Berryman v. Mullen et al

Filing 71

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 60 AND GRANTING IN PART AND DENYING IN PART THE DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT DKT. NO. 51 , AND ROSEBORO NOTICE REGARDING MOTION T O DISMISS DKT. NO. 69 : The Court ADOPTS the R&R (Dkt. No. 60 ); DENIES in part the defendants Motion to Dismiss or, in the Alternative, for Summary Judgment as to Berrymans failure to protect claims against Lt. Riffle, Officer Brady, Officer Brow n, and Officer Mullen (Dkt. No. [51)]; GRANTS in part the defendants Motion to Dismiss or, in the Alternative, for Summary Judgment as to Berrymans due process claim against Officer Brown, Officer Brady, and Lt. Riffle; his claim that PA Meyer was de liberately indifferent to his medical needs; and all of his claims against John Doe I, John Doe II, and the Four Unknown BOP Officers; and GRANTS in part and DENIES in part Berrymans Motion to Dismiss or Stay the Defendants Motion to Dismiss or for S ummary Judgment (Dkt. No. 56 ). The Court DIRECTS Berryman to file any opposition to the defendants 69 motion within 21 days of the entry of this Order, explaining why his case should not be dismissed. Berrymans responsemay not exceed 25 pages. Signed by District Judge Irene M. Keeley on 8/17/17. (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;
OFFICER JOHN DOE 1, BOP Officer;
OFFICER JOHN DOE 2, BOP Officer;
LT. JERALD RIFFLE; OFFICER BRAD
BROWN; OFFICER JOHN BRADY;
FOUR UNKNOWN BOP OFFICERS;
and PA CHRISTOPHER MEYER,
Defendants.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
On March 23, 2016, the plaintiff, Michael Berryman (“Berryman”),
filed this Bivens1 action, alleging that the defendants failed to
protect him from a dangerous cellmate, violated his due process rights
by

placing

him

in

punitive

segregation,

and

failed

to

provide

appropriate medical treatment (Dkt. No. 1). Pursuant to 28 U.S.C. § 636
and the local rules, the Court referred the complaint to the Honorable
James E. Seibert, United States Magistrate Judge, for initial review.
Now pending is Magistrate Judge Seibert’s Report and Recommendation
(“R&R”), recommending that the Court grant in part and deny in part the

1

In Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971), the Supreme Court permitted suit
against federal employees in their individual capacity, creating a
counterpart to suit under 42 U.S.C. § 1983.

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
defendants’ motion to dismiss or, in the alternative, for summary
judgment (Dkt. No. 60).
I. BACKGROUND2
A.

The Complaint
While asleep in the Special Housing Unit (“SHU”) at United States

Penitentiary, Hazelton (“USP Hazelton”) during the early morning hours
of May 8, 2014, Berryman was allegedly attacked by his cellmate.
Berryman claims that he was awakened when his cellmate began stomping
on his “left ribcage.” Although able to activate an emergency call
button, Berryman was quickly knocked unconscious by his assailant. He
regained consciousness sometime during the assault and alleges that,
as he attempted to protect himself, he was quickly knocked unconscious
again.
After Berryman regained consciousness the second time, Officer
Christopher Mullen (“Officer Mullen”), who 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.3 According to

2

The R&R contains a more thorough recitation of Berryman’s
factual allegations, as well as the procedural history of the case.
3

Berryman alleges that he and his cellmate were placed in paper
clothing the previous day due to his cellmate’s belligerent behavior
after receiving word of his father’s death (Dkt. No. 1 at 12-13).

2

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
Berryman, he was awakened later that morning by Physician’s Assistant
Christopher Meyer (“PA Meyer”), who noted his superficial injuries but
left without conducting a full examination (Dkt. No. 1 at 14-15).
The central allegation of Berryman’s complaint that forms the
basis for claims one, two, and three of his complaint is that, prior
to the attack, Berryman had repeatedly advised the defendants that his
cellmate, who had a history of violence toward other inmates, had
threatened variously to beat, rape, and kill him if Berryman was not
moved to another cell. Id. at 11-14. Berryman alleges that, despite
having notice of this risk, Officer John Doe I, Officer John Doe II,
Lieutenant Jerald Riffle (“Lt. Riffle”), Officer Brad Brown (“Officer
Brown”), Officer John Brady (“Officer Brady”), Officer Mullen, and Four
Unknown

B.O.P.

