Adrian King, Jr. v. Jim Rubenstein
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 3:14-cv-00042-GMG-JSK. [999845023]. [15-6382]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6382
ADRIAN F. KING, JR.,
Plaintiff - Appellant,
v.
JIM RUBENSTEIN, Commissioner; MARVIN C. PLUMLEY, Warden;
DIANNE
R.
MILLER,
Associate
Warden
Programs/Housing;
SERGEANT GROVER ROSENCRANCE, Deputy Warden; LESTER THOMPSON,
Unit Manager E-1 Segregation; SHERRI DAVIS, Unit Manager
E-2 Segregation; STACY SCOTT, Supervised Psychologist/Ad
Seg Board; MIKE SMITH, SR., Unit Manager Ad Seg Board;
SAMANTHA GSELL, Case Manager Ad Seg Board; ADAM SMITH, Unit
Manager/Ad
Seg
Board
Chairman;
CLIFF
GOODIN,
Head
Psychologist, in their official and personal capacities,
Defendants - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:14-cv-00042-GMG-JSK)
Argued:
January 27, 2016
Decided:
June 7, 2016
Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.
Affirmed in part, reversed, vacated, and remanded in part by
published opinion.
Judge Gregory wrote the opinion, in which
Judge Duncan and Judge Floyd joined.
ARGUED:
Tennille Jo Checkovich, MCGUIREWOODS LLP, Richmond,
Virginia, for Appellant.
Natalie C. Schaefer, SHUMAN, MCCUSKEY
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& SLICER, PLLC, Charleston, West Virginia, for Appellees.
ON
BRIEF: Michael W. Stark, MCGUIREWOODS LLP, Richmond, Virginia,
for Appellant.
Kimberly M. Bandy, SHUMAN, MCCUSKEY & SLICER,
PLLC, Charleston, West Virginia, for Appellees Jim Rubenstein,
Marvin C. Plumley, Dianne R. Miller, Grover Rosencrance,
Lester Thompson, Sherri Davis, Mike Smith, Sr., Samantha Gsell,
and Adam Smith.
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GREGORY, Circuit Judge:
Adrian F. King, Jr. appeals the district court’s dismissal
of his complaint for failure to state a claim.
King filed suit
under 42 U.S.C. § 1983 against several correctional officers,
medical
personnel,
violations
surgery
to
conclude
Eighth,
of
and
his
and
administrators
constitutional
remove
that
prison
penile
King’s
implants
complaint
Fourteenth
rights
while
properly
Amendment
after
Equal
for
he
alleged
underwent
incarcerated.
stated
his
Protection
We
Fourth,
and
Due
Process claims.
We also hold that King stated a claim against
Marvin Plumley.
We reverse the district court’s decision on
those
bases,
vacate
further proceedings.
the
dismissal,
and
remand
the
case
for
We affirm the dismissal as to Stacy Scott,
Cliff Goodin, and Jim Rubenstein, but modify the dismissal of
the latter two to be without prejudice.
I.
In reviewing a dismissal for failure to state a claim, we
accept as true all of the factual allegations contained in the
complaint and draw all reasonable inferences in favor of the
plaintiff.
E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,
637 F.3d 435, 440 (4th Cir. 2011).
We may consider additional
documents attached to the complaint or the motion to dismiss “so
long
as
they
are
integral
to
the
3
complaint
and
authentic.”
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Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.
2009).
Here,
we
look
to
King’s
complaint,
including
his
attached statement of claims, and his notice of claim, including
the grievance attachment, all filed pro se, in laying out the
following factual allegations.
a.
King
is
an
inmate
at
Huttonsville
Correctional
(“HCC”) and has been incarcerated since March 23, 2012.
Center
In fall
2008, prior to his incarceration, King had marbles implanted in
and tattoos drawn on his penis.
He and his then fiancée, who is
now deceased, decided to have the implants done during the “body
modification”
craze,
as
they
had
heard
about
the
“intensification of sensitivity and euphoric climaxes” resulting
from the procedure.
J.A. 16.
On January 8, 2013, King was called to the control booth in
his unit, where a corrections officer told him to report to
“medical” to be examined.
because
an
inmate
Id. at 25.
reported
seeing
King was to be examined
King
implanting marbles into their penises.
and
another
inmate
The nurse who examined
King verified that the marbles were not recently implanted and
that there was no sign of infection.
King was escorted to the segregation unit, where an officer
told him that the implants were not noted in his file.
King
responded that when he was being processed at Mt. Olive, he
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informed the processing officer of the marbles and tattoo.
The
officer told him, “This isn’t a pornographic camera, put [your]
clothes back on.”
King
Directive
was
Id.
subsequently
325.00-1.26,
tattoos, and piercings.
which
found
in
prohibits
violation
exposing
of
Policy
body
fluids,
The policy states:
1.26—Exposing
Body
Fluids/Tattooing/Piercing:
No
inmate shall intentionally expose to any person body
fluids such as urine, feces, spit, blood, or any other
body fluid. No inmate shall give oneself or others a
tattoo/piercing or allow another inmate to give
him/her a tattoo/piercing.
No inmate shall possess
any
tattooing/piercing
equipment,
to
include,
tattooing ink, tattooing patterns, tattooing needles,
etc.
King Br. 24. Due to this violation, King was sentenced to sixty
days of punitive segregation, sixty days loss of privileges, and
ninety days of loss of good time.
While
King
was
in
segregation,
Sherri
Davis,
the
unit
manager of segregation unit E-2, brought King to her office.
There, she had King sign a piece of paper without giving him the
opportunity to read it.
Davis told him that he was signing
consent papers to go to Ruby Memorial Medical Center to have a
doctor
examine
his
implants
and,
if
necessary,
remove
them.
King was taken to Ruby Memorial, where he was examined by Dr.
Henry Fooks, Jr.
Fooks determined that the implants were not
recently inserted and that there was no medical need to remove
them.
When King was transported back to HCC, Deputy Warden
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Grover Rosencrance told him, “Get comfortable you stupid Son of
a Bitch, you’ll be placed in Administrative Segregation until
you do as I say and have those marbles removed.”
J.A. 26.
King
responded that Rosencrance could not punish him twice for the
same violation.
Rosencrance said, “I can do what the Fuck I
want.”
King
Id.
segregation.
was
then
returned
to
administrative
King alleges that HCC officials threatened him
with segregation for the remainder of his sentence and loss of
parole eligibility if he did not consent to surgery.
