Brown v. King et al

Filing 57

MEMORANDUM OPINION AND ORDER Affirming and Adopting 54 Report and Recommendations: Granting in part and Denying in part 33 Motion to Dismiss; Granting in part and Denying in part 47 Motion to Deny Pltff's Motion to Dismiss ; Denying 50 M otion to Strike 48 Reply to Response to Motion, and Denying 50 Motion to Dismiss. Remaining defendants are instructed to respond to the claims that pltff has made against them. Signed by Senior Judge Frederick P. Stamp, Jr on 9/13/11. (copy to petitioner by cert mail)(soa) (Additional attachment(s) added on 9/13/2011: # 1 Certified Mail Return Receipt) (soa).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
THOMAS BROWN,
Petitioner,
v.

Civil Action No. 5:10CV93
(STAMP)

JOHN KING, Chief of Operations,
WV Regional Jail Authority;
TERRY MILLER, Executive Director;
WARDEN MICHAEL MARTIN,
Administrator TVRJ;
CHAD M. CARDINAL, ESQUIRE,
General Counsel, TVRJ;
MATTHEW BENNETT,
Correctional Officer, TVRJ;
JOHN DOE VANCE,
Correctional Officer, TVRJ;
LT. RICHARD COX,
Chief Correctional Officer, TVRJ;
JOHN DOE PIGLEY,
Correctional Officer, TVRJ;
and SERGEANT MICHAEL WAYNE,
Correctional Officer, TVRJ,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE,
I.

Procedural History

On September 8, 2010, the pro se1 petitioner, Thomas Brown
(“Brown”), initiated this action in the United States District
Court for the Southern District of West Virginia by filing a civil
rights complaint under 42 U.S.C. § 1983. An order was then entered
on September 14, 2010 transferring the action to this Court where

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 1999).

it was referred to United States Magistrate Judge James E. Seibert
for initial review and report and recommendation pursuant to Local
Rule of Prisoner Litigation Procedure 2.
After the plaintiff provided Magistrate Judge Seibert with
copies of the grievance forms submitted to support his claim that
he had exhausted his administrative remedies, Magistrate Judge
Seibert found on January 31, 2011 that his preliminary review of
the case did not lead to a finding that summary dismissal was
appropriate, and thus he directed the Unites States Marshals
Service to serve the defendants with the complaint.
Defendants then filed a motion to dismiss and, because the
plaintiff is proceeding pro se, the magistrate judge issued a
Roseboro2

notice.

The

plaintiff

filed

a

response

to

the

defendants’ motion on May 19, 2011 and the defendants timely
replied. Plaintiff then filed a response to the defendants’ reply,
and defendants replied to the plaintiff’s response to their reply.
On September 1, 2011, Magistrate Judge Seibert issued his report
and recommendation on this case recommending that this court grant
the defendants’ motion to dismiss in part and dismiss defendants
Sergeant Michael Wayne (“Wayne”) and Chad M. Cardinal, Esquire
(“Cardinal”) as, in the magistrate judge’s opinion, the plaintiff
had failed to state a claim upon which relief could be granted as
to the claims against these defendants.

2

However, Magistrate Judge

Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975)
(finding that the court must inform a pro se plaintiff of his right
to file material in response to a motion for summary judgment).
2

Seibert also recommended that the defendants’ motion to dismiss be
denied as to the remaining defendants and that those defendants be
directed to respond to the plaintiff’s complaint.
The

magistrate

judge

informed

the

parties

that

if

they

objected to any portion of the report and recommendation, they were
required to file written objections within fourteen days after
being served with copies of the report. Neither party filed
objections.
II.

Facts

Plaintiff entered Tygart Valley Regional Jail (“TVRJ”) on or
about May 3, 2008.

The plaintiff avers that while an inmate at

TVRJ, he was moved thirteen different times as a result of threats
to his physical safety, and/or verbal and physical altercations.
He claims that the defendants each took part in deliberately
placing him in a cell block with inmates against whom he had
existing “keep away” orders, about which the defendants knew or
should have known.

He further contends that on or about September

7, 2008, as a result of this cell assignment, he suffered a severe
beating at the hands of the inmates from whom he was originally
supposed to be kept away, along with eight to ten other inmates.
Plaintiff states that this beating left him with serious facial
injuries which included a broken nose, split lip, and a facial
fracture which required the surgical insertion of a plate in order
to fix.

He also asserts that his shoulder was kicked out of place

and that his eye had to be “pushed back into his skull.”

