Riley v. Miller et al
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 39 REPORT AND RECOMMENDATION: For the reasons described above, the report and recommendationof the magistrate judge is AFFIRMED and ADOPTED in its entirety. It is ORDERED that this case be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 3/13/2015. (kac) (Copy to pro se plaintiff (via cm/rrr))
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES LEONARD RILEY, III,
Civil Action No. 5:12CV89
BRANDY MILLER, D Pod Unit Manager,
Northern Correctional Facility,
GREG YAHNKE, Associate Warden of Programs,
EVELYN SEIFERT, Warden of
Northern Correctional Facility and
JAMES RUBENSTEIN, Commissioner,
West Virginia Division of Corrections,
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION
On July 20, 2012, the pro se1 plaintiff, James Leonard Riley,
III, and an inmate incarcerated by the State of West Virginia,
initiated this action in this Court by filing a civil rights
complaint which alleges that his Eighth Amendment right to be free
from cruel and unusual punishment was violated.
Pursuant to 28
U.S.C. § 1915(e) and 28 U.S.C. § 636, this Court then referred the
plaintiff’s complaint to United States Magistrate Judge Robert W.
Trumble for report and recommendation.
In 2009, the plaintiff was sentenced in the Circuit Court of
McDowell County, West Virginia, on one count of failure to register
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1416 (10th ed. 2014).
and sexual abuse by parent, guardian, custodian, or another person
in position of trust to a child.
The plaintiff had previously
filed a § 1983 complaint with this Court in 2011 alleging that a
“Armark [sic] supervisor”, Jerry Pritt, had committed a hate crime
when he flipped off the plaintiff and called him a “faggot.”
In the complaint at issue, the plaintiff alleges that he
Manager, that his cell assignment was no longer working out and
that he needed to be moved before a physical altercation took
Miller allegedly informed the plaintiff that he was on the
move list but that if he wanted to be moved immediately he would
have to be placed in segregation. The plaintiff then spent 30 days
This statement and his placement in segregation,
the plaintiff contends, violates his Eighth Amendment right against
cruel and unusual punishment.
recommending that the plaintiff’s complaint be dismissed with
prejudice. The magistrate judge first found that the plaintiff has
not asserted a cognizable claim against defendant James Rubenstein
(“Rubenstein”) as (1) the plaintiff has named him in his official
capacity as the Commissioner of the West Virginian Division of
Corrections (“WVDOC”) but (2) failed to assert that there was a
policy or custom of the WVDOC which played a part in the alleged
Next, the magistrate judge found that plaintiff’s
claim against Greg Yahnke (“Yahnke”), the Associate Warden of
Programs, failed because the plaintiff has not made a claim against
him which is of the type of personal involvement required to state
a claim under § 1983.
As to Miller, the magistrate judge found that her statement
that the plaintiff could only be provided immediate reassignment if
he went into segregation does not amount to an Eighth Amendment
Further, as to Evelyn Seifert (“Seifert”), the Warden
of the Northern Correctional Facility, the magistrate judge found
that plaintiff’s claim that Seifert had the authority to move the
plaintiff and did not fails to allege a sufficient Eighth Amendment
Finally, the magistrate judge noted that the plaintiff was
issued a violation report for refusing housing assigned and pled
guilty to that violation.
As punishment for that violation, the
plaintiff was placed in punitive segregation for 30 days and lost
all privileges for that time.
Thus, the magistrate judge found
that such a deprivation was not “sufficiently grave” to form the
basis for an Eighth Amendment violation.
The plaintiff timely filed objections. In his objections, the
plaintiff generally argues that he objects to the magistrate judge
dismissing his claim as frivolous.
He further reiterates his
Pursuant to 28 U.S.C. § 1915(e), this Court is required to
dismiss all civil actions filed without prepayment of a filing fee,
if at any time it is determined that the plaintiff proceeding
without prepayment “fails to state a claim on which relief may be
granted” or if the action seeks recovery from an individual that is
complaint states a claim upon which relief may be granted, a court
should not scrutinize the pleadings “with such technical nicety
that a meritorious claim should be defeated . . . .”
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
Thus, a pro se
complaint should not be summarily dismissed unless “it appears
‘beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.’”
v. Kerner, 404 U.S. 519, 521 (1972) (quoting Conley v. Gibson, 355
U.S. 41, 45-46 (1957)).
Further, “[g]eneralized, unsupported objections [that] fail to
follow the directions of the magistrate judge in the [ ] report and
recommendation, which ordered [the plaintiff] to direct the Court
to any alleged error or any facts supporting his disagreement with
the report and recommendation” are insufficient to require the
Court to conduct a de novo review of the report and recommendation.
Horton v. Dobbs, No. 1:09CV114, 2011 WL 3585895, at *1 (N.D. W. Va.
Aug. 15, 2011); see 28 U.S.C. § 636(b).
The district court is
required to review de novo only those portions of the report to
which specific and timely objections have been made.
