Webster v. Russell et al

Filing 30

MEMORANDUM OPINION. Signed by Magistrate Judge Robert S. Ballou on 9/26/2017. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
CHRISTOPHER TIMOTHY WEBSTER,
Plaintiff,
v.
BOBBY RUSSELL, et al.,
Defendants.

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Civil Action No. 7:16-cv-00487

MEMORANDUM OPINION
By:

Hon. Robert S. Ballou
United States Magistrate Judge

Christopher Timothy Webster, a Virginia inmate proceeding pro se, commenced a civil
rights action pursuant to 42 U.S.C. § 1983, naming three defendants associated with the Western
Virginia Regional Jail (“Jail”): Superintendent Bobby Russell, Lieutenant Colonel Cox, and
Major Amanda Trent. Plaintiff alleges that defendants were deliberately indifferent to dangerous
conditions of confinement. Defendants filed a motion to dismiss, to which Plaintiff responded.
For the following reasons, I deny the motion to dismiss and direct Defendants to file a motion for
summary judgment.1
I.
Plaintiff alleges the following facts in his verified complaint:
I was made to use a toxic paint (Rustoleum spray-in bedliner) inside of a 12x12
guard booth with no ventilation and no respirator. I was exposed to it for 3 ½
hours, causing me to vomit blood and have uncontrolled muscle spasms with
on-going non-stop migraine headaches ever since. The guards in the booth at
the time also got sick and it prompted them to read the label on the paint can
which stated very clearly that it was toxic, was to only be used outdoors or in a
well ventilated area with outside access . . . and was not to be used w/out a
respirator . . . [or] be exposed to it for longer than 30 minutes. I asked the C.O.s
5 times for respiratory protection, and they even told the Sgt. and Lt. on duty
about my request, who ignored it completely. I also told them I was getting
progressively sicker over a 3 hour period which was ignored until the C.O.s
themselves got sick at which time they made us stop. I couldn’t breathe well
and my body was trembling badly. Plus, I had turned white with red splotches,
so I asked for medical attention, which was ignored until I started spitting and
vomiting blood, at which time a C.O. became worried and took me to medical
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The parties have consented to the disposition of this matter in accordance with 28 U.S.C. § 636(c)(1).

where I was given Tylenol and told to take the rest of the night off, and that was
all that was done even though I had an eighth of a trash bag filled with blood
and vomit.
Allegedly, Major Trent approved the job and was disappointed that Plaintiff complained about
the job and its physical effects because “she was the one getting in trouble.” Major Trent
allegedly told Plaintiff that she told staff to offer Plaintiff gloves and respirator masks for the job.
Liberally construed, Plaintiff also allegedly experienced retaliation for complaining about these
events because staff wanted to take away the clothes that fitted him and give him clothes that did
not fit. Plaintiff is no longer incarcerated at the Jail and has been diagnosed with chemical
pneumonitis as a consequence of the job.
II.
Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the “legal sufficiency of a complaint”
under Rule 8(a), which requires a complaint to “contain . . . a short and plain statement of the
claim showing that the [plaintiff] is entitled to relief.” The court must construe pro se pleadings
liberally, Erickson, 551 U.S. at 94, and must also accept a pro se plaintiff’s nonconclusory
factual allegations as true at the motion to dismiss stage. See Twombly, 550 U.S. at 572; Aziz v.
Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011) (when ruling on 12(b)(6) claim, the court
assumes “all well-pleaded, nonconclusory factual allegations in the complaint to be true”).
Defendants first argue that Plaintiff failed to exhaust administrative remedies as required
by 42 U.S.C. § 1997e(a). In support, Defendants cite Plaintiff’s verified statement in which he
states he did not file administrative remedies because he feared retaliation. Dismissal pursuant to
42 U.S.C. § 1997e(a) is an affirmative defense for which Defendants bear the burden of
production and persuasion. See, e.g., Jones v. Bock, 549 U.S. 199, 216-217 (2007). Defendants
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do not offer evidence that an administrative remedy program existed at the Jail or that Plaintiff
was required to pursue administrative remedies about the relevant events. Plaintiff is not
required to plead exhaustion in support of the complaint, and the assertions in the verified
statement do not prove that an administrative remedy policy existed or applies to the relevant
events. See, e.g., id. at 215-16; Anderson v. XYZ Corr. Health Servs., 407 F.3d 674, 677 (4th
Cir. 2005). Accordingly, Defendant’s motion to dismiss must be denied in this regard.
Defendants next argue that the complaint fails to state a claim upon which relief may be
granted because “as soon as the [non-defendant] guards were made aware of the potential for
serious illness or injury, . . . they sought and secured medical attention for the Plaintiff.”
Defendants further argue that “the guards were with the Plaintiff and subjected to similar
conditions (and suffered from them as well) and upon realizing the adverse effects of the
situation immediately sought to remedy the situation and the potential effects.” However, the
motion to dismiss does not challenge the alleged liability of any of the current defendants. It
does not address the liability for any act or omission by Superintendent Russell, Lieutenant
Colonel Cox, or Major Trent. The liability of the non-defendant guards is not presently an issue.
Accordingly, this argument is not persuasive that the complaint fails to state a claim against the
defendants.
III.
I deny the motion to dismiss. In accordance with Standing Order 2013-6, defendants
shall file a motion for summary judgment supported by affidavit(s) within thirty days.
Enter: September 26, 2017

/s/ Robert S. Ballou
Robert S. Ballou
United States Magistrate Judge
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