Greene v. Felster et al
MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, GRANTING DEFENDANTS' MOTION TO DISMISS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT OVERRULING PLAINTIFF'S OBJECTIONS AND DENYING PLAINTIFF& #039;S MOTION FOR VOLUNTARY DISMISSAL: Granting 39 Motion to Dismiss for failure to State a Claim; Adopting 57 Report and Recommendations; Denying 59 Motion to Withdraw and Overruling 61 Objection to 57 Report and Recommendations. Case to be Dismissed With Prejudice and Stricken from active docket of this Court; Clerk directed to enter Judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr. on 8/16/17. (copy to Pltff by cert. mail)(soa) (Additional attachment(s) added on 8/16/2017: # 1 Certified Mail Return Receipt) (soa).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL JERMAINE GREENE,
Civil Action No. 5:16CV51
SIDNEY FEASTER and DOUG WHITE,
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
GRANTING DEFENDANTS’ MOTION TO DISMISS OR,
ALTERNATIVELY, FOR SUMMARY JUDGMENT
OVERRULING PLAINTIFF’S OBJECTIONS AND
DENYING PLAINTIFF’S MOTION FOR VOLUNTARY DISMISSAL
The pro se1 plaintiff, Michael Jermaine Greene (“Greene”),
filed this civil action asserting claims under 42 U.S.C. § 1983.
The case was referred to United States Magistrate Judge James E.
alternatively, for summary judgment.
Magistrate Judge Seibert
He also filed a motion to voluntarily dismiss his
For the following reasons, the magistrate judge’s
report and recommendation is adopted and affirmed, the defendants’
motion is granted, the plaintiff’s objections are overruled, and
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1416 (10th ed. 2014).
the plaintiff’s motion to voluntarily dismiss his complaint is
Greene alleges that, while incarcerated at the Huttonsville
Correctional Facility, he was pepper sprayed then not permitted to
timely and thoroughly wash the irritant off.
Greene claims that,
while in his cell, he repeatedly activated his staff-call light
without a response.
The defendants then instructed Greene to stop
hitting his call light.
kicked his cell door.
kicking his door.
ECF No. 1-1 at 3.
He then repeatedly
The defendants instructed Greene stop
ECF No. 40-2.
Greene then continued to kick his
door, and the defendants pepper sprayed him.
then removed Greene from his cell and allowed him to shower.
Greene was then examined by medical staff and returned to his cell.
Greene alleges he was not taken to the shower for at least
five minutes and that he was not given enough time to shower.
further alleges that the next day he gave a nurse a request for a
sick-call note, and that his request “went missing” in retaliation
for his earlier noncompliance.
Finally, Greene alleges that the
incident and lack of followup medical care constitute deliberate
indifference of his medical needs.
He claims the defendants
retaliating, and by being deliberately indifferent to his medical
The defendants filed a motion to dismiss the complaint for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6) or, alternatively, for summary judgment under Rule 56.
defendants’ motion be granted as a motion for summary judgment.
complaint. He also later filed timely objections to the magistrate
judge’s report and recommendation.
Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which objection is timely made. Because Greene filed objections
recommendation will be reviewed de novo as to those findings to
objections were not filed, those findings and recommendations will
be upheld unless they are “clearly erroneous or contrary to law.”
28 U.S.C. § 636(b)(1)(A).
To survive a motion to dismiss under Rule 12(b)(6), “a
[pleading] must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
standard requires a plaintiff to articulate facts that, when
accepted as true, demonstrate that the plaintiff is plausibly
entitled to relief.
Francis v. Giacomelli, 588 F.3d 186, 193 (4th
Cir. 2009) (citing Iqbal, 556 U.S. at 678; Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
“The plausibility standard is
not a probability requirement, but asks for more than a sheer
possibility that a defendant has acted unlawfully.”
DirectTV, 846 F.3d 757, 765 (4th Cir. 2017). “[C]ourts must accept
as true all of the factual allegations contained in the complaint
and draw all reasonable inferences in favor of the plaintiff.” Id.
Id. (internal quotation marks omitted).
Further, this Court must liberally construe pro se complaints.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 2007).
