Wood v. Rubenstein et al

Filing 143

MEMORANDUM OPINION AND ORDER GRANTING THE REMAINING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING THE PLAINTIFF'S MOTION FOR ADDITIONAL TIME TO COMPLETE DISCOVERY: denying 129 Motion for additional time to complete discovery; gran ting 132 Motion for Summary Judgment. Civil action is dismissed and stricken from the active docket; Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 12/9/14. (copy to counsel of record, via CM/ECF and to pro se plaintiff via certified mail, rrr)(rjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOSEPH WILLIAM WOOD,
Plaintiff,
v.

Civil Action No. 5:12CV174
(STAMP)

JIM RUBENSTEIN, MARVIN C. PLUMLEY,
CAPT. THOMAS HARLAN, LT. MICHAEL SMITH, JR.,
SGT. SHAWN SKIDMORE, CPL. TODD SCHELLER,
CPL. BRADLEY WARNER, LESTER THOMPSON,
ANDREW HINCHMAN, NURSE ON DUTY JULY 31, 2012
(P.M. SHIFT, NAME UNKNOWN), TRISTEN TENNEY
and WEXFORD MEDICAL SOURCES,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING THE REMAINING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT AND
DENYING THE PLAINTIFF’S MOTION FOR
ADDITIONAL TIME TO COMPLETE DISCOVERY
I.
On December 7, 2012,

Procedural History
the pro se1 plaintiff filed a complaint

against various prison officers and medical staff.

Specifically,

he filed a civil rights action pursuant to 42 U.S.C. § 1983
alleging

claims

of

excessive

force2

against

defendants

Jim

Rubenstein (“Rubenstein”), Marvin C. Plumley (“Plumley”), Capt.
1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).
2

In his complaint, the plaintiff does not explicitly state
which of his rights has been violated. However, in a deposition of
the plaintiff, he states that his Eighth Amendment rights were
violated by the officer defendants. Accordingly, this Court will
construe the plaintiff’s argument that his Eighth Amendment rights
were violated.

Thomas Harlan (“Harlan”), Lt. Michael Smith, Jr. (“Smith”), Sgt.
Shawn Skidmore (“Skidmore”), Cpl. Todd Scheller (“Scheller”), Cpl.
Bradley Warner (“Warner”), Lester Thompson (“Thompson”), and Andrew
Hinchman (“Hinchman”) (collectively the “officer defendants”). The
plaintiff also claimed that his § 1983 rights were violated by
Tristen Tenney, Wexford Medical Sources, and an unnamed nurse
(collectively

the

“medical

defendants”),

for

failing

to

take

pictures of the injury that resulted from the excessive force. The
plaintiff filed a motion to amend the complaint, which was granted,
where he clarified that he is suing both the officer and the
medical defendants in their individual capacities (ECF Nos. 37 and
59, respectively). In the plaintiff’s request for relief, he seeks
a

monetary

judgment,

a

transfer

from

his

institution,

and

disciplinary action against the defendants involved.
The case was referred to United States Magistrate Judge John
S. Kaull for initial review and recommendation pursuant to Local
Rule

of

Prisoner

Litigation

Procedure

83.01

and

28

U.S.C.

§§ 1915(e) and 1915A. After conducting a preliminary review of the
complaint, Magistrate Judge Kaull issued an order to answer.

In

response to that order, the officer defendants filed two separate
motions to dismiss and the medical defendants filed a motion to
dismiss.

The Court then issued three notices pursuant to Roseboro

v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975), advising the
plaintiff of his right to respond to the defendants’ motions to

2

dismiss. ECF Nos. 23, 24, and 34, respectively. Subsequently, the
plaintiff filed a motion for appointment of counsel, a motion to
amend his complaint, motions for production of documents, and
numerous responses to the defendants’ motions to dismiss.
Thereafter,

the

magistrate

judge

issued

a

report

and

recommendation, recommending that the officer defendants’ motions
to dismiss be denied and the medical defendants’ motion to dismiss
be granted.

ECF No. 58.

The magistrate judge also issued an order

regarding the plaintiff’s pending motions, wherein he (1) denied
the

plaintiff’s

motion

to

appoint

counsel,

(2)

granted

the

plaintiff’s motion to amend the complaint, and (3) denied the
plaintiff’s motions for the production of documents.

ECF No. 59.

Thereafter, the plaintiff timely filed a single document containing
both his objections to the order on his pending motions and the
report and recommendation. This Court entered a memorandum opinion
affirming

and

recommendation.

adopting

the

magistrate

judges’

report

and

ECF No. 67.

The officer defendants have now filed a motion for summary
judgment.3

Initially, the plaintiff’s response to the motion for

summary judgment was due on September 15, 2014, and at that time,
the plaintiff filed nothing.

