Baughman, Jr. v. Rubenstein et al
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 58 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: the defendants 48 motion to dismiss or, in the alternative, for summary judgment is GRANTED; the 1 plaintiffs complaint is DENIED WITH PREJU DICE with respect to all claims against defendants Rubenstein and Mirandy, DENIED WITH PREJUDICE with respect to the claim that defendant Bills failed to present the plaintiff before the Parole Board in a timely manner, and DENIED WITHOUT PREJUDICE with respect to the claim that defendant Bills failed to correct information on the Parole Board for failure to exhaust administrative remedies. Further, it is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 2/23/2017. (copy to counsel via CM/ECF; copy to Pro Se Plaintiff via CM,rrr) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PHILIP ANDREW BAUGHMAN, JR.,
Civil Action No. 5:15CV47
Commissioner of Corrections,
PAT MIRANDY, Warden,
JOYCE BILLS, IPO,
in their professional and
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
The pro se1 plaintiff instituted this civil action pursuant to
42 U.S.C. § 1983.
ECF No. 1.
The plaintiff was incarcerated at
St. Marys Correctional Center (“SMCC”) at the time he filed his
complaint but discharged his sentence on February 17, 2016. In his
complaint, the plaintiff alleges that the defendants violated his
civil rights with respect to his parole consideration. On March 4,
2016, the magistrate judge determined that summary dismissal was
not appropriate and entered an order to answer.
On April 4, 2016,
the defendants filed a motion to dismiss or, in the alternative,
motion for summary judgment.
ECF No. 48.
The magistrate judge
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1416 (10th ed. 2014).
issued a Roseboro notice on April 5, 2016, and, to date, the
plaintiff has not responded to the defendants’ motion.
The plaintiff, a convicted sex offender, was an inmate at SMCC
between August 15, 2014, and February 17, 2016.
Because he was a
convicted sex offender, he was required to have a psychological
psychological evaluations and services for inmates in facilities
operated by the West Virginia Division of Corrections (“WVDC”).
When the plaintiff arrived at SMCC in August 2014, the Parole Board
institutional parole officer, defendant Joyce Bills (“Bills”),
The necessary test was administered and scored on September
25, 2014, and sent to a PsiMed psychologist, Aimee Meadows, on that
On October 14, 2014, defendant Bills again emailed Ms.
Meadows requesting that the plaintiff receive a psychological
Defendant Bills also sent Ms. Meadows a follow-up
email on October 23, 2014.
On November 5, 2014, defendant Bills
sent a third email to Ms. Meadows and copied Ashley Spruce, a
PsiMed psychologist at Mount Olive Correctional Center (“MOCC”), on
The third email noted that the plaintiff had been
referred for a psychological evaluation in September and that the
evaluation had still not been completed.
On November 14, 2014, Dana McVey from the West Virginia State
Parole Board emailed Ms. Meadows and defendant Bills about the
status of the plaintiff’s psychological evaluation.
apparently due to a staff shortage at PsiMed.
The delay was
Meadows had left her employment with PsiMed, and Ms. Spruce was
Defendant Bills informed Ms. Spruce that the plaintiff could be put
on the parole hearing list for January 2015, and Ms. Spruce
responded that the plaintiff’s evaluation would be done for the
January 2015 parole hearing.
Ms. Spruce forwarded the plaintiff’s psychological evaluation
to the Parole Board on January 5, 2015, and informed defendant
Bills of that action on January 27, 2015.
The Parole Board saw the
plaintiff for a hearing in February 2015 and denied parole to the
plaintiff because of his prior unsatisfactory supervision history.
The Parole Board scheduled the plaintiff for reconsideration in
However, the plaintiff’s sentence expired and he
was discharged from his term of imprisonment on February 17, 2016.
The plaintiff alleges that each defendant violated his civil
rights with respect to his parole consideration.
As to the
(“Rubenstein”), the plaintiff alleges that defendant Rubenstein
failed to instruct and direct his subordinates in the proper
process of preparing the plaintiff to go before the Parole Board,
thus denying the plaintiff proper parole consideration.
As to the
Warden, defendant Pat Mirandy (“Mirandy”), the plaintiff alleges
that defendant Mirandy usurped the Parole Board and denied him
parole by failing to provide proper instruction on the preparation
of necessary paperwork for the Parole Board to consider him for
As to defendant Bills, the plaintiff alleges
that she (1) failed to prepare the proper paperwork for the Parole
Board to consider his parole eligibility and (2) failed to correct
incorrect information and outdated facts in the parole report.