Officers

ignored

the

warning,

failed

to

respond

reasonably, and took no action to prevent the attack. Id. at 9-10, 16.
In his fourth claim, Berryman alleges that Officer Brown, Lt. Riffle,
and the Four Unknown B.O.P. Officers violated his due process rights
by taking his property, placing him in paper clothing, and subjecting
him to punitive segregation without a hearing. Id. at 16. Finally, he
claims that PA Meyer failed to provide timely and sufficient medical
treatment for his injuries. Id. at 17.
In his complaint, Berryman describes the following injuries:

3

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
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[,] 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. In his prayer for relief, Berryman seeks a declaration that his
constitutional rights have been violated, and an award of “compensatory
and punitive damages to the sum of 3,000,000 dollars,” attorneys’ fees
and costs, and anything else that the Court deems just. Id.
B.

The Defendants’ Motion
After

Magistrate

Judge

Seibert

concluded

that

Berryman’s

complaint did not warrant summary dismissal, he directed the United
States Marshals Service to effect service on the defendants (Dkt. No.
22). The defendants later moved to dismiss Berryman’s complaint or, in
the alternative, for summary judgment (Dkt. No. 51). In the motion,
they argued that 1) they are entitled to qualified immunity, 2) they
did not fail to protect Berryman from an assault, 3) they were not
deliberately indifferent to Berryman’s medical condition, and 4) PA
Meyer is immune from suit as a commissioned officer of the Public
Health Service (Dkt. No. 52 at 6-15).
In response, Berryman moved to dismiss the defendants’ motion,
asserting that he could not adequately oppose it “until[] he is granted

4

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
some limited discovery” (Dkt. No. 56 at 2). He also submitted a sworn
declaration that many of the individual defendants had falsely stated
that he had never indicated he was in danger (Dkt. No. 56-1).
C.

Report and Recommendation
Magistrate Judge Seibert thoroughly considered these issues in an

R&R filed on May 15, 2017 (Dkt. No. 60). First, he reasoned that
Berryman’s failure-to-protect allegations stated a cognizable Eighth
Amendment claim that the defendants had been deliberately indifferent
to a known risk of harm. Id. at 13. Because the defendants had not
provided enough evidence, however, Magistrate Judge Seibert could not
“make a determination . . . as to whether Plaintiff did in fact
repeatedly request to be moved; whether Inmate V.A. did in fact have
a known track record for attacking cellmates; or whether Plaintiff had
more involvement in the May, 2014 incident than the parties have
admitted.”
Furthermore,

Magistrate

Judge

Seibert

found

that

the

only

evidence of record was in conflict: Berryman averred that he had
repeatedly advised the defendants of a dangerous situation and had
asked to be moved; the defendants averred that they were completely
unaware Berryman was at risk of harm. Moreover, the defendants had not
provided any medical records, incident reports, separatee lists,

5

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
disciplinary records, or video surveillance tending to support their
contentions. Id. at 15-16. Given that material facts were in dispute,
Magistrate Judge Seibert recommended that the defendants’ motion to
dismiss Berryman’s failure-to-protect allegations be denied. Id. at 1718.
The R&R also construed Berryman’s fourth claim - labeled “due
process” - as asserting two constitutional violations: 1) confinement
in punitive segregation without a hearing in violation of the Fifth
Amendment’s provision of due process; and 2) denial of access to
regular clothing, regular bedding, and personal belongings in violation
of

the

Eighth

Amendment

prohibition

against

cruel

and

unusual

punishment. Id. at 26-32. As to the Fifth Amendment due process
violation, Magistrate Judge Seibert reasoned that, even assuming
Berryman’s segregation had been based on false allegations, he “does
not have a constitutional right to be free from false disciplinary
reports.” Id. at 28-29. As to Berryman’s Eighth Amendment claim, he
reasoned that involuntary confinement in the SHU without regular
clothing or personal belongings does not constitute cruel and unusual
punishment. Id. at 31-32. He therefore recommended that Berryman’s
fourth claim against Lt. Riffle, Officer Brown, Officer Brady, and Four
Unknown B.O.P. Officers be dismissed.

