Douty v. Rubenstein et al

Filing 203

MEMORANDUM OPINION AND ORDER adopting the 201 Proposed Findings and Recommendations by Magistrate Judge; granting in part and denying in part Defendants' 169 Motion for Summary Judgment; granting as to plaintiffs claims against defendants Rubenstein, Perry, Williams, and Hahn; granting as to plaintiffs claim against defendant Hudson for battery occurring on September 30, 2013; denying as to all other claims; dismissing Defendants Rubenstein, Perry, Williams, and Hahn from this action. Signed by Judge John T. Copenhaver, Jr. on 6/15/2016. (cc: plaintiff; all counsel of record; the magistrate judge) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

FRED D. DOUTY,
Plaintiff,
v.

Civil Action No. 2:13-32832

JIM RUBENSTEIN, DAVID BALLARD,
PAUL PERRY, RONNIE WILLIAMS,
DANIEL HAHN, ANDREW HUDSON,
JOSHUA HYPES, CHRIS HESS,
NICHOLAS BOYCHUCK, and JOE
WIMMER,
Defendants.

MEMORANDUM OPINION AND ORDER

Pending is defendants’ motion for summary judgment
(ECF No. 169), filed on September 23, 2015.

This action was previously referred to Omar J.
Aboulhosn, United States Magistrate Judge, who has submitted his
Proposed Findings and Recommendation (“PF&R”) pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B).

The magistrate judge

recommends that defendants’ motion for summary judgment be
granted as to defendants Rubenstein, Perry, Williams, and Hahn,
as well as to plaintiff’s claim against defendant Hudson
relating to the use of force on September 30, 2013, and that it
be denied as to all remaining claims.

On April 27, 2016, the PF&R was filed.

On May 18,

2016, the court received plaintiff’s objections to the PF&R.1
objections were received from defendants.

No

In his objections,

plaintiff addresses only the magistrate judge’s recommendation
that the court grant summary judgment as to the alleged
excessive use of force by Hudson on September 30, 2013.

In

particular, plaintiff argues that there remains a material
factual dispute over whether Hudson was privileged to apply
force in an attempt to gain compliance with an order he had
issued to the plaintiff.

Plaintiff also takes issue with

Hudson’s characterization of his use of force.

It is undisputed that on September 30, 2013, Hudson
attended plaintiff’s disciplinary hearing and escorted plaintiff
back to his cell.

Plaintiff alleges that during this escort,

Hudson smacked the plaintiff on the head.

In his affidavit

supporting summary judgment, Hudson states that these escorts
are considered “high risk” and that while they were en route,
plaintiff “quickly turned his head to the left.”
at 4).

(ECF No. 169-3

Hudson claims he responded by “placing [his] hand on the

back of [plaintiff’s] neck and redirecting him to a straight

1

The deadline for objections to the magistrate judge’s PF&R was
May 16, 2016. Inasmuch as the plaintiff’s objections are dated
May 12, 2016 and postmarked May 16, 2016, the court addresses
the substance of the objections notwithstanding their receipt by
the court two days after the deadline.
2

forward position along with giving him verbal directions
explaining the high risk escort procedures and advising him not
to turn his head.”

Id.

Plaintiff disputes receiving

instructions not to turn his head prior to being smacked on the
head by Hudson.

In the PF&R, the magistrate judge concludes:
It is undisputed that Plaintiff disobeyed orders to look
straight forward during his escort back to [the unit].
Plaintiff acknowledges that he looked towards another
inmate and nodded his head to say “hi.” Even assuming
Defendant Hudson smacked Plaintiff in the back of the
head, it is clear that the force used by Defendant Hudson
was applied to gain Plaintiff’s compliance with the
order to look straight forward. The undersigned,
therefore, finds that Defendant Hudson was privileged to
use force to make Plaintiff comply with orders to look
forward and not make contact with other inmates during
his escort to [the unit].
(ECF No. 201 at 50).

In his objection, plaintiff disputes

whether an initial order to look forward was issued by Hudson,
justifying a privileged use of force.

However, notwithstanding

this objection, the court concludes that summary judgment on the
claim stemming from this incident is proper.

Even assuming that

Hudson was not privileged to use force, and taking all facts in
the light most favorable to the plaintiff, those facts do not
demonstrate that Hudson acted “maliciously and sadistically for
the very purpose of causing harm,” as is required to sustain an
excessive force claim.

Hudson v. McMillian, 503 U.S. 1, 7

(1992) (internal quotations omitted).
3

In addition, the

plaintiff has not shown that the use of force was “nontrivial.”
See Wilkins v. Gaddy, 559 U.S. 34, 39 (2010).

While plaintiff’s

lack of injury is not dispositive,2 an excessive force claim
cannot succeed where an inmate alleges no more than “de minimis
uses of force.”

Wilkins, 559 U.S. at 37-38 (quoting Hudson, 503

U.S. at 9) (noting that “[a]n inmate who complains of a ‘push or
shove’ that causes no discernible injury almost certainly fails
to state a valid excessive force claim”).

Following a de novo review, and having concluded that
the objections lack merit, the court ORDERS that:

1.

The PF&R be, and it hereby is, adopted and
incorporated herein;

2.

Defendants’ motion for summary judgment be, and it
hereby is, granted as to plaintiff’s claims against
defendants Rubenstein, Perry, Williams, and Hahn,
granted as to plaintiff’s claim against defendant
Hudson for battery occurring on September 30, 2013,
and otherwise denied; and

2

As noted by the magistrate judge, the plaintiff has not
produced evidence contradicting the medical records produced by
defendants, which reflect that following the incident on
September 30, 2013, the plaintiff was examined and showed “zero
redness, swelling, bruising or sign of being hit . . . [and]
[z]ero signs of distress at this time.” (ECF No. 172-3 at 5).
4

02/15/2016

Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.

02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United States Perry, Williams, and Hahn be,
3.
Defendants Rubenstein, Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
and directed to appear.
they hereby are, dismissed from this action.
02/29/2016

Entry of scheduling order.

Clerk is directed to forward 26(a)(1) this
03/08/2016 The Last day to serve F.R. Civ. P copies of disclosures.
written opinion and order to the plaintiff, all counsel of
The Clerk is requested to transmit this Order and
record, and the magistrate judge.
Notice to all counsel of record and to any unrepresented
parties.
DATED:

June 5,
January 15, 2016

John T. Copenhaver, Jr.
United States District Judge

5