Barner v. Allen et al

Filing 37

MEMORANDUM OPINION. READ OPINION for complete details. Signed by District Judge M. Hannah Lauck on 05/19/2017. Memorandum Opinion mailed to Plaintiff. (ccol, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

DAQUAN CHARLIE BARNER,

Plaintiff,

cuW:uTd||^cour-.

V.

Civil Action No. 3:15CV648

SGT. B.ALLEN,rfa/.,
Defendants.
MEMORANDUM OPINION

DaQuan Charlie Bamer, a Virginiainmateproceeding pro se and informa pauperis, filed

this 42 U.S.C. § 1983 action.' The action proceeds on Bamer's Particularized Complaint ("Part.
Compl.," ECF No. 23).^ The matter is before the Court pursuant tothe Motion toDismiss filed

by Defendant Sgt. B, Allen.^ (ECF No. 28.) Bamer filed a Response (ECF No. 30), and Sgt. B.
Allen filed a Reply (ECF No. 31). Bamer has also filed a Motion for an Extension of Time to

file a Surreply (ECF No. 34), as well as his proposed Surreply (ECFNo. 35). Bamer's Motion

' The statute provides, in pertinent part:
Everyperson who, under color of any statute... of any State... subjects,
or causesto be subjected, any citizenof the United States or other personwithin
thejurisdictionthereofto the deprivation of any rights, privileges, or inmiimities

secured by the Constitution and laws, shall be liable to ^e party injured inan
action at law

42 U.S.C. § 1983.

^Bamer's initial Complaint named Sgt. B. Allen and Lt. Robinson as Defendants. (ECF
No. 1, at 1-2.) Bamer's Particularized Complaint omits any mentionof Lt. Robinson.
Accordingly, the action proceeds solely against Sgt. B. Allen.

^Sgt. B. Allen is an officer at the Southside Regional Jail. (Compl. 1.)

for an Extension of Time will be GRANTED and his Surreply will be DEEMED timely filed.
For the reasons that follow, Sgt. B Allen's Motion to Dismiss (ECF No. 28) will be DENIED.
I. Standard for Motion to Dismiss for Failure to State a Claim

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943,952 (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 plaintiffs well-pleaded

allegations are taken as true and the complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130,1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual allegations, however, and "a court considering
a motion to dismiss can choose to begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assiimption of 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.'" BellAtl. Corp. v. Twombly,
550 U.S. 544,555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and
conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations

omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the
speculative level," id. (citation omitted), stating a claim that is "plausible on its face," id. at 570,
rather than merely "conceivable." Id. "A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp., 550 U.S. at 556). In
order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must
"allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de
Nemours & Co., 324 F.3d 761,765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d

193,213 (4th Cir. 2002); lodice v. United States, 289 F.3d 270,281 (4th Cir. 2002)). Lastly,
while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147,1151 (4th
Cir. 1978), it will not act as the inmate's advocate and develop, sua sponte, statutory and

constitutional claims that the inmate failed to clearly raise on the face of his or her complaint.
See Brock V. Carroll, 107 F.3d241,243 (4th Cir. 1997) (Luttig, J., concurring); Beaudettv. City
ofHampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. Summary of Allegations and Claims

Inhis Particularized Complaint, Bamer alleges:''
Deliberate indifference was shown when on or about January 25, 2015

Defendant Sgt. B. Allen opened the door to Pod HA-400, and I was attacked and
assaulted by Devin Rawls after he had been added to my "keep separate" list upon
my request on January 11, 2015. Sgt. B. Allen either knew, or should have
known, that Devin Rawls was on my "keep separate" list since I had him added to
that list over two weeks before this incident. Devin Rawls killed my friend Randy
Pope the previous year. Shortly after my arrival at Southside Regional Jail Devin
Rawls told me he was going to kill me dso. That is when I had him added to my
"keep separate" list. I told Sgt. Brown about Devin Rawls' threat, and Sgt. Brown
added Devin Rawls to my keep separate list.
I was injured because Defendant Sgt. B. Allen was deliberately indifferent
to my safety. I sustained personal bodily injuries, including a contusion on the
back of my head. I also sustained psychological injuries, including PTSD, for
which I continue to be under a doctor's care and take medication.

