Roxanne Adams, Administrator of the Estate of Jamycheal M. Mitchell v. Naphcare, Inc. et al

Filing 127

ORDER entered and filed 9/6/16: This matter comes before the court on the Plaintiff's "Time-Sensitive Motion to Respond to, and Prevent, Retaliation by Jail Personnel Against Inmate Witnesses" ("Motion"), and accompanying Me morandum in Support, filed on June 21, 2016. ECF Nos. 17 , 18 . On June 24, 2016, Defendant David L. Simons ("Simons") filed a Response, ECF No, 25 , and on the same day, the Plaintiff filed her Reply. ECF No. 26 . The Pla intiff filed a Notice of Additional Information on June 27, 2016, ECF No. 27 , as well as a Second Notice of Additional Information on June 30, 2016. ECF No. 34 . On July 5, 2016, this court referred the above Motion to United States M agistrate Judge Lawrence R. Leonard, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), to conduct hearings, including evidentiary hearings, if necessary, and to submit to the undersigned dis trict judge proposed findings of fact, if applicable, and recommendations for the disposition of the Motion. ECF No. 39 . Having conducted hearings on the Motion on July 13, 2016, and July 22, 2016, see ECF Nos. 50 , 58 , the Magistrate Judge filed the Report and Recommendation ("R&R") on July 25, 2016. ECF No. 57 . The Magistrate Judge recommended denying the Plaintiff's Motion. R&R at 32. By copy of the R&R, the parties were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge. See id. at 32-33. On August 8, 2016, the Plaintiff filed her Objections to the R&R, ECF No. 94 , and on August 22, 2016, Defendant Simons filed his Reply . ECF No. 118 . While the Plaintiff labeled her requested relief as that of a "protective order," Mem. Supp. at 5, the Magistrate Judge found, and this court agrees, that the prospective injunctive relief requested by the Pl aintiff comes in the form of a preliminary injunction. R&R at 21. The Plaintiff did not object to this conclusion. The court, having examined the Objections to the R&R filedby the Plaintiff, and having made de novo findings with respect th ereto, does hereby OVERRULE the Objections, ADOPT AND APPROVE IN FULL the findings and recommendations set forth in the R&R of the United States Magistrate Judge filed on July 25, 2016, ECF No. 57 , and DENY the Plaintiff's Motion filed on June 21, 2016. ECF No. [17, as outlined. (See Memorandum Order and Foot Notes for Specifics) (Signed by Chief District Judge Rebecca Beach Smith on 9/6/16). Copies provided as directed 9/6/16.(ecav, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA

Norfolk Division

ROXANNE ADAMS,

ADMINISTRATOR OF

THE ESTATE OF JAMYCHEAL M. MITCHELL,
Plaintiff,
V.

CIVIL ACTION NO.

NAPHCARE,

INC.,

2:16cv22 9

et a l . ,

Defendants.

MEMORANDUM ORDER

This

matter

comes

"Time-Sensitive Motion
by

Jail

Personnel

before

the

to Respond

Against

court

to,

Inmate

and

on

the

Plaintiff's

Prevent,

Retaliation

Witnesses"

("Motion"),

accompanying Memorandum in Support,

filed on June 21,

Nos.

Defendant

17,

18.

("Simons")

On

June

24,

2016,

filed a Response,

ECF No,

the Plaintiff filed her Reply.

25,

well

June 30,

as

a

2016.

On July

Second
ECF No.

5,

2016,

Notice

provisions

Civil

of

Procedure

evidentiary

28

of

2 016,

Additional

ECF No.

Information

27,
on

34.

this

U.S.C.

72(b),

hearings,

Simons

ECF No. 26. The Plaintiff filed a

court

referred

United States Magistrate Judge Lawrence R.
the

L.

