Taylor v. Hunter et al
Filing
37
MEMORANDUM OPINION. Please Read Opinion for complete details. Signed by District Judge Robert E. Payne on 11/15/2016. Copy mailed to Plaintiff.(ccol, )
IN THE UNITED
STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA p" ^ jL, E_
Richmond Division
IL j
MOV I 6 2016
GREGORY TAYLOR,
Plaintiff,
V.
Civil Action No.
HUNTER, ^
3:15CV635
al.,
Defendants.
MEMORANDUM OPINION
Gregory Taylor,
a Virginia inmate proceeding pro se and in
forma pauperis, filed this 42 U.S. C. § 1983 action.^
is before the Court on the Motion to Dismiss
by
Superintendent
Hunter,^
the
Court's
complaints by individuals proceeding
U.S.C.
§
September
1915(e)(2),
27,
2016,
and
the
directing
(ECF No.
authority
31}
to
in forma pauperis,
Court's
Taylor
This matter
to
Memorandum
show cause
filed
review
see
Order
as
to
28
of
why
^ That statute provides, in pertinent part:
Every person who,
under color of any statute
. . . of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other
person
within
the
jurisdiction
thereof
to
the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable
to the party injured in an action at law . . . .
42 U.S.C.
§
1983.
^ Hunter is the Superintendent at the Piedmont Regional Jail
("PRJ").
.J
Jenkins and Williams^ should not be dismissed without prejudice
for failure to serve them in a timely manner.
Roseboro''
notice,
Dismiss.
without
For
the
Taylor has
reasons
prejudice
all
pursuant to Rule 4(m)
not
that
claims
responded
follow,
the
against
Despite receiving
to
the
Court
Motion to
will
Jenkins
and
dismiss
Williams
of the Federal Rules of Civil Procedure,
grant the Motion to Dismiss
{ECF No.
31}
filed by Superintendent
Hunter, and dismiss Taylor's claim against Duty Sergeant.®
The
action will be dismissed.
I.
FAILURE TO
Under Federal Rule
ninety
The
(90)
days
summonses
SERVE JENKINS AND WILLIAMS
of
Civil
from April 14,
issued
to
Procedure
2016
Defendants
4(m),® Taylor had
to serve
Jenkins
the Defendants.
and
Williams
^ Jenkins and Williams are Correctional Officers at PRJ.
^ Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
^ Duty Sergeant is a Correctional Officer at PRJ.
® Rule 4(m) provides, in pertinent part:
If a defendant is not served within 90 days after
the complaint is filed, the court-on motion or on its
own after notice to the plaintiff-must dismiss the
action without prejudice against that defendant or
order that service be made within a specified time.
But if the plaintiff shows good cause for the failure,
the
court
must
extend
appropriate period.
Fed.
R.
Civ.
P.
4(m).
the
time
for
service
for
an
were
returned as unexecuted on June 24, 2016.
(ECF No. 24, at 2, 5.)
With
stated:
respect
to
Williams,
the
Marshal
"Unable
to
determine which Off. Williams is referenced in summons; multiple
Williams
located @ Piedmont Reg.
identifiers and time frame."
Jenkins,
Giles,
the Marshal noted:
Admin.
at 5.)
does
not
know
where
Lt.
Per Gloria
(Id.
(I^ at 3, 6.)
summonses were
Taylor
made
identifying information,
current
Accordingly,
the
"No longer employed[.]
works
Williams,
a
With respect to
Jenkins
After the
(2)
at 2.)"'
Copies of the Marshal's service documents were sent to
Taylor.
and
(Id.
Please provide more
Has no forwarding info regarding whereabouts."
currently.
Asst.
Jail.
Court
place
returned unexecuted as
no
attempt
to
such as a first name,
of
employment
or
to Jenkins
provide
(1)
more
for Williams and
address
for
Jenkins.
by Memorandum Order entered on September 27,
directed Taylor
"to
show good cause why his
2016,
claims
against Defendants Jenkins and Williams should not be dismissed
without prejudice."
(ECF No. 33, at 1.)
Taylor has responded,
stating:
I received a[] Memorandum Order October 4, 2016
to show good cause for the failure to serve defendants
Jenkins and Williams.
I have no way to serve them and
need the help of the federal marshals to assist me
again.