My Eighth Amendment right under the Constitution of the United States
to be free from cruel and unusual punishment was denied by the actions and

The Court utilizes the pagination assigned to Bamer's submissions by the CM/ECF
docketing system. The Court corrects the emphasis and punctuation in quotations from Earner's
submissions.

inactions of Defendant Sgt. B. Allen as stated in paragraphs numbered 1 and 2
above.

I believe if a ranking officer such as SGT. B. Allen would have taken her
job seriously, I would have never been viciously assaulted by Devin Rawls who is
an iimiate that I had placed on my keep separate list to prevent something like this
from occurring. Now I suffer from PTSD and take medication twice a day
because of the severity of my symptoms.
(Part. Compl. 1-2 (paragraph numbers omitted).)

The Court construes Earner's Complaint to raise the following claim for relief:

Claim One:

Sgt. B. Allen violated Earner's rights under the Eighth Amendment^ when
she failed to protect Bamer from an assault by Devin Rawls. (Jd.)

Bamer seeks $250,000.00 in damages, the costs of this action, and all other relief to which he
may be entitled. {Id at 2.)
III. Failure to Protect

It is clear that the Eighth Amendment imposes a duty on prison officials "to protect
prisoners from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. 825, 833

(1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)).
However, not every harm caused by another inmate translates into constitutional liability for the

officers responsible for the inmate's safety. See id. at 834. In order for a plaintiffto state a
claim for failure to protect, a plaintiff must allege facts that plausibly suggest that he or she was
"incarcerated under conditions posing a substantial risk of serious harm," id. (citing Helling v.
McKinney, 509 U.S. 25,35 (1993)), and that the defendant acted with "deliberate indifference"
to that danger. Id. at 837.
A. Substantial Risk of Harm

"Any time an individual is incarcerated, there is some risk that he may be a victim of

violence at the hands of fellow inmates

" Westmoreland v. Brown, 883 F. Supp. 67,74

®
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const, amend. VIII.
4

(E.D. Va. 1995). As was the case in Westmoreland, "[t]he issue of constitutional import
presented in [Earner's] action is when the risk of harm becomes so substantial that 'deliberate
indifference' to it, within the meaning ofFarmer v. Brennan, is the legal equivalent of inflicting

'punishment.'" Id.^ hi Westmoreland, this Court observed that:
The decisions finding that prison assaults constitute unconstitutional
"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 [or her]
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.

Id. (internal citations omitted). Here, Earner arguably alleges circumstances falling within the

second species of particularized harm articulated in Westmoreland. However, neither

Westmoreland nor the relevant jurisprudence suggests that the foregoing list constitutes an
exhaustive description of the circumstances giving rise to a constitutionally significant risk of
inmate upon inmate assault. Id

A risk of assault may be sufficiently substantial as to require action by prison officials
where it is "'highly probable'" that a particular attack will occur, or in instances where a
particular inmate "pose[s] a 'heightened risk of assault to the plaintiff.'" Brown v. Budz,398
F.3d 904,911 (7th Cir. 2005); see, e.g., Purvis v. Johnson, 78 F. App'x 377,379 (5th Cir. 2003)
(concluding that plaintiffs allegations that he informed officials four times that his cell-mate was
a racist and threatened him every day because he was white, sufficiently stated a claim for failxire
to protect). Negligence or inadvertence does not suffice; "[i]n order to infer callous indifference

®
InFarmer, the Supreme Court expressly declined to define "[a]t what point a risk of
inmate assault becomes sufficiently substantial for Eighth Amendment pxirposes." Farmer, 511
U.S. at 834 n.3.