This Court then entered a Roseboro

3

It should be noted that the officer defendants originally
filed a motion for summary judgment on February 14, 2014. ECF No.
106. However, this Court denied it without prejudice and instead
granted the plaintiff’s first motion for additional time for
discovery. ECF No. 122.
3

notice, giving the plaintiff thirty days to respond.
The plaintiff then responded on October 23, 2014.

ECF No. 137.
ECF No. 139.

Prior to the motion for summary judgment, the plaintiff filed a
motion for additional discovery on August 19, 2014.

Two days

later, the officer defendants filed a response in opposition to the
motion

for

additional

respectively.4

discovery.

ECF

Nos.

129

and

130,

For the reasons set forth below, the plaintiff’s

motion for additional time for discovery is denied, and the officer
defendants’ motion for summary judgment is granted.
II.

Facts5

The plaintiff, while incarcerated at Huttonsville Correctional
Center, claims that on July 31, 2012 and on August 1, 2012, the
officer defendants used excessive force against him. Regarding the
July 31st incident, defendants Warner and Skidmore handcuffed the
plaintiff and began to escort him to his cell.
attempted to remove his handcuffs.

The plaintiff then

During the plaintiff’s attempt

to escape, a brief physical altercation ensued among the plaintiff,
defendant Warner, and defendant Skidmore.

After defendants Warner

and Skidmore regained control of the situation, the plaintiff then
began to make verbal threats against defendant Skidmore.

The

4

It should be noted that this Court has already granted the
plaintiff’s three motions for additional time throughout this
matter. See ECF Nos. 96, 117, and 122.
5

It should be noted that the facts presented are based on the
information provided in both the plaintiff’s complaint and the
officer defendants’ filings.
4

plaintiff then again attempted to pull away.

This time, defendant

Skidmore pressed the plaintiff against the wall in order to prevent
the plaintiff from escaping and so as to regain control.

Further,

defendant Scheller was nearby, and witnessed the plaintiff’s second
attempt to escape as well as the results of that attempt.
As the escort continued, defendant Smith joined for added
security.
from

The plaintiff, for a third time, attempted to pull away

them,

and

an

another

altercation

began.

During

that

altercation, defendant Smith forced the plaintiff into a wrist
lock.

While this occurred, the plaintiff claims that defendant

Scheller stood by and took no preventative measures to the abuse
that the plaintiff alleges occurred.

When the plaintiff was taken

to the medical unit following those events, the medical staff noted
that the plaintiff had some redness on the areas where the officers
grabbed him.
After

the

However, no serious injuries appeared to exist.

plaintiff

filed

several

grievances

claiming

that

excessive force was used in the above incident, the West Virginia
Division of Correction’s (“DOC”) Use of Force Committee determined
that no excessive force was used.
Concerning the August 1, 2014 incident, defendant Hinchman
began a cell search of the plaintiff’s cell.

The plaintiff was

instructed to stay in a designated area while the search occurred,
but

he

refused

to

comply.

As

a

result,

restrained the plaintiff until help arrived.

5

defendant

Hinchman

When he was taken to

the medical unit, the plaintiff allegedly denied any medical needs.
After filing several grievances regarding this incident, the DOC’s
Use of Force Committee again found that no excessive use of force
occurred. Throughout both of these incidents, the plaintiff claims
that defendant Thompson, the Unit Manager at the DOC, failed to
address or investigate the claims he filed for excessive force.
Further, the plaintiff argues that defendant Harlan allegedly did
the

same.

Despite

the

medical

staff’s

determinations,

the

plaintiff claims that the alleged assaults resulted in a deep
laceration on his left collar bone, bruised shoulders, bruised
wrists, and facial abrasions.

When the medical staff reviewed him

following the incidents, they allegedly refused to take pictures of
his injuries despite his requests.
Although

originally

named

as

defendants,

the

medical

defendants were dismissed in this Court’s prior memorandum opinion
and order.

ECF No. 67.

Since then, the officer defendants have

filed a motion for summary judgment and the plaintiff filed a
motion for extension of time for discovery.

Those motions are

discussed below in the order presented.
A.

Officer Defendants’ Motion for Summary Judgment
In their motion for summary judgment, the officer defendants

make three arguments. First, the officer defendants argue that the
DOC, as a state agency, is entitled to Eleventh Amendment immunity,
and that it has not waived its immunity.

6

Because the officer

defendants are employees of DOC, the same immunity should apply to
them.

