Rivera v. Dickenson et al

Filing 120

OPINION & ORDER adopting 110 Report and Recommendations; denying 118 Motion for Reconsideration ; granting 119 Motion to add evidence. Signed by Judge James P. Jones on 5/9/2016. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
DENIS RIVERA,

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Plaintiff,
v.
SGT J. B. DICKENSON, ET AL.,
Defendants.

Case No. 7:14CV00573
OPINION AND ORDER
By: James P. Jones
United States District Judge

This prisoner civil rights case under 42 U.S.C. § 1983 comes before me on
the Report and Recommendation of the Honorable Pamela Meade Sargent, United
States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B). The Report states
proposed findings of fact, conclusions of law, and recommended disposition, based
on evidence presented during a bench trial on November 5, 2015. After review of
the Report and several subsequent submissions from the pro se plaintiff, Denis
Rivera, a Virginia prison inmate, I will accept the Report without alteration and
enter judgment for Rivera for damages of $500 as recommended in the Report.
I.
Rivera’s Amended Complaint, among other things, alleged that two Red
Onion State Prison correctional officers, defendants J.B. Dickenson and S. Patrick,
used excessive force against him on December 28, 2012, and that defendant Nurse

S. Scott was deliberately indifferent to serious medical needs when he failed to
provide treatment for Rivera’s resulting injuries.

As relief, Rivera demanded

termination of employment for Dickenson, Patrick, and Scott; a transfer away from
Red Onion; nominal damages of $500; compensatory damages of $15,000;
punitive damages of $5,000; and costs.
I granted summary judgment in favor of Scott. Rivera v. Dickenson, No.
7:14CV00573, 2015 WL 5565273, at *6 (W.D. Va. Sept. 21, 2015). Specifically, I
found that Rivera’s disagreement with Scott’s examination and treatment decisions
was essentially a claim of negligence that is not actionable under § 1983. Id. I
denied summary judgment, however, on Rivera’s claim that Dickenson and Patrick
used excessive force against him. Id. at *2. I expressly found that the parties’
differing factual accounts presented
genuine issues of material fact in dispute as to Rivera’s behavior, the
officers’ observations, the degree of threat the officers reasonably
could have perceived from the circumstances, the need for force, the
relationship between the need for force and the amount of force
applied, and the extent of Rivera’s injuries from the incident.
Id.
The Report summarizes the trial evidence and finds that the defendants
Dickenson and Patrick used unnecessary and, therefore, excessive force against
Rivera by striking him in the head and pushing him to the floor of his cell for no
reason. The Report finds no persuasive evidence, however, “that the defendants
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repeatedly kicked, punched and kneed [Rivera] while he was lying on the ground,
in that the minor physical injuries observed by Scott [who testified at trial] do not
support such a beating.” (Report 25, ECF No. 110.)
The Report also finds that as a result of the defendants’ use of excessive
force on December 28, 2012, “Rivera suffered fairly minor injuries of a knot on his
head, an abrasion above his right eye and some eventual bruising on his right eye
and cheekbone area.” (Id.) The Report finds that these injuries had resolved by
January 10, 2013, when Dr. Miller examined Rivera and made no mention of them.
(Id.) The Report finds that while “Rivera likely suffered some discomfort caused
by these injuries,” he did not prove that the December 28, 2012, “incident or his
injuries have resulted in the continuing pain or the emotional problems that he
claims.” (Id. at 25-26.) Specifically, the Report finds that Rivera failed to present
“any medical evidence that his continuing problems with headaches or his right
eye were caused by the defendants’ use of excessive force on him.” (Id. at 25
(emphasis added).)
II.
The magistrate judge makes only a recommendation to this court. Mathews
v. Weber, 423 U.S. 261, 270 (1976). The district judge is charged with making a
de novo determination of those portions of the report and recommendation to
which a party makes proper objections. 28 U.S.C. § 636(b)(1). The district judge
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“may accept, reject, or modify, in whole or in part, the findings or
recommendations,” “may alsoreceive further evidence or recommit the matter to
the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1); accord Fed. R.
Civ. P. 72(b)(3).
Although the district court may give a magistrate judge’s proposed findings
and conclusions “such weight as [their] merit commands and the sound discretion
of the judge warrants,” the authority and the responsibility to make an informed
final determination of these matters remains with the district judge. United States
v. Raddatz, 447 U.S. 667, 682-83 (1980) (internal quotation marks and citation
omitted). Therefore, in performing a de novo review, the district judge must
exercise “his non-delegable authority by considering the actual testimony, and not
merely by reviewing the magistrate’s report and recommendations.” Wimmer v.
Cook, 774 F.2d 68, 76 (4th Cir. 1985).
A party objecting to the magistrate judge’s findings must do so “with
sufficient specificity so as reasonably to alert the district court of the true ground
for the objection.” United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007).
“General objections that merely reiterate arguments presented to the magistrate
judge lack the specificity required under Rule 72, and have the same effect as a
failure to object, or as a waiver of such objection.” Moon v. BWX Techs., Inc., 742
F. Supp. 2d 827, 829 (W.D. Va. 2010), aff’d in part, vacated in part, 498 F. App’x
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268 (4th Cir. 2012) (unpublished). “[I]n the absence of a timely filed objection, a
district court need not conduct a de novo review, but instead must only satisfy
itself that there is no clear error on the face of the record in order to accept the
recommendation.” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005) (internal quotation marks and citation omitted).
The defendants have not filed any objections to the Report and
Recommendation.