I'm not sure but I believe Jenkins does not
work here anymore but Williams is still employed at
^ The Court corrects the capitalization in the quotations
from
the
submissions
in the record.
Piedmont Regional Jail.
Defendants can be reached at
Piedmont Regional
Jail
801
Industrial
Park Road
Farmville, VA 23901.
(ECF No. 34, at 1.)
Rule 4 (m)
requires that,
absent a showing of good cause,
the Court must dismiss without prejudice any complaint in which
the plaintiff fails
90-day period.
to serve the defendant within the allotted
Fed. R.
Civ.
P.
4(m).
Courts within the United
States Court of Appeals for the Fourth Circuit found good cause
to extend the
90-day time period when the plaintiff has made
"'reasonable,
diligent
defendant.'"
5145334,
Access
to
effect
service
on
the
Venable v. Dep't of Corr., No. 3:05cv821, 2007 WL
at *1
Floors,
efforts
(E.D. Va.
Inc. ,
Feb.
31 F.
7,
Supp.
2007)
(quoting Hammad v. Tate
2d 524,
528
(D.
Md.
1999)}.
Neither pro se status nor incarceration constitutes good cause.
Sewraz v. Long. No. 3:08CV100, 2012 WL 214085, at *1-2
Jan, 24, 2012)
(E.D. Va.
(citing cases).
Taylor's response fails to demonstrate good cause for his
failure to serve Williams and Jenkins in a timely manner.
June of 2016,
Taylor was advised that the United States Marshal
Service would need more
Williams
since
In
identifying information for Defendant
there were multiple
name Williams employed at PRJ.
individuals with the
last
Taylor was also advised that
Jenkins no longer worked at PRJ, and that the Marshal was unable
to obtain information regarding a current place of employment or
a
forwarding
address.
Despite
this
notice,
Taylor
failed
make an attempt to submit such information to the Court.
provides
no
reason
for
his
lack
of
diligence.
to
Taylor
Accordingly,
Taylor's claims against Defendants Jenkins and Williams will be
dismissed without prejudice pursuant to Rule 4 (m) of the Federal
Rules of Civil Procedure.
II.
PRELIMINARY REVIEW AND STANDARD FOR MOTION TO DISMISS
Pursuant to the Prison Litigation Reform Act
Court must dismiss any action filed by a
determines
a
the action
claim
on
which
§ 1915(e)(2);
includes
theory,'"
The
s^
claims
"is frivolous"
relief
28
U.S.C.
based
upon
Clay
v.
Yates,
(quoting Neitzke v.
second
standard
is
motion
sufficiency
contests
of
to
a
the
complaint;
952
or
(2)
"fails to state
granted."
The
28
first
indisputably
U.S.C.
standard
meritless
legal
"'factual contentions are clearly
809
F.
Supp.
417,
490 U.S.
familiar
under
standard
Rule
importantly,
facts,
applicability of defenses."
980 F.2d 943,
prisoner if the Court
1915A.
"'an
this
427
319,
(E.D.
327
for
a
Va.
(1989)).
motion
to
P. 12(b)(6).
dismiss
surrounding the
§
be
Williams,
dismiss under Fed. R. Civ.
"A
may
or claims where the
baseless.'"
1992)
(1)
("PLRA")
the merits
12(b)(6)
it
of
does
a
tests
not
claim,
the
resolve
or
the
Republican Party of N.C. v. Martin,
(4th Cir. 1992)
(citing 5A Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)).
In considering a motion to dismiss for failure to state a claim,
a plaintiff's well-pleaded allegations are taken as true and the
complaint
is
plaintiff.
viewed
in
the
most
favorable
to
the
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 {4th
Cir. 1993); s^ also Martin,
applies
light
only
to
factual
considering
a
identifying
pleadings
conclusions,
motion
are
allegations,
to
dismiss
that,
not
980 F.2d at 952.
entitled
to
however,
can
because
This principle
choose
they
the
and
are
"a
to
court
begin
no
more
assumption
of
bythan
truth."
Ashcroft V. Iqbal, 556 U.S. 662, 679 (2009).
The Federal Rules of Civil Procedure "require[ ] only
'a
short and plain statement of the claim showing that the pleader
is entitled to relief,'
in order to
*give the defendant fair
notice of what the . . . claim is and the grounds upon which it
rests.'"
Bell Atl.
Corp.
v.
Twombly,
(second alteration in original)
U.S.
