Pendleton v. WV Division of Corrections et al

Filing 67

MEMORANDUM OPINION AND ORDER the Court adopts and incorporates the 60 Proposed Findings and Recommendation only to the extent it addresses the dismissal of defendants Boggs, Janiszewski, Shumate, and the West Virginia Division of Corrections; the C ourt ORDERS defendants' 23 motion to dismiss the amended complaint granted with respect to defendants Boggs, Janiszewski, Shumate, and otherwise denied, and those three defendants are ORDERED dismissed; inasmuch as the West Virginia Division o f Corrections has been omitted by the plaintiff from his amended complaint, it is also ORDERED dismissed; the court also ORDERS that, to the extent the same filing presents an alternative motion for summary judgment, that motion is denied without pre judice; directing the clerk to terminate the 65 motion for a right to reply, the court having construed the filing as a reply rather than an independent motion for relief; the court further ORDERS this matter re-referred to the magistrate judge for further proceedings consistent with this opinion. Signed by Judge John T. Copenhaver, Jr. on 3/31/2016. (cc: plaintiff, all counsel of record, and the magistrate judge) (skh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

RICKY VINCENT PENDLETON,
Plaintiff,
v.

Civil Action No. 2:15-01903

WEST VIRGINIA DIVISION OF
CORRECTIONS, KELLI HINTE,
SHERRIE SNYDER, CHERYL CHANDLER,
LISA BOGGS, MICHAEL SHUMATE, and
PATRICK JANISZEWSKI,
Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court are the following motions:
the defendants’ Motion to Dismiss Amended Complaint (and
alternative motion for summary judgment) (ECF No. 23), the
plaintiff’s Motion for Summary Judgment (ECF No. 44), the
plaintiff’s Motion for Expedited and Injunctive Relief (ECF No.
54), and the plaintiff’s Motion for Injunctive Relief and
Declaratory Judgment (ECF No. 57).

I.

This action was previously referred to Dwane L.
Tinsley, United States Magistrate Judge, who has submitted his
Proposed Findings and Recommendation (“PF&R”) pursuant to the
1

provisions of 28 U.S.C. § 636(b)(1)(B).

The magistrate judge

has recommended that the defendants’ motion to dismiss the
amended complaint be granted, that the plaintiff’s motions be
denied, and that this civil action be dismissed from the docket
of the court.

On February 24, 2016, the PF&R was filed.
2016, the plaintiff filed his objections.

On March 1,

The plaintiff raises

the following objections:
Objection 1.
The plaintiff argues that the
magistrate judge misstated his disciplinary history.
While the magistrate judge stated he has “several”
rule violations on his record, the plaintiff notes
that he “only has four (4) rule violations.”
Objection 2.
The plaintiff objects to the
characterization of his reply regarding his motion for
summary judgment as untimely.
Objection 3.
The plaintiff objects to the
defendants’ assertion, referenced in the PF&R, that
the complaint fails to state a claim upon which relief
can be granted.
Objections 4-5.
These objections focus on the
magistrate judge’s conclusion that the court can
resolve the instant motions based on the motion to
dismiss, without consideration of various materials
submitted by the plaintiff in support of his motion
for summary judgment.
Objection 6.
The plaintiff argues that based on
documents he has submitted, he has shown that he was
similarly situated to certain Caucasian inmates for
purposes of his equal protection claim, such that
similar treatment in administrative segregation
decisions was constitutionally required.
Objection 7.
This objection focuses on whether
defendants Hinte, Snyder and Chandler were decision2

makers in the administrative segregation hearings for
other inmates identified by the plaintiff, such that
an equal protection claim could lie against them for
discrimination against the plaintiff. The plaintiff
argues that he adequately alleged defendants were
decision-makers for other inmates’ cases.
Objection 8.
The plaintiff re-alleges that
other, Caucasion inmates were similarly situated to
the plaintiff based on their rules violations and
histories, and objects to the magistrate judge’s
“neglecting and ignoring the viewing of the referred
documents” which support his claims.