Second, the officer defendants argue that the plaintiff

lacks sufficient evidence to show that excessive force was used.
Further, they assert that the force used was reasonable and
necessary.
Scheller

Finally, regarding the allegations that defendant

stood

by

while

the

assault

occurred,

the

officer

defendants claim that no bystander liability exists here because
the plaintiff failed to satisfy the requirements under Randall v.
Prince George’s County, Md., 302 F.3d 188, 203 (4th Cir. 2002).
In his response, the plaintiff first asserts that the officer
defendants are wrong in allegedly claiming that the plaintiff had
no open wound.

The plaintiff points to exhibits that show a

photograph of the plaintiff after the incidents and a copy of the
relevant medical record.

The plaintiff claims that those items

show he had an open wound.

Because the plaintiff claims he

actually had an open wound, the officer defendants’ arguments to
the contrary are fraudulent. Second, the plaintiff claims that the
time the incident took place and the times provided in the officer
defendants’ exhibits conflict with each other.

Finally, the

plaintiff asserts that although the officer defendants submitted
affidavits

swearing

no

video

cameras

existed

near

where

the

incident occurred, the plaintiff claims that cameras invisible to
the naked eye may be present.

For those reasons, the plaintiff

7

requests that this Court deny the officer defendants’ motion for
summary judgment.
The officer defendants filed a reply.

First, the officer

defendants argue that the plaintiff presents no genuine issues of
material fact.

Second, the officer defendants claim that the

plaintiff failed to address any of the legal arguments they
proffered

in

their

motion

for

summary

judgment.

For

those

additional reasons, the officer defendants request that this Court
grant their motion for summary judgment.
B.

Plaintiff’s Letter Requesting Additional Time for Discovery
In

his

request

for

additional

time

for

discovery,

the

plaintiff claims that more time is needed because the officer
defendants must allegedly still submit two verifications regarding
the plaintiff’s request for discovery responses.

Further, the

plaintiff argues that he needs more time overall to complete the
discovery process and make the necessary findings to prevail over
the officer defendants.

In response, the officer defendants argue

that this Court has provided the plaintiff with ample time.
Specifically, they claim that because this Court already granted
three motions for additional time in favor of the plaintiff, the
plaintiff has had more than enough time to gather the necessary
evidence.

Further, the officer defendants provide documentation

that indicates that after the plaintiff filed the letter asking for
additional time for discovery, the officer defendants have since

8

submitted

those

submission.
discovery

verifications

and

provided

ECF Nos. 129 Exs. A and 136.
is

needed.

Accordingly,

plaintiff’s motion be denied.
III.

they

proof

of

their

Thus, no further
request

that

the

The plaintiff did not file a reply.

Applicable Law

Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in
the record, including depositions, documents,
electronically stored information, affidavits
or
declarations,
stipulations
.
.
.
admissions, interrogatory answers, or other
materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine
dispute, or that an adverse party cannot
produce admissible evidence to support the
fact.
Fed. R. Civ. P. 56(c).

The party seeking summary judgment bears

the initial burden of showing the absence of any genuine issues of
material fact.
(1986).

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

“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)). However, as the
United States Supreme Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or denials

9

of his pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial.”

Id. at 256.

“The

inquiry performed is the threshold inquiry of determining whether
there is the need for a trial—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) (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))).
In Celotex, the Supreme Court stated that “the 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.

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).

10

IV.

Discussion

At issue in this memorandum opinion and order are the officer
defendants’ motion for summary judgment and the plaintiff’s motion
for

an

extension

of

time

for

discovery.

Those

motions

are

discussed below.
A.

Officer Defendants’ Motion for Summary Judgment
As

discussed

arguments.

earlier,

the

officer

defendants

make

three

First, the officer defendants argue that the DOC, as a

state agency, is entitled to Eleventh Amendment immunity and that
it has not waived its immunity. Because the officer defendants are
employees of the DOC, the same immunity should apply to them.
Second, the officer defendants argue that the plaintiff lacks
sufficient

evidence

to

show

that

excessive

force

was

used.

Finally, regarding the allegations that defendant Scheller stood by
while the assault occurred, the officer defendants claim that no
bystander liability exists here.
In his response, the plaintiff first asserts that the officer
defendants are wrong in allegedly claiming that the plaintiff had
no open wound.
incident

took

Second, the plaintiff claims that the time the
place

and

the

times

provided

defendants’ exhibits conflict with each other.

in

the

officer

Finally, the

plaintiff asserts that although the officer defendants submitted
affidavits

swearing

no

video

cameras

existed

near

where

the

incident occurred, the plaintiff claims that cameras invisible to

11

the naked eye may be present.

For those reasons, the plaintiff

requests that this Court deny the officer defendants’ motion for
summary judgment.
The United States Supreme Court has held that “government
officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982); see Pritchett v. Alford, 973 F.2d 307,
312 (4th Cir. 1992).

