Miller v. Ballard et al

Filing 104

MEMORANDUM OPINION AND ORDER the reference of these specific motions herein to the Magistrate Judge is withdrawn; granting in part and denying in part the defendants' 80 MOTION to Dismiss; granting said motion with regard to the plaintiff 's claims for monetary damage against all of the defendants in their official capacities, all of the claims against defendants Ballard and Rubenstein, and the plaintiff's request for preliminary injunctive relief as contained in the Ame nded Complaint; denying said motion with regard to the plaintiff's Eighth Amendment claim against defendant Penick in his individual capacity; denying the plaintiff's 88 MOTION to Rule on Summary Judgment; and denying the plaintiff's 92 MOTION to Grant Summary Judgment. Signed by Judge Joseph R. Goodwin on 3/4/2016. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

ANDREW MILLER,
Plaintiff,
v.

CIVIL ACTION NO. 2:14-cv-16868

DAVID BALLARD, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court are the defendants’ Motion to Dismiss Amended Complaint [ECF
No. 80] and the plaintiff’s Motions to Rule On/Grant Summary Judgment [ECF Nos. 88 and 92],
which were referred to United States Magistrate Judge Dwane L. Tinsley. For reasons appearing
to the court, the reference of these specific motions to the Magistrate Judge is WITHDRAWN,
and for the reasons stated herein, it is ORDERED that the defendants’ Motion to Dismiss is
GRANTED in part and DENIED in part, and the plaintiff’s Motions to Rule On/Grant Summary
Judgment are DENIED.
I.

THE PLAINTIFF’S ALLEGATIONS
The plaintiff alleges in his verified Amended Complaint1 alleges that, on November 19,

2013, the plaintiff was housed in cell 712 on pod 7 of the Quilliams II segregation unit at the Mount
Olive Correctional Complex (“MOCC”). Am. Compl. ¶ 11 [ECF No. 38]. The plaintiff further
alleges that defendants David Miller, Jonathan Ward, and Michael Blagg, among others,
surrounded his cell door to “conduct a shakedown.” Id. ¶ 12. The plaintiff further alleges that

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The plaintiff’s handwriting in each of his filings is exceptionally difficult to discern.

Miller observed the plaintiff pouring an unknown liquid into his toilet, and Miller commanded the
plaintiff to stop. Id. ¶ 13. Without further warning, Miller opened the food tray slot of the
plaintiff’s cell and commanded Ward to pepper spray the plaintiff, and Ward complied. Id. The
plaintiff contends that, although he placed both hands in front of his face to block the spray, he
was hit in the eyes and forehead with pepper spray. Id. ¶¶ 14–15.
The plaintiff alleges that Miller also ordered Blagg to use an electric gun (“Taser”) on the
plaintiff and that Blagg deployed the Taser, hitting the plaintiff with two small spikes—one in the
left side and one in the left pelvis. Id. ¶¶ 16–17. The plaintiff further contends that the spot where
the Taser hit him in the left pelvis is in the same area where an MOCC doctor located a torn
ligament. Id. ¶ 18. The plaintiff alleges that he still suffers burning in his pelvis because of the
torn ligament. Id. ¶ 24.
Upon information and belief, the plaintiff further alleges that the Taser was automatically
set to deploy additional five-second bursts of electricity, which occurred after he was on the ground
and officers had entered his cell to subdue him. Id. ¶¶ 19–20. The plaintiff alleges that, ultimately,
he was Tasered three times for a total of fifteen seconds. Id. ¶¶ 21–22.
The plaintiff further contends that, after he was removed from his cell, he was taken to the
multi-purpose room and, upon defendant Brian Penick’s order, was placed in a restraint chair for
a total of eight hours. Id. ¶¶ 27–34.
In his Amended Complaint, the plaintiff further summarily contends that defendant David
Ballard “approved the shakedown, martial law, and ignored the plaintiff’s grievances for relief,”
noting that “Martial law is another way to say use of force on inmates in the QOL [Quality of Life
Program] for anything you want to which causes plaintiff’s violation of constitutional rights.” Id.
¶ 38. The plaintiff further summarily alleges that defendant Jim Rubenstein “is responsible for

2

everything that takes place in the WVDOC and denied plaintiff any relief in grievance. Didn’t
train staff.” Id. ¶ 39. However, he provides no additional factual support concerning the specific
conduct of Ballard and Rubenstein.
The plaintiff seeks declaratory relief, both preliminary and permanent injunctive relief, and
monetary damages against the defendants, who are sued in both their individual and official
capacities.
II.

DISCUSSION
A.