The court ordered a response from defendants regarding
these objections, which the defendants filed on March 22, 2016.
(ECF No. 64).

The defendants agree with the magistrate judge’s

conclusion that the plaintiff would be unable to state a
factually plausible claim that he was similarly situated to
other inmates for purposes of an administrative segregation
hearing.

Defendants argue “[a]llegations that inmates are

‘similar’ in only two factors out of a myriad of factors, which
are considered in an administrative segregation hearing, does
not state a factual claim that the inmates are ‘similarly
situated.’”

Id.

On March 29, 2016, the plaintiff filed a reply

to the defendants’ response.

(ECF No. 65).

The reply

essentially repeats the arguments the plaintiff made in his
objections.1

1

The plaintiff’s reply is styled as a motion for leave to reply
regarding his objections. Inasmuch as the reply does not
materially differ from the objections themselves, the court has
taken it into account in reaching its conclusions. As the court
3

II.

As an initial matter, several of the plaintiff’s
objections are frivolous or not properly addressed to the
substance of the magistrate judge’s findings and recommendation.
First, the court does not find there to be a meaningful
distinction between describing the plaintiff’s disciplinary
history as consisting of “several” rather than “four” rule
violations.

Second, while the magistrate judge noted that the

plaintiff’s reply regarding summary judgment was untimely, there
is no indication that the magistrate judge declined to review
its contents or to take the plaintiff’s arguments into account.
Finally, at several points the plaintiff objects to statements
in the PF&R which merely summarize the defendants’ argument.
The PF&R describes both sides’ arguments without necessarily
adopting them, and the plaintiffs’ objections to those
descriptions reiterate the points he has made through prior
briefings without supplying grounds to object to the magistrate
judge’s conclusions.

The plaintiff’s objections also do not address the
magistrate judge’s conclusion that the amended complaint fails
to state a claim against defendants Boggs, Janiszewski, and

has construed the filing as a reply rather than an independent
motion for relief, the clerk is directed to terminate the motion
associated with that document.
4

Shumate.2

As noted by the magistrate judge, the plaintiff has

repeatedly contended that these three defendants “contributed”
to the violation of his equal protection rights by the
defendants who sat on the Administrative Segregation Committee.
The court agrees with the magistrate judge’s assessment that
because these three defendants did not serve on the Committee
and did not take any action respecting the plaintiff which
treated him differently than other similarly situated inmates
based on his race, the plaintiff has not stated a plausible
equal protection claim against them.3

The balance of the plaintiff’s objections raise more
substantive questions regarding the magistrate judge’s
recommendation, particularly the propriety of granting the
motion to dismiss the amended complaint as to the remaining
defendants, Hinte, Snyder, and Chandler (“the Committee”).

2

The

The plaintiff also fails to address the proposed dismissal of
the West Virginia Division of Corrections as a defendant. While
the Division was included in the initial complaint, the
plaintiff omitted the Division from all later filings, including
the operative amended complaint. As no facts have been alleged
against the Division, the court will direct that it be
dismissed.
3 The amended complaint alleges that defendants Boggs and
Janiszewski seized letters belonging to the plaintiff, which
were later used by defendant Shumate in a presentation to the
Committee alleging the plaintiff had “compromised” a
correctional officer. While the plaintiff seeks the return of
the letters and insists that Shumate’s testimony was improper
(because the compromising charge had not been brought), there
are no facts alleged which suggest any of these defendants
discriminated against the plaintiff based on race.
5

magistrate judge did not address the factual materials cited by
the plaintiff because, citing Templeman v. Gunter, he concluded
that the plaintiff’s complaint fails to state a plausible claim
that he was similarly situated to other inmates for purposes of
the administrative segregation determination.

See 16 F.3d 367,

371 (10th Cir. 1994) (holding inmate “could not possibly
prevail” on equal protection claim involving “discretionary”
administrative segregation decisions).