Rivera has filed a pleading titled “Objection to Proposed

Findings and Recommendations.” (ECF No. 112.)
Specifically, Rivera objects to the Report’s statement on Page 5 that his
informal complaint dated January 3, 2013, “makes no reference to video recordings
or preserving video recordings.” (Report 5, ECF No. 110.) In fact, as Rivera
points out, this informal complaint states: “I want the video from this date
check[ed] and to be save[d] for future investigation.” (Pl.’s Ex. 10, ECF No. 9810.)
For the most part, however, despite the title of his pleading, Rivera does not
make specific objections to particular findings in the Report. He largely reasserts
his testimony about the kind of force the defendants allegedly used and Nurse
Scott’s alleged misrepresentation of the injuries Rivera allegedly suffered and
points to particular documentation and testimony already considered in the Report.
Rivera also submits a new affidavit and new documentation about his medical
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complaints since December 28, 2012. He also resubmits affidavits from other
inmates stating that they viewed his injuries, heard his medical complaints, or
witnessed acts of retaliation from the defendants. In closing, Rivera asks the court
to “compensate Plaintiff with everything Plaintiff has requested for.” (Obj. 12,
ECF No. 112.)
Despite the general nature of Rivera’s objections, I liberally construe his
submissions as objecting to the Report’s factual findings regarding the nature of
the force the defendants used and the extent of the injuries caused by their actions.
I also construe Rivera’s submissions as objecting to the amount of damages
awarded as being insufficient to compensate him for his pain, suffering, and
expenses, related to the ongoing medical conditions he blames on the December
2012 incident. In light of these objections, I have made de novo review of these
portions of the Report, the transcript of the trial testimony, and Rivera’s many
exhibits — those submitted at trial and those attached to his recent pleadings, many
of which were also submitted at trial.
I do not find any factual basis in Rivera’s submissions to reject or alter the
factual findings of the Report concerning either the amount or type of force used
by Dickenson and Patrick or the resulting injuries. The declaration Rivera now
presents from Inmate Gorham (ECF No. 113-1), who allegedly witnessed the
defendants elbowing, kneeing, and punching Rivera and grabbing him by the neck,
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is inadmissible hearsay at this stage of the proceedings. Rivera did not request this
inmate as a witness for the trial to allow counsel for the defendants to cross
examine Gorham’s testimony. Rivera also offers no admissible medical evidence
showing that the events of December 28, 2012, caused his allegedly ongoing
problems with headaches, worsening vision, or eye twitching.
Rivera also continues to complain about the unavailability of video footage
and photographs of his injuries taken that day. During the trial and in the Report,
Judge Sargent acknowledged that Rivera had made timely requests for preservation
of the video of the incident and the photographs of his injuries and that officials
failed to preserve them without adequate explanation. I find that the Report gives
this issue appropriate consideration and weight in reaching its factual conclusions
about the incident on December 28, 2012, and its recommendation for judgment in
Rivera’s favor.
In summary, I find no factual or legal basis in Rivera’s post-trial
submissions to support alteration of any of the Report’s factual findings or
conclusions of law concerning the defendants’ actions and Rivera’s injuries on
December 28, 2012, or rejection of the Report’s recommendation for Judgment in
Rivera’s favor. Accordingly, I will overrule Rivera’s objections and accept the
Report.

