Hillberry v. Elder et al
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 204 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND SCHEDULING ORDER FOR DEFENDANT ELDER'S COUNTERCLAIM. The defendants motion for summary judgment 114 is GRANTED; plaintiffs motion for sanctions 138 is DENIED; plaintiffs motion to dismiss Elders counterclaim 142 is DENIED IN PART and GRANTED IN PART; and plaintiffs motion to compel 197 is DENIED. The plaintiffs complaint is therefore DISMISSED WITH PREJUDICE against all defe ndants. Signed by Senior Judge Frederick P. Stamp, Jr. on 1/29/2015. (copy to Pro Se Plaintiff via Cert. Mail, rrr; copy to counsel of record via CM/ECF) (nmm) (Additional attachment(s) added on 1/29/2015: # 1 Certified Mail Return Receipt) (cc).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ROY FRANKLIN HILLBERRY, II,
Civil Action No. 5:13CV113
LT. R. ELDER, in his individual capacity,
SGT. W. O. STEWART, in his individual capacity,
CORP. RETA MAYS, in her individual capacity,
OFFICER RICHARDS, in his individual capacity,
OFFICER ADAMS, in his individual capacity,
OFFICER TIMOTHY ABNER, in his individual capacity,
OFFICER FREDERICK, in his individual capacity,
COUNSELOR JASON A. HUTSON, in his individual capacity,
ADMINISTRATOR GEORGE TRENT,
in his individual and official capacities,
CHIEF OF OPERATIONS JOHN V. LOPEZ,
in his individual and official capacities and
DEPUTY DIRECTOR PAUL O’DELL,
in his individual and official capacities,
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE AND
SCHEDULING ORDER FOR DEFENDANT ELDER’S COUNTERCLAIM
On August 15, 2013, the pro se1 plaintiff, Roy Franklin
Hillberry, II (“Hillberry”), initiated this action in this Court by
filing a civil rights complaint which alleged that correctional
guards at the North Central Regional Jail (“NCRJ”) used excessive
force against him and assaulted him twice within two days in May
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1416 (10th ed. 2014).
2012 which resulted in the plaintiff requiring treatment in the
Pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C.
§ 636, this Court then referred the plaintiff’s complaint to the
Honorable James E. Seibert, United States Magistrate Judge, for
report and recommendation.
including defendant Lt. R. Elder (“Elder”) who filed his answer on
November 13, 2013.
After this Court granted his motion for leave
to file a counterclaim, Elder filed a counterclaim alleging that
the plaintiff actually initiated the incident, assaulted him, and
caused severe head trauma resulting in seizures and short-term
A period of discovery has taken place since the counterclaim
was filed and several motions have been filed in this action.
Thus, the magistrate judge issued a report and recommendation on
motions that were pending in this action.
When the magistrate
judge entered his report and recommendation, there were four
motions pending (in the order they were filed): (1) defendants’
motion for summary judgment (two responses by the plaintiff, no
sanctions, (3) plaintiff’s motion to dismiss, and (4) plaintiff’s
motion to compel.
The magistrate judge recommended that the
defendants’ motion for summary judgment be granted, that all of the
objections and the defendants filed a response thereto.
For the reasons that follow, this Court finds that the
magistrate judge’s report and recommendation should be adopted and
affirmed in its entirety.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
objections have been filed in this case, this Court will undertake
a de novo review.
As to those portions of the magistrate judge’s
findings and recommendation will be upheld unless they are “clearly
erroneous or contrary to law.”
28 U.S.C. § 636(b)(1)(A).
As stated above, there were several motions pending at the
time the magistrate judge entered his report and recommendation.
This Court will review those motions and the magistrate judge’s
findings in the order that those motions were filed.
Defendants’ Motion for Summary Judgment
The defendants split their motion for summary judgment into
three arguments based on different sets of defendants.
this Court will dispose of those issues in the order presented by
the moving party.
The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (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)).
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 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
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).
Defendants Trent, O’Dell and Lopez —
Supervisory Claims Fail as a Matter of Law
The defendants assert that there are no allegations of assault
against Administrator George Trent (“Trent”), Deputy Director Paul
O’Dell (“O’Dell”), or Chief of Operations John V. Lopez (“Lopez”).
Thus, the defendants argue that the plaintiff’s supervisory claims
must fail as liability cannot be solely based on respondeat
superior in a § 1983 action.
The defendants contend that the
plaintiff has alleged that the defendants knew of a custom of
guards assaulting inmates, but that the plaintiff has not provided
any evidence to support such an allegation despite extensive
discovery and the plaintiff’s awareness of applicable case law and
Further, the plaintiff contends that Trent, O’Dell, and
Lopez had knowledge of the other seven named defendants’ repeated
involvement in multiple assaults which the plaintiff contends is
supported by grievances, complaints, lawsuits, incident reports,
and other documentation regarding excessive force.
The plaintiff then filed a supplementary response. In it, the
(“Lipscomb”), was trained to falsify reports and that Lipscomb only
Additionally, he asserts that other records from the day that the
inmate was killed by Lipscomb (in 2005) were falsified. This Court
will infer that the plaintiff is arguing that this information
shows that such incidents are widespread and pervasive. Throughout
the document, the plaintiff reviews exhibits that he has attached
which he argues proves the failure of Trent, O’Dell, and Lopez to
fulfill their supervisory roles.
