Chiles v. UNITED STATES OF AMERICA

Filing 47

MEMORANDUM OPINION AND ORDER: Declining to adopt 44 Report and Recommendation of Magistrate Judge and granting defendant's 29 motion for summary judgment; finding as moot 29 Motion to Dismiss; The plaintiff's complaint 1 is DISMISSE D WITH PREJUDICE; Civil Action is ordered dismissed and stricken from the active docket; Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 9/12/2012. (copy to counsel of record via CM/ECF; copy mailed to pro se plaintiff by certified mail,rr. (rjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
EMORY CHILES,
Plaintiff,
v.

Civil Action No. 5:11CV65
(STAMP)

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
DECLINING TO ADOPT REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE AND
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I.

Procedural History

The plaintiff initiated this case by filing a complaint
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671,
et seq., alleging that a Correctional Officer (“C/O”) employed by
the United States Penitentiary at Hazelton (“USP Hazelton” or
“Hazelton”), negligently failed to protect him from an attack by
three other inmates in his cell block at USP Hazelton on December
30, 2007.

The plaintiff was granted leave to proceed in forma

pauperis and the Clerk was directed to issue a summons. The United
States filed a motion to dismiss or, alternatively, motion for
summary judgment.

A Roseboro1 notice was issued and the plaintiff

filed a timely responsive pleading.

1

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

II.

Facts

In the complaint, the plaintiff alleges that on December 30,
2007, while incarcerated at USP Hazelton, he was assaulted, beaten
and stabbed by three fellow inmates (Inmates A, B, and C) in his
housing unit: Unit B-2.

The plaintiff alleged that Inmate C, who

did not reside in Unit B-2, entered the unit at roughly 8:00 p.m.,
and along with Inmates A and B, entered the plaintiff’s cell
brandishing weapons, and threatened to kill the plaintiff if he did
not enter into protective custody in the Special Housing Unit
(“SHU”). In response to this threat, the plaintiff asserts that he
“verbally” agreed to enter the SHU, then fled his cell into the
common area where he realized that the C/O for the unit was not
present, allegedly “having abandoned his assigned duty station,
leaving the housing unit unsupervised.”

He says that, at that

time, realizing that the housing unit was unsupervised and fearing
for his life, he grabbed a wooden mop handle and struck Inmate A in
self-defense as Inmate A attacked the plaintiff with a “lock in a
sock.”

The plaintiff alleges that Inmate A repeatedly struck him

with the lock in a sock, causing him to fall; at which point the
plaintiff says that Inmate B also attacked him, and Inmate C
stabbed him in the chest and abdomen with an ice pick-type knife.
The plaintiff continues to assert that he was eventually able
to get to his feet and flee, but that he was stabbed several more
times as he did so.

The plaintiff says that he then found the Unit

C/O, who was positioned in the corridor outside of the housing unit

2

during a controlled move for recreation recall,2 and notified him
that he had been stabbed.

The plaintiff was treated at the prison

Health Services Department, and was later transported to West
Virginia University Hospital.

The plaintiff’s complaint asserts

that the Unit C/O negligently caused the attack by leaving the
housing unit. He requests damages in the amount of $500,000.00 for
his physical injuries, as well as for symptoms which he associates
with post-traumatic stress disorder.
In response to the complaint, the United States filed a motion
to dismiss or, alternatively, motion for summary judgment.

In

support of this motion, the United States argues: (1) the plaintiff
cannot establish that the C/O breached any duty that he owed to the
plaintiff; (2) the plaintiff cannot establish that the C/O’s
actions proximately caused the plaintiff’s injuries; and (3) that
the plaintiff’s own negligence bars his recovery.