EOF

and on the same day,

Notice of Additional Information on June 27,
as

David

2016.

and

if

§

636(b)(1)(B)

to

conduct

necessary,

and

the

above

Leonard,
and

Motion

pursuant to

Federal

hearings,
to

to

submit

Rule

of

including
to

the

undersigned

district

applicable,

and

Motion.

ECF No.

Having

and

July

filed
ECF

recommendations

2016,

57.

see

and

The

advised of

findings

and

See id.

at

Objections

the

on

("R&R")

By copy of

their

32.

right

On

to

R&R,

the

Judge

the

R&R at

32-33.

to

August

ECF

made

this

on

Freeman,

34

25,

by

2016,

No.

94,

the
the

and

Plaintiff

August

the

the parties

Magistrate

on

2016.

denying

the R&R,

to

Judge.

filed

22,

the

her

2016,

118.

STANDARDS

Injunctive Relief

court's

prospective

injunctive relief

intervention with a

state-operated

at 8.^ "Such intrusion should not occur 'absent

the most extraordinary circumstances.'" R&R at 25
v.

July

written objections

8,

LEGAL

Magistrate

recommended

file

Plaintiff's Motion seeks

jail. See Mot.

the

58,

Judge

recommendations

form of

of

2016,

Recommendation

A.

the

disposition

if

50,

ECF Nos.

I.

in

fact,

Motion on July 13,

Defendant Simons filed his Reply. ECF No.

The

of

the

Magistrate

Plaintiff's Motion.

were

for

findings

39.

Report

No.

proposed

conducted hearings

22,

the

judge

F.3d

266,

268

(4th Cir.

1995)).

(citing Taylor
The

Magistrate

^ While the Plaintiff labeled her requested relief as that
of a "protective order," Mem. Supp. at 5, the Magistrate Judge
found, and this court agrees, that the prospective injunctive
relief requested by the Plaintiff comes in the form of a
preliminary injunction. R&R at 21. The Plaintiff did not object
to this conclusion.

Judge determined, and this court agrees, that a preliminary
injunction standard applies here.

at 22-24.

"A preliminary injunction is an extraordinary remedy never
awarded as of right." winter v. Nat. Res. Def. Council, 555 U.S.

7, 24

(2008)

{citing Munaf v. Geren,

553 U.S. 674,

689-90

(2008)). In considering a preliminary injunction, "courts

must

balance the competing claims of injury and must consider the

effect on each party of the granting or withholding of the

requested relief.'"

(quoting Amoco Prod. Co. v. Village of

Gambell, 480 U.S. 531, 542 (1987)). Furthermore, courts "should

pay particular regard for the public consequences in employing
the extraordinary remedy of injunction." ^
V. Romero-Barcelo,

456 U.S. 305, 312

(quoting Weinberger

(1982)). Overall,

"[a]

plaintiff seeking a preliminary injunction must establish that
he is likely to succeed on the merits, that he is likely to

suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an

injunction is in the public interest."

at 20; see also

Centro Tepevac v. Montgomery Cty. , 722 F.3d 184, 188 (4th Cir.
2013).

B. Review of Magistrate Judge's R&R

Pursuant to Rule 72(b)

Procedure,

the

court,

of

having

the Federal Rules of Civil

reviewed

the

record

in

its

entirety, shall make a ^ novo determination of those portions

of

the

R&R to

Fed. R.

which

Civ.

72(b) .

P.

in whole or in part,
or

recommit

the

the

Plaintiff

has

specifically

The court may accept,

reject,

objected.
or modify,

the recommendation of the magistrate judge,

matter

to

him

with

instructions.

28

U.S.C.

§ 636(b)(1).
II.

The

Plaintiff

the R&R.

PLAINTIFF'S

lists

OBJECTIONS

fifteen

(15)

Before ruling on the R&R,

different

the

objections

court will

to

examine each

in turn.

Objection 1

The

Judge
were

Plaintiff's

was

incorrect

unrelated

Magistrate

Judge

witnesses

to

first

See

Magistrate Judge

the

that

finding

that

the

present

litigation.

and

court

found,

R&R

the

discipline

at

27.