To state an equal

protection claim, the plaintiff must “first demonstrate that he
has been treated differently from others with whom he is
similarly situated and that the unequal treatment was the result
of intentional or purposeful discrimination.”

Morrison v.

Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).

While courts have

described the similarly situated inquiry in various terms, the
plaintiff must at least “identify persons materially identical
to him or her who [have] received different treatment.”

Kolbe

v. Hogan, 813 F.3d 160, 185 (4th Cir. 2016), rehearing en banc
granted, 2016 WL 851670 (Mem. March 4, 2016).

If this showing

is made, the court considers whether the unequal treatment can
be justified based on the appropriate level of scrutiny.

Id.

(citations omitted).

The plaintiff objects that several documents he has
submitted show that he was similarly situated to Caucasian
inmates and that he was discriminated against.
6

For purposes of

the motion to dismiss, the magistrate judge was correct not to
look beyond the pleadings and associated documents under Fed. R.
Civ. P. 12(b).4

However, the court is not persuaded that,

confining itself to the allegations in the complaint, the
plaintiff has failed to state an equal protection claim against
the Committee defendants.

The amended complaint alleges, in

pertinent part and in the words of the pro se plaintiff, that
the plaintiff’s right to equal protection of the laws was
violated because:
1.)

There are Caucasian inmate similarly situated who
has multiple class one rule violations at the
Mount Olive Correctional Complex.

2.)

There are Caucasian inmates similarly situated
who was actually involved there with a staff
member or correctional officer never placed in
Administration Segregation.

3.)

The inmates who are similarly situated and are
Caucasian never were placed in Administration
Segregation as following:

A.)

“Inmate Jason Payne,” who is a Caucasian at the
Mount Olive Correctional Complex has multiple

4

In his objection and reply, the plaintiff repeatedly cites Fed.
R. Civ. P. 56 to argue his factual evidence should have been
considered. While these documents might serve as evidence for
summary judgment, the sufficiency of the complaint is the only
concern for the court at the motion to dismiss stage.
7

Class One prison rule violation earlier and 2013
and 2014 recently.

However, was not placed in

Administrative Segregation, also is similarly
situated there with the Petitioner.
B.)

“Inmate Eric Menda,” who is a Caucasian at the
Mount Olive Correctional Complex has multiple
Class One prison rule violation 2012, 2014
recently is also involved in an inappropriate
relation with recreational Supervisor Fitzwater
and was the direct cause for the termination of
employment for Mr. Fitzwater at the Mount Olive
Correctional Complex.

In addition, Inmate Eric

Menda, was accessary to another staff
Correctional Officer Linda Randolph, who was also
terminated for employment at the Mount Olive
Correctional Complex.
with the Petitioner.

Similarly situated there
However, not placed in

Administrative Segregation, after receiving a
prison rule violation in relation to such.
C.)

“Inmate Kitchen,” who is a Caucasian with
multiple class one prison rule violation earlier
and 2013, 2014 recently.

Also while being

blatantly involved in an inappropriate relations
with a temporary Correctional Officer Stone.

8

Inmate Kitchen was the direct cause for Mrs.
Stone to be terminated from employment at Mount
Olive Correctional Complex.

After receiving the

prison rule violation, he wasn’t placed in
Administrative Segregation, even similarly
situated there with the Petitioner.
D.)

“Inmate Roger Rowe,” who is a Caucasian similarly
situated there with the Petitioner, but had
received a prison rule violation for an
inappropriate relation with a Correctional
Officer and was the direct cause for the officer
to be terminated, in 2010 and/or 2011.

However,

wasn’t placed in Administrative Segregation.
ECF No. 8 at 5-7.

The complaint also identifies three other black
inmates who “were placed in Administrative Segregation
after receiving a prison rule violation for being involved
inappropriately with a Correctional Officer.”

Id. at 7.

Liberally construed, these allegations suggest a pattern or
practice of disparate treatment based on race in the
handling of administrative segregation assignments.

The defendants have consistently argued that due to
the discretionary and granular nature of administrative

9

segregation decisions, the plaintiff’s allegation that he was
similarly situated to other inmates are futile.