The plaintiff

filed a response in which he argues that he has successfully shown
a breach of the C/O’s duty of care, and that the C/O’s negligence
was the proximate cause of his injuries.
This matter was referred to United States Magistrate Judge
John S. Kaull for a report and recommendation pursuant to Local
Rule of Prisoner Litigation Procedure 2.
issued

a

report

and

recommendation

2

The magistrate judge

recommending

that

the

“Recreation
Programs
are
provided
to
keep
inmates
constructively occupied and to reduce idleness. Recreation Recall
is the time when inmates return from recreation (i.e., education,
programming, etc.).” ECF No. 30 *3.
3

defendant’s motion to dismiss, or alternatively, motion for summary
judgment be denied and that the case be set for trial.
defendant filed timely objections.

The

For the reasons set forth

below, this Court must decline to adopt the magistrate judge’s
report and recommendation, and instead grant the defendant’s motion
for summary judgment and dismiss the plaintiff’s complaint.
III.
A.

Applicable Law

Review of the Report and Recommendation
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct

a

de

novo

review

recommendation

to

of

any

which

portion

of

the

magistrate

objection

is

timely

made.

judge’s
Because

objections have been filed in this case, this Court will undertake
a de novo review.
B.

Standard of Review for Motion for Summary Judgment3
Under Federal Rule of Civil Procedure 56(c), summary judgment

should be granted 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 a judgment
as a matter of law.”

The party seeking summary judgment bears the

initial burden of showing the absence of any genuine issues of
material fact.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

3

This Court’s ruling is based upon its determination that
summary judgment in favor of the defendant is appropriate.
Accordingly, the standard of dismissal for a Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss is omitted from this opinion.
4

(1986).

“The burden then shifts to the nonmoving party to come

forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir.
1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
“[A] party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.”

Anderson, 477 U.S. at 256.

The Court must perform a threshold inquiry to determine whether a
trial is needed -- whether, in other words, “there are any genuine
factual issues that properly can be resolved only by a finder of
fact because they may reasonably be resolved in favor of either
party.”

Id. at 250; see also Charbonnages de France v. Smith, 597

F.2d 406, 414 (4th Cir. 1979) (stating that summary judgment
“should be granted only in those cases where it is perfectly clear
that no issue of fact is involved and inquiry into the facts is not
desirable to clarify the application of the law.”) (citing Stevens
v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950)).
“[T]he plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.”

Celotex, 477 U.S. at 322.

5

In reviewing the supported

underlying facts, all inferences must be viewed in the light most
favorable to the party opposing the motion.

See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
IV.

Discussion

The FTCA waives the federal government’s traditional immunity
from suit for claims based on the negligence of its employees.
U.S.C. § 1346(b)(1).

28

The FTCA also “permits the United States to

be held liable in tort in the same respect as a private person
would be liable under the law of the place where the act occurred.”
Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001).

Here,

the plaintiff asserts a negligence claim against the United States
with regard to the C/O’s absence from the housing unit at the time
that the plaintiff was allegedly assaulted. In West Virginia, such
a claim for negligence requires that the plaintiff establish all
three of the following elements by a preponderance of the evidence:
(1) that the allegedly negligent actor owed him a duty; (2) that
the allegedly negligent actor negligently breached that duty; and
(3) that the negligent breach of that duty proximately resulted in
injury to the plaintiff.

Webb v. Brown & Williamson Tobacco Co.,

2 S.E.2d 898, 899 (W. Va. 1939).

In order to survive a motion for

summary judgment, the plaintiff must present sufficient evidence of
each of these elements so as to create a genuine issue of material
fact as to that element. Despite the magistrate judge’s conclusion
to the contrary, this Court finds that the plaintiff cannot meet
this burden with regard to the second element of his negligence

6

claim, as he has not presented any evidence that the C/O, or anyone
at

Hazelton

for

that

matter,

had

any

reason

to

foresee

the

potential for an altercation between the plaintiff and Inmates A,
B and C.
In his report and recommendation, the magistrate judge found,
and this Court agrees, that “[t]he duty of care owed by the Federal
Bureau of Prisons [“BOP”] to federal prisoners is fixed by 18
U.S.C. § 4042, independent of an inconsistent state rule.”
States v. Muniz 374 U.S. 150, 164-65 (1963).
by

§

4042

is

clear,

and

mandates

“the

United

The duty established
exercise

of

diligence to keep prisoners safe and free from harm.”
United States, 534 F.3d 53, 54 (5th Cir. 1976).

ordinary
Jones v.