For relief, the plaintiff seeks compensatory and punitive
damages, an immediate parole reconsideration, and termination of
defendant Bills’s employment as the institutional parole officer at
The plaintiff’s request for an immediate parole hearing,
however, is moot because the plaintiff has been released from
The defendants’ motion to dismiss or, in the alternative,
motion for summary judgment, alleges that the plaintiff’s complaint
fails to state a claim upon which relief may be granted under 42
U.S.C. § 1983.
The defendants’ motion also alleges that the
plaintiff’s claims regarding his parole hearing must be dismissed
plaintiff had exhausted his administrative remedies, his complaint
would be moot because he suffered no actual harm.
United States Magistrate Judge Michael John Aloi then entered
a report and recommendation.
ECF No. 58.
In that report and
recommendation, the magistrate judge concluded that, with respect
to defendants Rubenstein and Mirandy, the plaintiff’s complaint
fails to make specific allegations against the two defendants to
violation of the plaintiff’s constitutional rights.
the magistrate judge found that the plaintiff fails to make any
allegations against defendant Rubenstein or defendant Mirandy that
contain the required elements for supervisory liability.
respect to defendant Bills, the magistrate judge concluded that the
plaintiff’s first allegation against her fails to state a cause of
action because the delay in the plaintiff’s appearance before the
psychological evaluations, PsiMed, not defendant Bills.
As to the
magistrate judge concluded that the plaintiff failed to exhaust his
administrative remedies as to the specific grievance that there was
incorrect information in his parole report.
The plaintiff did not file objections to the report and
recommendation of the magistrate judge.
For the reasons set forth
below, the report and recommendation of the magistrate judge (ECF
No. 58) is AFFIRMED and ADOPTED. Therefore, the defendants’ motion
to dismiss or, in the alternative, for summary judgment (ECF No.
48) is GRANTED.
Additionally, the plaintiff’s complaint (ECF No.
1) is DENIED WITH PREJUDICE with respect to all claims against
defendants Rubenstein and Mirandy, DENIED WITH PREJUDICE with
respect to the claim that defendant Bills failed to present the
plaintiff before the Parole Board in a timely manner, and DENIED
WITHOUT PREJUDICE with respect to the claim that defendant Bills
failed to correct information on the Parole Board for failure to
exhaust administrative remedies.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
recommendation to which objection is timely made.
objections were filed, all findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).
As the Supreme Court of the United States
stated in United States v. United States Gypsum Co., “a finding is
‘clearly erroneous’ when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
333 U.S. 364, 395 (1948).
After reviewing the complaint and the record, this Court is
not “left with the definite and firm conviction that a mistake has
been committed” by the magistrate judge. United States Gypsum Co.,
333 U.S. at 395.
With respect to the plaintiff’s claims against
defendants Rubenstein and Mirandy, the magistrate judge correctly
noted that liability under 42 U.S.C. § 1983 is “personal, based
upon each defendant’s own constitutional violations.”
Freeh, 275 F.3d 391, 402 (4th Cir. 2001).
In this case, the
plaintiff’s allegations as to defendants Rubenstein and Mirandy are
allegations suggest that he named defendants Rubenstein and Mirandy
in their official or supervisory capacities as Commissioner of the
WVDC and the Warden of SMCC, respectively.
The magistrate judge
also correctly concluded that official capacity claims require the
governmental entity’s policy or custom to have played a part in the
See Kentucky v. Graham, 473 U.S. 159,
166 (1985) (citing Monell v. N.Y.C. Dept. of Soc. Servs., 436 U.S.
658, 694 (1978)).
Here, the plaintiff does not assert that any
WVDC or SMCC policy or custom played a part in the alleged
violation of his constitutional rights.
Additionally, the magistrate correctly noted that there is no
respondeat superior liability under § 1983.
See Monell, 436 U.S.
Rather, “liability will lie where it is affirmatively
shown that the official charged acted personally in the deprivation
of the plaintiff’s rights.”
Vinnedge v. Gibbs, 550 F.2d 926, 928
(4th Cir. 1997). A supervisor may, however, be liable under § 1983
even without personal involvement if a subordinate acts pursuant to
See Fisher v. Washington Metro. Area Transit Auth.,
690 F.2d 1133 (4th Cir. 1982).
Similarly, a supervisor may be
liable under § 1983 if
(1) 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) 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) there was an “affirmative causal link” between the
supervisor’s inaction and the particular constitutional
injury suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.), cert. denied, 513 U.S.