6

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
Magistrate Judge Seibert further concluded that Berryman’s fifth
claim, alleging that PA Meyer had failed to timely and adequately treat
his

injuries,

must

be

dismissed

in

its

entirety

because,

as

a

commissioned officer of the Public Health Service, under 42 U.S.C. §
233(a), PA Meyer is immune from Bivens suits, and can only be sued
pursuant to the Federal Tort Claims Act (“FTCA”). Id. at 25-26.
Finally, Magistrate Judge Seibert recommended that the Court dismiss
all of Berryman’s claims against John Doe I, John Doe II, and the Four
Unknown B.O.P. Officers, as he has failed for more than a year to
provide their true identities and to effect service of process upon
them. Id. at 32-33.

The R&R informed the parties of their right to file “written
objections identifying the portions of the recommendation to which
objections are made, and the basis for such objections.” It further
warned them that the failure to do so may result in waiver of their
right of appeal. Id. at 34. Although the defendants did not file
any objections to Magistrate Judge Seibert’s recommendations, after
receiving an extension of time, Berryman did file timely objections
on June 30, 2017 (Dkt. Nos. 63; 67).4

4

On August 14, 2017, the Court dismissed Berryman’s separately
filed FTCA case for failure to state a claim (Civ. No. 1:16cv63).

7

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
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
unless they are “clearly erroneous.” See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Vague objections to an R&R distract a district court from
“focusing on disputed issues” and defeat the purpose of an initial
screening by the magistrate judge. McPherson v. Astrue, 605 F.
Supp. 2d 744, 749 (S.D.W. Va. 2009) (citing Howard’s Yellow Cabs,
Inc. v. United States, 987 F. Supp. 469, 474 (W.D.N.C. 1997)).
Failure to raise specific errors waives the claimant’s right to a
de novo review because “general and conclusory” objections do not

Thereafter, Officer Mullen, Officer Brown, Officer Brady, and Lt.
Riffle moved to dismiss this case pursuant to the judgment bar of 28
U.S.C. § 2676 (Dkt. No. 69).

8

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

warrant such review. Id. (citing Orpiano v. Johnson, 687 F.2d 44,
47 (4th Cir. 1982); Howard’s Yellow Cabs, 987 F. Supp. at 474); see
also Green v. Rubenstein, 644 F. Supp. 2d 723 (S.D.W. Va. 2009).
Indeed, failure to file specific objections waives appellate review
of both factual and legal questions. See United States v. Schronce,
727 F.2d 91, 94 & n.4 (4th Cir. 1984); see also Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991).
III. DISCUSSION
In his “Motion of Objection” to the R&R, Berryman objects “to all
the summary judgment that has been ruled in favor of the defendants and
to the fact that Plaintiff filed two [] motions for discovery and they
were denied” (Dkt. No. 67 at 2). Aside from several inconsequential

factual

inaccuracies,5

Berryman’s

objections

fail

to

identify

specific errors in Magistrate Judge Seibert’s findings, thereby
placing the Court under no obligation to conduct a de novo review.
Diamond, 414 F.3d at 315.

5

For instance, the R&R states that “officers” saw Berryman being
attacked upon arrival at his cell, while only one officer’s declaration
actually says as much; the R&R suggests that Berryman must have arrived
at USP Hazelton in May 2014, but he claims to have arrived in March
2014; and the R&R states that Nurse “Frind” returned Berryman’s
clothing, but he claims “Lt. Frindley” did so (Dkt. No. 67 at 2-3).

9

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

When his objections are liberally construed, however, it is
clear that Berryman takes issue with the R&R’s conclusion that he
failed to allege a due process violation, and its recommendation
that his failure-to-treat claim against PA Meyer be dismissed. See
DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 (S.D.N.Y.
2009) (noting that pro se objections should be “construed to raise
the strongest arguments that they suggest” (internal quotation
omitted)). Upon de novo review of those issues, the Court discerns
no errors in Magistrate Judge Seibert’s recommendations.
A.