Roach v. Gates, No. 10–1569, 2011 WL 915958, *1 (4th Cir. Mar. 17,
2011) (unpublished) (citing Orpiano v. Johnson, 687 F.2d 44, 47-48
(4th Cir. 1982)).
Based on the above, if the Court is not required to undergo a
de novo review of the report and recommendation, a review for clear
error will be undertaken.
Thus, all findings and recommendations
will be upheld unless they are “clearly erroneous or contrary to
28 U.S.C. § 636(b)(1)(A).
In this case, the magistrate judge directed the plaintiff to
objections are made and the basis for such objections.”
case, the plaintiff has simply stated that he objects to the
magistrate judge dismissing his claim as frivolous and neither
directs this Court to specific portions of the recommendation that
he believes are insufficient nor provides a basis for his objection
other than a reiteration of his claim that Miller violated his
Eighth Amendment rights.
Accordingly, this Court is not required
to undertake a de novo review but rather is only required to review
the report and recommendation for clear error.
The magistrate judge found that the plaintiff had failed to
establish any specific acts by Rubenstein and thus, his claim
against Rubenstein would be considered as a claim against the
In order to establish liability under § 1983, which
requires personal violations, the plaintiff must specify the acts
taken by each defendant which violate his constitutional rights.
Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2010); Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994).
A plaintiff may succeed on
a claim against a governmental entity, although not technically a
“personal” violation, if the governmental entity had a policy or
custom of failing to train its employees, and that failure amounted
to “deliberate indifference” causing the constitutional violation.
City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989).
This Court finds that the magistrate judge’s recommendation
that the plaintiff’s claim against Rubenstein be dismissed should
It was not clear error for the magistrate judge to find
that the plaintiff failed to plead a sufficient claim against
Rubenstein as the plaintiff had made no allegations of a policy or
custom which led to the alleged violations.
indifferent in denying the plaintiff’s administrative grievance
The magistrate judge found that such a claim is
not the type of personal involvement required to state a § 1983
This Court finds that such a finding was not made in clear
Further, even if this Court were to consider the claim as one
rooted in respondeat superior, as a supervisory liability claim, it
would still fail.
In order for supervisory liability to exist in
a § 1983 action, it must be established:
(1) that the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct
that posed a pervasive and unreasonable risk of
constitutional injury to citizens like the plaintiff; (2)
that the supervisor’s response to that knowledge was so
inadequate as to show deliberate indifference to or tacit
authorization of the alleged offensive practices; and (3)
that there was an affirmative causal link between the
supervisor’s inaction and the particular constitutional
injury suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations
omitted), cert. denied, 513 U.S. 813, 115 S.Ct. 67, 130 L.Ed.2d 24
The plaintiff has failed to allege any of the above and
thus, his claim would fail under this standard as well.
Miller and Seifert
The plaintiff’s claim against Miller is that Miller told the
plaintiff that if he wanted to be moved immediately he would have
to be placed in segregation.
The plaintiff further asserts that
Seifert could have moved him but did not.
The magistrate judge
found these claims to be without merit.
Only deprivations denying “‘the minimal civilized measure of
life’s necessities’ are sufficiently grave to form the basis of an
Eighth Amendment violation.”
(1991) (citation omitted).
Wilson v. Seiter, 501 U.S. 294, 298
In order to be liable for an Eighth
Amendment violation, an “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 the inference.”
Brennan, 511 U.S. 825, 837 (1994).
As the magistrate judge found, the plaintiff’s claims against
Miller and Seifert do not show that the plaintiff was deprived of
“the minimal civilized measure of life’s necessities.” Wilson, 501
U.S. at 298.
Further, the plaintiff has not provided any evidence
that Seifert was aware, or that there even was, a substantial risk
of serious harm if the plaintiff’s request was not fulfilled
Accordingly, the magistrate judge’s finding was not
in clear error and the plaintiff’s complaint should be dismissed as
frivolous as “it appears ‘beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to
Haines v. Kerner, 404 U.S. at 521 (citation omitted).
For the reasons described above, the report and recommendation
of the magistrate judge is AFFIRMED and ADOPTED in its entirety.
It is ORDERED that this case be DISMISSED and STRICKEN from the
active docket of this Court.
Finally, this Court finds that the plaintiff was properly
advised by the magistrate judge that failure to timely and properly
object to the report and recommendation in this action would result
in a waiver of appellate rights.
Because the plaintiff has failed
to object in a particularized fashion, he has waived his right to
seek appellate review of this matter.
A failure to file specific
objections waives appellate review of both factual and legal
Alvarez v. O’Brien, No. 1:12CV56, 2013 WL 3812088, at
*1 (N.D. W. Va. July 22, 2013) aff’d, 548 F. App’x 907 (4th Cir.
2013), cert. denied, 135 S. Ct. 314, 190 L. Ed. 2d 228 (2014)
(citing United States v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir.
1984); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).
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.
March 13, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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