3

He claims

that his injuries from this beating required a number of stitches,
including fifteen each in his lip and/or shoulder, and emergency
treatment at two different outside hospitals.
Plaintiff, an African American, also contends that, after the
beating on September 7, 2008, he was removed from the infirmary and
intentionally placed in a cell block that was known to house only
self professed Ku Klux Klan (“KKK”) and Aryan Brotherhood Caucasian
inmates, placing him in life-threatening danger of further attack.
The plaintiff contends that his move to this pod was for the
sadistic viewing pleasure of the Caucasian defendants.

However,

the

actually

plaintiff

makes

no

contention

that

any

beating

occurred during his time in this pod.
In addition to the above, plaintiff argues that the physical
and psychological injuries that resulted from the beating and from
his placement in the cell block housing “hate mongering” inmates
have not been completely repaired, and that the defendants have
denied him access to proper medical treatment beyond the initial
treatment that he received after the beating took place.
Plaintiff claims that he filed grievances as a result of the
cell block placement which placed his life in immediate danger, as
well as after the beating, and that his grievances went unheeded.
He alleges that defendants John King (“King”) and Terry Miller
(“Miller”) were “responsible for the grievances” and that they were
aware of the keep away orders, but did nothing to protect the
plaintiff from attack, and thus, “gave tacit authorization” to the

4

actions of the other inmates and defendants.

He also alleges that

defendant Mike Martin (“Martin”) was personally notified of the
plaintiff’s complaints and did nothing to protect him from the
beating, thus he also “gave tacit authorization” to the beatings.
The

plaintiff

claims

that

defendant

Matthew

Bennett

(“Bennett”) moved him to the pod where the beating took place, even
though he knew or should have known of the keep away order in
effect as to other inmates in the pod. The plaintiff also contends
that defendant Bennett was present at the time of the beating on or
about September 17, 2008, and that, in order to protect himself,
“wrote a disciplinary fight” against the plaintiff despite the fact
that he was only “covering up” and not fighting back during the
beating.
Plaintiff alleges that defendant John Doe Pigley (“Pigley”)
was working on the “tower” on the day of his beating, and did
nothing to protect him, but rather waited to respond, resulting in
more severe injuries than the plaintiff would have suffered had
defendant Pigley responded in a more timely fashion.
As for defendant John Doe Vance (“Vance”), the plaintiff
claims that defendant Vance was the official who transferred him to
the pod containing the KKK and Aryan Brotherhood inmates, and that
defendant Vance often verbally assaulted him.

The plaintiff also

alleges that when the plaintiff protested his placement in the pod
with the KKK and Aryan Brotherhood inmates, defendant Vance twisted

5

the plaintiff’s injured arm and threw him into his cell.3

Further,

the plaintiff asserts that defendant Vance entered his cell on
multiple occasions and threw objects at the plaintiff “in an
attempt to further cause [him] harm and pain.”
The plaintiff alleges that defendant Lt. Richard Cox (“Cox”)
refused to take pictures of the plaintiff’s injuries after the
attack, lied when asked why plaintiff was placed into protective
custody, and that defendant Cox was the one who actually ordered
the plaintiff to be placed in the pod containing the KKK and Aryan
Brotherhood inmates.
Plaintiff alleges that defendant Sergeant Michael A. Wayne
admitted to the plaintiff that several inmates told him that they
had jumped the plaintiff and were proud of it. Defendant Wayne was
the official who told the plaintiff that it was in his best
interest to go into protective custody.
Finally, the plaintiff argues that defendant Chad M. Cardinal,
Esquire was aware that several inmates had warned that there would
be problems from other inmates with regard to the plaintiff’s
personal safety, but denied the plaintiff’s request to disclose
exactly how many keep away orders were actually in place and denied
his request for a copy of a list of the keep away orders.

3

The plaintiff filed a grievance regarding this incident on
September 15, 2008, in which he alleged that defendant Vance took
him to the floor, attempted to break his left thumb, and pulled his
ear. The grievance states that the plaintiff called for help, and
Vance stopped when help arrived.
6

Plaintiff asserts that he has filed grievances to inform the
defendants

of

his

complaints,

administrative remedies.4

and

thus

has

exhausted

his

He alleges that these grievances have

been met with “complete and utter deliberate indifference,” and
that the inmates who attacked him in September 2008 were never
disciplined.
III.

Applicable Law

As there were no objections filed to the magistrate judge’s
recommendation, the findings and recommendation will be upheld
unless they are “clearly erroneous or contrary to law.”

28 U.S.C.

§ 636(b)(1)(A).
IV.