In his report and recommendation, the magistrate judge notes
that as to the nine defendants other than Stewart, 67 civil actions
have been filed against them in the last two years but that no
prior discipline for those defendants for excessive force have been
As to Stewart, he has had two cases filed against him, one
excessive force which resulted in the death of an inmate.
encompasses affidavits, copies of grievances, complaints, and
investigations performed, there is no credible evidence to support
the plaintiff’s allegations.
The magistrate judge found that this
evidence shows that correctional officers are disciplined if an
inmate’s claim is substantiated, that certain investigations are
conflicting stories, and inmates are sent to protective custody if
they report that they are in fear of certain correctional officers.
Based on the record, the magistrate judge found that although there
have been incidents of excessive force at the NCRJ, they are
infrequent. Moreover, the magistrate judge found that there was no
deliberately indifferent to such actions.
In his objections, the plaintiff argues that Trent stood by
while he was beaten on May 10, 2012 and thus showed deliberate
The plaintiff otherwise reiterates his earlier
In their response to the objections, the defendants
again argue that the plaintiff has failed to provide evidence to
support his assertions and has concocted his argument that Trent
stood by at a late stage without evidence to support it.
considered the reports that were provided during discovery.
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
“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).
standard has been extended to supervisors who act inadequately when
responding to actual or constructive knowledge that a subordinate
is engaged in pervasive and unreasonable conduct that affirmatively
leads to a particular constitutional injury.
Shaw v. Stroud, 13
F.3d 791, 799 (4th Cir.), cert. denied, 513 U.S. 813 (1994).
Based on the record, this Court does not find that there was
a policy or custom at the NCRJ which led to the incident underlying
As indicated by the magistrate judge, the record
shows that in the two years preceding the incident, there were no
credible allegations of excessive force or abuse of any kind that
were not investigated and that did not result in appropriate action
against officers involved in such conduct.
21 (detailing grievances and consequences).
See ECF No. 204 at 19Thus, although there
have been incidents of excessive force at NCRJ, the record does not
show that there was or is pervasive and unreasonable conduct that
is customarily undertaken by the staff at the NCRJ, including
Further, any incident that evolved to the level of a
constitutional violation was investigated and the person involved
Accordingly, the plaintiff fails to state a claim
against Trent, O’Dell and Lopez in their individual or official
In his objections, the plaintiff raises for the first time a
claim that Trent witnessed and stood by while the plaintiff’s
alleged beating occurred. However, the record does not provide any
support for such a claim. Further, the plaintiff has not made this
claim previously and its introduction at this stage is untimely and
would be prejudicial to Trent who was not put on notice of the
Finally, this Court agrees with the magistrate judge that the claim
frivolous and malicious.
Consequently, the magistrate judge’s
findings are affirmed as there are no genuine issues of material
fact that remain regarding the plaintiff’s claim against Trent,
O’Dell, and Lopez.
Elder — Plaintiff’s Assault Claim (May 10, 2012) Fails as
a Matter of Law
The defendants argue that the defendant has failed to provide
supporting evidence for his assault claim against Elder.
the defendants assert that the evidence actually refutes the
The defendants specifically note an eyewitness
report of a nurse who was a contracted employee, rather than a
direct employee of the Regional Jail Authority. The nurse reported
that an administrative segregation hearing for the plaintiff was
held, that Elder explained at the hearing why the plaintiff needed
to be placed in segregation, the plaintiff became upset, and then
backward and causing him to fall and hit his head on the floor.
Another eyewitness submitted a report with a similar story.
the defendants contend that there is no evidence that Elder chest
pumped the plaintiff or otherwise started the altercation and that
the only evidence the plaintiff has in his favor is his own “selfserving” grievance form.
As to Elder, the plaintiff argues that the incident reports
regarding May 10, 2012 are conflicting, that Elder’s head trauma
was preexisting, and that the nurse who examined Elder only found
a superficial scratch.
The plaintiff contends that he did not
disobey orders and was compliant, that the seven defendants and
Elder assaulted him without cause, and that he suffered significant
injuries afterward including a blocked heart valve.
The magistrate judge found that the plaintiff has failed to
Further, the magistrate judge found that the subsequent force used
was not excessive and that the use of the mace was in compliance
with the protocol established by the West Virginia Regional Jail
magistrate judge found that the force applied was applied in a good
faith effort to maintain or restore discipline.
In his objections, the plaintiff reiterates his arguments that
there are inconsistencies in the record that support his version of
events. For example, the plaintiff asserts that some reports state
that Stewart opened the door and others state that Elder opened the
door. Further, some reports state that the plaintiff initiated the
conversation with Elder while others state that Elder started
Additionally, the plaintiff argues that Elder reported he attempted
to open the door and was then shoved through the door which the
plaintiff contends is impossible as the door would have been closed
because Elder only attempted to open it.
Otherwise, the plaintiff
reiterates his arguments as to the severity of his injuries and the
minuteness of Elder’s injuries.
The plaintiff also contends that
his state court criminal case involving this incident should not be
considered as there is insufficient evidence to support it (he also
argues that his constitutional rights have been violated because he
has not yet gone to trial).
