Miller v. Ballard et al

Filing 131

ORDER adopting and incorporating the 129 Proposed Findings and Recommendations by Magistrate Judge in full except to the extent that the court must correct two minor factual errors contained in the report, as set forth more fully herein; granti ng in part and denying in part the defendants' 116 Motion for Summary Judgment; granting said motion as to the plaintiff's Eighth Amendment claims against defendants Miller, Ward, and Blagg regarding the plaintiff's placement in the restraint chair on 11/19/2013; denying the defendants' Motion for Summary Judgment in all other respects; denying the plaintiff's 118 , 122 , 123 , 124 , 127 , and 128 Motions for Summary Judgment or to Rule on Summary Judgment. Signed by Judge Joseph R. Goodwin on 3/13/2017. (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.

ORDER
Pending before the court are the defendant’s Motion for Summary Judgment
[ECF No. 116] and the plaintiff’s Motions for Summary Judgment or to Rule on
Summary Judgment [ECF Nos. 118, 122, 123, 124, 127, and 128]. This action was
referred to United States Magistrate Judge Dwane L. Tinsley for submission to this
court of proposed findings of fact and recommendation for disposition pursuant to 28
U.S.C. § 636(b)(1)(B). On February 21, 2017, the Magistrate Judge submitted his
Proposed Findings of Fact and Recommendation [ECF No. 129] regarding the
pending motions. The plaintiff timely filed his Objection [ECF No. 130]. The
defendants did not timely file objections.
Having reviewed the plaintiff’s Objection de novo, the court FINDS that it is
without merit. Accordingly, the court ADOPTS and INCORPORATES herein the
Magistrate Judge’s report in full except to the extent that the court must correct two

minor factual errors contained in the report. First, the court FINDS that there are
genuine disputes of material fact concerning the use of force against the plaintiff in
his cell that prohibit the granting of summary judgment for defendants Miller, Ward,
and Blagg on the plaintiff’s Eighth Amendment claims. See PF&R 13 (omitting
defendant Miller’s name from the relevant finding). Next, the court FINDS that
defendants Ward and Blagg assisted in placing the plaintiff in the restraint chair.

See PF&R 16 (incorrectly stating that defendants Ward and Miller assisted in placing
the plaintiff in the restraint chair).
Accordingly, the court ORDERS that the defendants’ Motion for Summary
Judgment [ECF No. 116] is GRANTED in part and DENIED in part. The defendants’
Motion [ECF No. 116] in GRANTED as to the plaintiff’s Eighth Amendment claims
against defendants Miller, Ward, and Blagg regarding the plaintiff’s placement in the
restraint chair on November 19, 2013. The defendants’ Motion for Summary
Judgment [ECF No. 116] is DENIED in all other respects. The court further ORDERS
the plaintiff’s Motions for Summary Judgment or to Rule on Summary Judgment
[ECF Nos. 118, 122, 123, 124, 127, and 128] are DENIED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

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March 13, 2017