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III.
Rivera has also filed additional evidence and argument in support of a
Motion for Reconsideration (ECF No. 118) of my decision granting summary
judgment for defendant Scott. Rivera asks me to reverse this ruling, reinstate his
claim against Scott, and grant judgment in his favor as to this defendant. For the
reasons stated in my earlier opinion, I find no genuine issue of material fact in
dispute for trial. Therefore, I will deny Rivera’s motion.
IV.
In addition, Rivera has filed a motion titled “Prohibitory/Permanent
Injunction” (ECF No. 116). He alleges that on April 5, 2016, defendant Patrick
came to escort Rivera to the shower and laughingly told another officer that Rivera
“had taken him to court for beating [his] ass up . . . .” (Mot. 2.) When Rivera
asked Patrick what he had said, Patrick allegedly stated: “Turn[] around and get
handcuff[ed] and I will show you what I said.” (Id.) Rivera became fearful of
leaving his cell and declined the shower.
At trial, Rivera presented evidence of encounters with the defendants after
December 28, 2012, that Rivera characterized as retaliatory. He now asserts that
the April 5 incident with Officer Patrick is additional evidence that this defendant
(and other Red Onion officers) are likely to harm Rivera in retaliation for bringing
this lawsuit.

Accordingly, Rivera asks for a court order directing that: (1)
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Dickenson and Patrick are not to be assigned to work near Rivera and (2)
whenever officers remove Rivera from his cell, the procedure must be videoed.
I cannot find that any injunctive relief is warranted here. First, no claim of
retaliation was before the court for trial, as the only claim to survive summary
judgment was excessive force. Therefore, the Report properly makes no factual
finding on this issue and does not recommend granting any permanent injunctive
relief related to the claim litigated in this action. Second, Rivera’s conclusory
assertions of retaliation and his speculative fear that the defendants might harm
him because of this lawsuit are not sufficient basis for any interlocutory injunctive
relief, pending his possible litigation of a retaliation claim. See Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008) (requiring that party seeking preliminary
injunction make clear showing of likelihood to succeed on merits and likelihood of
future “irreparable harm in the absence of preliminary relief,” among other things)
V.
Upon de novo review of the portions of the Report and Recommendation
that have been objected to, and upon review of the plaintiff’s post-trial
submissions, it is ORDERED as follows:
1.

The plaintiff’s motions (ECF Nos. 115 and 119) seeking
consideration of additional evidence in support of his claims are
GRANTED;
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2.

The plaintiff’s objections to the Report and Recommendation
are OVERRULED;

3.

The Report and Recommendation (ECF No. 110) is
ACCEPTED;

4.

A separate judgment will be entered in favor of the plaintiff in
the amount of $500;

5.

The plaintiff’s “Motion for Reconsideration” (ECF No. 118) is
DENIED; and

6.

The plaintiff’s motion (ECF No. 116) seeking injunctive relief
is DENIED.
ENTER: May 9, 2016
/s/ James P. Jones
United States District Judge

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