In response to the plaintiff’s objections, the defendants
assert that 100% consistency of statements is not required as
different witnesses will have different vantage points during an
Further, the defendants argue that the statements provided
show that the plaintiff initiated the incident not Elder.
In order to prove an excessive force claim, a plaintiff must
first demonstrate that “the alleged wrongdoing was objectively
‘harmful enough’ to establish a constitutional violation.”
v. McMillan, 503 U.S. 1, 8 (1992) (citation omitted).
plaintiff must show that prison officials inflicted unnecessary and
wanton pain and suffering.
Id. at 6.
Where there has been an
inmate disturbance, a court must determine whether unnecessary and
wanton pain and suffering was inflicted “in a good faith effort to
maintain or restore discipline or maliciously and sadistically for
the very purpose of causing harm.”
312, 320-21 (1986).
Whitley v. Albers, 475 U.S.
To determine whether an act was malicious or
sadistic, the following factors are considered: (1) “the need for
application of force;” (2) “the relationship between the need and
the amount of force that was used;” (3) “the extent of the injury;”
(4) “the threat reasonably perceived by the responsible official;”
and (5) “any efforts made to temper the severity of a forceful
response.” Id. at 321; Williams v. Benjamin, 77 F.3d 756, 762 (4th
The plaintiff has alleged that Elder initiated the assault,
that he used his arms to block Elder and to push Elder away, and
that he was then beaten severely even though he did not resist.
However, as the magistrate judge noted, there is no evidence which
supports the plaintiff’s recitation of what occurred during the
To reiterate the magistrate judge’s finding,
the evidence supplied by both the plaintiff and Elder actually
supports Elder’s recitation of the incident that the plaintiff was
the initial aggressor.
Further, the evidence supports a finding
that use of force and O.C. spray was subsequently used to subdue
the plaintiff after plaintiff initiated the assault and continued
Thus, there is no evidence that the force used against
plaintiff was not applied in a good faith effort to maintain or
As such, the plaintiff’s claim fails as there
are no genuine issues of material fact that would allow his claim
to go forward.
Stewart, Mays, Richards, Adams, Abner, Frederick, and
Hutson — Claims Regarding the May 10, 2012 Altercation
Should be Dismissed
The plaintiff claims that after he was assaulted by Elder, he
(“Abner”), Officer Frederick (“Frederick”), and Counselor Jason A.
Hutson (“Hutson”)(collectively “the seven defendants”). First, the
defendants argue that the evidence does not support the plaintiff’s
allegation that Elder assaulted the plaintiff.
Thus, the seven
defendants assert that they were justified in tackling plaintiff
and using necessary force to restrain him. Further, the defendants
defendants’ instructions and thus made further force necessary
which is evidenced by the incident reports (Ex. D).
the defendants assert that the plaintiff has failed to provide
supporting evidence as he was asked to provide witnesses who
ECF Nos. 1 at 10, 24-25; 1-2 at 1, 5, 6-7, 10, 12-19; and 1-3
at 1, 3-4.
defendants assert that the only evidence the plaintiff has in his
favor is his own grievance form.
The magistrate judge found that the plaintiff’s claims were
unsupported by the record.
The magistrate judge found that a
review of the medical records shows that the plaintiff had a knot
on his wrist and some sprains after the altercation, but nothing as
severe as the beating he describes.
Further, the magistrate judge
reviewed video evidence, not of the actual altercation, that shows
that the plaintiff did not have the type of abrasions he states he
did and that show that he had a normal gait, was not showing the
signs of having a severe injury to his foot or ankle, and was even
able to kick his cell door at one point.
These videos are from the
same day, the day after, and even a month later when the plaintiff
had contended that he had to hop on one foot for almost six months
because of the pain in his ankle.
Further, the magistrate judge
notes that there is only one complaint on record that the plaintiff
filed regarding a follow-up assault by Frederick despite the fact
that the plaintiff had other times to report the assault and
Finally, the magistrate judge found that the force used
was reasonable and applied in a good faith effort to maintain or
restore discipline and was not performed in a malicious manner.
In his objections, the plaintiff asserts that the incident
reports contradict each other in that Mays and Adams reported being
exposed to the plaintiff’s blood which would not have occurred if
the plaintiff had not been beaten.
Otherwise, the plaintiff
reiterates his earlier arguments.
complaint do not support his claims against these defendants.
witnesses of the incident stated that the plaintiff was the
aggressor and that subsequent force had to be used against the
plaintiff because he was resisting. Additionally, incident reports
do not support the plaintiff’s version as to what happened in the
recreation yard following the incident. The record, however, shows
that plaintiff was instead walked around the yard; given fresh air,
water, and paper towels to clear his face; and then given a shower
and clean clothing shortly thereafter.
As to plaintiff’s injuries, these are established by medical
records and video taken soon after the incident and even a month
after the incident. These records show that although the plaintiff
had injuries, those injuries were not severe as the plaintiff
description of those injuries.
Further, those records show that
the plaintiff was receiving medical treatment. Additionally, these
records do not support the plaintiff’s claim that he was assaulted
and stomped in the shower the following day as his sick call
requests made after such an incident allegedly occurred did not
state that any such beating had occurred or any injuries that would
have resulted from such a beating.