On June 19, 2013, King “gave in” and let them remove the
marbles
at
Ruby
“practically
Memorial.
against
[his]
Id.
will
The
as
[he]
surgery
was
was
coerced
by
done
the
administration because of the threats they made” about continued
segregation and loss of parole eligibility.
Id. at 31.
As a result of the surgery, King now experiences physical
symptoms.
the
area
He has tingling and numbness in his penis; pain in
where
the
marbles
were
removed;
an
“uncomfortable,
stretching feeling where the cut was made”; pain in his penis
when it rains, snows, or gets cold; and “stabbing pain [that]
shoots into [his] stomach” if he bumps into something or the
scar on his penis is touched.
experienced
these
symptoms
Id. at 15, 27.
until
removed.
6
after
his
King never
implants
were
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King also experiences mental and emotional anguish as a
result of the surgery.
He gets “very depressed every time [he]
shower[s] or urinate[s]” because he sees the scarring and is
reminded of his deceased fiancée.
Id. at 15.
He worries about
“the possibilities that [his] penis will still be numb when [he]
. . . is with another woman” and about how he will explain what
happened if in the future someone is “sickened by the scarring.”
Id. at 16.
Additionally, King is unable to urinate when any of
his five roommates are in the cell with him, a problem he did
not previously experience.
He is also frightened every time he
sees any of the defendants.
He is ridiculed by the staff:
they
refer to him as “Marble Man” and when they search him, they ask
where his marbles are.
Id. at 15.
Correctional officers make
“[h]omosexual remarks” when they see him.
Id.
He also now has
gay inmates approach him, because of the way the staff have
gossiped about him.
him
feel
situation,
These inmates ask him questions that make
uncomfortable
where
it
is
and
a
confrontation” might occur.
“place
strong
[him]
in
possibility
a
compromising
that
a
physical
Id. at 17.
b.
King originally filed suit under 42 U.S.C. § 1983 in the
Circuit Court of Kanawha County, West Virginia.
His complaint
named as defendants Jim Rubenstein (Commissioner), Warden Marvin
Plumley, Dianne R. Miller (Associate Warden Programs/Housing),
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Deputy
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Warden
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Rosencrance,
Segregation),
Sherri
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Lester
Davis,
Thompson
Stacy
(Unit
Manager
Scott
E-1
(Supervised
Psychologist/Ad Seg Board), Mike Smith, Sr. (Unit Manager, Ad
Seg Board), Samantha Gsell (Case Manager Ad Seg Board), Adam
Smith (Unit Manager Ad Sec Board Chairman), and Cliff Goodin
(Head Psychologist).
A circuit court judge in the Circuit Court
of Kanawha County, West Virginia, reviewed the initial pleadings
and found that the complaint was not “frivolous, malicious or
fails to state a claim,” and accordingly had the clerk issue
process against the defendants.
Id. at 33.
The defendants
removed the case to the U.S. District Court for the Southern
District of West Virginia and moved to dismiss under Federal
Rule of Civil Procedure 12(b)(6).
The case was transferred to
the Northern District of West Virginia, where a magistrate judge
entered his report and recommendation on the motion to dismiss.
Both
sides
responses.
filed
objections;
only
the
defendants
filed
The district court rejected in part and adopted in
part the magistrate’s recommendation and granted the defendants’
motion to dismiss in full.
King timely appeals.
II.
This
dismiss.
Court
reviews
de
novo
the
grant
of
a
motion
to
Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d
754, 768 (4th Cir. 2011).
A Rule 12(b)(6) motion tests the
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sufficiency
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of
a
complaint;
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it
does
not,
however,
“resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.”
F.3d
231,
243
(4th
Cir.
Edwards v. City of Goldsboro, 178
1999)
(quoting
Martin, 980 F.2d 943, 952 (4th Cir. 1992)).
to
dismiss,
the
complaint’s
“[f]actual
Republican
Party
v.
To survive a motion
allegations
must
be
enough to raise a right to relief above the speculative level”—
that is, the complaint must contain “enough facts to state a
claim for relief that is plausible on its face.”
Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
Bare legal
conclusions “are not entitled to the assumption of truth” and
are insufficient to state a claim.
662, 679 (2009).
liberally
Ashcroft v. Iqbal, 556 U.S.
Nevertheless, pro se pleadings are “to be
construed,”
and
“a
pro
se
complaint,
however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.”
Erickson v. Pardus,
551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106 (1976)).
III.
King appeals the dismissal of his substantive claims, as
well as the dismissal of Scott, Plumley, Rubenstein, and Goodin.
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a.
King
dismissed
protects
first
his
claims
Fourth
“[t]he
right
that
the
Amendment
of
the
district
claim.
people
court
improperly
The
Fourth
Amendment
be
secure
in
to
their
persons . . . against unreasonable searches and seizures.”
Const. amend. IV.
U.S.
The applicability of the Fourth Amendment
turns on whether “the person invoking its protection can claim a
‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of
privacy’ that has been invaded by government action.”
Hudson v.
Palmer, 468 U.S. 517, 525 (1984) (quoting Smith v. Maryland, 442
U.S. 735, 740 (1979)).
In Hudson, the Supreme Court held that an inmate has no
reasonable expectation of privacy, and thus no Fourth Amendment
protection, in his prison cell, given “the paramount interest in
institutional
security.”
Id.
at
528.
While
“imprisonment
carries with it the circumscription or loss of many significant
rights,” the Supreme Court nevertheless cautioned that “prisons
are not beyond the reach of the Constitution.”
Id. at 523-24.
Indeed, five years earlier in Bell v. Wolfish, 441 U.S. 520
(1979),
determine
the
the
Supreme
Court
“developed
reasonableness
invasive searches . . . .”
of
a
a
broad
flexible
range
of
test
to
sexually
United States v. Edwards, 666 F.3d
877, 883 (4th Cir. 2011) (citation and internal quotation marks
omitted).
Under Wolfish, a court is to consider the following
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factors to determine the reasonableness of the search:
“the
scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in
which it is conducted.”
This
Amendment
before
Court
has
continues
weighing
441 U.S. at 559.
previously
to
the
apply
“assum[ed]
to
competing
reasonableness of a search.
302, 307 (4th Cir. 1992).
lawfully
interests
that
the
confined
to
Fourth
prisoners”
determine
the
E.g., Jones v. Murray, 962 F.2d
As the district court noted, “nothing
in Hudson indicates the Supreme Court intended to abrogate a
prisoner’s expectation of privacy beyond his cell.”