Here, the magistrate judge correctly concluded that
the plaintiff did not allege any personal involvement on the part
of defendant Rubenstein or defendant Mirandy. The magistrate judge
also correctly concluded that the plaintiff did not make any
allegations that reveal the presence of the required elements for
Thus, this Court finds no error in the
magistrate judge’s finding that the plaintiff’s complaint fails to
state a claim against either defendant Rubenstein or defendant
As set forth above, the plaintiff made two allegations against
The plaintiff first alleges that defendant Bills
failed to present the plaintiff before the Parole Board in a timely
The magistrate judge correctly noted that courts apply
tort principles of foreseeability and intervening superseding
causes when determining whether to attach liability for the acts of
a third party under § 1983.
See Evans v. Chalmers, 703 F.3d 636,
647 (4th Cir. 2012). The magistrate judge correctly concluded that
defendant Bills cannot be held responsible for the delay in the
plaintiff’s appearance before the Parole Board because the delay
was not caused or influenced by her.
As explained previously, the WVDC contracts with PsiMed to
provide psychological evaluations, and defendant Bills promptly
forwarded the plaintiff’s information to Ms. Meadows, the PsiMed
psychologist assigned to SMCC. Defendant Bills also followed up on
her request for the plaintiff’s psychological evaluation with
correctly concluded that defendant Bills had no other avenue to
obtain the necessary evaluation and that she acted in good faith to
timely obtain the evaluation from PsiMed.
Thus, PsiMed’s failure
to promptly respond to defendant Bills’s repeated requests was the
sole cause of the delay.
The plaintiff’s second allegation is that defendant Bills
failed to correct incorrect information in the Parole Report.
Under the Prison Litigation Reform Act (“PLRA”), a prisoner must
exhaust his available administrative remedies before filing an
action under § 1983.
42 U.S.C. § 1997e(a).
The prisoner must
“us[e] all steps that the agency holds out and do so properly.”
Woodford v. Ngo, 548 U.S. 81, 90 (2006).
The WVDC has established a three-level grievance process for
prisoners to grieve their complaints in an attempt to resolve the
The Level One involves filing a G-1 Grievance
Form with the Unit Manager.
If the inmate receives no response or
is unsatisfied with the response received at Level One, the inmate
may proceed to Level Two by filing a G-2 Grievance Form with the
warden or administrator.
Finally, the inmate may appeal the Level
Two decision to the Commissioner of the WVDC.
In this case, the plaintiff did file a grievance with his unit
manager on January 15, 2015, regarding the parole review process.
However, that grievance did not raise any allegation that there was
incorrect information in his parole report.
The grievance simply
stated: “Pursuant to the Unit Team Response to 14-SMCC-76-1-164[,]
I was guaranteed I would have my necessary paperwork completed and
I have been denied two parole review opportunities.”
ECF No. 18
Defendant Mirandy also filed an affidavit indicating that
“[u]pon a review of [SMCC] files, there are no grievances filed by
Plaintiff regarding denial of parole in February 2015, nor are
there any grievances filed by Plaintiff which allege wrongdoing by
Ms. Bills leading to his denial of parole in February 2015.”
49-2 at 2.
Thus, the plaintiff’s second allegation against
recommendation is AFFIRMED and ADOPTED in its entirety.
For the reasons set forth above, the report and recommendation
of the magistrate judge is AFFIRMED and ADOPTED.
defendants’ motion to dismiss or, in the alternative, for summary
judgment (ECF No. 48) is GRANTED.
Additionally, the plaintiff’s
complaint (ECF No. 1) is DENIED WITH PREJUDICE with respect to all
claims against defendants Rubenstein and Mirandy, DENIED WITH
PREJUDICE with respect to the claim that defendant Bills failed to
present the plaintiff before the Parole Board in a timely manner,
and DENIED WITHOUT PREJUDICE with respect to the claim that
defendant Bills failed to correct information on the Parole Board
for failure to exhaust administrative remedies.
Further, it is
ORDERED that this civil action be DISMISSED and STRICKEN from the
active docket of this Court.
Finally, this Court finds that the plaintiff was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.
Because the plaintiff has failed to
object, he has waived his right to seek appellate review of this
See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
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.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
February 23, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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