The plaintiff’s claims against Elder, Stewart, Mays, Richards,
Adams, Abner, Frederick, and Hutson find no support in the record,
which includes evidence supplied by the plaintiff himself.
fact, the plaintiff’s own evidence supports the defendants’ version
As such, there are no genuine issues of material fact
as to the plaintiff’s claims against these defendants.
this Court agrees with the magistrate judge that these claims were
made in bad faith as they were only made based on the plaintiff’s
baseless allegations and are therefore dismissed as frivolous and
Plaintiff’s Remaining “Excessive Force” Claims Should be
Dismissed as a Matter of Law (Retaliation)
The plaintiff has claimed that on May 10, 2012, he was
escorted outside by the seven defendants above and beaten severely.
Further, the plaintiff claimed that Frederick assaulted him the
next day, May 11, 2012, by taking him in the shower and violently
assaulting him causing severe head and body trauma.
also alleges that he was denied medical treatment thereafter.
defendants assert that the plaintiff has not provided any evidence
regarding these claims and that they are also disputed by medical
records which the plaintiff has provided. The medical records show
that the plaintiff was seen May 10, 2012 by a nurse and that he
Additionally, the plaintiff saw a doctor on May 11, 2012, which
plaintiff’s right wrist and ankle which was treated with ibuprofen.
The defendants argue that this is inconsistent with someone who was
kicked and stomped until unconscious, as the plaintiff has claimed.
The plaintiff then saw the doctor five times throughout May and
June 2012 and had numerous visits with nurses throughout the same
time period—and the only further symptom was swelling of his ankle,
for which he was prescribed an anti-inflammatory.
arguments from his complaint. The plaintiff argues that Elder took
him to a hearing room that is not generally used because it does
not have cameras and that Elder chest pumped him and drew back to
hit him in the face.
Thereafter, after the plaintiff blocked
Elder’s punch, the plaintiff contends that the seven defendants
beat him for ten minutes and sprayed him with mace twice.
plaintiff asserts that there is evidence because no violation
reports were filed, the plaintiff was taken to a room without a
camera, and Elder has falsified his reports.
contends that he asked his mother to call the state police and that
he filed a grievance form.
The plaintiff asserts that Frederick
then, in retaliation on May 11, 2012, assaulted the plaintiff in
the shower room.
The plaintiff argues that the medical records
actually do support his story and further that when the state
police called, Mays gave them a false report about what had
happened to the plaintiff.
The magistrate judge found that the record reveals that the
plaintiff is a disruptive inmate and that the adverse events that
occurred were not motivated by retaliation but rather by the
conduct of the plaintiff. Additionally, the magistrate judge notes
that the plaintiff has provided no evidence nor alleged that the
plaintiff every day.
Further, the magistrate judge found that the
medical records did not support the plaintiff’s allegation that he
had not received medical treatment, which was also a form of
The record shows that the plaintiff was
examined several times after the incident, prescribed medication,
and that the injuries were not serious.
In his objections, the plaintiff reiterates his previous
The plaintiff asserts that there are several genuine
issues of material fact that remain in this action.
the defendants argue that the plaintiff has not provided any
evidence that the defendants interfered with plaintiff’s medical
care or that is medical care was insufficient.
defendants assert that the plaintiff has failed to provide evidence
that his injuries were as serious as he has claimed. Additionally,
the defendants assert that the magistrate judge has correctly
assessed the evidence in this action in light of the plaintiff’s
pro se designation.
establish (1) a specific constitutional right, (2) the defendant’s
intent to retaliate against the prisoner for his or her exercise of
that right, (3) a retaliatory adverse act, and (4) causation.
Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (citation
retaliatory motive, the complained of incident . . . would not have
A prisoner’s claim of bias and retaliation is
constitutional rights have been violated by official retaliation
must present more than naked conclusory allegations of reprisal to
preclude a dismissal of his claim.
Cochran v. Morris, 73 F.3d
1310, 1317 (4th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir.
As the magistrate judge noted, the record indicates that the
plaintiff is a disruptive inmate and that such disruption is the
actual impetus for the adverse events that have occurred.
than his self-serving grievances and conclusory allegations, the
plaintiff has not provided evidence that he was threatened or that
the defendants actually followed through with threats against him.
As there is no evidence in the record that he was physically
retaliated against or threatened, the plaintiff has failed to
overcome the standard for surviving a motion for summary judgment
when a plaintiff has raised a retaliation claim.
retaliated against by way of a deliberate indifference to his
To support a claim for denial of medical care, the
plaintiff “must allege acts or omissions sufficiently harmful to
Estelle v. Gamble, 429 U.S. at 105. The plaintiff has again failed
to provide evidence that his medical needs were deliberately denied
and that such was done in retaliation against him.
shows that the plaintiff received medical care the day of the
assault, the day immediately after the incident, and several times
after for both injuries from the underlying incident and for other
chronic health needs that preceded the incident.
plaintiff even refused certain medical treatment which undermines
his claims regarding the amount of pain he had.
plaintiff has failed to support his claims and this Court finds
that there are no genuine issues of material fact.
this Court finds that the magistrate judge should be affirmed in
his finding that the plaintiff’s claim was raised in bad faith and
that it should be dismissed as frivolous and malicious.