The Defendants’ Motion to Dismiss

On August 3, 2015, the defendants filed the instant Motion to Dismiss.2 On August 17,
2015, the plaintiff filed a one-page Response in Opposition [ECF No. 82] to the defendants’
Motion to Dismiss, asserting that there is no reason to dismiss his official capacity or supervisory
claims. The defendants did not file a reply brief. The Motion to Dismiss is ripe for adjudication.
In Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007), the Supreme Court observed
that a case should be dismissed for failure to state a claim upon which relief can be granted if,
viewing the well-pleaded factual allegations in the complaint as true, and in the light most
favorable to the plaintiff, the complaint does not contain “enough facts to state a claim to relief
that is plausible on its face.” While the complaint need not assert “detailed factual allegations,” it
must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a
cause of action.” Id. at 555.

2

When the plaintiff was granted leave to file his Amended Complaint, the court denied, without prejudice,
a prior Motion to Dismiss [ECF No. 21] filed by the defendants. Order, August 3, 2015 [ECF No. 78]. In
support of their new Motion to Dismiss, the defendants have incorporated by reference the Memorandum
of Law [ECF No. 22] filed with their initial Motion to Dismiss. However, the Amended Complaint clarified
that Captain Brian Penick, and not Captain Russell Matheny, is the defendant who ordered that the plaintiff
be placed in the restraint chair for eight hours. Thus, to the extent that the defendants’ incorporated
Memorandum of Law refers to former defendant Matheny, the court will substitute Captain Brian Penick.

3

The Supreme Court elaborated on its holding in Twombly in Ashcroft v. Iqbal, 556 U.S.
662 (2009), a civil rights case. The Court wrote:
Two working principles underlie our decision in Twombly. First, the tenet that a
court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice. Rule 8 . . . does
not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss.
***
In keeping with these principles a court considering a motion to dismiss can choose
to begin by identifying pleadings that, because they are no more than conclusions,
are not entitled to the assumption of truth. While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations. When
there are well-pleaded factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.
Iqbal, 556 U.S. at 678-79 (citations omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct.” Id. at 678.
Furthermore, as noted recently in Haley v. Virginia Dep’t of Health, 4:12-cv-0016, 2012
WL 5494306, at *2 n.2 (W.D. Va. Nov. 13, 2012), “[t]he Fourth Circuit has not resolved whether
a motion to dismiss based on the Eleventh Amendment is properly considered pursuant to Rule
12(b)(1) or Rule 12(b)(6). . . . The recent trend, however, appears to treat Eleventh Amendment
immunity motions under Rule 12(b)(1) [which provides for the dismissal of claims over which the
court lacks subject matter jurisdiction].”
i. Monetary relief against the defendants in their official capacities
The defendants’ Motion to Dismiss and incorporated Memorandum of Law assert that, to
the extent the plaintiff has brought claims against all of the defendants in their official capacities,
any claims for monetary damages cannot survive because neither a state nor its officials acting in
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their official capacities are “persons” under the civil rights statutes.

In Will v. Michigan

Department of State Police, 491 U.S. 58, 71 (1989), the Supreme Court stated:
Obviously, state officials literally are persons. But a suit against a state official in
his or her official capacity is not a suit against the official but rather is a suit against
the official’s office. As such, it is no different from a suit against the State itself.
We see no reason to adopt a different rule in the present context, particularly when
such a rule would allow petitioner to circumvent congressional intent by a mere
pleading device.
We hold that neither a State nor its officials acting in their official capacities are
“persons” under § 1983. The judgment of the Michigan Supreme Court is affirmed.
Id. at 71 (citations omitted).
Furthermore, pursuant to the Eleventh Amendment to the United States Constitution, the
power of the federal judiciary does not extend to suits by a citizen of one state against another, or
to suits by a citizen against his or her own state. Hans v. Louisiana, 134 U.S. 1, 9 (1980). Thus,
the Eleventh Amendment bars a suit in a federal court by individuals seeking to impose monetary
liability upon a state or state officials, which may be paid from public funds. Quern v. Jordan,
440 U.S. 332, 337 (1979). Absent consent, federal suits against a state by a citizen of that state or
another state are prohibited by the Eleventh Amendment. Kentucky v. Graham, 473 U.S. 159, 199
(1985). The Eleventh Amendment, however, permits a federal court to enjoin state officials to
conform their future conduct to federal law, which is distinguishable from a retroactive monetary
award paid from State funds. Quern, 440 U.S. at 337. Accordingly, the court FINDS that all of
the defendants are immune from liability for monetary damages in their official capacities under
the Eleventh Amendment, and accordingly, such claims must be DISSMISSED.
ii. Claims against defendants Ballard, Rubenstein, and Penick
The defendants’ Motion to Dismiss and Memorandum of Law further assert that the
plaintiff’s Amended Complaint fails to state a plausible claim for relief against Rubenstein,