And
we
agree
with
our
sister
circuits
that,
J.A. 171.
under
Wolfish,
prisoners retain an interest in some degree of bodily privacy
and integrity after Hudson.
See King v. McCarty, 781 F.3d 889,
900 (7th Cir. 2015) (per curiam) (“Even in prison, case law
indicates that the Fourth Amendment protects, to some degree,
prisoners’ bodily integrity against unreasonable intrusions into
their bodies.”); Sanchez v. Pereira-Castillo, 590 F.3d 31, 42 &
n.5 (1st Cir. 2009) (“We have recognized that a limited right to
bodily
privacy
against
searches
is
not
incompatible
with
incarceration.”); Thompson v. Souza, 111 F.3d 694, 699 (9th Cir.
1997) (“Notwithstanding the language in Hudson, our circuit has
held that the Fourth Amendment right of people to be secure
against
unreasonable
searches
11
and
seizures
extends
to
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incarcerated prisoners . . . .” (internal quotations omitted));
Elliott v. Lynn, 38 F.3d 188, 191 n.3 (5th Cir. 1994) (same);
Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992) (“[A]
convicted
prisoner
maintains
some
reasonable
expectations
of
privacy while in prison . . . even though those privacy rights
may be less than those enjoyed by non-prisoners.”); Covino v.
Patrissi, 967 F.2d 73, 78 (2d Cir. 1992) (holding that despite
Hudson, “inmates do retain a limited right to bodily privacy”);
Dunn v. White, 880 F.2d 1188, 1191 (10th Cir. 1989) (same);
Spence v. Farrier, 807 F.2d 753 (8th Cir. 1986) (citing Wolfish
and applying traditional Fourth Amendment analysis to prisoner’s
claim).
Accordingly, King maintains some legitimate expectation
of privacy in his person.
We
hold
that
the
Wolfish
factors
weigh
against
reasonableness and thus reverse the district court’s dismissal
of King’s complaint.
As to the first factor, the scope of the
intrusion, the surgery was beneath the skin into a sensitive,
private
body
part—it
was
Sanchez, 590 F.3d at 45.
certainly
not
“commonplace.”
See
Unlike the blood test in Schmerber v.
California, 384 U.S. 757 (1966), this surgery involved “risk,
trauma,
[and]
pain”:
King
alleged
scarring
and
incisions, pain and tingling, and emotional anguish.
U.S.
at
771;
see
also
Winston
v.
Lee,
470
U.S.
753
botched
See 384
(1985)
(holding, outside of the prison context, that Virginia could not
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compel surgery to remove a bullet from a suspect’s chest, in
part
because
of
the
risk,
trauma,
and
pain
involved
in
the
procedure); Sanchez, 590 F.3d at 45 (finding scope egregious
where
plaintiff
alleged
that
he
was
“slashed
and
mutilated”
during surgery, that his “life and health were jeopardized,” and
that he experienced “severe physical and emotional pain” as a
result).
The interest in bodily integrity involves the “most
personal and deep-rooted expectations of privacy,” Lee, 470 U.S.
at 760, and here, the nature of the surgery itself—surgery into
King’s penis—counsels against reasonableness.
The district court acknowledged the “unusual” nature of the
surgery but found that King “precipitated [it] by electing the
unusual
insertion
instance.
of
J.A. 177.
marbles
into
his
penis”
in
the
first
That King decided to have marbles inserted
into his penis, however, is of no moment; the scope of the
intrusion is not a subjective inquiry.
See, e.g., United States
v. Fowlkes, 804 F.3d 954, 963 (9th Cir. 2015) (finding the scope
suggested unreasonability where officers physically extracted a
plastic
making
bag
no
himself);
1991)
containing
mention
that
Rodriques
v.
(finding
“extreme,”
again
a
not
contraband
defendant
Furtado,
from
had
950
considering
13
presumably
F.2d
warrant-authorized
that
defendant’s
805,
inserted
811
(1st
vaginal-cavity
plaintiff
rectum,
it
Cir.
search
inserted
the
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contraband
Filed: 06/07/2016
herself).
We
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find
the
scope
of
the
intrusion
objectively extreme.
The
second
factor,
the
manner
in
which
the
search
conducted, also favors finding the search unreasonable.
was
“[O]nce
contraband is discovered in the course of a sexually invasive
search, the contraband may not be seized in a manner that poses
an
unnecessary
risk
of
harm
Edwards, 666 F.3d at 885.
to
the
person
being
searched.”
Again, King alleged that the surgery
left him scarred, with pain and emotional anguish.
We agree
with the district court that “the surgery posed a risk to King’s
health and caused him trauma and pain.”
Turning
to
the
third
factor,
J.A. 176.
the
defendants
correctly
contend that they have an interest in controlling contraband
within the prison for the health and security of the inmates.
The Supreme Court has long recognized the need to “guarantee the
safety” of the prison community, administrators, inmates, and
visitors
alike.
Hudson,
468
U.S.
at
527.
Indeed,
“prison
administrators . . . , and not the courts, [are] to make the
difficult
judgments
concerning
institutional
operations.”
Turner v. Safley, 482 U.S. 78, 89 (1987) (quoting Jones v. N.C.
Prisoners’
Union,
433
U.S.
119,
128
(1977))
(alterations
in
original).
“In addressing this type of constitutional claim
courts
defer
must
to
the
judgment
of
correctional
officials
unless the record contains substantial evidence showing their
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policies are an unnecessary or unjustified response to problems
of jail security.”
Florence v. Bd. of Chosen Freeholders of
Cty. of Burlington, 132 S. Ct. 1510, 1513-14 (2012).
Nevertheless,
searches
. . . cannot be condoned.”
citation omitted).
conducted
“in
an
abusive
fashion
Wolfish, 441 U.S. at 560 (internal
Instead, the “‘deference’ that is afforded
to prison administrators ‘does not insulate from review actions
taken in bad faith and for no legitimate purpose.’”
Williams v.
Benjamin, 77 F.3d 756, 765 (4th Cir. 1996) (quoting Whitley v.
Albers,
Amendment
475
U.S.
claim);
312,
see
322
(1986))
also
(considering
Hudson,
468
an
U.S.
Eighth
at
528
(“[I]ntentional harassment of even the most hardened criminals
cannot be tolerated by a civilized society.”).
Throughout his complaint, King stated that the defendants
had no penological justification in the surgery, J.A. 16, 18,
and
provided
facts
that
support
this
contention.