Plaintiff’s Motion for Sanctions
The plaintiff argues in his motion for sanctions that the
defendants filed their motion for summary judgment prematurely as
there was still ongoing discovery. Further, the plaintiff contends
that the defendants failed to comply with the magistrate judge’s
order for the defendants to produce certain documents by July 9,
In response, the defendants argue that the motion for
sanctions was filed prematurely and without merit.
note that the motion was filed July 10, 2014 when the plaintiff
would not have been notified that the defendants had complied with
the magistrate judge’s order, which they did.
In reply, the
plaintiff asserts that the defendants have admitted in their
response that they did not comply with the magistrate judge’s order
and that the defendants forced the plaintiff to respond to a motion
for summary judgment without those documents. The magistrate judge
denied this motion.
This Court finds that this motion should be denied and the
magistrate judge’s finding affirmed.
The plaintiff’s motion was
filed on July 10, 2014 and the plaintiff would not have known that
the defendant had not or had complied with the magistrate judge’s
There is nothing in the record that suggests that the
defendants did not comply with the magistrate judge’s discovery
order and thus, the plaintiff’s motion is frivolous and without
As such, this motion is denied.
Plaintiff’s Motion to Dismiss
counterclaim that the medical records do not support Elder’s
The plaintiff asserts that Elder was examined by a doctor
on May 11, 2012 and that no injuries were reported.
response, defendant Elder argues that his claim was sufficiently
pled and that he has provided supporting evidence which shows that
the plaintiff struck and knocked him to the ground.
Elder contends that he has provided sufficient evidence for his
claims of damages based on his medical records from Doddridge
Family Medicine, Bridgeport Physical Therapy, Travis Physical
Therapy, and United Hospital which show a left knee injury and head
Additionally, because of the head trauma, Elder contends
that he suffered from seizures and while having a seizure fell off
his porch and suffered a rotator cuff tear.
Because of these
injuries, he was unable to return to work, which Elder asserts is
also supported by the record.
Further, Elder requests attorney’s
fees and costs for responding to the motion as it is frivolous and
based on “cherry-picked” pieces of the record.
In reply, the
plaintiff argues that Elder is making false claims, that the
medical records show that he was not injured after the May 10, 2012
incident or that any past injuries were aggravated by it. Further,
the plaintiff contends that Elder continued to work for four and a
half more hours after the incident.
The magistrate judge found that despite the fact that Elder
had previous head trauma, the record showed that Elder suffered a
new closed head injury/traumatic brain injury when he struck his
head on May 10, 2012.
Elder also sprained his left knee.
of this, the magistrate judge found that Elder has suffered from
several symptoms of serious head trauma, a rotator tear from a fall
caused by a seizure, and was forced to prematurely retire.
counterclaim arises out of the same incident, this Court has
jurisdiction over the state claim.
First, the magistrate judge
found that Elder’s claim for tort of outrage/intentional infliction
of emotional distress must be dismissed because the plaintiff acted
impulsively and thus does not meet the requirements for those
As to battery, the magistrate judge found that the record
supports a finding that the plaintiff unlawfully, knowingly, and
intentionally made physical contact of an insulting or provoking
nature with Elder and thus, this claim should proceed.
magistrate judge further found that Elder’s claim for assault is
supported by the record and should also proceed.
In his objections, the plaintiff argues that Elder has failed
to sufficiently plead his claims pursuant to Iqbal and Twombly
because he has only made legal assertions and does not have
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a defendant to raise the defense of “failure to state a claim upon
plaintiff’s complaint before filing a responsive pleading.
In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept the factual allegations
contained in the complaint as true.
Advanced Health-Care Servs.,
Inc. v. Radford Cmty. Hosp., 910 F.2d 139, 143 (4th Cir. 1990).
Dismissal is appropriate only if “‘it appears to be a certainty
that the plaintiff would be entitled to no relief under any state
of facts which could be proven in support of its claim.’”
143-44 (quoting Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.
1969)); see also Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d
324, 325 (4th Cir. 1989).
A motion to dismiss for failure to state a claim under Rule
12(b)(6) should be granted only in very limited circumstances, as
the pleading requirements of Federal Rule of Civil Procedure
8(a)(2) only mandate “a short and plain statement of a claim
showing that the pleader is entitled to relief.”
Fed. R. Civ. P.
8(a)(2). Still, to survive a motion to dismiss, the complaint must
demonstrate the grounds to entitlement to relief with “more than
labels and conclusions . . . factual allegations must be enough to
raise a right to relief above the speculative level.”
Atlantic v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 663-666 (2009).
Jurisdiction and Evidence of Injury
In order to hear Elder’s state law counterclaims, this Court
must have the authority to maintain supplemental jurisdiction.
This Court may hear those claims pursuant to Article III of the
United States Constitution if they arise out of the “same case or
28 U.S.C. § 1367.
This Court agrees with the
magistrate judge that Elder’s counterclaims do arise out of the
same case or controversy as they involve the same underlying
incident which took place at the NCRJ.
Further, this Court finds that Elder has sufficiently pled his
claims and that there is evidence that Elder was injured during the
altercation beyond any preexisting head injury he may have had.
Elder has provided sufficient medical records to show a traumatic
brain injury and a sprained knee.