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Ballard, and Penick. The defendants address such claims as claims of supervisory liability, citing
the Fourth Circuit’s decision in Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994). In Shaw, the Court
held that a supervisor may be liable for the actions of his subordinates where the supervisor, by his
own conduct, was deliberately indifferent to, or tacitly authorized or approved, prior constitutional
violations. Id. at 798–801. Such liability cannot be based on respondeat superior, but rather upon
“a recognition that supervisory indifference or tacit authorization of subordinates’ misconduct may
be a causative factor in the constitutional injuries they inflict on those committed to their care.”
Id. at 798 (quoting Slakan v. Porter, 737 F.2d 368, 372–73 (4th Cir. 1984)).
The Amended Complaint alleges that David Ballard, as the Warden of MOCC, and Jim
Rubenstein, as the Commissioner of the West Virginia Division of Corrections, are legally
responsible for the operations of their facilities and the welfare of the prisoners therein. As noted
above, the Amended Complaint summarily contends that Ballard “approved the shakedown,
martial law, and ignored the plaintiff’s grievances for relief,” noting that “[m]artial law is another
way to say use of force on inmates in the [Quality of Life Program] for anything you want to which
causes plaintiff’s violation of constitutional rights.” Am. Compl. ¶ 38. The plaintiff further
summarily alleges that Rubenstein “is responsible for everything that takes place in the WVDOC
and denied plaintiff any relief in grievance. Didn’t train staff.” Id. ¶ 39. However, the plaintiff
provides no additional factual support concerning the specific conduct of Ballard and Rubenstein.
The allegations in the Amended Complaint fall woefully short of the factual detail
necessary to state a plausible Eighth Amendment claim against Ballard and Rubenstein, and the
allegations are so threadbare and conclusory that the court cannot draw a reasonable inference that
those defendants are liable for any of the alleged misconduct. Accordingly, pursuant to the dictates
of Twombly and Iqbal, the court FINDS that the plaintiff’s Amended Complaint fails to state a

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claim upon which relief can be granted against Rubenstein and Ballard, and they should be
dismissed as defendants.
However, I believe the allegations in the Amended Complaint concerning Penick are
another matter. The plaintiff alleges that Penick ordered the plaintiff to be placed in a restraint
chair even though the plaintiff had allegedly become compliant and no threat existed at the time
the order was given. The plaintiff alleges he remained in the restraint chair for eight hours. The
court FINDS that the Amended Complaint alleges facts sufficient to state a plausible Eighth
Amendment claim against Penick. Thus, Penick will not be dismissed as a defendant at the present
time.
iii. Request for preliminary injunctive relief
Although not addressed in the defendants’ Motion to Dismiss, to the extent the Amended
Complaint requests preliminary injunctive relief, the plaintiff’s allegations do not meet the
required standard to warrant such relief under Rule 65(a) of the Federal Rules of Civil Procedure
and the Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc., 555 U.S.
7 (2008). See Am. Compl. ¶ 45. As noted by the Fourth Circuit in The Real Truth About Obama
v. Federal Election Commission, 575 F.3d 342 (4th Cir. 2009): 3
A preliminary injunction is an extraordinary remedy afforded prior to trial at the
discretion of the district court that grants relief pendente lite of the type available
after the trial. Because a preliminary injunction affords, on a temporary basis, the
relief that can be granted permanently after trial, the party seeking the preliminary
injunction must demonstrate by “a clear showing” that, among other things, it is
likely to succeed on the merits at trial.
***
In its recent opinion in Winter, the Supreme Court articulated clearly what must be
shown to obtain a preliminary injunction, stating that the plaintiff must establish
3

Although the original decision in Real Truth was vacated by the Supreme Court for further consideration
in light of the decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the Fourth
Circuit reissued its opinion on Parts I and II of its earlier opinion in the case. See 575 F.3d at 345-347.