Due Process Rights
Berryman’s fourth claim alleges that Officer Brown, Lt. Riffle,

and Four Unknown B.O.P. Officers violated his due process rights when
they “took all property from [him], placeing [sic] into paper clothing
without anything for 11 days.” According to Berryman, this “punitive
segregation” imposed such an “atypical and significant hardship” that
he was entitled to the protection of a hearing, which he did not
receive (Dkt. No. 1 at 16). Magistrate Judge Seibert reasoned that
Berryman took issue with being placed in segregation on the basis of
a charge that later was determined to have been false, a claim that he
further reasoned has no constitutional basis (Dkt. No. 60 at 27-28).
In his objections, Berryman clarifies that he “received a disciplinary

10

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
for a torn sheet and blanket after [he] was placed into paper clothing
and it was found to be no good for due process reasons[.] [He] spent
11 days in paper, no blankets, hygiene strip cell, and [he] did nothing
wrong to be there” (Dkt. No. 67 at 3).
Although touched on briefly in the R&R, Berryman’s due process
claim is procedural and obliges the Court to determine 1) whether there
is a protectable liberty interest at issue, and 2) whether the interest
was, in fact, protected by adequate process. Incumaa v. Stirling, 791
F.3d 517, 526 (4th Cir. 2015). As Berryman recognizes, “prisoners have
a liberty interest in avoiding confinement conditions that impose
‘atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.’” Id. (quoting Sandin v. Conner, 515
U.S. 472, 484 (1995)). Importantly, atypical conditions do not “in and
of themselves provide the basis of a liberty interest,” but must arise
from

“policies

or

regulations,”

id.

at

527,

such

as

prison

classification regulations. Prieto v. Clarke, 780 F.3d 245, 249 (4th
Cir. 2015); Wilkinson v. Austin, 545 U.S. 209, 221, (2005) (“We have
held that the Constitution itself does not give rise to a liberty
interest

in

avoiding

transfer

to

confinement.”).

11

more

adverse

conditions

of

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
When

an

inmate

is

sentenced

to

the

general

population

and

subsequently is placed in administrative segregation, the “baseline for
atypicality” is the condition of general population prison life.
Incumaa, 791 F.3d at 527-28. Nonetheless, “[t]he mere limitations on
privileges, property, and activities for administratively segregated
inmates ‘fall[] within the expected perimeters of the sentence imposed
by a court of law.’” Hubbert v. Washington, No. 7:14-cv-00530, 2017 WL
1091943 (W.D.Va. Mar. 22, 2017) (quoting Sandin, 515 U.S. at 485).
Thus, to determine whether an “atypical and significant hardship” has
been imposed, the Supreme Court has outlined a fact intensive inquiry
into “(1) the magnitude of confinement restrictions; (2) whether the
administrative segregation is for an indefinite period; and (3) whether
assignment

to

administrative

segregation

had

any

collateral

consequences on the inmate’s sentence.” Incumaa, 791 F.3d at 530
(citing Wilkinson, 545 U.S. 209); see also Rivera v. Virginia Dep’t of
Corrections, No. 7:15CV00156, 2016 WL 7165997, at *9-*10 (W.D.Va. Dec.
8, 2016).
Several decisions by the Supreme Court and Fourth Circuit are
particularly instructive in this regard. In Beverati v. Smith, the
plaintiff

inmates

complained

of

12

their

six-month

administrative

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
confinement with conditions “more onerous than those specified in
prison regulations.” 120 F.3d 500, 503-04 (4th Cir. 1997).
They claim that when they were initially placed in
segregation, their cells were infested with vermin; were
smeared with human feces and urine; and were flooded with
water from a leak in the toilet on the floor above. And,
they assert, they were forced to use their clothing and
shampoo to clean the cells. In addition, Inmates maintain
that their cells were unbearably hot and that the food they
received was cold.
Id. at 504. Even accepting these allegations as true, the Fourth
Circuit concluded that, “although the conditions were more burdensome
than those imposed on the general prison population, they were not so
atypical that exposure to them for six months imposed a significant
hardship in relation to the ordinary incidents of prison life.” Id.
In Wilkinson v. Austin, the Supreme Court analyzed whether due
process protections adhered to a prisoner’s designation to Ohio’s
Supermax facility, a “maximum-security prison[] with highly restrictive
conditions, designed to segregate the most dangerous prisoners from the
general population.” 545 U.S. at 213. The conditions in Supermax were
more restrictive than even Ohio’s death row or administrative control
units, as inmates remained in their constantly lit, 7 by 14 foot cell
for 23 hours per day. Moreover, the cells and daily routine were
designed to prevent human contact, making the prison “synonymous with
extreme isolation.” The classification system also meant that inmates