The

"disregarded the

of threats and abuse."

Rather,

is

in

received

litigation.

objection

Obj.

Magistrate

at 3.

Judge

evidence was not sufficient

inmate

the

Magistrate

witness

complaints

Obj .

agrees,

unrelated

Plaintiff

at

that
to

2-5.

the

the

asserts

inmate witnesses'

The

inmate
present

that

the

contentions

This assertion is not correct.

concluded

that

the

Plaintiff's

to warrant the extraordinary remedy

of injunctive intervention by this court at this juncture.
Objection 2

The

Plaintiff's

second

objection

states

that

Defendant

Simons's cross-examination used impermissible character evidence

under

Federal

Rule

of

Evidence

404(a),

and

that

this

impermissibly admitted character evidence was reflected in the
R5cR, which "repeatedly underscored 'disciplinary' and 'prison

policy violations' allegedly committed by the inmate witnesses."
Obj. at 5 - 6.

Federal Rule of Evidence 404(a)(1) states that "[e]vidence

of a person's character or character trait is not admissible to

prove that on a particular occasion the person acted in
accordance

with

404(a)(1).

In the hearings,

under this Rule,

the

character

or

trait.

Fed.

R.

Evid.

the Plaintiff raised objections

which the Magistrate Judge overruled.

Tr. of July 13, 2016, at 69-71, 194.

When reviewing a magistrate judge's evidentiary ruling, the
district court applies an abuse of discretion standard. Virgin

Enters. Ltd. v. Virgin Cuts, Inc., 149 F. Supp. 2d 220, 226

(E.D. Va. 2000) (citing Benedi v. McNeil-P.P.C. ,—Inc^. 66 F.3d
1378, 1383 (4th Cir. 1995)). Under this standard, an evidentiary

ruling will be overturned,

only if

it is arbitrary and

irrational. Noel v. Artson, 641 F.3d 580, 591 (4th Cir. 2011).
The court finds

that the Magistrate Judge was neither

arbitrary nor irrational in these evidentiary rulings. As the

Magistrate Judge explained, these rulings were based on the
understanding that the evidence was not being admitted for the

improper purpose of showing conformity with bad character, but

rather

to

help

determine

facing

discipline

due

whether

to

the

retaliation,

inmate

or

witnesses

instead

due

were

to

an

"appropriate law enforcement response to disruptive behavior."
Tr. of July 13, 2016, at 71. Indeed, at the second hearing, the

Magistrate Judge stated that "the Court's going to look at [the
evidence]

as explanations for why certain actions were taken by

the jail with respect to those inmates." Tr.
at 6.

of July 22,

2016,

Evidence admitted for this purpose is highly relevant to

the present matter,
inmate's

as

the only way

retaliation claim

is

for

by showing

a

jail to rebut an

that

the motive

for

some action was not retaliation, but legitimate discipline.

Moreover,

the

court

does

not

find

that

conclusions rest on improper character evidence,

the

R&R's

and the court,

reviewing the matter de novo, does not base its own conclusions
on such evidence.

Objection 3

The Plaintiff's third objection states that the R&R did not
note a material amount of evidence,

testimony,
at 7,

including important inmate

and that it did not consider this evidence.

8. However,

Obj .

"[c]ourts are not required to identify every

piece of evidence they consider in making a decision." Newport
News

Holdings

434 n.7

Corp.

v.