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“[1] that he is likely to succeed on the merits, [2] that he is likely to suffer
irreparable harm in the absence of preliminary relief, [3] that the balance of equities
tips in his favor, and [4] that an injunction is in the public interest.” And all four
requirements must be satisfied. Indeed, the Court in Winter rejected a standard that
allowed the plaintiff to demonstrate only a “possibility” of irreparable harm because
that standard was “inconsistent with our characterization of injunctive relief as an
extraordinary remedy that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief.”
Real Truth, 575 F.3d 345–46 (citations omitted).
The Real Truth decision emphasizes that “the Winter requirement that the plaintiff clearly
demonstrate that [he] will likely succeed on the merits is far stricter than the [Blackwelder
Furniture Co. of Statesville v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977)] requirement
that the plaintiff demonstrate only a grave or serious question for litigation.” Real Truth, 575 F.3d
at 346–47. The Real Truth further distinguishes the Winter standard from the old Blackwelder
standard because it no longer requires the court to balance the irreparable harm to the respective
parties, but rather requires the plaintiff to make a clear showing that he is likely to be irreparably
harmed. A court must pay particular attention to the public consequences in employing the
extraordinary remedy of an injunction. The Fourth Circuit again emphasized that all four factors
must be met in order to justify this extraordinary relief. Id. at 347. Thus, the Court stated that the
standard articulated in Winter would henceforth govern the issuance of preliminary injunctions in
all federal courts. Id.
In the instant case, the plaintiff requests, inter alia, that the court grant a preliminary
injunction “ordering defendants to provide medical treatment by outside doctor in the hospital and
release[] plaintiff to general population [with] medical treatment for burning torn ligament
defendants caused.” Am. Compl. ¶ 45. The plaintiff has only asserted theoretical injury. A mere
possibility of harm will not suffice to support the granting of a preliminary injunction. Winter,
555 U.S. at 21. Thus, the plaintiff has not clearly shown that he is likely to succeed on the merits
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of his claims or that he is likely to be irreparably harmed without preliminary injunctive relief.
Accordingly, the court FINDS that the plaintiff has not demonstrated a right to a preliminary
injunction under the circumstances.
B.

The Plaintiff’s Motions to Rule On/Grant Summary Judgment

“A party may move for summary judgment, identifying each claim or defense . . . on which
summary judgment is sought. The court shall grant summary judgment if the movant shows 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). Material facts are those necessary to establish the elements of a party’s
cause of action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
There is a great deal of confusion concerning whether the plaintiff has properly filed a
Motion for Summary Judgment. On July 9 and 10, 2015, the court received three packages of
documents from the plaintiff that were addressed to a “Micheal (or Michael) Stenburg” or
“Micheal (or Michael) Stenberg” (hereinafter the “Stenberg documents”). Because there was no
identifiable person connected to the United States District Court by that name, Magistrate Judge
Tinsley lodged the three packages of documents on the docket and held a status conference to
determine the plaintiff’s intent with the documents.
During the status conference, the plaintiff stated that he had been advised that Mr. Stenberg
was someone at the Federal Building who might be able to assist the plaintiff in finding counsel to
represent him. Upon being advised that the court does not know of any federal employee by that
name, the plaintiff requested that the Stenberg documents be returned to him. On July 14, 2015,
Magistrate Judge Tinsley entered an Order [ECF No. 71] directing the Clerk to mail the Stenberg
documents back to the plaintiff without re-docketing or any further action being taken thereon.

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On October 1, 2015, the plaintiff filed a one-page Motion to Rule on Summary Judgment
[ECF No. 88], which attached nearly illegible pages from the Stenberg documents that included
the caption “summary judgment” and referred to purported discovery responses by the defendants.
The plaintiff appears to request that the court grant summary judgment in his favor because the
defendants “admit they placed me in the restraint chair for 8 hours, but deny that it is illegal to
leave an inmate in the restraint chair after the threat passes . . . .” Mot. to Rule on Summ. J. 1.
On November 10, 2015, the defendants filed a Motion for Leave to File Response Outside
of Time and Response in Opposition to Motion for Summary Judgment [ECF No. 90] (“Motion
for Leave”). However, on December 3, 2015, the court entered an Order [ECF No. 91] denying
as moot the defendants’ Motion for Leave. On January 14, 2016, the plaintiff filed a Motion to
Grant Summary Judgment [ECF No. 92], which appears to request that he be granted summary
judgment on his Eighth Amendment claims concerning all of the uses of force against him by the
defendants. On January 15, 2016, the defendants filed a Response in Opposition [ECF No. 93] to
the plaintiff’s Motion to Grant Summary Judgment.
The court does not construe the plaintiff’s documents to be a properly-filed motion for
summary judgment. Moreover, even if the documents could be construed as such, the court
FINDS that there are genuine issues of material fact concerning the plaintiff’s Eighth Amendment
claims and that judgment as a matter of law is presently inappropriate.
III.

CONCLUSION
For the reasons stated herein, it is hereby ORDERED that the defendants’ Motion to

Dismiss [ECF No. 80] is GRANTED in part, with regard to the plaintiff’s claims for monetary
damage against all of the defendant in their official capacities, all of the claims against defendants
Ballard and Rubenstein, and the plaintiff’s request for preliminary injunctive relief as contained in

10

the Amended Complaint. The Motion to Dismiss is DENIED in part with regard to the plaintiff’s
Eighth Amendment claim against defendant Penick in his individual capacity. The plaintiff’s
Motion to Rule on Summary Judgment [ECF No. 88] and his Motion to Grant Summary Judgment
[ECF No. 92] are DENIED.
The court DIRECTS the Clerk to send a copy of this Memorandum Opinion and Order to
counsel of record and any unrepresented party.
ENTER:

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March 4, 2016