41,
47
(1957)).
Id.
544,
(quoting Conley v.
555
(2007)
Gibson,
355
Plaintiffs cannot satisfy this standard
with complaints containing only
"formulaic
550 U.S.
recitation
of
(citations omitted).
the
"labels and conclusions"
elements
of
a
cause
of
or a
action."
Instead, a plaintiff must allege facts
sufficient "to raise a right to relief above the speculative
level,"
id.
"plausible
(citation
on
its
omitted),
face,"
stating
at
570,
a
claim
rather
than
that
is
merely
"conceivable."
Id.
"A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the
reasonable
inference
misconduct alleged."
that
the defendant
is
Iqbal, 556 U.S. at 678
Corp. , 550 U.S. at 556).
liable
must
"allege
elements of
[his or]
& Co-/
F.3d 761,
324
Microsoft Corp.,
United States.
the
(citing Bell Atl.
In order for a claim or complaint to
survive dismissal for failure to state a claim,
plaintiff
for
facts
her claim."
765
sufficient
289 F.3d 270,
state
all
the
the
Bass v. E.I. DuPont de Nemours
(4th Cir.
309 F.Sd 193,
to
therefore,
213
281
2003)
(citing Dickson v.
(4th Cir.
2002);
lodice v.
(4th Cir. 2002)).
Lastly,
while the Court liberally construes pro se complaints, Gordon v.
Leeke,
the
574 F.2d 1147, 1151 (4th Cir. 1978),
inmate's
advocate,
sua
sponte
it does not act as
developing
statutory
and
constitutional claims the inmate failed to clearly raise on the
face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243
{4th Cir.
Hampton,
1997)
(Luttig,
J.,
concurring); Beaudett v. City of
775 F.2d 1274, 1278 (4th Cir. 1985).
III.
SUMMARY OF TAYLOR'S ALLEGATIONS
In his Complaint, Taylor states:®
® The Court utilizes the pagination assigned to Taylor's
Complaint by the CM/ECF docketing system.
The Court corrects
the capitalization, spelling, and punctuation in quotations from
Taylor's Complaint.
I was told by officer Shearn and Williams to pack
up my things.
I was moving to A pod.
I immediately
told them I had an enemy over there.
They asked me
what
was
his
name.
I
told
them
"Inferno"
was
his
nickname.
They said so you're moving anyway.
So I
packed up and went into A pod.
And immediately as
soon as I went in, I was told to leave or I was going
to get my ass kicked. Both officers heard this. They
left.
The inmates told me again to get out or they
were going to whip my ass.
both officers came back.
kept saying.
I
I banged on the door and
told them what the inmates
Officer Shearn told me
"It's not my
problem you deal with it."
And they left again.
I
then went into my cell and was confronted by 4 to 6
inmates questioning me about a tattoo on my neck.
They were saying a lot of racial comments to me.
Then
they said you're the one who killed two black guys in
Buckingham.
I said no I am accused of killing two
white guys in self-defense.
make
up
my bunk
and
someone
Then I
turned around to
said hey
so
I
turned
around and was punched above my left eye, also in my
left ear. I was bleeding so badly I could barely see.
They started going through my things taking what they
wanted. They told me to go "beat the door" also they
said you better clean up all that blood and someone
gave me a rag and some kind of cleaning stuff.
So I
cleaned up all the blood really quick.
Then I went
and banged on the window and got the officers'
attention.
I then had my things by the door and the
inmates started taking more of my things. I could not
do anything because I was literally afraid for my
life.
Finally the officers came back.
They took me
out and handcuffed me.
had done it.
Officer Shearn asked me who
I told him again I only knew the one
inmate's nickname "Inferno."
Then I said look at the
video.
Officer Shearn laughed and said "Oh um the
video is broken."
They took me to medical.
Then I
was placed in a room beside the officers' station
where I remained 3 to 4 hours still covered in blood.
Lt. Jenkins took pictures of my injuries.
Then they
put me in segregation 8-20 to 8-27. Then I was placed
back in B-pod where I had been for 9 months with no
problems.
The officers removed two inmates about two
hours out of A pod after all this happened.
said to be my attackers.
They were
(Compl. 4-5, ECF No. 2.)
Taylor seeks $2,000,000.00 "for pain
and suffering."
(Id.