“Qualified immunity protects law enforcement

officers from liability for ‘bad guesses in gray areas’ and ensures
that they will be held liable only for violating bright-line
rules.”

Hill v. Crum, 727 F.3d 312, 321 (4th Cir. 2013) (citing

Braun v. Maynard, 652 F.3d 557, 560 (4th Cir. 2011).

The defense

of qualified immunity is available only to an official sued in his
individual or personal capacity, and not to an official sued in his
official capacity.

Kentucky v. Graham, 473 U.S. 159, 165–68

(1985).
Under Saucier v. Katz, 533 U.S. 194, 201 (2001), an analysis
of a qualified immunity defense requires a two-part inquiry.

The

first question is whether the facts alleged, when viewed in the
light most favorable to the injured party, “show the officer’s
conduct violated a constitutional right.”

Id.

If the facts

alleged fail to make this showing, the inquiry is at an end, and

12

the official is entitled to summary judgment.

Id.

If, however,

the facts alleged do show a constitutional injury, the second
question

is

whether

the

constitutional

right

established at the time of the violation.

Id.

was

clearly

Accordingly,

qualified immunity is abrogated only upon a showing that the
officer’s conduct violated a constitutional right and that such
right was clearly established at the time the conduct occurred.
Id.; Hill, 737 F.3d at 321.

To determine whether a right is

“clearly established in a qualified immunity case, ‘the contours of
the right must be sufficiently clear that a reasonable officer
would understand that what he is doing violates that right.’”
Hill, 727 F.3d at 321 (quoting Wilson v. Layne, 526 U.S. 603, 615
(1999)).
1.

Defendant Warner

In the complaint, the plaintiff claims that defendant Warner,
in his individual capacity, used excessive force when he allegedly
threw the plaintiff on the ground and yelled at him.
Regarding claims of excessive force, the Supreme Court of the
United States extended the “application of the Eighth Amendment’s
prohibition

against

‘cruel

and

unusual

punishments’

treatment of prisoners by prison officials.”

to

the

Hill, 727 F.3d at

317. “When prison officials maliciously and sadistically use force
to

cause

violated.”

harm,

contemporary

standards

of

decency

Hudson v. McMillian, 503 U.S. 1, 9 (1992).

13

always

are

Thus, the

Eighth Amendment forbids the “unnecessary and wanton infliction of
pain.”

Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal

citations omitted).

In an excessive force claim, the key inquiry

is “whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.”
Hudson, 503 U.S. at 7.

Further, it is the nature of the force, not

the extent of the injury, that serves as the relevant inquiry.
Wilkins v. Gaddy, 559 U.S. 34 (2010).

The burden lies on the

inmate to prove that the prison official acted “maliciously and
sadistically to cause harm.”

Whitley, 475 U.S. at 320-21 (1986).

However, “not every malevolent touch by a prison guard gives
rise to a federal cause of action.”

Wilkins, 559 U.S. at 37-38

(quoting Hudson, 503 U.S. at 9).

Therefore, “an inmate who

complains of a ‘push or shove’ that causes no discernible injury
almost certainly fails to state a valid excessive force claim.”
Wilkins, 559 U.S. at 38 (quoting Johnson v. Glick, 481 F.2d 1028,
1033 (2d Cir. 1973)).
Under

the

inquiry

provided

in

Wilkins,

defendant

Warner

applied force against the plaintiff in good faith in order to
regain control of the situation.

The record shows that during the

July 31st incident, the plaintiff attempted on approximately three
occasions to pull away from defendant Warner.

In response,

defendant Warner proceeded to use a “guided takedown” in order to
regain control of the situation.

14

ECF No. 133 Ex. P.

The Use of

Force Committee reviewed the incident and again found that the
amount of force used in the situation failed to reach an excessive
level.

However, the plaintiff offers no proof that defendant

Warner sadistically or maliciously used force against him for bad
faith reasons.
Indeed, in his response, the plaintiff baldly asserts that
cameras invisible to the naked eye may have footage that disproves
the defendant’s use of force in good faith. The plaintiff fails to
proffer any footage or witnesses that demonstrate facts to the
contrary or that the force used was excessive.

Further, in his

deposition, the plaintiff claims that the following items of
evidence show that the force used was excessive: “video[s], the
paperwork, . . . disciplinary hearings, [and] incident reports.”
ECF No. 133 Ex. A.

Those items of potential evidence, however, do

not create any genuine issues of material fact.

First, regarding

the video, other than the plaintiff’s bald assertions that secret
cameras exist, he proffers no actual video footage to this Court.
In addition, the officer defendants provide three affidavits sworn
by prison staff responsible for installation and maintenance of the
video cameras.

All three of them swore that no cameras existed in

the areas where the incidents occurred.
and EE.