First,
he
alleged that the marbles were implanted prior to incarceration
(an
allegation
supported
by
the
findings
professionals who inspected the marbles).
inconsistent
with
the
policy
directive
of
the
two
medical
This, he argues, is
that
he
was
found
violation of:
1.26—Exposing
Body
Fluids/Tattooing/Piercing:
No
inmate shall intentionally expose to any person body
fluids such as urine, feces, spit, blood, or any other
body fluid. No inmate shall give oneself or others a
tattoo/piercing or allow another inmate to give
15
in
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him/her a tattoo/piercing.
No inmate shall possess
any
tattooing/piercing
equipment,
to
include,
tattooing ink, tattooing patterns, tattooing needles,
etc.
Id. at 24.
While the defendants contested the timing of the
insertion of King’s implants at oral argument, at this stage, we
draw all reasonable inferences in King’s favor.
Nemours & Co., 637 F.3d at 440.
E.I. du Pont de
Accordingly, King already had
the implants and was not exposing blood by inserting the marbles
at the time of the violation.
King also alleged that other prisoners “implanted foreign
objects into their penises,” but unlike King, they have been
permitted to keep them.
J.A. 27.
King noted that some of these
inmates have “even had it done while incarcerated.”
Id. at 17.
The
inmates
defendants
proof
that
point
this
to
King’s
practice
is
examples
of
not
isolated
an
other
as
occurrence,
contending that “inmates have now devised an additional place to
potentially
conceal
contraband:
Appellees’ Br. 18-19.
beneath
their
skin.”
King alleges, however, that the staff
knew of this behavior and “caught, charged and convicted” other
inmates
but
implants.
did
J.A.
not
require
17.
them
These
to
surgically
allegations
remove
contradict
their
the
defendants’ arguments that prison officials are to detect and
prevent this behavior and that a general ban is preferable to
carving out exceptions for individual inmates.
16
Appellee’s Br.
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19-20 (citing Florence, 132 S. Ct. at 1516; Hudson, 468 U.S. at
527).
And while not conclusive, these allegations lend support
to King’s argument that the officers’ actions here were meant to
harass.
Finally, the argument that King consented to the surgery
does not provide cover for the defendants.
As in Sanchez, King
raised allegations that his consent was not freely given.
E.g.,
J.A. 15 (“I was threatened with Administrative Segregation until
I discharge my sentence, if I did not consent to the surgery to
have my ‘Professionally Implanted Marbles’ removed.”); id. at
25-26
(describing
under
what
conditions
he
was
placed
in
segregation, including keeping him in segregation “under ‘False
Pretenses’”); id. at 27 (“I was FORCED with the use of MENTAL
TORTURE and UNLAWFUL SEGREGATION to remove my implants that were
professionally
“‘Consent’
done.”);
that
is
the
see
Sanchez,
product
harassment is not consent at all.”
429, 438 (1991).
of
590
official
F.3d
at
46-47.
intimidation
or
Florida v. Bostick, 501 U.S.
Based on King’s complaint, his consent to
surgery was not “voluntarily given, and [instead] the result of
duress
or
coercion,
express
or
implied.”
Schneckloth
v.
Bustamonte, 412 U.S. 218, 248 (1973).
While prison officials must be afforded wide deference in
deterring
security
threats,
the
pleadings
raise
sufficient
concerns about the legitimacy of the reasons for surgery.
17
This
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is doubly so where defendants sought “to intrude upon an area in
which our society recognizes a significantly heightened privacy
interest,” requiring “a more substantial justification” to make
the search “reasonable.”
Lee, 470 U.S. at 767.
Thus, at this
early stage of the proceedings, we find that the justification
for the search weighs in favor of unreasonableness.
The fact that the search occurred in a hospital does not
trump
the
overwhelming
unreasonable.
evidence
Accordingly,
we
that
reverse
the
the
search
district
was
court’s
dismissal of King’s claim and hold that he pleaded sufficient
facts to establish a Fourth Amendment claim plausibly entitling
him to relief.
b.
King next appeals the dismissal of his Eighth Amendment
claim.
The Eighth Amendment “prohibits the infliction of ‘cruel
and unusual punishments’ on those convicted of crimes.”
v. Seiter, 501 U.S. 294, 297 (1991).
Wilson
“[T]o make out a prima
facie case that prison conditions violate the Eighth Amendment,
a plaintiff must show both ‘(1) a serious deprivation of a basic
human need; and (2) deliberate indifference to prison conditions
on the part of prison officials.’”
Strickler v. Waters, 989
F.2d 1375, 1379 (4th Cir. 1993) (quoting Williams v. Griffin,
952
F.2d
objective
820,
and
824
(4th
requires
Cir.
that
1991)).
the
18
The
deprivation
first
be
prong
is
“sufficiently
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serious”;
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the
second
Pg: 19 of 37
requires
us
to
determine
whether
subjectively “the officials act[ed] with a sufficiently culpable
state of mind.”
Wilson, 501 U.S. at 298; see Strickler, 989
F.3d at 1379.
We
hold
that
King’s
complaint
plausibly
satisfies
both
prongs of an Eighth Amendment claim and reverse the district
court.
Regarding the first prong, King alleged physical injury
and mental anguish, which he “never experienced until after [he]
was FORCED into having [his] implants removed . . . or remaining
in Segregation INDEFINATELY [sic].”
J.A. 27.
These include
tingling and numbness in his penis; pain in the area where the
marbles
were
removed;
an
“uncomfortable,
stretching
feeling
where the cut was made;” pain in his penis when it rains, snows,
or
gets
cold;
and
“stabbing
pain
[that]
shoots
into
[his]
stomach” if he bumps into something or his penis is touched
where
the
scar
is.
Id.
at
15,
27.
King
also
gets
“very
depressed every time [he] shower[s] or urinate[s]” because he
sees
the
scarring
and
is
reminded
deceased fiancée bought for him.
of
the
marbles
Id. at 15.
that
his
He worries about
“the possibilities that [his] penis will still be numb when [he]
. . . is with another woman” and about how he will explain what
happened if someone is “sickened by the scarring.”
Id. at 16.
He is now unable to urinate when any of his five roommates are
in
the
cell
with
him,
a
problem
19
he
did
not
previously
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experience.
Id. at 15.
sees
the
any
of
Pg: 20 of 37
He is also frightened every time he
defendants.
Id.
“constantly ridiculed by staff”:
ask where his marbles are.
King
claims
that
he
is
they call him “Marble Man” and
Id.
Guards also “make Homosexual
remarks that entail [his] marbles when they see [him].”