Additionally, he has shown
intermittent loss of memory; loss of consciousness; and seizures
which have led to other injuries. Additionally, Elder has provided
prematurely retire. As such, this Court finds that the plaintiff’s
motion to dismiss must be denied.
Outrage/Intentional Infliction of Emotional Distress
The magistrate judge found that Elder’s outrage/intentional
infliction of emotional distress claim should be dismissed.
objections were filed as to this finding.
Accordingly, this Court
will undertake a review of whether that finding was “clearly
erroneous or contrary to law.”
28 U.S.C. § 636(b)(1)(A).
The magistrate judge found that the plaintiff’s acts were
impulsive, opportunistic, and made in anger in the heat of the
Thus, the magistrate judge found that Elder had failed to
plead evidence of the second element for a tort of outrage or
intentional infliction of emotional distress claim which requires
that “the defendant acted with the intent to inflict emotional
distress, or acted recklessly when it was certain or substantially
certain emotional distress would result from his conduct.”
v. Alcon Laboratories, Inc., 504 S.E.2d 419, Syl. Pt. 3 (W. Va.
This Court finds that the magistrate judge’s finding was
not clearly erroneous or contrary to law and thus affirms such a
“An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with
apprehension of such a contact, and (b) a harmful contact with the
person of the other directly or indirectly results.”
W. Va. Fire
& Cas. Co. v. Stanley, 602 S.E.2d 483, 494 (W. Va. 2004) (citation
Also, “[i]n order to be liable for a battery, an actor
must act with the intention of causing a harmful or offensive
contact with a person.”
As set forth in this opinion, the record supports a finding
that the plaintiff intentionally caused a harmful or offensive
contact with Elder and that a harmful contact resulted from that
The evidence therefore does not support a dismissal of
Elder’s claim and the magistrate judge’s finding is upheld.
“An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact with
apprehension of such a contact, and (b) the other is thereby put in
such imminent apprehension.”
Stanley, 602 S.E.2d at 495 (citing
Restatement (Second) of Torts § 21 (1965)).
This Court also finds
that the record provides sufficient evidence to support Elder’s
assault claim and that it was not insufficiently pled in his
Thus, Elder’s claim may proceed and the magistrate
judge’s recommendation is adopted.
This Court notes that the magistrate judge applied West
Virginia Code § 61-2-10b which is a criminal statute. Thus, this
Court has applied the definition that West Virginia applied in
This Court has done the same for the assault
section that follows.
However, the outcome is not changed by
application of the civil definitions.
Elder’s Request for Attorney’s Fees and Costs
Elder has also requested attorney’s fees and costs.
distorts the facts in this case, and “cherry picks” statements from
the record to make it seem like the underlying incident occurred as
he has claimed it occurred.
Elder has not neither brought his
claims under the Civil Rights Act or under another federal statute
that might include a fee shifting schedule.4
Thus, Elder must meet
the standard of the “American Rule” in order for this Court to
award attorney’s fees and costs.
The “American Rule” prohibits the shifting of attorney’s fees
in most cases. Alyeska Pipeline Service Co. v. Wilderness Society,
421 U.S. 240, 259 (1975).
However, “an exception allows federal
courts to exercise their inherent power to assess such fees as a
wantonly, or for oppressive reasons[.]”
Chambers v. NASCO, Inc.,
501 U.S. 32, 33, 111 S. Ct. 2123, 2126, 115 L. Ed. 2d 27 (1991)
(citing Alyeska, 421 U.S. at 258-259, 260).
Such shifting may
occur “when the party practices a fraud upon the court . . . or
delays or disrupts the litigation or hampers a court order’s
Id. (internal citations omitted).
The Court notes that even if he had, seeking attorney’s fees
and costs under such a statute would likely be premature at this
Based on the “American Rule,” this Court must deny Elder’s
request as it finds it is without merit.
This Court finds that the
plaintiff’s filing of a motion to dismiss was not outrageous
although he does appear to have skewed the record in his favor.
However, skewing the record in his favor does not arise to the
level that is needed to overcome the presumption against attorney’s
fees designated by the “American Rule.”
As such, Elder is not
entitled to attorney’s fees and costs as to the plaintiff’s filing
and defense of the motion to dismiss.
Plaintiff’s Motion to Compel
The plaintiff requests that the defendants provide a copy of
The plaintiff argues that the transcript is
relevant to all parties and claims, that it would not be unduly
burdensome for the defendants to produce, and that the defendants
did not object when he requested a copy of it.
sought sanctions against the defendants.
The plaintiff has
Further, the plaintiff
argues that he should not be required to pay for the taking of the
deposition, as the defendants have requested.
In response, the
defendants assert that they merely forwarded the invoice from the
court reporter who had prepared the transcript per the plaintiff’s
request. The defendants argue that they should not have to pay for
the plaintiff’s transcript and that the plaintiff should not get a
transcript free of charge.
A reply was not filed.
The magistrate judge denied the plaintiff’s motion to compel
as he recommended granting the motion for summary judgment and thus
found that the motion is moot.
In his objections, the plaintiff
argues that this motion should not have been denied as moot as the
plaintiff’s deposition likely contains information that he can use
to support his claims so that his case would not be dismissed.
This Court finds that the plaintiff’s motion was untimely.