ECF No. 133 Exs. CC, DD,

Second, the plaintiff’s claim that the times on the

incident reports differ with each other is equally lacking.

The

incident report that the plaintiff points to was the incident

15

report of the medical unit, which appears to indicate the time that
the medical unit conducted a physical on the plaintiff, not the
time of the altercations.
the

officer

defendants

However, the incident reports filed by
indicate

that

the

July

31st

occurred approximately between 2110 and 2135 hours.

incident

This slight

variance in time is immaterial and thus creates no genuine issues
of material fact.

Finally, the other reports filed all indicate

that the plaintiff attempted multiple times to escape the custody
of

the

officer

including

defendants,

defendant

Warner,

and

that

the

appropriately

officer
acted.

defendants,
Thus,

the

plaintiff’s arguments neither create genuine issues of material
fact nor demonstrate any violation of his Eighth Amendment rights.
Accordingly, defendant Warner used such force that fails to
amount to a violation of the plaintiff’s Eighth Amendment rights.
The nature of the force used in the situation fails to qualify as
excessive.

Therefore, qualified immunity applies to defendant

Warner.
2.

Defendant Skidmore

Regarding

defendant

Skidmore,

the

plaintiff

claims

that

defendant Skidmore, in conjunction with defendant Warner, used
excessive force against him.

Specifically, the plaintiff asserts

that defendant Skidmore, acting in his individual capacity, helped
defendant Warner shove him with “ill intent and unnecessary force.”
Then, defendant Skidmore allegedly forced the plaintiff into a

16

doorframe while cuffed which resulted in a deep laceration on the
plaintiff’s

collarbone.

Finally,

the

plaintiff

argues

that

defendant Skidmore then stomped on his hands.
Similar to the situation involving defendant Warner, defendant
Skidmore did not use excessive force such that he violated the
plaintiff’s Eighth Amendment rights.
plaintiff

attempted

defendant Skidmore.

to

remove

his

As the facts show, the
cuffs

and

pull

away

from

After gaining control over the plaintiff the

first time he attempted to pull away, the plaintiff verbally
threatened defendant Skidmore. Specifically, he threatened to kill
defendant Skidmore.

Following his threats, the plaintiff again

attempted to pull away. Defendant Skidmore then forced him against
the wall in order to regain control of the situation.

Looking at

the nature of the force used and the reasons why defendant Skidmore
implemented such force, no evidence exists that defendant Skidmore
maliciously or sadistically acted to harm the plaintiff.

Rather,

the plaintiff repeatedly attempted to free himself from the custody
of defendant Skidmore and then proceeded to threaten him. In order
to prevent the plaintiff from escaping, defendant Skidmore was
forced to act, and the nature of the force used aligns with the
plaintiff’s actions that spurred the use of force.

Further, the

plaintiff again offers no evidence that demonstrates that he either
did

not

attempt

to

pull

sadistically used force.

away

or

that

defendant

Skidmore

The plaintiff only provides the same

17

arguments

and

evidence

that

he

provided

Warner, which is essentially nothing.
satisfy his burden.
excessive

force

Amendment rights.

concerning

defendant

The plaintiff has failed to

Accordingly, defendant Skidmore did not use

and

thereby

violate

the

plaintiff’s

Eighth

Thus, qualified immunity applies to defendant

Skidmore.
3.

Defendant Scheller

The plaintiff claims that defendant Scheller stood by while
the plaintiff was assaulted on July 31st.

Specifically, the

plaintiff asserts that defendant Scheller observed the events that
occurred but took no preventative action while the other prison
officials

harmed

the

plaintiff.

Because

of

the

defendant’s

omission, the plaintiff claims that his Eighth Amendment rights
were violated by defendant Scheller in his individual capacity.
A law officer maintains a duty to “uphold the law and protect
the public from illegal acts, regardless of who commits them.”
Randall v. Prince George’s County, Md., 302 F.3d 188, 203 (4th Cir.
2002).

Accordingly, an officer may be liable under a theory of

bystander

liability.

That

would

potentially

occur

when

“a

bystanding officer (1) is confronted with a fellow officer’s
illegal act, (2) possesses the power to prevent it, and (3) chooses
not to act,” meaning that he may “be deemed an accomplice and
treated accordingly.”

Id. at 203.

18

Although

the

plaintiff

does

not

explicitly

assert

that

defendant Scheller violated his Eighth Amendment rights under a
theory of bystander liability, the Court construes his argument as
such.

Nonetheless, the first requirement is not satisfied.

facts

indicate

that

defendant

Scheller

witnessed

the

The
brief

altercation that ensued when the plaintiff attempted to flee for a
second time.

The plaintiff claims that because Scheller was in a

position to act and failed to prevent the plaintiff’s alleged
assault, defendant Scheller is liable for violating the plaintiff’s
Eighth Amendment rights.