13

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
could remain confined in Supermax indefinitely - limited only by the
length of their sentence - and inmates in Supermax also lost parole
eligibility. Id. at 214-15. The Supreme Court found that, “[w]hile any
of these conditions standing alone might not be sufficient to create
a liberty interest,” the combination of severe conditions, indefinite
placement,

and

parole

ineligibility

“impose[d]

an

atypical

and

significant hardship,” thus creating a liberty interest in avoiding
Supermax. Id. at 224 (distinguishing Sandin, in which the Supreme Court
found no liberty interest in avoiding 30-day placement in restrictive
disciplinary confinement).
In Incumaa v. Stirling, the Fourth Circuit relied on Beverati and
Wilkinson to conclude that inmates had a liberty interest in avoiding
confinement in North Carolina’s Special Management Unit (“SMU”). 791
F.3d at 532. First, conditions in the SMU were severe: the plaintiff
had “provided uncontested evidence describing . . . the near-daily
cavity and strip searches; the confinement to a small cell for all
sleeping and waking hours, aside from ten hours of activity outside the
cell per month; the inability to socialize with other inmates; and the
denial of educational, vocational, and therapy programs.” Id. at 531
(distinguishing Beverati because it did not involve such a high degree
of social isolation). Further, confinement in the SMU was indefinite

14

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
and could last many years; the plaintiff himself had been confined
there for 20 years. Id.
Here,

the

entirety

of

Berryman’s

due

process

claim

is

the

allegation that, without a hearing or just cause, he was placed in a
“strip cell” for 11 days without his own clothing, hygiene products,
or other personal property. Taking these allegations in the light most
favorable to Berryman, they do not demonstrate the existence of a
liberty interest. Beverati, 120 F.3d at 503. As an initial matter,
Berryman failed to allege that his segregation arose from “policies or
regulations.” Incumaa, 791 F.3d at 527. But more importantly, he failed
to

allege

facts

plausibly

sufficient

to

support

the

bare

legal

conclusion that the conditions or duration of his confinement subjected
him to an “atypical and significant hardship” (Dkt. No. 1 at 16).
First, the property restrictions allegedly imposed upon Berryman
are not such a “dramatic departure” from the ordinary conditions of
general population prison life that they establish a state-created
liberty interest. See Prieto, 780 F.3d 254; see also Prince v.
Crawford, No. 3:16-cv-02317, 2017 WL 2991350, at *15 (S.D.W. Va. May
31, 2017). There is no allegation that Berryman’s segregation involved
the invasive or extremely isolated conditions described in Incumaa. 791
F.3d at 532. Much like the six months of filthy and uncomfortable

15

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
conditions to which inmates were allegedly subjected in Beverati,
deprivation of normal clothing and hygiene products for 11 days is not
atypical enough to merit constitutional protections. Beverati, 120 F.3d
at 503; see also Sandin, 515 U.S. at 486 (30 days).
In addition, “the concerns espoused in Wilkinson and Incumaa
focus on the indefinite nature of supermax confinement.” Hubbert,

No.

7:14-cv-00530, 2017 WL 1091943, at *6. Berryman simply does not allege
that his brief tenure in “punitive segregation” was indefinite or that
it had any collateral consequences on his sentence. Incumaa, 791 F.3d
at 530. Rather, his allegations regarding the conditions of his
segregation

are

exactly

the

type

that,

“standing

alone,”

are

insufficient to create a liberty interest. Wilkinson, 545 U.S. at 224.
The Court “do[es] not in any way minimize the harshness of”
Berryman’s 11-day segregation, as his conditions of confinement were
no doubt undesirable during that time. Prieto, 780 F.3d at 254
(discussing the conditions on Virginia’s “death row”). Nonetheless, for
the reasons discussed, it is plain that his segregation fell within the
bounds

of

the

“broad

latitude”

that

the

Supreme

Court

affords

correctional officers “to set prison conditions as they see fit.” Id.
(Wilkinson, 545 U.S. at 227). Therefore, the Court agrees that Berryman

16

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
has failed to state a plausible claim for relief regarding alleged
procedural due process violations.
B.