However, while the plaintiff’s
allegations are assumed to be true, Erickson, 551 U.S. at 93, this
Court may not ignore a clear failure in the pleading to allege
facts that set forth a claim.
See Weller v. Dep’t of Soc. Servs.,
901 F.2d 387, 390-91 (4th Cir. 1990).
This Court may not rewrite
a complaint to include claims that were never presented, Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), construct the
plaintiff’s legal arguments for him, id., or “conjure up questions
never squarely presented” to the court.
Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Under Federal Rule of Civil Procedure 56, this Court must
grant a party’s motion for summary judgment if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A fact is
“material” if it might affect the outcome of the case. Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986).
A dispute of material
fact is “genuine” if the evidence “is such that a reasonable jury
could return a verdict for the non-moving party.”
nonmoving party “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,” summary
judgment must be granted against that party.
Catrett, 477 U.S. 317, 322 (1986).
Celotex Corp. v.
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).
The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.
Celotex, 477 U.S. at 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).
However, “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.”
Inc., 477 U.S. 242, 256 (1986).
Anderson v. Liberty Lobby,
Moreover, “[t]he nonmoving party
cannot create a genuine issue of material fact through mere
(internal quotation marks omitted).
The nonmoving party must
produce “more than a ‘scintilla’” of evidence “upon which a jury
could properly proceed to find a verdict for the party producing
it.” Id. (internal quotation marks omitted) (quoting Anderson, 477
U.S. at 251).
qualified immunity, the defendants raise the issue in their motion
to dismiss or, alternatively, for summary judgment.
this Court considers the issue de novo.
officials 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.”
Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks
omitted). Courts must consider two steps in determining whether an
official is entitled to qualified immunity.
Id. at 232.
a court must decide whether the facts that a plaintiff has alleged
. . . make out a violation of a constitutional right.
. . . the court must decide whether the right at issue was ‘clearly
established’ at the time of the defendant’s alleged misconduct.”
Courts need not determine whether a violation has occurred if
the court finds the right at issue was not clearly defined.
For the reasons set forth below, this Court finds the
defendants are entitled to qualified immunity because Greene fails
to demonstrate that his Eighth Amendment rights were violated.
The Eighth Amendment prohibits cruel and unusual punishment.
This right extends to “the treatment an inmate receives in prison
Stansberry, 772 F.3d 340, 346 (4th Cir. 2014) (citing Farmer v.
Brennan, 511 U.S. 825, 832-33 (1994)).
“sufficiently culpable state of mind.”
To prove this kind of
Id. (internal quotation
Greene alleges the defendants violated his Eighth
Amendment rights by using excessive force, by retaliating against
his complaints regarding that use of force, and by failing to
provide adequate medical care.
“[T]he Eight Amendment forbids ‘the unnecessary and wanton
infliction of pain’” by a prison official.
Hill v. Crum, 727 F.3d
312, 317 (4th Cir. 2013) (quoting Whitley v. Albers, 475 U.S. 312,
To prove an excessive force claim, a plaintiff must
show: (1) that the prison official’s use of force was objectively
harmful such that it violates contemporary standards of decency;
and (2) that the prison official’s use of force was not “applied in
a good-faith effort to maintain or restore discipline,” but was
intended to “maliciously and sadistically . . . cause harm.”
Hudson v. McMillian, 503 U.S. 1, 7 (1992).
It is the nature of the
force used, and not the extent of the injury caused, that serves as
the relevant inquiry.
Wilkins v. Gaddy, 559 U.S. 34, 34 (2010).
However, “not every malevolent touch by a prison guard gives rise
to a federal cause of action.”
Id. at 37-38.
Thus, “an inmate who
complains of a ‘push or shove’ that causes no discernible injury
almost certainly fails to state a valid excessive force claim.”
Id. at 38.
The magistrate judge concluded that Greene failed to state an
excessive force claim.
Greene alleges he repeatedly hit his call
light after not receiving an initial response.
He then kicked his
door two or three times the defendants told him to stop or he would
be pepper sprayed.
While Green alleges he did not kick his door
again after that, the Use of Force Review Committee’s findings and
the defendants’ use of force reports indicate that Greene was
ordered multiple times to stop kicking his door and that he did not
See ECF No. 40-2.