However, this Court disagrees with the

plaintiff. This Court already determined that the force used by
defendants Skidmore and Warner failed to rise to the level of
excessive. Because the nature of the force used was not excessive,
no

illegal

act

occurred

for

defendant

Scheller

to

prevent.

Accordingly, no bystander liability exists regarding defendant
Scheller and thus, no violation of the plaintiff’s rights occurred.
Therefore, qualified immunity applies to defendant Scheller.
4.

Defendant Smith

Concerning defendant Smith, the plaintiff claims that he used
excessive force. Specifically, the plaintiff states that defendant
Smith joined in the escorting of the plaintiff. The plaintiff then
argues that defendant Smith slammed him to the ground and pressed
his face hard against the floor.

19

The plaintiff asserts that this

amounted to excessive force and thus, his Eighth Amendment rights
were violated.
As stated earlier, not every “touch by a prison guard gives
rise to a federal cause of action.”
(quoting Hudson, 503 U.S. at 9).
this

Court,

defendant

Smith

Wilkins, 559 U.S. at 37-38

According to the record before

joined

in

the

escorting

of

the

plaintiff after his second attempt at escaping. When the plaintiff
attempted to pull away a third time, defendant Smith placed him in
a wrist lock.
evidence

to

ECF No. 133 Exs. K and P.
the

contrary.

Instead,

The plaintiff provides no
he

only

claims

in

his

deposition that he will use video, incident reports, and other
filings, the same that this Court mentioned earlier.

Looking at

the facts of this case and those items, defendant Smith did not
maliciously

or

sadistically

use

force

against

the

plaintiff.

Rather, the plaintiff failed to cooperate and instead tried for a
third time to flee.

Some amount of force, here a wrist lock, was

necessary to prevent the plaintiff from fleeing and to reestablish
order.

Accordingly, the nature of the force used was appropriate

and was used to regain control of the plaintiff and the situation,
demonstrating that defendant Smith acted in good faith. Therefore,
this Court finds that defendant Smith did not use excessive force,
and

thus,

the

plaintiff’s

Eighth

Amendment

rights

were

not

violated. Because of that, qualified immunity applies to defendant
Smith.

20

5.

Defendant Hinchman

Concerning defendant Hinchman, the plaintiff claims that
defendant Hinchman, in his individual capacity, used excessive
force on August 1, 2012.

Specifically, the plaintiff asserts that

while his cell was searched, defendant Hinchman acted maliciously
towards him.

Further, he claims that defendant Hinchman then

shoved him and slammed his face into the wall, thus using excessive
force.
As discussed earlier, a claim of excessive force may result in
a violation of an inmate’s Eighth Amendment rights. Hill, 727 F.3d
at 317.

“When prison officials maliciously and sadistically use

force to cause harm, contemporary standards of decency always are
violated.”

Hudson, 503 U.S. at 9.

Thus, the Eighth Amendment

forbids the “unnecessary and wanton infliction of pain.”

Whitley,

475 U.S. at 319 (internal citations omitted).
The

facts

in

this

civil

action

indicate

that

defendant

Hinchman did not maliciously or sadistically use force against the
plaintiff.

Rather, defendant Hinchman used an appropriate amount

of force when the plaintiff failed to comply with defendant
Hinchman’s requests. In particular, defendant Hinchman ordered the
plaintiff to stand in a designated area and in a certain manner
while defendant Hinchman conducted the search.
plaintiff

instead

moved

towards

intimidate defendant Hinchman.

the

cell

in

However, the
an

attempt

to

Further, when defendant Hinchman

21

attempted to escort the plaintiff black into the appropriate
location, the plaintiff tried to pull away.

In order to regain

control of the situation, defendant Hinchman had to physically
restrain the plaintiff.

Here, the nature of the force used by

defendant Hinchman was appropriate in the circumstances and was
used in good faith in order to restrain the noncompliant plaintiff.
This conclusion is further supported by the findings of the DOC’s
Use of Force Committee.

ECF No. 133 Ex.

Q.

Similar to the claims

against the other officer defendants, the plaintiff claims that his
evidence

of

video

footage,

the

incident

reports,

and

other

associated filings will refute the officer defendants’ arguments.
However, as is the case for the other officer defendants discussed
above, the plaintiff proffers no video footage that demonstrates
excessive force was used against him.

Further, no evidence exists

that cameras were in place in the areas where the incidents
occurred, and the officer defendants provide three affidavits that
swear to this fact.