Failure to Provide Treatment
Magistrate Judge Seibert recommended that Berryman’s fifth claim

asserting that PA Meyer failed to provide timely and appropriate
treatment for his injuries be dismissed because PA Meyer is immune from
a Bivens suit as a commissioned officer of the Public Health Service
(Dkt. No. 60 at 26). In his objections, Berryman reiterates that the
BOP has consistently delayed proper medical treatment - including Xray, CT, and MRI scans. Although Berryman believes that he experiences
neck and back problems, along with associated pain, that are the direct
result of the attack in question, few doctors have credited his
complaints (Dkt. No. 67 at 4-5).
The viability of Berryman’s failure-to-treat claim depends on
whether he may sue PA Meyer, not the extent of his injuries. As

Magistrate Judge Seibert discussed, the sole recourse an inmate
such as Berryman has for injury inflicted by a commissioned officer
of the Public Health Service acting within the scope of his
employment is against the United States pursuant to the Federal
Tort Claims Act. 42 U.S.C. § 233(a); Carlson v. Green, 446 U.S. 14,
18-19

(1980).

In

most

cases,

immunity
17

is

“established

by

a

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

declaration affirming that the defendant was a PHS official during
the relevant time period.” Hui v. Castaneda, 559 U.S. 799, 811
(2010). PA Meyer submitted such a declaration in this case, the
veracity

of

which

has

not

been

contested

(Dkt.

No.

52-7).

Therefore, despite Berryman’s contentions concerning his injuries
and

treatment,

PA

Meyer

is

not

subject

to

suit

in

this

Bivens action, and the failure-to-treat claim against him cannot
survive.
IV. CONCLUSION
For the reasons discussed, as well as those more fully outlined
in the R&R, the Court:
1)

ADOPTS the R&R (Dkt. No. 60);

2)

DENIES in part the defendants’ Motion to Dismiss or, in the
Alternative, for Summary Judgment as to Berryman’s failureto-protect claims against Lt. Riffle, Officer Brady, Officer
Brown, and Officer Mullen (Dkt. No. 51);

3)

GRANTS in part the defendants’ Motion to Dismiss or, in the
Alternative, for Summary Judgment as to Berryman’s due
process claim against Officer Brown, Officer Brady, and Lt.
Riffle; his claim that PA Meyer was deliberately indifferent

18

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
to his medical needs; and all of his claims against John Doe
I, John Doe II, and the Four Unknown BOP Officers; and
4)

GRANTS in part and DENIES in part Berryman’s Motion to
Dismiss or Stay the Defendants’ Motion to Dismiss or for
Summary Judgment (Dkt. No. 56).
V. ROSEBORO NOTICE

The Court ADVISES Berryman that, on August 15, 2017, Officer

Mullen, Lt. Riffle, Officer Brown, and Officer Brady filed a
further motion to dismiss Berryman’s claims against them (Dkt. No.
69). More particularly, they argue that the “judgment bar” of 28
U.S.C. § 2676 precludes Berryman’s pending Bivens claims because
the Court recently dismissed his separate FTCA case (Dkt. No. 70 at
6). Berryman has a right to respond to their motion, and the
failure to do so could result in the entry of an order of dismissal
against him. Davis v. Zahradrich, 600 F.2d 458, 460 (4th Cir.
1979); Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975).
Fed. R. Civ. P. 12(b)(6) allows a defendant to move for
dismissal on the grounds that a complaint does not “state a claim
upon which relief can be granted.” When reviewing a complaint, the
Court “must accept as true all of the factual allegations contained

19

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d 181, 188
(4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)). “While a complaint . . . does not need detailed factual
allegations, a plaintiff’s obligation to provide the ‘grounds’ of
his

‘entitle[ment]

to

relief’

requires

more

than

labels

and

conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal citation omitted).
A court is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265,
286 (1986). “[A] complaint must contain ‘enough facts to state a
claim to relief that is plausible on its face.’” Anderson, 508 F.3d
at 188 n.7 (quoting Twombly, 550 U.S. at 547). “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.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A motion to dismiss “does not resolve contests
surrounding the facts, the merits of a claim, or the applicability
of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992).

20

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND
ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]
Therefore, the Court DIRECTS Berryman to file any opposition to
the defendants’ motion within 21 days of the entry of this Order,
explaining why his case should not be dismissed. Berryman’s response
may not exceed 25 pages.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order to
counsel of record and to the pro se plaintiff, certified mail and
return receipt requested.
DATED: August 17, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

21