Greene v. Felster et al

Filing 62

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,
Plaintiff,
v.

Civil Action No. 5:16CV51
(STAMP)

SIDNEY FEASTER and DOUG WHITE,
Defendants.
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.
Seibert.

The

defendants

filed

a

alternatively, for summary judgment.
issued

a

granted.

report
The

recommendation.
complaint.

recommending

plaintiff

that

filed

motion

to

dismiss

or,

Magistrate Judge Seibert
the

defendants’

objections

to

the

motion
report

be
and

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

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).

the plaintiff’s motion to voluntarily dismiss his complaint is
denied.
I.

Background

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.

Id.

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.

Id.

The defendants

then removed Greene from his cell and allowed him to shower.

Id.

Greene was then examined by medical staff and returned to his cell.
Id.
Greene alleges he was not taken to the shower for at least
five minutes and that he was not given enough time to shower.

He

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.
violated

the

Eighth

Amendment

2

by

He claims the defendants
pepper

spraying

him,

by

retaliating, and by being deliberately indifferent to his medical
needs.
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.
The

magistrate

judge

entered

a

report

recommending

that

the

defendants’ motion be granted as a motion for summary judgment.
Greene

then

filed

a

motion

for

voluntary

dismissal

of

his

complaint. He also later filed timely objections to the magistrate
judge’s report and recommendation.
II.

Applicable Law

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
to

the

report

and

recommendation,

the

magistrate

judge’s

recommendation will be reviewed de novo as to those findings to
which

objections

were

made.

As

to

those

findings

to

which

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).

3

This plausibility

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.”

Hall v.

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.
“[A]

[pleading]

is

substantial justice.”

to

be

construed

liberally

so

as

to

do

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).

4

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.”

Id.

If the

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.

See

“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

5

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
speculation
Othentec

or

Ltd.

the
v.

building

Phelan,

of

526

one

F.3d

inference
135,

(internal quotation marks omitted).

140

upon
(4th

another.”
Cir.

2008)

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).
III.
While

the

magistrate

Discussion
judge

did

not

expressly

consider

qualified immunity, the defendants raise the issue in their motion
to dismiss or, alternatively, for summary judgment.

Accordingly,

this Court considers the issue de novo.
“The

doctrine

of

qualified

immunity

protects

government

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.”

Pearson v.

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.

“First,

a court must decide whether the facts that a plaintiff has alleged

6

. . . make out a violation of a constitutional right.

Second,

. . . the court must decide whether the right at issue was ‘clearly
established’ at the time of the defendant’s alleged misconduct.”
Id.

Courts need not determine whether a violation has occurred if

the court finds the right at issue was not clearly defined.
236.

Id. at

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.
A.

Eighth Amendment
The Eighth Amendment prohibits cruel and unusual punishment.

This right extends to “the treatment an inmate receives in prison
and

the

conditions

under

which

he

is

confined.”

Danser

v.

Stansberry, 772 F.3d 340, 346 (4th Cir. 2014) (citing Farmer v.
Brennan, 511 U.S. 825, 832-33 (1994)).
Eighth

Amendment

objectively
subjectively

violation,

serious
the

the

deprivation
defendant

plaintiff
of

his

prison

“sufficiently culpable state of mind.”
marks omitted).

To prove this kind of
must

rights;

official

show:
and
acted

(1)

(2)

an

that

with

a

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.

7

1.

Excessive Force

“[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,
319 (1986)).

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

8

the defendants’ use of force reports indicate that Greene was
ordered multiple times to stop kicking his door and that he did not
comply.

See ECF No. 40-2.

spray Greene.

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.
2.

Retaliation

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)).

“A claim

of retaliation that fails to implicate any constitutional right
‘lacks even an arguable basis in law,’ and is properly subject to
dismissal.”

Id. (citation omitted) (quoting Neitzke, 490 U.S. at

328).
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.

9

These allegations do

not state a plausible claim that the defendants caused his note to
go missing.

Further, Greene fails to allege that the defendants

caused his note to go missing in retaliation for the exercise of a
constitutional right.

In his objections, Greene argues that the

retaliation occurred after he filed his complaint.

However, he

fails to offer sufficient factual allegations to support such a
claim and has not sought to amend his complaint to include any such
additional allegations.

Accordingly, Greene’s retaliation claim

must be dismissed.
3.

Deliberate Indifference

The magistrate judge concluded that Greene failed to state a
claim for deliberate indifference.
conclusion.

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
inmate.

Farmer v. Brennan, 511 U.S. 825, 833, 834 (1994).

To show

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
such injury.
2014).

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

10

harm.

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
original).

Second,

“that

the

offic[er]

.

.

.

subjectively

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.”
(internal

quotation

marks

omitted)

(emphasis

in

Id.

original).

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.
Siggers

v.

(concluding

Renner,
that

37

use

F.
of

App’x
pepper

11

138,
spray

140-41
to

(6th

force

See, e.g.,
Cir.
an

2002)

inmate’s

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.
B.

Motion for Voluntary Dismissal
Greene filed a motion to voluntarily dismiss his complaint for

“improper venue.”

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.

However, the

Huttonsville

Huttonsville,

Correctional

Center

is

located

in

Randolph County, West Virginia, within the Northern District of
West Virginia.

Because “a substantial part of the events or

omissions giving rise to the claim[s] occurred” in this district,
venue

is

proper

in

this

Court.

28

U.S.C.

§

1391(b)(2).

Accordingly, Greene’s motion to voluntarily dismiss his complaint
for improper venue is DENIED.
IV.

Conclusion

For the above reasons, the magistrate judge’s report and
recommendation
defendants’

(ECF

motion

No.
to

57)

dismiss

is

ADOPTED

or,

AND

AFFIRMED.

alternatively,

for

The

summary

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.

It is

ORDERED that this civil action be DISMISSED WITH PREJUDICE and
STRICKEN from the active docket of this Court.

12

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
matter.
DATED:

August 16, 2017

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

13