3.)
appointment
an
officers
with
fired
and
at
He also requests
optometrist,
"charged
Court
construes
CAT
scan,
criminally,"
perpetrators brought to justice."
The
a
and
surgery,
to
to
an
have
the
have
"the
assert
the
(Id.)
Taylor's
Complaint
to
following claims against Hunter and Duty Sergeant:
Claim One:
Superintendent
Hunter
violated
Taylor's
Eighth Amendment® rights by permitting and
inciting racially motivated violence at PRJ.
(Compl. 1.)
Claim Two:
Duty
Sergeant
violated
Taylor's
Eighth
Amendment rights by "t[aking pictures and
[doing] nothing to the officers or inmates
who assaulted [Taylor]."
IV.
(Id. at 2.)
ANALYSIS
In order to state a viable claim under 42 U.S.C.
§ 1983, a
plaintiff must allege that a person acting under color of state
law deprived him or her of a constitutional right or of a right
conferred by a
law of
the
United
States.
See
Dowe
v.
Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658
Cir.
the
1998) .
(4th
"Government officials may not be held liable for
unconstitutional
theory of
Total
respondeat
conduct
of
superior."
their
subordinates
Ashcroft
v.
Iqbal,
under
556
a
U.S.
® "Excessive bail shall not be required, nor excessive fines
imposed,
Const,
nor cruel
amend.
VIII.
and unusual
punishments
inflicted."
U.S.
662, 676
(2009)
(citations omitted).
"[A]
that each Government-official defendant,
plaintiff must plead
through the official's
own individual actions, has violated the Constitution."
A.
Id.
Claim Against Superintendent Hunter
In Claim One,
Taylor
contends
that
Superintendent
Hunter
violated his rights under the Eighth Amendment by permitting and
inciting racially motivated violence at PRJ.
Court
construes
Taylor's
claim
to
assert
(Compl. 1.)
that
The
Superintendent
Hunter failed to protect Taylor from assault by permitting such
violence to occur at PRJ.
It is clear that the Eighth Amendment imposes a duty on
prison officials
"'to protect
hands of other prisoners.'"
833
(1994)
F.2d 556,
caused
by
liability
prisoners
(1st Cir. 1988)).
another
for
the
prisoner's safety.
inmate
the
825,
842
Nevertheless, not every harm
into
officers
at 834.
constitutional
responsible
for
the
In order for a plaintiff to
state a claim for failure to protect,
facts
511 U.S.
Jimenez-Nettleship,
translates
corrections
S^
violence at
Farmer v. Brennan,
(quoting Cortes-Quinones v.
558
from
a plaintiff must allege
that plausibly suggest that he or she was
"incarcerated
under conditions posing a substantial risk of serious harm," id.
(citing Helling v. McKinney,
the
defendant
danger.
acted
with
509 U.S.
25,
"deliberate
Id. at 837.
10
35
(1993)),
indifference"
and that
to
that
1.
Siibstantial Risk of Harm
"Any time an individual is incarcerated,
that
he
inmates
may
.
(E.D. Va.
of
.
be
a
.
1995).
of
of
violence
at
the
Westmoreland v. Brown,
constitutional
risk
victim
harm
there is some risk
hands
883 F.
Supp.
As was the case in Westmoreland,
import presented in this
becomes
so
substantial
of
67,
74
"[t]he issue
action is
that
fellow
when the
'deliberate
indifference' to it, within the meaning of Farmer v. Brennan, is
the
legal
equivalent
Westmoreland,
of
inflicting
'punishment.'"
Id.^°
In
this Court observed that:
The
decisions
finding
constitute unconstitutional
that
prison
assaults
"punishment"
have most
often done so upon finding one of three species of
particularized harm.
In the first, the plaintiff has
been at some particularized risk individually because
of:
(i) a personal trait; or (ii) membership in an
identifiable class that is particularly vulnerable to
harm.
In the second, the person who committed the
assault has demonstrated an unusually violent nature
of which the defendant knows and which makes
the
assailant a substantial risk to his fellow inmates.
In the third,
the defendants were aware that the
specific assault was ongoing or had occurred, yet had
failed to respond to protect, or to treat, the victim.
Westmoreland,
883
F.
Supp,
at
74
(internal
citations
and
Hunter
permitted
and
parentheticals omitted).