Virtual

(4th Cir. 2010). Moreover,

City

Vision,

650

F.3d

423,

just because the R&R does not

cite a particular piece of evidence, it does not mean that the
Magistrate Judge did not consider it.
Objection 4

The Plaintiff's fourth objection states that she was not

afforded the

same opportunity as Defendant

Simons

to pursue

questioning of opposing witnesses. Obj. at 8. Specifically, the
Plaintiff

cites

a

point

in

the

first

hearing,

where

the

Magistrate Judge sustained an objection that the Plaintiff's
inquiry into the Complaint's allegations against a defendant
witness. Officer William A. Epperson, was beyond the scope of

the hearing. Id. (citing Tr. of July 13, 2016, at 175-76).
After reviewing the transcripts of both hearings, the court

finds no error in the Magistrate Judge's evidentiary rulings,

and no such disparity in the parties' opportunity to examine
witnesses. At the specific point cited in the first hearing, the

Magistrate Judge explained fully why the Plaintiff would not be

permitted that particular line of questioning: "I'm not going to
hear

the

allegations

of

alleged

misconduct

based

on

the

complaints. That is not what this hearing is about. It is clear
[Epperson] is a defendant." Tr. of July 13, 2016, at 176. Thus,
instead of being denied the ability to question motivation, the
Plaintiff

was

simply not

permitted

to

continue

questioning beyond the scope of the hearings.

a

line

of

Objection 5

The

Plaintiff's

disregards

fifth

challenges

objection

made

to

states

Defendant

that

"[t]he

Simons's

R&R

evidence."

Obj . at 9. Once again, the R&R did not have to cite every piece
of evidence,

n.7,

see Newport News Holdings Corp. ,

650

F.3d at

434

and the court finds no reason to believe the Magistrate

Judge did not consider the evidence cited in this objection.
Objection 6

The Plaintiff's sixth objection states that the Magistrate
Judge was

inconsistent

in treating hearsay evidence,

and that

"the Court simply accepted the assurance of Simons's lawyer that
there was no need to be concerned for the safety of the inmate
witnesses,

[this]

or by

extension,

litigation."

treatment

of

Obj.

evidence,

the

at 11.
and

no

sanctity

of

the

evidence

in

The court finds no disparate
blind

acceptance

of

statements

made by counsel. To the contrary, the Magistrate Judge expressed
concern over

the

inmates'

allegations

and

over

justifications

presented by Defendant Simons. See R&R at 29.

Objection 7

The

Plaintiff's

Magistrate Judge's
over

with

objection

concerns over

justifications

inconsistent

seventh

[his]

states

the

inmates'

presented

by

Defendant

finding

that

'Plaintiff

that

the

allegations
Simons

has

and
"are

failed

to

establish that the inmate witnesses' allegations give rise to a
8

reasonable
at

fear

of

retaliation

or

other

misconduct.'"

Obj.

13.

There

is no

allegations,

inconsistency in expressing concern over the

while

simultaneously

finding

that

they

are

not

sufficiently convincing to warrant the extraordinary remedy of
injunctive intervention by this court at this juncture.
Objection 8

The Plaintiff's eighth objection states that the court has

"adopted the wrong priority," in that it "has favored a desire
to not intrude on the detention of inmates over the sanctity of

evidence in this matter."

Obj.

at 15.

It also repeats several

arguments for relief. Id. at 15-16.

The finding that the requested relief is unwarranted does

not mean that the Magistrate Judge adopted the wrong priority.

Contrary to the Plaintiff's contentions,

the Magistrate Judge

had the right priority of weighing the evidence in light of the

extraordinary

circumstances

required

for

injunctive

relief,

especially when that relief would entail intervention in the
affairs of a

jail outside

the federal

system.

See R&R at

25

(citing Taylor, 34 F.3d at 269-70).^ Furthermore, to the extent

^ The

present

Plaintiff

case and

asserts

Taylor.

several

See Obj.

distinctions

at

15-16.

between

However,

the

such

distinctions do not undermine the Magistrate Judge's reliance on

Taylor's

general

instruction

to

"consider

the

'bedrock

principles' of comity and federalism before intervening into the

this

objection

merely

conclusion that relief

disagrees

with

the

Magistrate

is not warranted based on the evidence,

the court's ruling herein resolves that issue.

this matter ^

Judge's

Having reviewed

novo, the court agrees with the Magistrate Judge

here.