Id.
He
now has “[g]ay inmates approaching [him] because the staff that
was
involved
in
forcing
[him]
continually gossiped” about him.
to
have
the
Id. at 16.
surgery,
have
These inmates ask
him questions that are “very uncomfortable” and put him in a
“compromising situation, where it is a strong possibility that a
physical confrontation” will occur.
Id. at 17.
These facts are
sufficient to support a finding of serious injury.
In
dismissing
the
claim,
the
narrowly the extent of King’s harm.
district
court
read
too
The court pointed to our
decision in Allgood v. Morris, 724 F.2d 1098 (4th Cir. 1984),
for
the
proposition
unconstitutional.
that
segregated
confinement
is
not
The court also concluded that any harm to
King resulted only from the surgery, not from his segregation.
This reliance on Allgood is misplaced.
“[S]egregated
confinement
is
not
per
se
Indeed, we stated,
unconstitutional.”
Allgood, 724 F.2d at 1101 (citing Sweet v. S.C. Dep’t of Corr.,
529 F.2d 854, 860 (4th Cir. 1975)).
fatal
to
the
district
court’s
But that very language is
conclusion.
Segregation,
itself, is not the harm King alleged in his complaint.
20
by
Cf.
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Sweet, 529 F.2d at 861 (“[Certain] inescapable accompaniments of
segregated confinement[] will not render segregated confinement
unconstitutional
absent
other
illegitimate
deprivations.”
(emphasis added)).
In his complaint, King provides that his Eighth Amendment
claim was based on more than the confinement itself:
“The Staff
at [HCC] Abused their power when they took it upon themselves to
use threats of Administrative Segregation for the remainder of
my
sentence
and
loss
of
Parole
Eligibility
in
order
to
intimidate me into consenting to a surgery that they had no
right
to
have
(describing
discharge
performed.”
threats
of
segregation,
of
sentence,
loss
of
J.A.
16;
see
id.
administrative
as
well
privileges,
violation of policy directive).
as
and
at
15,
segregation
sentence
loss
of
of
good
25-27
until
punitive
time
for
Put another way, King alleges
more than segregation per se as his Eighth Amendment violation;
instead, the confinement itself was used as a tool to coerce
King
into
physical
coerced
consenting
and
mental
surgery,
of
to
surgery,
injuries.
which
which
This
the
in
harm
turn
resulted
resulting
segregation
was
a
in
from
the
part,
is
sufficient to satisfy the first prong of an Eighth Amendment
violation.
As to the second prong, only the “unnecessary and wanton
infliction of pain” implicates the Eighth Amendment.
21
Wilson,
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501 U.S. at 297 (quoting Estelle, 429 U.S. at 104) (emphasis
omitted).
The
requisite
state
of
mind
is
thus
“one
deliberate indifference to inmate health or safety.”
of
Odom v.
S.C. Dep’t of Corr., 349 F.3d 765, 770 (4th Cir. 2003) (citation
and
internal
quotation
marks
omitted).
While
“deliberate
indifference entails something more than mere negligence, the
cases are also clear that it is satisfied by something less than
acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.”
Farmer v. Brennan, 511 U.S.
825, 835 (1994).
“Among
those
that
‘unnecessary
are
and
‘totally
wanton’
without
inflictions
penological
of
pain
are
justification.’”
Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quoting Gregg v.
Georgia, 428 U.S 153, 183 (1976)).
A prisoner states a claim
under the Eighth Amendment when he plausibly alleges that the
conduct in question “was motivated by a desire to harass or
humiliate rather than by a legitimate justification, such as the
need for order and security.”
cases);
see
also
Hope
v.
King, 781 F.3d at 897 (citing
Pelzer,
536
U.S.
730,
738
(2002)
(discussing “taunting” and “humiliation” as circumstances that
contributed to finding that unnecessarily handcuffing prisoner
to a hitching post “violated the ‘basic concept underlying the
Eighth Amendment[, which] is nothing less than the dignity of
man’”
(quoting
Trop
v.
Dulles,
22
356
U.S.
86,
100
(1958)
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(alterations
in
(underscoring
that
Pg: 23 of 37
original));
the
Hudson,
Eighth
468
Amendment
U.S.
at
protects
530
against
“calculated harassment unrelated to prison needs”).
In King, the Seventh Circuit reversed a district court’s
dismissal
of
transparent
an
inmate’s
jumpsuit
Amendment.
781
claim
during
F.3d
at
that
his
being
transfer
896.
The
forced
violated
court
to
wear
the
pointed
a
Eighth
to
the
plaintiff’s allegations that he was “degraded and humiliated by
being
transported
in
exposed . . . .”
a
see-through
Id. at 898.
jumpsuit
that
left
him
The plaintiff’s assertion that
“there was no legitimate reason for this policy” was supported
by his allegation, among others, that other inmates were not
required to wear similar garments.
Id.
The court cautioned,
“Even
able
to
where
prison
authorities
are
identify
a
valid
correctional justification for the search, it may still violate
the Eighth Amendment if conducted in a harassing manner intended
to
humiliate
and
cause
psychological
pain.”
Id.
at
897
(citation and internal quotation marks omitted).
Here, King alleged that there was “absolutely NO security
interest” in removing his implants, J.A. 16; see also id. at 18
(“There was absolutely NO penological interest in forcing the
Petitioner
to
consent
contention
with
to
factual
medically necessary:
the
surgery.”),
allegations.
The
and
supports
removal
was
this
not
the nurse who first examined him confirmed
23
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that the marbles were not recently implanted and there was no
sign of infection, and the doctor he saw confirmed this.
25-26.
Further,
King
alleges
that
other
Id. at
prisoners
have
“implanted foreign objects into their penises,” but unlike King,
they have been permitted to keep them.
that
some
of
these
incarcerated.”
Id.
at
17.
tend
to
suggest
“[t]hese
facts
inmates
have
Like
Id. at 27.
“even
had
those
that
it
King notes
done
presented
there
was
no
in
while
King,
security
reason” for requiring either surgery or indefinite segregation.
See 781 F.3d at 898.
Moreover, “a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was
obvious.”
Farmer, 511 U.S. at 842; Makdessi v. Fields, 789 F.3d
126, 133 (4th Cir. 2015).
Here, as King argues, “[i]nvasive
surgery on a highly-sensitive body part has obvious risks,” of
which the defendants must have been aware.
King Br. 30.
We
agree that these risks were “compounded” by the fact that the
marbles
were
not
recently
medically necessary.
not
change
this.