By
alleging
that
Superintendent
incited racially motivated violence at PRJ,
Taylor appears to
In Farmer, the Supreme Court expressly declined to define
" [a] t what point a risk of inmate assault becomes sufficiently
substantial for Eighth Amendment purposes."
834
n.3.
11
Farmer, 511 U.S. at
suggest
that he
because of
.
.
was
.
at
"some particularized risk
membership in an identifiable class that
particularly vulnerable to harm."
74.
action
probable'"
377,
379
allegations
he
was
white
(5th
that
that his cell-mate was
because
officials
where
911 {7th Cir. 2005); see, e.g.,
App'x
plaintiff's
prison
it
that a particular attack will occur.
398 F.3d 904,
F.
by
a
he
is
Westmoreland, 883 F. Supp. at
A risk of assault may be sufficiently substantial as
require
78
individually
Cir.
is
to
"'highly
Brown v.
Budz,
Purvis v. Johnson,
2003)
(concluding
informed officials
four
that
times
racist and threatened him every day
were
sufficient
to
state
a
claim
for
failure to protect).
Here, however, Taylor's Complaint only alludes to race when
Taylor alleges that the inmates in A pod "were saying a lot of
racial comments to me.
Then they said you're the one who killed
two black guys in Buckingham.
I said no I am accused of killing
two white guys in self-defense."
(Compl. 4.)
Taylor fails to
allege facts setting forth his race and the race of the inmates
who assaulted him.
facts
Thus, Taylor has failed to allege sufficient
to support an inference that he faced a
substantial risk
of harm from racially motivated violence at PRJ.
2.
"A
prison
Deliberate Indifference
official
shows
deliberate
indifference
if
he
'knows of and disregards an excessive risk to inmate health or
12
safety.'"
Cir.
Odom v.
2013)
S.C.
Dep't of Corr.,
(quoting Fanner,
511 U.S.
at
349 F.3d 765,
837) .
770
(4th
Farmer teaches
"that general knowledge of facts creating a
substantial risk of
harm
must
is
not
enough.
The
prison official
also
draw
the
inference between those general facts and the specific risk of
harm
confronting
164,
168
the
{4th Cir.
V. Bruce,
inmate."
1998)
129 F.3d 336,
Here,
Johnson v.
(citing Farmer,
340
Quinones,
511 U.S.
F.3d
at 837); Rich
(4th Cir. 1997)).
Taylor merely alleges that Superintendent Hunter was
"aware of these violations and failed to respond."
This
145
conclusory allegation is
insufficient
(Compl.
to demonstrate
1.)
that
Superintendent Hunter was aware that Taylor faced a substantial
risk
of
harm
disregarded
from
that
Farmer,
511 U.S.
allege
sufficient
racially
risk.
at
See
837) .
facts
to
motivated
Odom,
Thus,
349
violence
P. 3d
at
at
770
because Taylor has
support
an
PRJ
and
(quoting
failed
Eighth Amendment
to
claim
against Superindentent Hunter, Claim One will be dismissed.
B.
Claim Against Duty Sergeant
In Claim Two, Taylor bases Duty Sergeant's liability on the
fact that he "took pictures
[after the assault]
and did nothing
to the officers or inmates who assaulted [Taylor]."
Taylor fails
to allege facts
(Compl.
2.)
indicating that Duty Sergeant was
personally involved in the deprivation of his rights.
Moreover,
to the extent that Taylor contends that Duty Sergeant failed to
13
take action against the inmates who assaulted him,
private
citizen
lacks
prosecution
or
Richard P.,
410 U.S.
a
judicially cognizable
nonprosecution
614,
of
619
another."
(1973).
Taylor "as a
interest
Accordingly,
the
R.S.
Linda
in
v.
Claim Two
will be dismissed.
V.
For
to
the
Dismiss
will
be
claims
foregoing
(ECF No.
dismissed
against
reasons,
31)
as
will
to
Jenkins
CONCLUSION
The
be
Hunter
and
prejudice pursuant to Rule
Procedure.
Superintendent
granted.
and
Williams
4 (m)
Claims
Duty
will
of the
Hunter's
One
Sergeant.
be
and Two
Taylor's
dismissed
Federal
Motion
Rules
without
of Civil
The action will be dismissed.
Clerk
is
directed
to
send
a
copy
of
this
Memorandum
Opinion to Taylor and counsel of record.
It
is
so ORDERED.
ML
/s/
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date:
November
,
2016
14
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