Objection 9

The Plaintiff's ninth objection states that
characterization

'not-uncommon'

of

jail

the

subject

inmate

characterization." Obj . at 17

"[t]he Court's

circumstances

claim

is

as

not

a

an

apt

(citing R&R at 16} . Overall,

the

objection seems to reflect a concern that the Magistrate Judge
does

not

adequately

differs

from

inmates.

recognize

RScR's

involving

degree

characterization

consideration of this case,

alleged

to which

this

does

retaliation

case

See id.

The

others

the

not

reflect

against

inadequate

but merely places it within a class

of cases involving allegations of retaliation against inmates.
Objection 10

The

Plaintiff's

tenth

objection states

that

"[t]he

Court

concludes that Court-intervention in matters like this is rarely

appropriate,

but fails to recognize that efforts to obtain a

non-judicial resolution have been attempted by the Plaintiff,

state

function

of

prison administration."

Taylor, 34 F.3d at 269-70).
10

R&R

at

25

{citing

but ignored by Defendant Simons."
further

states

that

the

conclude

that

certain

"federal

court-ordered

Obj . at 17.

Magistrate

relief

sought

transfers

of

Judge
in

The Plaintiff

was

the

incorrect

Motion,

prisoners,

to

such

as

court-ordered

staffing of prison pods, and court-ordered guardian appointments
to monitor the well-being of prisoners in state facilities[,]

is

likely beyond this Court's equitable authority under the present
circumstances."

Id.

(quoting

R&R

at

24) .

The

Plaintiff

also

recites case law to argue that federal courts do indeed have the
power to order such relief. Id. at 17-21.

First,

the court is well aware of the Plaintiff's efforts

to attain relief before filing the Motion. See, e.g., Mot. at 2

("In a

series

Defendant

sought

to

HRRJ

of

letters

and phone

Superintendent

obtain

Simons,

protection

for

calls with counsel
counsel

the

still

for

for

Plaintiff

incarcerated

inmates/detainees who are prospective witnesses in this case.").
The Plaintiff's attempts at a non-judicial resolution are not

relevant to the present issue of judicial resolution of this
matter through prospective injunctive relief.
to the Plaintiff's contention,

Second,

contrary

the R&R did not state that the

relief sought is beyond the court's equitable power. Rather, the
RScR stated that such relief is not available "under the present

circumstances,"

and "based on

evidence presented."

24, 29 (emphasis added).
11

R&R at

Objection 11

The

Plaintiff's

" [p]rotection

of

eleventh

inmate

objection

witnesses

from

states

coercion

that

in

the

underlying litigation is not 'overreaching,' but necessary to

protect

the

legitimacy

proceedings."

Obj.

and

at 21.

sanctity

This

of

the
merely

statement

underlying
expresses

disagreement with the R&R's conclusion that injunctive relief is
not warranted.

Objection 12

The Plaintiff's twelfth objection states that » [t]aking the

depositions
concerns"

of

the

inmate

over retaliation,

conclusion to

witnesses
and

the contrary is

that

does

not

extinguish

the Magistrate Judge's

in error.

Obj.

at

22.

This

objection again misconstrues the R&R, which states that "the
evidence also failed to establish that the Court's fact-finding

may be materially impaired unless there is provided the tangible
protection of a suitable court order," and that "[a]11 [inmate
witnesses] are able to provide deposition testimony as soon as

discovery begins." R&R at 28. This statement does not, as the
Plaintiff's objection contends, show endorsement of a view that

taking depositions somehow alleviates the risk of retaliation.
Instead, it gives a reason why the Plaintiff has not established
that the court's fact-finding will be impaired. If retaliation
does

occur,

it

will

be

of

record,
12

at

minimum,

through

depositions.

against,
court

Moreover,

retain the

to remedy

exists.