"when an official fails to protect a prisoner from the risk of attack, there must be a strong
likelihood rather than a mere possibility that violence will occur." Pinkston v. Madry, 440 F.3d
879, 889 (7th Cir. 2006) (alteration in original) (intemal quotation marks omitted).
Bamer has pled sufficient facts to suggest that he faced a substantial risk of harm from
Devin Rawls as of January 25,2015. Bamer alleges that Rawls had murdered Earner's friend.
Randy Pope, the previous year. (Part. Compl. 1.) Shortly after Bamer arrived at the Southside
Regional Jail, Rawls threatened that he was also going to kill Bamer. {Id.) Because of that

threat, Bamer had Sgt. Brown add Rawls to Earner's "keep separate" list. (Jd.) Given the "risks

attributable to [inmates] with known 'propensities' of violence toward a particular individual,"
the Particularized Complaint plausibly suggests a strong likelihood that Rawls would commit
acts of violence against Earner. Budz, 398 F.3d at 911; see also Purvis, 78 F. App'x at 379.
B. Deliberate Indifference

In his Complaint, Bamer alleges that on January 25,2015, Sgt. B. Allen opened the door
to Pod HA-400, which allowed Devin Rawls to enter the pod and assault Bamer even though

Rawls was on Earner's "keep separate" list. (Part. Compl. 1.) According to Earner, "Sgt. B.
Allen either knew, or should have known, that Devin Rawls was on [his] 'keep separate' list
since [Bamer] had him added to that list over two weeks before this incident." {Id.) Sgt. E.
Allen contends that these facts fail to establish that she was deliberately indifferent to a
substantial risk to Earner's safety. (Mem. Supp. Mot. to Dismiss 5, ECF No. 29.)

In his Reply and Surreply, Bamer contends that Sgt. B. Allen simply ignored any risk
posed by Rawls because she allowed him to enter Bamer's housing unit unescorted. (Reply 3,
ECF No. 30; Surreply 1-2, ECF No. 35.) According to Bamer, his housing pod was a maximum

security pod where policy required an officer to be present at all times. (Reply 3; Surreply 1.)

Bameralso alleges that in his housing pod, no inmates "were allowed to simply roam freely
withoutan escort." (Reply 3; Surreply 1.) Bamer appears to argue that Sgt. B. Allen ignored
any risk to Bamer by allowing Rawls to enter the housing pod unescorted.
Taking Bamer's allegations in his Complaint, Reply, and Surreply as tme, the Court

concludes that they are sufficient to plausibly suggest that Sgt. B. Allen was aware that Rawls
posed a risk to Bamer and failed to take action to alleviate that risk. See Barnes v. Cty. of
Monroe, 85 F. Supp. 3d 696,728-30 (W.D.N.Y. 2015) (denying motion to dismiss with respect
to inmate's failure to protect claim because inmate alleged sufficient facts to suggest that officers
knew that inmate faced risk of assault from another inmate, but failed to act); Toomer v. Bait.
CityDet. Or., No. DKC 12-0083,2014 WL 4678712, at *4 (D. Md. Sept. 18,2014) (denying
motion to dismiss with respect to inmate's failure to protect claim because inmate alleged

sufficient facts to suggest that officer "disregarded an obvious threat to Plaintiff by allowing
another inmate into his cell"). Bamer has alleged facts that plausibly suggest Sgt. B. Allen acted

with deliberate indifference. See Odom v. S.C. Dep't ofCorr., 349 F.3d 765, 770 (4th Cir. 2013)
("A prison official shows deliberate indifference if he [or she] 'knows of and disregards an

excessive risk to inmate health or safety.'" (quoting Farmer, 511 U.S. at 837)); see Purvis, 78 F.
App'x at 379. Accordingly, Sgt. B. Allen's Motion to Dismiss (ECF No. 28) will be DENIED.

IV. Conclusion

For the foregoing reasons, the Motion to Dismiss filed by Sgt. B. Allen (ECF No. 28) will

be DENIED. Any party wishing to file a motion for summary judgment must do so within sixty
(60) days ofthe date of entry hereof.

An appropriate Order will accompany this Memorandum Opinion.

1ll&

M. Hannah Lg mm 1/

Date:

IMAY 1 9 2317

Richmond, Virginia

/

United States District Judge