This position

places too high a burden on the plaintiff at the motion to
dismiss stage, in light of the court’s obligation to assume the
truth of the facts alleged in the complaint.5

Under the

defendants’ standard, prison officials could discriminate based
on race with impunity so long as they can point to other factors
which might motivate decision-makers, as no inmate would be able
to state a plausible claim that he or she was similarly situated
to the prisoners who were not mistreated.

Under the standard

set out in Bell Atlantic Corp. v. Twombly, while the plaintiff
must provide “enough facts to state a claim to relief that is
plausible on its face,” he need not include “detailed factual
allegations.”

550 U.S. 544, 555 (2007).

Fairly construed, the

plaintiff’s complaint alleges that the Committee treated him
differently than similarly situated inmates in making its
administrative segregation decision, and that its motivation for
doing so was based on his racial identity.

This is enough to

state a claim for relief for purposes of a motion to dismiss.

5

The court is also mindful that in testing the sufficiency of
the plaintiff’s complaint, “[t]he handwritten pro se document is
to be liberally construed . . . [and] held to ‘less stringent
standards than formal pleadings drafted by lawyers.’” Estelle
v. Gamble, 429 U.S. 97 at 106 (1976) (quoting Haynes v. Kerner,
404 U.S. 519, 520-21 (1972)).
10

Nor does the defendants’ assertion that the
Committee’s composition may have shifted over time defeat the
plaintiff’s claim.

The complaint alleges that defendants Hinte,

Snyder, and Chandler made the allegedly discriminatory decision
of which the plaintiff complains, and that other prisoners
within the prison were treated differently based on race.
Putting to one side the plaintiff’s objection that some of these
defendants were in fact on the committees evaluating other
prisoners to which he compares his case, the prison and its
officials cannot escape scrutiny by relying on the argument that
identical decision-makers may not have been involved in earlier
decisions.6

In a footnote to their motion to dismiss, the
defendants requested that, should the court consider documents
outside the pleadings, their motion should be considered as one
for summary judgment.

However, that footnote suggests that the

only issue at summary judgment would be whether the “basic
prison records” presented by plaintiff demonstrate that he and

6

The defendants’ reply argues that in order to succeed, the
plaintiff will ask the court “to review each individual inmate,
and then make a series of determinations as to how various
factors presented to the Administrative Segregation Committee
should have been considered and whether these factors for each
inmate must be considered the same.” (ECF No. 32 at 4). This
analysis overlooks the plaintiff’s allegation that the Committee
relied on the impermissible factor of race in reaching its
decision.
11

the comparator inmates he has selected were similarly situated.
See ECF No. 24 at 8 fn. 4.

Inasmuch as the defendants’ motion,

in so far as it seeks alternative treatment as a motion for
summary judgment, has not been sufficiently developed for that
purpose, it is to that alternative extent denied without
prejudice.

III.

Having considered the plaintiff’s objections and after
reviewing the matter de novo, the court adopts and incorporates
the PF&R only to the extent it addresses the dismissal of
defendants Boggs, Janiszewski, Shumate, and the West Virginia
Division of Corrections.

The court ORDERS that the defendants’

motion to dismiss the amended complaint be, and it hereby is,
granted with respect to defendants Boggs, Janiszewski, Shumate,
and otherwise denied, and those three defendants are ORDERED
dismissed.

Inasmuch as the West Virginia Division of

Corrections has been omitted by the plaintiff from his amended
complaint, it is also ORDERED dismissed.

The court also ORDERS

that, to the extent the same filing presents an alternative
motion for summary judgment, that motion be, and hereby is,
denied without prejudice.

12

The court further ORDERS that this matter be, and it
hereby is, re-referred to the magistrate judge for further
proceedings consistent with this opinion.

The Clerk is directed to forward copies of this order
to the plaintiff, all counsel of record, and the magistrate
judge.
DATED:

March 31, 2016

John T. Copenhaver, Jr.
United States District Judge

13