The plaintiff has argued in his objections that the deposition
transcript would have helped him to defend against the defendants’
motion for summary judgment. However, the deposition was not taken
during discovery for the plaintiff’s underlying claims but was
taken as discovery for Elder’s counterclaims.
In this case, there were two discovery deadlines as Elder’s
counterclaim was filed later in this action.
The first discovery
deadline for the plaintiff’s underlying claims was April 17, 2014.
The defendants’ motion for summary judgment was filed by the
dispositive motion deadline for those claims which was May 19,
The second discovery deadline for Elder’s counterclaims was
August 30, 2014.
The plaintiff’s deposition was taken on July 31,
2014, within the second discovery deadline.
The plaintiff filed
his motion to compel on November 6, 2014.
The plaintiff argues now that his motion to compel was filed
so that he could have access to his deposition transcript to defend
against the motion for summary judgment.
It is clear from the
timeline above that the plaintiff’s motion to compel was filed far
too late as it was filed seven (7) months after the discovery
deadline for the plaintiff’s claims and almost six (6) months after
the dispositive motions deadline for the plaintiff’s claims.
such, the plaintiff’s motion to compel is denied as untimely.
As this Court has affirmed and adopted the recommendations of
the magistrate judge, defendant Elder’s counterclaims remain at
deadlines5 have expired in this action and thus, this issue should
proceed to pretrial and trial disposition.
parties are DIRECTED to adhere to the following deadlines regarding
the remaining claims in this action which arise from defendant
Dispositive Motions: All dispositive motions, as well as
deposition transcripts, admissions, documents, affidavits, and any
other such matters in support thereof, shall be filed at the
Clerk’s Office with copies served upon opposing counsel by April
Any such motion must be supported by a memorandum at the
time the motion is filed.
Memoranda in opposition to such motions
However, parties have a continuing obligation to supplement
their responses beyond the discovery cut-off date as provided in
Fed. R. Civ. P. 26(e). The parties should refer to LR Civ P 5.01,
LR Civ P 26.01-26.04, LR Civ P 33.01, LR Civ P 34.01, LR Civ P
36.01, LR Civ P 37.02 for further instructions on discovery
filed on the above deadline date shall be filed with copies served
upon opposing counsel on or before May 20, 2015.
If a motion has
been filed before the above deadline date, opposing counsel is
directed to comply with LR Civ P 7.02(b), which requires responses
no later than twenty-one days after the date of service of the
motion. Any reply memoranda shall be filed with copies served upon
opposing counsel on or before June 3, 2015 or, if the response is
filed prior to the above deadline date, within fourteen business
days from the date of service of the memorandum in response to the
All dispositive motions unsupported by memoranda will be
denied without prejudice.
The parties shall comply with LR Civ P
7.02 imposing a page limitation upon memoranda unless a motion to
exceed the page limitation is granted.
See LR Civ P 7.02.
Factual assertions made in memoranda should be supported by
affidavits, depositions or other documents made a part of the
record before the Court.
Copies of the supporting documents, or
relevant portions thereof, should be appended to the memoranda.
The parties may refer to LR Civ P 7.02 for details on motion
practice before this Court.
Deadlines for the filing of dispositive motions shall be
altered only upon order of the Court.
26(a)(3)Disclosures: Pursuant to LR Civ P 16.04(a), counsel and
unrepresented parties shall meet to conduct settlement negotiations
no later than July 31, 2015.
Lead trial counsel for the plaintiff
first named in the complaint (or an attorney representing a
defendant if the plaintiff is appearing pro se) shall take the
initiative in scheduling such a meeting; all other counsel shall
cooperate in the effort to achieve a successful negotiation and
Counsel and unrepresented parties must be prepared at
the pretrial conference to certify that they tried in their meeting
to settle the case.
If the case is not settled at the meeting, and if there is no
order or stipulation to the contrary, counsel and unrepresented
parties shall make all Fed. R. Civ. P. 26(a)(3) disclosures at the
instructions on substantive theories of recovery or defense, on
damages and on evidentiary matters peculiar to the case, together
interrogatories and verdict forms, if any be appropriate to the
case, and all proposed voir dire questions requested by counsel for
submission to the jury shall be exchanged by counsel and filed not
later than August 11, 2015.
If the instructions and voir dire in this case are being typed
on a computer, counsel are requested to provide to the court a disk
containing the instructions in WordPerfect 12.0 format which is
labeled as to the case style, civil action number and party
proposing the instructions.
The envelope containing the disk
should be marked “Contains Disk—Do Not X-Ray—May Be Opened for
The disk will be returned to counsel if requested.
Motions in Limine:
No motion in limine may be filed
unless and until the moving party consults with opposing counsel to
determine whether the matter presented in the motion is actually in
If the matter is not in dispute, but the party wishes to
stipulation after consulting with opposing counsel.
Where a matter is actually in dispute, all motions in limine,
memoranda of law, and all other related pretrial motions shall be
filed not later than July 23, 2015.
Responses to such motions
shall be filed by July 30, 2015.
If a motion has been filed before the above deadline date,
opposing counsel is directed to respond no later than fourteen days
after the date of service of the motion in accordance with LR Civ
P 7.02, or respond by the date given in this scheduling order,
whichever date comes first.