Discussion

In his report, the magistrate judge focuses on whether the
plaintiff has asserted a non-frivolous claim against each of the
defendants with regard to their deliberate indifference on three
bases: (1) deliberate indifference as to his incarceration under
dangerous conditions posed by other prisoners, (2) deliberate
indifference to excessive force being used against him by jail
staff, and (3) deliberate indifference to his serious medical
needs.

The magistrate judge

allegations

of

verbal

also

threats

4

and

addresses

the plaintiff’s

harassment,

as

well

as

In support of this assertion, plaintiff provided the Court
copies of three WV Regional & Correctional Facility Authority
Inmate Grievance form reports, two WV Regional & Correctional
Facility Authority Inmate Request forms, and two letters with text
nearly identical to the Grievance and Request forms, each titled
“Grievance.”
7

plaintiff’s claims of excessive force in prison punishment under
the cruel and unusual punishment clause of the Eighth Amendment.
A.

Deliberate Indifference
A prisoner may assert a claim of failure to prevent harm

under the Eighth Amendment’s cruel and unusual punishment clause,
and thus under 42 U.S.C. § 1983, if he can show that “he is
incarcerated under conditions posing a substantial risk of serious
harm,”

and

that

prison

officials

act

indifference’ to inmate health and safety.’”

with

“‘deliberate

Farmer v. Brennan,

511 U.S. 825, 834 (1994)(quoting Rhodes v. Chapman, 452 U.S. 337,
347 (1981)).

In Farmer, the Supreme Court held that, while it

left open the level at which the risk of harm to a prisoner
becomes a “substantial risk of serious harm” (Id. at n.3), no
prison official can be held liable for “deliberate indifference”
to that risk unless he subjectively “knows of and disregards” it.
Id. at 837.

In order to possess this level of culpability, “the

official must be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must
also draw that inference.”

Id.

With regard to the plaintiff’s claims that the defendants
acted with deliberate indifference to his serious medical needs,
in order to make out an Eighth Amendment claim of failure to
prevent harm, the plaintiff must show (1) that the medical need
was “sufficiently serious” that a failure to address the need
constitutes a deprivation of “‘the minimal civilized measures of

8

life’s

necessities,’”

and

(2)

that

subjectively,

the

prison

official acted with the required “culpable state of mind.”

Wilson

v. Seiter, 501 U.S. 294, 297-98 (1991).

In order for the medical

need of an inmate to be “sufficiently serious” to rise to the
level of an Eighth Amendment violation if not properly treated, it
must be “one that has been diagnosed by a physician as mandating
treatment, or one that is so obvious that even a lay person would
easily

recognize

the

necessity

for

a

doctor’s

attention.”

Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st
Cir. 1990), cert. denied, 500 U.S. 956 (1991); Monmouth County
Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347
(3rd Cir. 1987), cert. denied, 486 U.S. 1006 (1988).
The subjective requirement that prison officials act with a
“sufficiently culpable state of mind,” may be satisfied when a
prisoner is able to show deliberate indifference on the part of
the defendants.

Wilson, 501 U.S. at 303.

Deliberate indifference

is “something more than mere negligence [but] . . . something less
than acts or omissions for the very purpose of causing harm or
with knowledge that harm will result.”

Farmer, 511 U.S. at 835.

In effect, the official must actually be aware of the risk of
harm,

must

subjectively

assess

it

as

being

substantial

and

serious, and then must deliberately disregard it despite his
awareness and assessment of its severity.

If the prison official

does not subjectively assess the risk as being substantial and

9

serious, he cannot be held liable, notwithstanding any objective
irrationality of his assessment.

See Farmer at 837-844.

With this in mind, this Court agrees with the magistrate
judge that the plaintiff has failed to assert a claim against
defendants Wayne and Cardinal.

In order for an official to be

held personally liable in a § 1983 claim, the official must have
been

directly

Department

of

involved
Social

in

the

misconduct.
436

Services,

See

(1978).

U.S.

658

Monell
As

v.
to

defendants Wayne and Cardinal, there is no allegation that either
was

personally

involved

in

any

of

the

alleged

abuse.

Additionally, any wrongdoing that is alleged by the plaintiff on
either of their parts occurred within an exercise of judgment and
discretion

reasonably

employed

within

the

scope

of

their

respective official duties.
Defendant Wayne is charged with the knowledge of the risk to
the plaintiff’s safety because inmates had bragged to him about
jumping the plaintiff.

However, the plaintiff then admits that

defendant Wayne suggested that the plaintiff go into protective
custody in order to avoid further violence.

