Berryman v. Mullen et al

Filing 186

MEMORANDUM OPINION AND ORDER REJECTING THE REPORT AND RECOMMENDATION [DKT. NO. 169 AND DENYING THE DEFENDANTS MOTION FOR SUMMARY JUDGMENT [DKT. NO. 155 . Signed by Senior Judge Irene M. Keeley on 1/23/19. (Attachments: # 1 Certified Mail Return Receipt)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL BERRYMAN,
Plaintiff,
v.

CIVIL ACTION NO. 1:16CV47
(Judge Keeley)

OFFICER CHRISTOPHER MULLEN;
LT. JERALD RIFFLE; OFFICER BRAD
BROWN; and OFFICER JOHN BRADY,
Defendants.
MEMORANDUM OPINION AND ORDER REJECTING THE REPORT
AND RECOMMENDATION [DKT. NO. 169] AND DENYING THE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 155]
The plaintiff, Michael Berryman (“Berryman”), has pursued two
lawsuits in this Court, one pursuant to the Federal Tort Claims Act
(“FTCA”) and another pursuant to Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Both arise
out of the same facts and circumstances. The Court has previously
dismissed Berryman’s FTCA case. Pending is the motion for summary
judgment

on

Berryman’s

Bivens

claim

filed

by

the

remaining

defendants, Officer Christopher Mullen, Lt. Jerald Riffle, Officer
Brad Brown, and Officer John Brady (collectively, “the Defendants”)
(Dkt.

No.

155).

Magistrate

Judge

Aloi

issued

a

Report

and

Recommendation (“R&R”), recommending that the Court grant the
Defendants’ motion (Dkt. No. 169). For the reasons that follow, the
Court REJECTS the R&R (Dkt. No. 169), and DENIES the defendants’
motion for summary judgment (Dkt. No. 155).

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER REJECTING THE REPORT
AND RECOMMENDATION [DKT. NO. 169] AND DENYING THE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 155]
I. BACKGROUND1
As it must, the Court recites the facts in the light most
favorable to the non-moving party. See Miller v. Leathers, 913 F.2d
1085, 1087 (4th Cir. 1990) (en banc) (observing that inmate was
entitled to “have the credibility of his evidence as forecast
assumed, his version of all that is in dispute accepted, [and] all
internal conflicts in it resolved favorably to him” (citation
omitted)), cert. denied, 498 U.S. 1109 (1991).
A.

Berryman’s Bivens Claim
In early May 2014, Berryman was placed in the Special Housing

Unit

(“SHU”)

at

United

States

Penitentiary,

Hazelton

(“USP

Hazelton”), with “inmate Von Axelson” (“Von Axelson”) (Dkt. No. 1
at 11). On May 6 and 7, 2014, Von Axelson threatened Berryman with
rape, serious injury, and death if Berryman could not be relocated
to another cell. Id. at 11-12. Von Axelson’s threats reached their
height on the evening of May 7th, when he received word that his
father had passed away. Id. at 12. Despite Berryman’s repeated
pleas to Officer Brown, Officer Brady, Officer Mullen, and other

1

The R&R contains a more thorough recitation of the relevant
facts, as well as the procedural history of the case.

2

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER REJECTING THE REPORT
AND RECOMMENDATION [DKT. NO. 169] AND DENYING THE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 155]
unknown officers, he was not moved to a different cell. Id. at 1214.
During the early morning hours of May 8, 2014, Berryman was
awakened when Von Axelson began stomping on him. Although able to
activate an emergency call button, Berryman was quickly knocked
unconscious by his assailant. He regained consciousness sometime
during the assault, but as he attempted to protect himself, he was
quickly knocked unconscious again. Id. at 14.
After Berryman regained consciousness the second time, Officer
Mullen, who by then had arrived on the scene, helped him to his
feet and took him to an observation cell where Berryman was left
with paper clothing and bedding.2 Berryman was awakened later that
morning by Physician’s Assistant Christopher Meyer, who noted his
superficial injuries but left without conducting a full examination
Id. at 14-15. As a result of the incident, Berryman claims to have
sustained the following injuries:
I have 4 protruding disk [sic] in lower lumbar, severe
stenosis in L lumbar, thecal sac encroachments in lower
lumbar, sliped [sic] disk in L lumbar, stenosis in
cervical spine C3-C7, disk herniation present moderately
encroaching upon the thecal sac at the C03/04 level[,]
2

Berryman alleges that he was placed in paper clothing the
previous day due to Von Axelson’s belligerent behavior after
learning of his father’s death (Dkt. No. 1 at 12-13).
3

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER REJECTING THE REPORT
AND RECOMMENDATION [DKT. NO. 169] AND DENYING THE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 155]
thecal sac encroachment and Y hard disks/osteophyt[e]
complex thecal sac encroaching C6/seven, evidence of
remote rib fractures and rib deformity lower left ribs.
Id. at 17.
B.