Only then did the defendants pepper
Although the magistrate judge concluded that Greene
failed to state a claim, this Court further finds that there is no
genuine factual dispute regarding whether Greene failed to comply
with the defendants’ commands. Thus, this Court finds that the use
of pepper spray by the defendants was “applied in a good-faith
effort to maintain or restore discipline.”
Hudson, 503 U.S. at 7.
Accordingly, the defendants are entitled to summary judgment on
Greene’s excessive force claim.
To state a retaliation claim, a plaintiff “must allege either
that the retaliatory act was taken in response to the exercise of
a constitutionally protected right or that the act itself violated
such a right.”
Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994)
(citing Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
of retaliation that fails to implicate any constitutional right
‘lacks even an arguable basis in law,’ and is properly subject to
Id. (citation omitted) (quoting Neitzke, 490 U.S. at
Greene offers only conclusory allegations that the defendants
caused his sick-call note to go missing in retaliation for his
earlier noncompliance with their commands.
These allegations do
not state a plausible claim that the defendants caused his note to
Further, Greene fails to allege that the defendants
caused his note to go missing in retaliation for the exercise of a
In his objections, Greene argues that the
retaliation occurred after he filed his complaint.
fails to offer sufficient factual allegations to support such a
claim and has not sought to amend his complaint to include any such
Accordingly, Greene’s retaliation claim
must be dismissed.
The magistrate judge concluded that Greene failed to state a
claim for deliberate indifference.
Greene did not object to this
Accordingly, the magistrate judge’s conclusions as to
this issue will be reviewed for clear error.
Corrections officers violate the Eighth Amendment if they were
deliberately indifferent to a risk of substantial harm to an
Farmer v. Brennan, 511 U.S. 825, 833, 834 (1994).
such a claim, the plaintiff must show: (1) that he suffered a
“serious or significant physical or emotional injury”; and (2) that
[the] offic[er]s were deliberately indifferent to a known risk of
Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir.
To show that a prison official acted with deliberate
indifference, the plaintiff must show two things. First, “that the
official in question subjectively recognized a substantial risk of
It is not enough that the officers should have recognized
it; they actually must have perceived the risk.”
Parrish ex rel.
Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (emphasis in
recognized that his actions were inappropriate in light of that
risk . . . .
[I]t is not enough that the offic[er] should have
recognized that his actions were inappropriate; the offic[er]
actually must have recognized that his actions were insufficient.”
Id. (internal quotation marks omitted) (emphasis in original).
Knowledge of the risk may be inferred, but the risk “must be so
obvious that the fact-finder could conclude that the [official] did
know of it because he could not have failed to know of it.”
Moreover, a claim for deliberate indifference requires more than
mere negligence, as “deliberate indifference describes a state of
mind more blameworthy than negligence.”
Farmer, 511 U.S. at 835.
Greene was exposed to pepper spray then taken to a shower for
decontamination after a delay of a few minutes.
examined by a nurse, who found no injuries.
He was then
Further, Greene does
not allege his exposure to pepper spray led to some lasting
physical reaction or injury.
These allegations do not constitute
serious or significant physical or emotional injury.
submission to a haircut did not constitute a serious injury because
the inmate was decontaminated and examined by a nurse). Thus, this
Court finds no clear error in the magistrate judge’s conclusions.
Motion for Voluntary Dismissal
Greene filed a motion to voluntarily dismiss his complaint for
He states that the Northern District of West
Virginia is not the proper venue for this action, and that he will
refile his complaint in the Southern District.
Randolph County, West Virginia, within the Northern District of
Because “a substantial part of the events or
omissions giving rise to the claim[s] occurred” in this district,
Accordingly, Greene’s motion to voluntarily dismiss his complaint
for improper venue is DENIED.
For the above reasons, the magistrate judge’s report and
judgment (ECF No. 39) is GRANTED, Greene’s motion for voluntary
dismissal (ECF No. 59) is DENIED, and Greene’s objections to the
report and recommendation (ECF No. 61) are OVERRULED.
ORDERED that this civil action be DISMISSED WITH PREJUDICE and
STRICKEN from the active docket of this Court.
Should the plaintiff choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 30
days after the date of the entry of this order.
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
August 16, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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