Thus, it appears from

the record that defendant Wayne actually took affirmative steps to
ensure the plaintiff’s safety rather than deliberately taking a
position of indifference to it.
Defendant Cardinal is charged with exercising his judgment as
general counsel for TVRJ to refuse the plaintiff’s request to view
the protective orders in place.

10

There is no allegation that

defendant Cardinal was aware that the plaintiff had been housed
with inmates against whom there was a protective order either
before or after the September 17, 2008 beating, nor is there any
allegation that defendant Cardinal participated in any of the
wrongdoing.
within

the

This Court agrees that defendant Cardinal was well
reasonable

exercise

of

his

discretion

as

general

counsel to refuse to release confidential documents without a
court order.

Therefore, this Court agrees that the plaintiff

cannot maintain his action against either defendant Wayne or
defendant Cardinal.
B.

Verbal Threats and Harassment
Likewise, this Court agrees that any claims against defendant

Vance or any other defendant which allege verbal threats or
harassment are without merit and cannot be maintained.

It is well

established that verbal attacks cannot rise to the level of an
Eighth Amendment violation, no matter how egregious they may be,
and as such, no claim of constitutional violation or violation of
42 U.S.C. § 1983 which is grounded in verbal harassment or threat
can result in liability.

See Oltarzewski v. Ruggiero, 830 F.2d

136, 139 (9th Cir. 1987); Collins v. Cundy, 603 F.2d 825, 827
(10th Cir. 1979); Pierce v. King, 131 F.3d 136 (4th Cir. 1997).
C.

Excessive Force in Prison Punishment
Under the Eighth Amendment “cruel and unusual punishment”

clause

which

applies

to

the

states

through

the

Fourteenth

Amendment Due Process Clause, prison punishment must be in line

11

with “the evolving standards of decency that mark the progress of
a maturing society.”

Estelle v. Gamble, 429 U.S. 97, 102 (1976).

Courts give deference to a jail official’s determination of the
measures necessary to maintain security, but “the unnecessary and
wanton

infliction

of

pain”

constitutes

cruel

and

punishment and is prohibited by the Eighth Amendment.
Albers, 475 U.S. 312, 321-22 (1986).

unusual

Whitely v.

In order to maintain an

action of cruel and unusual punishment, a prisoner must show,
objectively,

that

the

wrongdoing

was

“‘harmful

enough’

to

establish a constitutional violation,” and that it resulted in
unnecessary and wanton pain and suffering that was more than de
minimus.

Farmer v. Brennan, 511 U.S. at 837; Norman v. Taylor, 25

F.3d 1259, 1263 (4th Cir. 1994)(en banc), cert. denied, 513 U.S.
1114 (1995)).
When

it

comes

to

prison

discipline

resulting

from

disturbances, the defendant’s action must be weighed with the need
to keep order and discipline to determine whether the defendant
acted in good faith, or if he acted “maliciously or sadistically
for the very purpose of causing harm.”
21.

Whitely, 475 U.S. at 320-

This Court concurs with the magistrate judge that the

injuries that plaintiff has alleged are greater than de minimus
injuries, and that his allegations, if true, could amount to a
violation of the Eighth Amendment.

Therefore, this court affirms

the magistrate judge’s opinion that defendants King, Miller,

12

Martin,

Bennett,

Vance,

Cox,

and

Pigley

must

answer

the

plaintiff’s complaint as to the claims made against them.
V.

Conclusion

Because the parties have not objected to the report and
recommendation of the magistrate judge, and because this Court
finds that the magistrate judge’s recommendation is not clearly
erroneous, the ruling of the magistrate judge is hereby AFFIRMED
and ADOPTED in its entirety.

Accordingly, the defendants’ motion

to dismiss is GRANTED as to defendants Sergeant Michael Wayne and
Chad M. Cardinal, Esquire, and DENIED as to all other defendants.
Further, the plaintiff’s motion to deny the defendants’ motion to
dismiss is GRANTED with respect to King, Miller, Martin, Bennett,
Vance, Cox and Pigley and DENIED with respect to defendants Wayne
and Cardinal ONLY.
and/or

dismiss

Finally, the plaintiff’s motion to strike

defendants’

reply

to

plaintiff’s

response

to

defendants’ motion to dismiss is DENIED. The remaining defendants
are instructed to respond to the claims that the plaintiff has
made against them.
Finally, this Court finds that the petitioner was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.

Because the petitioner has failed to

object, he has waived his right to seek appellate review of this
matter.

See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.

1985).

13

IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to the
pro se petitioner by certified mail and to counsel of record
herein.
DATED:

September 13, 2011

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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