However, prisons

are dangerous places, and BOP personnel cannot be charged with a
duty to guarantee a risk-free environment. Setser v. Browning, 590
S.E.2d 697, 701 (W. Va. 2003) (“[N]egligence is the violation of
the duty of care under the given circumstances.

It is not

absolute, but is always relative to some circumstances of time,
place

manner,

or

person.”)

Consistent

with

this

duty,

the

magistrate judge agreed, as Courts have consistently held, that BOP
personnel can only be deemed negligent in violation of this duty
when personnel “knew or reasonably should have known of a potential
problem” between inmates.

Parrott v. United States, 536 F.3d 629,

637 (7th Cir. 2008).
The plaintiff admits that he cannot present evidence to show
that the Unit C/O, or anyone else at USP Hazelton, was aware of a

7

potential for violence between the plaintiff and Inmates A, B and
C, because he states that he was not aware of this potential
himself. ECF No. 36 *2-*3. However, he argues, this is immaterial
because

the

C/O

could

nonetheless

have

been

negligent

in

“abandoning his post” and allowing Inmate C to enter the housing
unit where he did not reside, carrying a weapon.

The magistrate

judge agreed, and found that the plaintiff had presented sufficient
evidence to create an issue of material fact as to whether the C/O
breached the duty of care that he owed to the plaintiff.

In

support of this finding, the magistrate judge noted that, while the
C/O clearly did not have actual knowledge of a heightened danger to
the plaintiff posed by Inmates A, B and C because the plaintiff
does not invoke a constitutional claim, such actual knowledge is
unnecessary to create liability. Accordingly, the magistrate judge
found,

the

plaintiff

is

only

charged

with

showing

that

a

reasonable, non-negligent person would have recognized the risk.
See Del Raine v. Williford, 32 F.3d 1024, 1032 (7th Cir. 1994).
In this regard, the magistrate judge found that, because the
plaintiff asserts negligence of the C/O in the form of “abandoning
his post” and because the defendant has failed to present evidence
in the form of “Post Orders” that the C/O did not so abandon, the
plaintiff had created a genuine issue of material fact.

The

magistrate judge found that a factual determination was necessary
with regard to whether the C/O’s absence from the housing unit
constitutes a negligent violation of the C/O’s duty of care to the

8

plaintiff in that a reasonable C/O should have recognized the risk
in leaving the housing unit unattended.
This Court disagrees with the magistrate judge on this issue,
and finds that the plaintiff has failed to create a genuine issue
of material fact with regard to whether the C/O breached his duty
to protect the plaintiff.

It is true, as the magistrate judge

points out, that the plaintiff does not here allege constitutional
claims, and so liability does not depend upon whether or not the
C/O had actual knowledge of the potential for violence between the
plaintiff and Inmates A, B and C.

However, courts have long found

that

know”

some

level

of

“reason

to

is

necessary

to

impose

liability for negligent violation of the duty to protect. Muniz v.
United States, 280 F. Supp. 542, 547 (S.D.N.Y. 1968) (prison
personnel possess a “duty to exercise reasonable care and diligence
to

protect

the

prisoner

from

danger,

reasonably be apprehended by him.”

known

or

which

might

No liability may be assessed

“in the absence of a showing that he had reason to anticipate
violence and failed to prevent it.”); Turner v. Miller, 679 F.
Supp. 441, 443-44 (M.D. Pa 1987) (even though plaintiff told
officials that he feared for his life, plaintiff’s complaint fails
to show breach of duty, because plaintiff did not express fear of
any particular inmate; thus, defendants had no reason to believe
that attacker was a danger to plaintiff); and see Parrott, supra.
As stated above, the plaintiff admits that the C/O had no
reason

to

believe

that

the

risk

9

of

an

incident

between

the

plaintiff and Inmates A, B and C was any higher than the general
risk of an incident which exists in the prison environment.
Further, it is clear from the filings provided by both sides that
the C/O had positioned himself directly outside of the housing unit
in

order

to

monitor

of

the

prisoners through the corridor following a recreation period.