The Defendants’ Motion
On September 21, 2018, the Defendants filed a motion for

summary judgment on Berryman’s Bivens claim, alleging that the
Defendants failed to protect him from serious bodily injury in
violation of his Eighth Amendment rights (Dkt. Nos. 155, 156). In
support, the Defendants contend that they are entitled to summary
judgment because (1) the fight with Von Axelson did not cause
Berryman serious or significant injury, and (2) the Defendants did
not actually know that Von Axelson presented a risk to Berryman’s
safety before the May 8, 2014 fight (Dkt. No. 156 at 20-25). They
submit that Berryman cannot satisfy the first element because he
ostensibly refused medical treatment after the altercation with Von
Axelson, and there is no objective medical evidence that confirms
Berryman’s subjective complaints of pain. Id. at 23-24.
The Defendants further contend that Berryman cannot satisfy the
second element because there is no evidence that he reported his
fear of or threats from Von Axelson, and the Defendants executed
declarations denying that they had ever heard it or received
4

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER REJECTING THE REPORT
AND RECOMMENDATION [DKT. NO. 169] AND DENYING THE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 155]
reports about these threats or fears. Had they, the Defendants
would have followed standard procedure by reporting them to the
relevant authorities and separating Berryman and Von Axelson until
the

Special

Investigative

Services

team

could

conduct

an

investigation and determine whether the threats were credible. Id.
at 23. According to the Defendants, they are entitled to qualified
immunity because Berryman cannot satisfy either element of his
failure-to-protect claim. Id. at 24-25.
C.

Berryman’s Response
Berryman mailed his response opposing the Defendants’ motion

for summary judgment on October 22, 2018 (Dkt No. 163-1). He
contends that there is a genuine dispute of material fact as to the
first element because he did not refuse medical treatment after the
altercation with Von Axelson. Id. at 11. Rather, he directed
medical staff not to poke him “like doctors do.” Id. He further
contends that, after the altercation, a nurse saw that his ribs
were “sunk in” and yellow, black, and blue, and they are “sunk in”
to this day. Id. at 20.
Berryman also contends that there is a genuine dispute of
material fact as to the second element because, despite the
Defendants’ sworn declarations, he did inform the Defendants of his
5

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER REJECTING THE REPORT
AND RECOMMENDATION [DKT. NO. 169] AND DENYING THE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 155]
fear of Von Axelson and asked to be moved to another cell. Id. at
8-9. These claims are supported by his own sworn declarations (Dkt.
Nos. 163-12, 163-13, 163-14, 163-15).
D.

Report and Recommendation
On December 11, 2018, Magistrate Judge Aloi recommended that

the Court grant the Defendants’ motion for summary judgment (Dkt.
No.

169),

reasoning

that,

although

the

parties

submitted

conflicting affidavits, Berryman’s “affidavits are comprised of
conclusory allegations or lack support in the record.” Id. at 15.
In fact, after reviewing the record, he further concluded that
Berryman is not “credible” because his “claims are constantly
changing and have no support . . . .” Id. at 39.
II. STANDARD OF REVIEW
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection is timely made. 28
U.S.C. § 636(b)(1)(C). On the other hand, “the Court may adopt,
without explanation, any of the magistrate judge’s recommendations
to which the prisoner does not object.” Dellacirprete v. Gutierrez,
479 F. Supp. 2d 600, 603-04 (N.D. W. Va. 2007) (citing Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those
portions of a recommendation to which no objection has been made
6

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER REJECTING THE REPORT
AND RECOMMENDATION [DKT. NO. 169] AND DENYING THE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 155]
unless they are “clearly erroneous.” See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
III. APPLICABLE LAW
Summary

judgment

is

appropriate

only

“if

the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When ruling
on a motion for summary judgment, the Court reviews all the
evidence in the light most favorable to the nonmoving party.
Miller, 913 F.2d at 1087. The Court must avoid weighing the
evidence or determining its truth and limit its inquiry solely to
a determination of whether genuine issues of triable fact exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

and

of

establishing

the

nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
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BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER REJECTING THE REPORT
AND RECOMMENDATION [DKT. NO. 169] AND DENYING THE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 155]
The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment; the
evidence

must

be

such

that

a

rational

trier

of

fact

could

reasonably find for the nonmoving party. Id. at 248–52.
IV. DISCUSSION
Berryman’s complaint alleges that the Defendants failed to
protect

him

from

serious

bodily

constitutional rights when they did

injury

in

violation

of

his

not respond to his repeated

concerns that Von Axelson threatened him, making him fear for his
life (Dkt. No. 1).
Under the Eighth Amendment, “‘prison officials have a duty .
. . 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)). “Being violently assaulted in prison is simply not ‘part of
the penalty that criminal offenders pay for their offenses against
society.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347
(1981)). To succeed on a failure-to-protect claim, plaintiffs must
satisfy two elements. “First, the prisoner must establish he
suffered a serious deprivation of his rights in the form of a
serious or significant physical or emotional injury.” Nelson v.
8

