two-hour period. (Id. at 2).
The plaintiff's Response further clarifies that he is
suing the defendants only in their individual, and not their
official, capacities and that he is not alleging any Eighth