Finally, the incident reports and the other

filings associated with them demonstrate that the plaintiff failed
to comply with the requests made and instead attempted to flee.
Accordingly, the plaintiff has failed to demonstrate that any
genuine issues of material fact exist.
For those reasons, defendant Hinchman did not maliciously or
sadistically use force against the plaintiff. Thus, he did not use
excessive force against the plaintiff.

22

Accordingly, defendant

Hinchman did not violate the plaintiff’s Eighth Amendment rights.
Thus, because no violation occurred, qualified immunity applies to
defendant Hinchman.
6.

Defendant Rubenstein

The plaintiff next claims that defendant Rubenstein, the
Commissioner

of

the

DOC,

failed

to

properly

investigate

his

grievances and the assault he alleges occurred. ECF No. 133 Ex. A.
The plaintiff alleges that defendant Rubenstein acted in his
individual capacity when committing this alleged violation.

As

provided above, the plaintiff must demonstrate a constitutional
right

that

defendant

Rubenstein

violated.

Here,

this

Court

construes the plaintiff’s argument as defendant Rubenstein violated
his Eighth Amendment rights through deliberate indifference either
directly or under a theory of supervisory liability.
Deliberate indifference on the part of prison officials to a
specific known risk of harm does state an Eighth Amendment claim.
See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[A] prison
official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate health
or safety.”).
the

hands

of

However, not every injury suffered by an inmate at
other

inmates

or

officials

translates

into

constitutional liability for the prison officials responsible for
the plaintiff’s safety.

Id. at 834.

23

In addition, supervisory

liability

may

also

exist

under

the

deliberate

standard.

Supervisory law officers have an obligation “to insure

that his subordinates act within the law.”

indifference

Randall v. Prince

George’s County, Md., 302 F.3d 188, 203 (4th Cir. 2002) (internal
citations omitted).

Further, the supervisor has the following

responsibility:
Although such a supervisor may not prevent all illegal
acts by his subordinates, he is obligated, when on notice
of a subordinate’s tendency to act outside the law, to
take steps to prevent such activity. If a supervisory
law officer is deliberately indifferent to that
responsibility, he then bears some culpability for
illegal conduct by his subordinates, and he may be held
vicariously liable for their illegal acts.
Id. at 203 (citing Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.
1994)). In a § 1983 claim, supervisory liability may exist so long
as a the plaintiff can establish three elements:
“(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.”
Randall, 302 F.3d at 206 (quoting Shaw v. Stroud, 13 F.3d 791 (4th
Cir. 1994)).
The

plaintiff

offers

no

facts

that

show

how

defendant

Rubenstein violated his Eighth Amendment rights either directly or
under a theory of supervisory liability. The record indicates that

24

the DOC and its Use of Force Committee gathered and reviewed the
plaintiff’s grievances for both incidents.

No facts exist to show

that defendant Rubenstein in any way failed to investigate the
plaintiff’s grievances. Further, as demonstrated above, the prison
officials that allegedly assaulted the plaintiff did not use
excessive force.

This means that the plaintiff’s Eighth Amendment

rights were not violated by the prison officials that defendant
Rubenstein oversees.

Because the officials are not liable for any

violation of the plaintiff’s rights, then defendant Rubenstein
cannot

be

liable

because

a

violation

failed

to

occur.

The

plaintiff, who bears the burden of satisfying the elements under
Randall and Shaw, proffers no evidence other than his own claims
and allegations.

This is insufficient to satisfy the requirements

set forth above.

Accordingly, this Court finds that defendant

Rubenstein did not violate the plaintiff’s Eighth Amendment rights.
Therefore, qualified immunity applies to defendant Rubenstein.
7.

Defendant Plumley

Next, the plaintiff claims that defendant Plumley, acting in
his individual capacity, denied his grievances without properly
investigating them.

ECF No. 133 Ex. A.

that qualified immunity applies.
that

defendant

Plumley

failed

This Court again finds

Nothing in the record indicates
to

properly

investigate

the

plaintiff’s grievances, or acted with deliberate indifference
towards an excessive risk that the plaintiff faced.

25

The “risk”

that

plaintiff

identifies,

here

the

risk

of

harm

by

prison

officials, only occurred due to the plaintiff’s failure to comply
and his attempts at escape.

Namely, the plaintiff attempted to

escape from the custody of the officials three times and then
failed to comply with the officer defendants’ requests to stop.
Keeping this in mind, the grievances and complaints that the
plaintiff filed were reviewed by the DOC and its Use of Force
Committee.

Again, nothing in the record shows either a deliberate

indifference towards serious risks of harm or that the grievance
review process was improperly conducted.
finds

that

no

violation

of

the

Accordingly, this Court

plaintiff’s

rights

occurred.

Therefore, qualified immunity applies to defendant Plumley.
8.