Joint Pretrial Order:
A proposed joint pretrial order,
titled “Pretrial Order,” shall be filed not later than August 6,
The proposed joint pretrial order shall contain at least
those matters provided for under LR Civ P 16.04(b).
lists, which shall be filed as part of the pretrial order, shall be
considered by this Court as final lists and shall not be modified
except for good cause shown.
Following the pretrial conference,
this Court shall enter the pretrial order which shall then be
modified only with the permission of the Court.
initiating the preparation of the joint pretrial order.
in cases involving a pro se plaintiff, the defendant shall be
responsible for initiating the preparation of the joint pretrial
Exhibits and Objections to Exhibits: On or before August
10, 2015, plaintiff and defendant shall each:
file A LIST of proposed exhibits,
submit to the Clerk ONE BINDER OF COPIES OF
THE EXHIBITS, with the exhibits indexed and
individually tabbed, for the Court’s use, and
forward copies of the proposed exhibits to
Objections to exhibits, WITH THE STATED REASONS FOR THE
OBJECTION AND THE EXHIBIT TO WHICH OBJECTION IS MADE ATTACHED,6
When a party objects to an exhibit which is voluminous in
size, the party may refer to the exhibit by number and dispense
with this requirement, as long as the Court has previously been
provided with a copy of the relevant exhibit binder.
shall be filed on or before August 17, 2015.
Failure to state the
reasons for the objections may constitute a waiver of objections.
Further, failure to timely file an objection to an exhibit shall
result in this Court deeming the exhibit admitted.
sequence (not lettered).
Exhibit markers may be secured from the
ORIGINAL EXHIBITS shall be filed AT THE TIME OF TRIAL AND
SHOULD NOT BE FILED PRIOR TO TRIAL.
If counsel desires each juror
to have a binder of copies of exhibits to view as counsel examines
witnesses, these should be prepared for presentation to each juror
at the appropriate time but with the Court’s permission.
Interrogatories and Depositions to be Used at Trial and
Objections: On or before August 10, 2015, plaintiff shall file any
interrogatories, answers thereto, depositions, etc., specifying the
appropriate portions thereto that plaintiff intends to offer in
Defendant shall do the same on or before August 17,
Any objection to the introduction of any of the foregoing
shall be filed in writing by the objecting party or parties no
later than August 19, 2015 or such objection shall be deemed to
have been waived.
This paragraph does not apply to discovery
materials that will be used at trial solely in cross-examination or
Biographical sketches of any
proposed expert witnesses shall be filed and served upon opposing
counsel by August 10, 2015.
Stipulation of Facts: Counsel are encouraged to meet and
stipulation shall be reduced to writing, signed by counsel and
filed and served upon opposing counsel by August 10, 2015.
pretrial conference/final settlement conference shall be held on
August 10, 2015 at 11:00 a.m. at Wheeling, West Virginia.
conference shall be attended by lead trial counsel
represented party and all unrepresented parties.
parties should be prepared to participate fully and to discuss all
aspects of the case and the matters set forth in the pretrial order
Individuals with full authority to settle the
case for each party shall be immediately available by telephone as
this Court finds that it would be beneficial to have the parties
participate in the conference by telephone.
Any such attorney or pro se litigant shall advise the Court as
soon as possible prior to the conference of his or her intention to
participate by telephone and shall (1) inform all counsel and the
pro se litigant of his or her appearance by telephone; (2) advise
the Court of the name of the attorney who will initiate the
appearing by telephone; and (3) initiate a timely conference
telephone call with such attorneys and pro se litigant to the Court
at 304/233-1120 at the time of the scheduled conference.
parties cannot reach agreement as to the initiator of the call, the
Court will make that determination.
Jury selection in this action shall commence on
August 25, 2015 at 8:30 a.m. at Wheeling, West Virginia.
will commence upon the completion of jury selection and trial in
any prior case scheduled for this date. This case is presently the
second case on the trial docket for that week.
Motion for Continuance:
A party or parties requesting a
continuance must contact all other parties to determine three
possible dates to which to move the deadline or hearing.
moving party must specify these three possible dates within the
motion to continue.
LR Gen P 88.02.
If any party or parties
object to a continuance, that fact shall be noted in the motion.
Settlement Authority and Sanctions:
At least one of the
participating in any conference before trial shall have authority
to make decisions as to settlement, stipulations and admissions on
Counsel and parties are subject to sanctions for
failures and lack of preparation specified in Fed. R. Civ. P. 16(f)
and LR Civ P 37.01 respecting pretrial conferences or orders.
The time limitations set forth above
shall not be altered except as set forth in LR Civ P 16.01(f).
All dates for filings refer to the date the materials must be
actually received, not the mailing date.
Based on the analysis above, this Court finds that the
ADOPTED in its entirety.
As such, the defendants’ motion for
summary judgment (ECF No. 114) is GRANTED; plaintiff’s motion for
sanctions (ECF No. 138) is DENIED; plaintiff’s motion to dismiss
Elder’s counterclaim (ECF No. 142) is DENIED IN PART and GRANTED IN
PART; and plaintiff’s motion to compel (ECF No. 197) is DENIED.
The plaintiff’s complaint is therefore DISMISSED WITH PREJUDICE
against all defendants.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se plaintiff by certified mail and to
counsel of record herein.
January 29, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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