Id.
A
implanted
and
their
removal
not
King’s consent to the surgery does
prisoner
does
not
absolve
correctional
officers of risk simply by “not accepting [their] offer to stay
in segregation.”
Thomas v. Younce, 604 F. App’x 325, 326 (4th
Cir. 2015) (unpublished).
Here, King “did not voluntarily place
himself at risk [posed by surgery]; rather, he refused [the]
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objectionable offer to place him in segregation . . . in lieu of
[surgery], where he faced substantial risk of serious injury.”
Id.
We thus reverse the district court’s dismissal of King’s
Eighth Amendment claim.
c.
King also appeals the dismissal of his Fourteenth Amendment
Equal Protection claim.
“The purpose of the equal protection
clause of the Fourteenth Amendment is to secure every person
within
the
State’s
jurisdiction
arbitrary discrimination.”
against
intentional
and
Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000) (internal quotation marks and alteration
omitted).
“To succeed on an equal protection claim, a plaintiff
must first demonstrate that he has been treated differently from
others with whom he is similarly situated and that the unequal
treatment
was
the
discrimination.”
Cir.
2001).
treatment
of
intentional
or
purposeful
Morrison v. Garraghty, 239 F.3d 648, 654 (4th
We
can
scrutiny.”
result
then
be
justified
Id.
consider
“[T]he
“whether
under
Supreme
the
the
disparity
requisite
Court
has
level
recognized
in
of
the
validity of ‘class of one’ Equal Protection claims, ‘where the
plaintiff
alleges
that
she
has
been
intentionally
treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment.’”
Town
Of
Marshall,
N.C.,
426
F.3d
25
251,
263
(4th
Willis v.
Cir.
2005)
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(quoting Olech, 528 U.S. at 564); see also Sansotta v. Town of
Nags Head, 724 F.3d 533, 542-44 & n.13 (4th Cir. 2013).
We hold
that King’s allegations are sufficient to state a class-of-one
equal protection claim. 1
With
regard
to
the
first
prong,
we
find
that
King’s
complaint alleged facts that he was treated differently from
other similarly situated inmates.
at
least
two
other
inmates
with
King alleged that there were
implants
in
their
penises.
These inmates were known to prison officials and were similarly
“caught, charged and convicted,” but neither was subjected to
extended segregation or surgery.
J.A. at 17.
King further
alleges that the defendants “single[d him] out” from these other
inmates.
Id. at 27.
Taken together, we find these allegations
sufficient to state an intentional disparity in treatment from
other similarly situated inmates.
We thus turn to the second prong of King’s equal protection
claim.
In
general,
disparate
treatment
sustained
‘if
disparity
of
purpose.’”
there
unless
“is
is
treatment
a
suspect
presumed
a
to
rational
and
some
be
class
is
valid
and
relationship
legitimate
involved,
will
between
be
the
governmental
Veney v. Wyche, 293 F.3d 726, 731 (4th Cir. 2002)
1
We note King’s argument that he was discriminated against
because of homosexual animus on the part of prison officials.
Because we find that King has stated a class-of-one claim, we do
not find it necessary to resolve this alternative theory now.
26
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(quoting Heller v. Doe, 509 U.S. 312, 319-20 (1993)); see also
Olech, 528 U.S. at 564 (applying rational basis review to classof-one claims).
When equal protection challenges arise in the
prison
however,
context,
scrutiny
to
ensure
“courts
that
prison
must
adjust
officials
the
are
level
afforded
of
the
necessary discretion to operate their facilities in a safe and
secure manner.”
“regulation
Veney, 293 F.3d at 732.
impinges
on
inmates’
That is, even when a
constitutional
rights,
the
regulation is valid if it is reasonably related to legitimate
penological interests.”
F.3d at 655.
Turner, 482 U.S. at 89; Morrison, 239
To evaluate whether an action is reasonable, we
apply the factors set forth in Turner:
(1) whether there is a
“valid,
the
rational
penological
connection
interest”;
(2)
between
whether
there
policy
is
an
and
the
“alternative
means of exercising the right” available to inmates; (3) what
“impact accommodation of the asserted right will have on” the
prison, including guards, other inmates, and prison resources;
and
(4)
“the
absence
of
ready
alternatives
that
fully
accommodate the prisoner’s rights at de minimis cost to valid
penological
interests.”
Morrison,
239
F.3d
at
655
(citing
Turner, 482 U.S. at 89).
We
have
held
that
“[p]romoting
health is a legitimate concern.”
the
inmates’
safety
and
Jehovah v. Clarke, 798 F.3d
169, 178 (4th Cir. 2015) (citing McRae v. Johnson, 261 F. App’x
27
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554,
558
(4th
Filed: 06/07/2016
Cir.
discussed
above,
arguments
that
2008)
we
are
King’s
Pg: 28 of 37
(unpublished)).
not
persuaded
marbles
posed
Nonetheless,
by
a
the
as
defendants’
security
threat.
Additionally, the defendants’ argument that permitting King to
keep the marbles could lead other inmates to implant objects
into their bodies is also unconvincing.
Unlike with King, in
the
would
defendants’
scenario,
other
inmates
be
implanting
these objects while incarcerated, which behavior the prison has
a policy to address.
Moreover, we do not find that the other Turner factors—
particularly the third and fourth factors—support the conclusion
that
that
fourth
surgery
factor,
was
the
reasonable.
absence
of
ready
We
acknowledge
alternatives,
‘least restrictive alternative’ test.”
that
“is
the
not
a
Turner, 482 U.S. at 90.
Nevertheless, when pressed at oral argument, the defendants were
unable to explain why their process for dealing with an inmate
who enters prison with tattoos or even a steel rod in his arm—
where the condition is documented at booking and the inmate is
subsequently “monitored”—cannot be applied to King’s situation. 2
King
also
suggested
other
alternatives
to
surgery,
including
leaving him alone, as defendants had allegedly done with other
2
Here, instead, when King was originally processed and
informed the officer of the marbles and tattoo, he was rebuffed
by the officer, who told him, “This isn’t a pornographic camera,
put [your] clothes back on.” J.A. 25.
28
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inmates, or requiring him to cover the implants with clothing as
to not reveal their presence.
Here, the implants posed no medical risk to King, were not
recently implanted, and were not accessible nonsurgically.
The
defendants do not appear to have made any attempt to confirm
whether the marbles posed a security risk and could not explain
why they could not monitor King’s marbles in the same way as
other types of preincarceration body modifications.
record,
we
conclude
response”
“exaggerated
that
to
surgery
was
defendants’
an
On this
unreasonable
concerns.