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER REJECTING THE REPORT
AND RECOMMENDATION [DKT. NO. 169] AND DENYING THE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 155]
Henthorn, 677 Fed. App'x 823, 826 (4th Cir. 2017) (quotations
omitted). “Second, the plaintiff must show that the prison official
had

a

sufficiently

deliberate

culpable

indifference

to

state
inmate

of

mind,

health

or

specifically
safety.”

a

Id.

(quotations omitted).
A

prison

official

“is

deliberately

indifferent

to

a

substantial risk of harm to a [prisoner] when that [official]
‘knows of and disregards’ the risk.” Parrish ex rel. Lee v.
Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (quoting Farmer, 511
U.S. at 837). “A prison official is not liable if he or she ‘knew
the underlying facts but believed (albeit unsoundly) that the risk
to which the facts gave rise was insubstantial or nonexistent.’”
Strickland v. Halsey, 638 Fed. App’x 179, 185 (4th Cir. 2015)
(quoting Farmer, 511 U.S. at 844).
“A plaintiff can establish a prison official’s subjective
actual knowledge by direct evidence that the official was actually
aware of the substantial risk of injury or through circumstantial
evidence that permits the inference that the risk of injury was ‘so
obvious’ that the prison official ‘did know of it because he could
not have failed to know of it.’” Nelson, 677 Fed. App’x at 826
(quoting Cleveland, 372 F.3d at 302). In other words, “the official

9

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER REJECTING THE REPORT
AND RECOMMENDATION [DKT. NO. 169] AND DENYING THE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 155]
must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also
draw the inference.” Farmer, 511 U.S. at 837.
The R&R reasoned that courts may, in certain circumstances,
make credibility determinations based on competing affidavits when,
for

example,

“an

affidavit

contains

unsupported,

conclusory

statements . . . .” (Dkt. No. 169 at 38 (quoting United States v.
Perez, 393 F.3d 457, 464 (4th Cir. 2004)). But Perez did not
involve conflicting sworn declarations that require a credibility
determination at summary judgment. Rather, it involved whether an
allegedly “bare bones” affidavit provided probable cause for a
search warrant. See generally Perez, 393 F.3d 457.
The Fourth Circuit has long instructed that “summary judgment
should not be made on the basis of conflicting affidavits.” Pronin
v. Johnson, 628 Fed. App’x 160, 161 (4th Cir. 2015); Davis v.
Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979) (explaining summary
judgment “may not be invoked where . . . the affidavits present
conflicting

versions

of

the

facts

which

require

credibility

determinations”). Indeed, “[i]t is not [the Court’s] job to weigh
the evidence, to count how many affidavits favor the plaintiff and
how many oppose him, or to disregard stories that seem hard to

10

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER REJECTING THE REPORT
AND RECOMMENDATION [DKT. NO. 169] AND DENYING THE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 155]
believe.” Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “Those
tasks are for the jury. Under Liberty Lobby, a court should
consider only whether there is a genuine issue for trial.” Id.
(citing same).
Although Berryman has not filed objections to the R&R, it
would be plain error to grant the Defendants’ motion for summary
judgment because the parties have submitted conflicting affidavits
that create genuine issues of material fact and require credibility
determinations (Dkt. Nos. 156-2 at 1-3, 156-3 at 1-4, 156-4 at 119, 156-5 at 1-5, 156-6 at 1-3, 156-7 at 1-2, 156-8 at 1-3, 156-9
at 1-3, 163-12, 163-13 at 1-2, 163-14 at 1-2, 163-15 at 1-2).
Because these credibility determinations are the province of the
jury, not the Court, the Defendants are not entitled to summary
judgment. Gray, 925 F.2d at 95.
V. CONCLUSION
For

these

reasons,

the

Court

REJECTS

the

Report

and

Recommendation (Dkt. No. 169), and DENIES the Defendants’ Motion
for Summary Judgment (Dkt. No. 155).
It is so ORDERED.

11

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER REJECTING THE REPORT
AND RECOMMENDATION [DKT. NO. 169] AND DENYING THE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 155]
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record by electronic means and to the pro se
plaintiff by certified mail, return receipt requested.
DATED: January 23, 2019.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

12