At

Plaintiff,

ability to file

the matter,

this

insufficient

the

if

juncture,

for

the

or

retaliated

emergency motions

additional,

the

those

sufficient

evidence

extraordinary

with the

of

evidence

retaliation

remedy

of

was

prospective

injunctive relief.
Objection 13
The Plaintiff's thirteenth objection states that all of the

above

objections

had a

material

impact

the R&R suggests the matter was a

Specifically,

from

somewhere between"

word

the

comment

retaliatory
Plaintiff

opposing

"[h]owever"
that

conduct

infers

err

proceedings

is

routine

this

the

making

"there

there

issuing

{citing R&R at 2,
Nowhere

in

on

by

statement

in

and

that

evidence

therefore

R&R's

was

a

matter,

side

the

the

R&R,

given

"very close call." Obj.

that

the opposing positions,

transition
RSeR's

the

on

of

a

"the

truth

lies
the

recommendation,

and

its

grey

inmate

area

between

discipline,"

"narrow margin"

that

the

protecting

requested

at 22.

the R&R's use of

fair

and

that

relief.

the

between

court

the

the

should

underlying

Id.

at

22-23

28).

in the R&R does the Magistrate Judge indicate this

matter to be a

"very close call."

Rather,

the R&R acknowledges

that the Plaintiff presented evidence favorable to her position.
The

R&R's

recognition

that

"the
13

truth

lies

somewhere

between"

the narratives presented by each side does nothing to indicate
how

close

the

remedy of
do

not

Plaintiff

came

injunctive relief.

tip

the

scales

to

warranting

the

With that in mind,

in

favor

of

the

extraordinary

the objections

Plaintiff

at

this

juncture.
Objection 14

The

Plaintiff's

fourteenth

objection

further

argues

for

granting her requested relief for two of the inmate witnesses,
stating

that

indicates

status

"[t]he

the

quo

continuation

breadth

is

not

of

the

of

CO

appropriate;

threats

threats;

this

and

continuation

Court

conducted

.
of

the

intercede

and

Obj . at 23.

For

must

prescribe actions that eliminate the threats."

support,

abuse

the objection restates evidence taken in the hearings
by

the

Magistrate

Judge.

See

id.

at

23-24.

assertion is merely further argument on the merits,

This

which were

thoroughly considered and addressed by the Magistrate Judge.
Objection 15
The

Plaintiff's

"[t]he Court's

fifteenth

suggestion that

revisited is

unlikely."

the

motion presents

"instant

effectively address
and that

witnesses

Obj.

be

final

this

given

The

at

24.

a

'one

higher
14

that

effectively
states

Plaintiff

and only'

the rule of

a

objection argues

matter may be

this matter before

"the sanctity of

must

and

that

opportunity

key evidence is

to

lost,"

law in protecting these

priority

than

any

fear

of

minimally stepping on the toes of regional jail administrators."
Id.

at

25.

The court disagrees.
and

retaliation

available

R&R's

for

the

finding

warrant

arise

Should substantial evidence of threats
in

the

Plaintiff

that

the

injunctive

and

present

relief

future,
the

there

inmates

evidence

does

not

are

remedies

themselves.

is

The

insufficient

foreclose

such

to

future

remedies.
III.

The court,

having examined the Objections

by the Plaintiff,
thereto,

CONCLUSION

and having made ^

to the R&R filed

novo findings with respect

does hereby OVERRULE the Objections,

ADOPT AND APPROVE

IN FULL the findings and recommendations set forth in the R&R of
the United States Magistrate Judge
No.

57,

ECF No.

The

and DENY

the

filed on July 25,

Plaintiff's Motion filed on June

21,

ECF

2 016.

17.

Clerk

is

DIRECTED

to

send

a

copy of

this

Order to counsel for all parties.
IT

2016,

IS

SO

ORDERED.

/S/

Rebecca Beach Smith
Chief Judge
REBECCA

CHIEF

September io , 2016
15

BEACH

JUDGE

SMITH

Memorandum