See
id.
Therefore, we reverse the district court’s dismissal of King’s
Equal Protection claim.
d.
On appeal, King argues that he alleged sufficient facts to
state a claim under the Due Process Clause of the Fourteenth
Amendment.
The district court did not originally consider any
substantive due process claim, and the defendants argue that
King
raises
Nevertheless,
this
King
claim
was
for
“not
the
required
magical words in [his] pleading.”
Pleasant,
Md.,
743
F.3d
411,
first
418
to
time
use
any
on
appeal.
precise
or
Stevenson v. City of Seat
(4th
Cir.
2014);
see
also
Labram v. Havel, 43 F.3d 918, 920 (4th Cir. 1995) (“Legal labels
characterizing a claim cannot, standing alone, determine whether
it fails to meet [the standard for notice pleading under Federal
29
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Rule of Civil Procedure 8(a)(2)].”).
Simply because King did
not specifically label a claim under a due process heading does
not mean that he did not raise one.
“[A]
liberty
competent
interest
person
in
has
a
refusing
constitutionally
unwanted
medical
protected
treatment.”
Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990).
This
liberty
interest
survives
conviction
and
incarceration.
Washington v. Harper, 494 U.S. 210, 221-22, (1990) (recognizing
an individual’s “significant liberty interest in avoiding the
unwanted
administration”
of
a
specific
form
of
medical
treatment); Hogan v. Carter, 85 F.3d 1113, 1116 (4th Cir. 1996)
(en banc) (citing Harper, 494 U.S. 221-22).
prison
officials
“reasonably
may
related
override
to
this
legitimate
right
In this context,
when
penological
treatment
is
interests.”
Harper, 494 U.S. at 223 (citing Turner, 482 U.S. at 89).
“This
is true even when the constitutional right claimed to have been
infringed
is
circumstances
fundamental,
would
have
and
been
rigorous standard of review.”
the
required
State
to
under
satisfy
Id. (citation omitted).
other
a
more
As the
district court did not consider this potential claim, and given
30
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the
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facts
Filed: 06/07/2016
alleged
in
King’s
Pg: 31 of 37
complaint,
we
remand
for
consideration of this claim. 3
e.
King appeals the dismissal without prejudice 4 of Scott for
failure to effect service.
“[T]o preserve for appeal an issue
3
The defendants argued that they are entitled to qualified
immunity, as any constitutional violations were not clearly
established. The district court did not consider this argument,
presumably because it concluded that King failed to allege a
violation.
As we may affirm a dismissal on any grounds
supported by the record, Pitt Cty. v. Hotels.com, L.P., 553 F.3d
308, 311 (4th Cir. 2009), we briefly consider the argument here.
Even where a plaintiff suffers a constitutional violation,
an officer is only liable if “the right was clearly established
at the time the violation occurred such that a reasonable person
would have known that his conduct was unconstitutional.” Smith
v. Ray, 781 F.3d 95, 100 (4th Cir. 2015).
“We do not require
that a prior case be identical to the case at bar for fair
notice to be provided.” West v. Murphy, 771 F.3d 209, 216 (4th
Cir. 2014) (citing Hope, 536 U.S. at 741).
Instead, a law is
clearly established “so long as ‘existing precedent [has] placed
the statutory or constitutional question beyond debate.’”
Id.
(quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)).
We decline to affirm the dismissal on qualified-immunity
grounds at this stage:
we cannot conclude that a right to be
free
from
an
egregiously
sexually
invasive,
unjustified,
compelled surgery was not clearly established under the Fourth,
Eighth, and Fourteenth Amendments. See Cruzan, 497 U.S. at 278
(“[A] competent person has a constitutionally protected liberty
interest in refusing unwanted medical treatment.”); Wolfish, 441
U.S. at 560 (establishing that inmate searches “must be
conducted in a reasonable manner” (citing Schmerber, 384 U.S. at
771-72)); Morrison, 239 F.3d at 655 (“[R]egulation that impinges
on inmates’ constitutional rights . . . is [only] valid if it is
reasonably related to legitimate penological interests.”); Lopez
v. Robinson, 914 F.2d 486, 490 (4th Cir. 1990) (“Prison
conditions
are
unconstitutional
if
they
constitute
an
‘unnecessary and wanton’ infliction of pain and are ‘totally
without penological justification.’” (quoting Rhodes, 452 U.S.
at 346)).
31
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in
a
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magistrate
finding
or
judge’s
report,
recommendation
on
Pg: 32 of 37
a
party
that
must
issue
object
with
to
the
sufficient
specificity so as reasonably to alert the district court of the
true
ground
for
the
objection.”
Makdessi,
789
F.3d
at
131
(quoting United States v. Midgette, 478 F.3d 616, 622 (4th Cir.
2007)) (alteration in original).
“Where an appellant has failed
to preserve an issue, it is deemed waived.”
objecting
on
multiple
other
grounds
to
Id.
Here, despite
the
report
and
recommendation, King did not object to the magistrate judge’s
recommendation
that
Scott
be
dismissed
without
prejudice.
Accordingly, King waived his right to appeal Scott’s dismissal,
and we affirm the district court.
f.
Finally, King appeals the dismissal of his claims against
Plumley, Goodin, and Rubenstein with prejudice.
Alternatively,
King argues that he should have been permitted leave to amend
his complaint as to these defendants.
A state official can be in a § 1983 suit in three ways:
his
personal
capacity,
his
official
4
capacity,
or
in
a
in
more
The
district
court’s
conclusion
appears
to
have
accidentally dismissed the complaint in its entirety with
prejudice, and the judgment entered by the clerk indicates that
King’s complaint was dismissed with prejudice.
Nevertheless,
the district court’s order dismissed Scott without prejudice,
and both parties understand that the dismissal was without
prejudice. J.A. 163; King’s Reply Br. 29; Defs.’ Br. 47.
32
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Pg: 33 of 37
limited way, his supervisory capacity.
For personal liability,
“it is enough to show that the official, acting under color of
state law, caused the deprivation of a federal right.”
v. Graham, 473 U.S. 159, 166 (1985).
Kentucky
In an official-capacity
suit, however, “[m]ore is required”:
the suit is “treated as a
suit against the entity,” which must then be a “‘moving force’
behind
the
deprivation,”
id.