Defendant Thompson

The plaintiff claims that defendant Thompson, as Unit Manager
of DOC and acting in his individual capacity, should have properly
looked into the grievances and the record of the assault. ECF Nos.
1 and 133 Ex. A.

Thus, it appears that the plaintiff claims that

defendant Thompson violated the plaintiff’s Eighth Amendment rights
either directly or under a theory of supervisory liability.
Similar

to

this

Court’s

decision

regarding

defendant

Rubenstein, qualified immunity also applies to defendant Thompson.
The plaintiff offers no facts to show how defendant Thompson
violated his Eighth Amendment rights by acting with deliberate
indifference towards any alleged dangers that the plaintiff faced.

26

Further, because the prison officials that the plaintiff alleges
assaulted him did not use excessive force, no liability exists
regarding defendant Thompson’s role as a supervisor.
this,

the

plaintiff

fails

to

satisfy

the

first

Because of

part

of

the

qualified immunity inquiry and the requirements under Randall.
Accordingly, this Court finds that qualified immunity applies to
defendant Thompson.
9.

Defendant Harlan

The plaintiff next argues that defendant Harlan, as ShiftSupervisor and acting in his individual capacity, should have
brought “order to the situation” after the plaintiff filed his
grievances, such as reprimanding the officers involved in the
assaults.

ECF No. 1.

Further, he claims that defendant Harlan

“aided and abetted” the situation when “he made the decision to
neglect the issues of excessive force used by his officers.”

Id.

Thus, the plaintiff seems to claim that defendant Harlan failed to
properly examine the grievances the plaintiff filed and take
appropriate action.

Because of that, defendant Harlan allegedly

violated the plaintiff’s Eighth Amendment rights either directly or
under a theory of supervisory liability.
This Court again finds that qualified immunity applies to
defendant Harlan.

The plaintiff again fails to provide any facts

about how defendant Harlan directly violated his rights.

Further,

because the prison officials that the plaintiff alleges assaulted

27

him did not use excessive force, no liability exists regarding
defendant

Harlan’s

role

as

supervisor.

Other

than

his

own

allegations and claims, the plaintiff offers no evidence of how
defendant Harlan violated his rights, either directly or under a
theory of supervisory liability.

Based on the record before this

Court, defendant Harlan did not violate the plaintiff’s Eighth
Amendment rights.

Accordingly, this Court finds that qualified

immunity applies to defendant Harlan.
B.

Plaintiff’s Letter Requesting Additional Time for Discovery
In

his

request

for

additional

time

for

discovery,

the

plaintiff claims that more time is needed because the officer
defendants must allegedly still submit two verifications regarding
the plaintiff’s request for discovery responses.

Further, the

plaintiff argues that he needs more time overall to complete the
discovery process and find the necessary evidence to prevail over
the officer defendants.

In response, the officer defendants argue

that this Court has provided the plaintiff with ample time for
discovery.

Specifically, they claim that because this Court

already granted three motions for additional time in favor of the
plaintiff, the plaintiff has had more than enough time to gather
the necessary evidence.

Further, the officer defendants provide

documentation that indicates that after the plaintiff filed the
letter asking for additional time for discovery, the officer
defendants have since submitted those verifications and provided

28

proof of their submission.

ECF Nos. 129 Ex. A and 136.

Thus, no

further discovery is needed.

Accordingly, they request that the

plaintiff’s motion be denied.

The plaintiff did not file a reply.

This Court agrees with the officer defendants for three
reasons. First, as indicated earlier, this Court granted the
plaintiff’s three prior motions for extensions of time.

The

parties have had more than an ample amount of time to complete
discovery.

Second, this Court has determined that qualified

immunity applies to all of the officer defendants in this civil
action.

Because of that, the officer defendants’ motion for

summary judgment is granted. Therefore, any extension of discovery
serves no purpose at this stage. Finally, the record indicates that
no pending interrogatories or responses remain. It appears that the
plaintiff’s letter requesting additional time was filed the same
day

the

officer

defendants’

responded

with

the

requested

verifications. Thus, the relief sought in that motion concerning
any responses or verifications has been satisfied. For those three
reasons, the plaintiff’s motion for an extension of time to
complete discovery is denied.
V.

Conclusion

For the reasons set forth above, the officer defendants’
motion

for

summary

judgment

is

GRANTED.

Accordingly,

plaintiff’s motion for an extension of discovery is DENIED.

29

the

Should the petitioner 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 30
days after the date of the entry of this order.
It is further ORDERED that this civil action be DISMISSED and
STRICKEN from the active docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se plaintiff and to counsel of record
herein.

Because the officer defendants are the only remaining

defendants in this civil action, the Clerk is DIRECTED to enter
judgment on this matter pursuant to Federal Rule of Civil Procedure
58.
DATED:

December 9, 2014

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

30