The

plaintiff

C/O

also

admits

a

period

that

of

he

controlled

was

able

to

movement

locate

the

immediately upon leaving the housing unit and entering the outside
corridor.

ECF No. 1 *4 ¶ 13.

Accordingly, there is no evidence

presented to suggest that the C/O “abandoned his post.”

Rather,

the evidence can only result in the conclusion that the C/O
remained at the housing unit, but positioned himself in the area of
greater congestion during the recreational recall move.4
Because the plaintiff admits that the C/O had no reason to
recognize any heightened risk for violence in the housing unit, it
cannot be said that the C/O should have been aware that stepping
into the corridor to monitor the recreational recall move would
result in any greater danger to the plaintiff than if he had
remained in the unit.

In fact, during movements like this, the

defendant asserts that “a greater number of inmates are present in

4

The magistrate judge cited post orders from another prison as
evidence that the C/O may have violated post orders in stepping
into the corridor during a controlled move. However, the sworn
statement of Tracy Benton, the Correctional Services Lieutenant at
USP Hazelton at the time of the incident, asserts that at Hazelton
correctional officers working a particular housing unit during
recreation recall are simply directed “to stand in a position to
supervise the movement” of the inmates. ECF No. 30 Ex. 1 *2.
10

tight quarters” in the hallway than in the unit itself.

In such a

situation, it seems a more reasonable exercise of the C/O’s duty to
protect all inmates from violence that the C/O step into the
corridor, rather than remain in the housing unit. Prison personnel
have the duty to protect all prisoners, and not simply the duty to
protect the plaintiff individually from unforeseeable attacks.

In

order to best protect all prisoners, it is reasonable to position
oneself in the area of greatest concentration of inmates.

Without

a reason to believe it necessary to pay special attention to the
plaintiff, the C/O acted reasonably in positioning himself in the
area of highest traffic.
Finally, because the C/O had no reason to know of a heightened
risk of an altercation at the time of the incident, without any
evidence to show that the C/O witnessed or had reason to know that
Inmate C entered the housing unit or that he witnessed or had
reason to know that Inmate C was armed, the plaintiff cannot create
a genuine issue of material fact as to the C/O’s negligence in this
regard.
that

the

Without such a showing, the plaintiff again cannot show
C/O

should

have

recognized

the

risk

of

violence.

Accordingly, the plaintiff has failed to create a genuine issue of
material fact as to whether the C/O breached the duty that he owed
to the plaintiff.

This Court must thus decline to adopt the

magistrate judge’s recommendation that the defendant’s motion to

11

dismiss or, in the alternative, motion for summary judgment be
denied.5

The defendant’s motion for summary judgment is granted.
V.

Conclusion

For the reasons set forth above, this Court, after a de novo
review, DECLINES to adopt and affirm the ruling of the magistrate
judge. Accordingly, the defendant’s motion for summary judgment is
GRANTED. The defendant’s motion to dismiss is DENIED AS MOOT. The
plaintiff’s complaint is thus DISMISSED WITH PREJUDICE.

It is

ORDERED that this civil action be DISMISSED and STRICKEN from the
active docket of this Court.
Should the plaintiff choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of the judgment order.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to the
pro se plaintiff by certified mail and to counsel of record herein.
Pursuant to Federal Rule of Civil Procedure 58, the Clerk is
DIRECTED to enter judgment on this matter.

5

Because this Court finds that the plaintiff has failed to
create a genuine issue of material fact with regard to a breach of
any duty, this Court does not reach the issues of proximate cause
or the plaintiff’s comparative fault.
12

DATED:

September 12, 2012

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

13