(third
quotation
quoting
Polk
County v. Dodson, 454 U.S. 312, 326 (1981)); thus, the entity’s
“‘policy or custom’ must have played a part in the violation of
federal law,” id. (quoting Monell v. Dep’t of Soc. Servs. of
City of New York, 436 U.S. 658, 694 (1978)).
Meanwhile, a
supervisor can be liable where (1) he knew that his subordinate
“was engaged in conduct that posed a pervasive and unreasonable
risk
of
constitutional
“deliberate
alleged
indifference
offensive
“affirmative
injury”;
to
or
practices”;
causal
link”
constitutional injury.”
(2)
tacit
and
between
his
response
authorization
(3)
his
that
there
inaction
showed
of
the
was
an
and
the
Shaw v. Stroud, 13 F.3d 791, 799 (4th
Cir. 1994) (internal quotation marks omitted).
As to Plumley, we find that King properly stated a claim.
Regarding actions in his personal capacity, Plumley overturned
the Ad.-Seg. Committee’s recommendation that King return to the
general
population.
King
claims
that
Plumley
so
decided
“because I had not had the marbles surgically removed.” J.A. 31;
33
Appeal: 15-6382
see
Doc: 39
also
Filed: 06/07/2016
id.
(“I
wrote
release from ad-seg.
an
Pg: 34 of 37
appeal
to
Warden
Plumley
seeking
Shortly thereafter I was told by the Unit
Manager . . . that if I did not have the marbles removed I would
be
sent
to
the
Correctional
Quality
Complex
of
Life
. . . .”).
Program
The
at
Mount
defendants
Olive
point
to
documentation King produced in his opposition to their motion to
dismiss,
which
recommendation
sending
him
shows
to
to
that
keep
King
Plumley
in
rejected
punitive
administrative
the
committee’s
segregation,
segregation.
instead
Nevertheless,
Plumley appears to have participated to some degree in King’s
segregation.
Huttonsville
reason.”
King also claims that the “Administration here at
has
chosen
Id. at 27.
to
single
me
out
for
some
unknown
The warden, more so than anyone, should be
considered the administration.
The
show[ed]
district
that
court
Plumley
concluded
played
a
that
part
in
these
facts
King’s
“only
housing
in
administrative segregation that allegedly led to the surgery.”
Id.
at
165.
As
the
district
court
found
that
segregated
confinement was not a per se Eighth Amendment violation, it held
that King failed to state a claim.
As held above, however, it
was not the segregation standing alone that may have constituted
the Eighth Amendment violation.
That “King [did] not contend that Plumley [was] liable in
his official or supervisory capacity,” id. at 166, is belied by
34
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Pg: 35 of 37
the caption itself:
King brought suit against all defendants in
their
official
personal
allegations
liberally,
and
contained
attempt
to
in
capacities.
the
make
Moreover,
the
complaint
construed
connection
a
itself,
between
Plumley’s
actions and subsequent actions of his subordinate staff.
id.
at
26
(“The
Warden
few
overturned
their
E.g.,
recommendation
and
Sherri Davis (Unit Manager-Seg. Unit E-2) had me escorted to her
office [where she] had me sign a paper that she would NOT permit
me to read.
She said it was consent papers to go to Ruby
Memorial Medical Center to have a doctor examine the implants,
and if necessary, have them removed.”); id. at 31 (“I wrote an
appeal to Warden Plumley seeking release from ad-seg.
thereafter
I
was
told
by
the
Unit
Manager
of
E-Unit
Shortly
Lester
Thomspon, that if I did not have the marbles removed I would be
sent to the Quality of Life Program at Mount Olive Correctional
Complex . . . .”).
In his objection to the magistrate judge’s
recommendation, King also provided,
Plumley is the Warden of HCC. He has the final say in
Administrative Segregation Hearings.
When the Board
released the Plaintiff from Ad. Seg., he overturned
their decision, and ordered the Plaintiff to remain on
Ad. Seg. Status until he agreed to surgery. Therefore
he
directly
participated
in
the
violation
of
Plaintiff’s . . . Rights, and should not be relieved
of responsibility for his actions.
Id. at 148.
Accordingly, we find that King stated a claim
against Plumley and reverse his dismissal with prejudice.
35
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King’s
admittedly
Filed: 06/07/2016
allegations
significantly
as
Pg: 36 of 37
to
less
Rubenstein
robust,
and
and
the
Goodin
district
are
court
found that King made no mention of either outside of the caption
of
his
complaint.
allegations
as
to
King
these
did
make
defendants
slightly
in
his
more
specific
objections
magistrate judge’s report and recommendation.
to
the
Even a pro se
plaintiff, however, must allege sufficient facts “to raise a
right to relief above the speculative level” and “state a claim
to relief that is plausible on its face.”
555, 570.
Twombly, 550 U.S. at
We find the facts alleged to fall short of this
standard.
Nevertheless, we find that the dismissal against these two
defendants should have been without prejudice.
Here, King did
not move to amend his complaint, and we do not “expect[] the
district courts to assume the role of advocate for the pro se
plaintiff.”
1978).
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
But the district court neither gave King the opportunity
to amend nor did it engage in any discussion as to why amendment
would be futile.
In such a situation, the dismissal should
generally be without prejudice.
See Arnett v. Webster, 658 F.3d
742, 756 (7th Cir. 2011); Coleman v. Peyton, 340 F.2d 603, 604
(4th
Cir.
1965)
(per
curiam)
(holding
that,
if
a
pro
se
complaint contains a potentially cognizable claim, the plaintiff
should
be
given
an
opportunity
36
to
particularize
his
Appeal: 15-6382
Doc: 39
Filed: 06/07/2016
allegations).
Accordingly,
Rubenstein
Goodin
and
but
Pg: 37 of 37
we
affirm
modify
it
the
to
dismissal
reflect
as
that
to
it
is
without prejudice.
IV.
Based
stated
his
Protection
on
the
foregoing,
Fourth,
and
Due
we
Eighth,
Process
and
conclude
Fourteenth
claims.
We
stated a claim against Marvin Plumley.
court’s
remand
decision
the
case
on
for
those
bases,
further
dismissal as to Stacy Scott.
that
also
King
properly
Amendment
hold
Equal
that
King
We reverse the district
vacate
the
proceedings.
dismissal,
and
We
the
affirm
We also affirm the dismissal as to
Cliff Goodin and Jim Rubenstein but modify it to be without
prejudice.
AFFIRMED IN PART, REVERSED, VACATED, AND REMANDED IN PART
FOR PROCEEDINGS CONSISTENT WITH THIS OPINION
37
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