Buzzard v. Ballard et al

Filing 73

MEMORANDUM OPINION AND ORDER adopting the 56 Proposed Findings and Recommendation by Magistrate Judge to the extent consistent with this opinion; granting in part and denying in part the 39 Motion to Dismiss, dismissing each count of the [2 5] Second Amended Complaint except for Count Nine against Defendant Iotov, and finding that Plaintiff has also stated a First Amendment Retaliation Claim against Defendant Iotov; the Court DISMISSES Laura Angel, David Ballard, Lisa Boggs, Kathy Dillon, Teresa Gregory, Abbie Hart, Larry Propst, Jim Rubenstein, Jane Lucas, and Ralph Terry as named Defendants in this matter; the Eighth Amendment and First Amendment Retaliation Claims against Defendant Iotov remain pending; denying the 67 Motion for Leave to File a Third Amended Complaint; this case is RE-REFERRED to Magistrate Judge Tinsley for further pretrial management and submission of further proposed findings and recommendations for disposition. Signed by Judge Thomas E. Johnston on 3/17/2017. (cc: counsel of record; any unrepresented party) (taq)

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

DAVID DEAN BUZZARD, JR.,
Plaintiff,
v.

CIVIL ACTION NO. 2:15-cv-06376

DAVID BALLARD, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants’ Motion to Dismiss (ECF No. 39). By Standing
Order entered May 7, 2014, and filed in this case on May 18, 2015, this action was referred to
United States Magistrate Judge Dwane L. Tinsley for submission of proposed findings and a
recommendation (PF&R). Magistrate Judge Tinsley filed his PF&R (ECF No. 56) on February
6, 2017, recommending that this Court GRANT IN PART the Motion to Dismiss and further
FIND that Plaintiff has sufficiently stated First Amendment retaliation claims against Defendants
Jane Lucas, Laura Angel, Kathy Dillon, Lisa Boggs, Abie Hart and Vladimir Iotov.1
I.

BACKGROUND

This case involves allegations by Plaintiff David Dean Buzzard, Jr., against various
employees of Mount Olive Correctional Complex (MOCC). In his Second Amended Complaint,

1

The PF&R interprets Defendants’ Motion to Dismiss to request dismissal of all claims except for Count Nine, which
alleges an Eighth Amendment Excessive Force Claim against Defendant Iotov. While this is a logical reading of the
motion in that it does not address that claim, the motion also does not specifically address Plaintiff’s conspiracy claims
in Counts Ten and Eleven, but the PF&R analyzes those claims. The Court notes that neither side objected to this
interpretation of the scope of the Motion to Dismiss.

Plaintiff alleges that, beginning in August 2014, while he was incarcerated at MOCC, the
Defendants subjected him to a variety of constitutional violations. Many of his allegations relate
to the Defendants’ interference with a lawsuit Plaintiff was pursuing against correctional officers
at the Western Regional Jail (“WRJ”) in Barboursville, West Virginia, where he had been
incarcerated in 2013. None of the Defendants in this action were parties to that suit. The facts
of the case are more fully stated in the PF&R.
Defendants filed their Motion to Dismiss Plaintiff’s Second Amended Complaint (ECF No.
39) on June 15, 2016. Plaintiff filed his Response (ECF No. 44) on July 22, 2016.2 Magistrate
Judge Tinsley filed his PF&R on February 6, 2017, with objections due February 24, 2017.
Defendants filed Objections (ECF No. 65) on February 20, 2017, and Plaintiff filed Objections
(ECF No. 66) on February 21, 2017.
II.

LEGAL STANDARD

A. Standard of Review of the PF&R
The Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendation
to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file
timely objections constitutes a waiver of de novo review and the Petitioner’s right to appeal this
Court’s Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need
not conduct a de novo review when a party “makes general and conclusory objections that do not
direct the Court to a specific error in the magistrate’s proposed findings and recommendations.”

2

Magistrate Judge Tinsley entered an order on January 30, 2017, deeming this Response timely filed.

2

Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In reviewing the portion of the PF&R to
which Plaintiff objects, this Court will consider the fact that Plaintiff is acting pro se, and his filings
will be accorded liberal construction.

Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v.

Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).
B. Rule 12(b)(6) Standard
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Allegations “must be simple,
concise, and direct” and “[n]o technical form is required.” Fed. R. Civ. P. 8(d)(1). A motion to
dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of a civil complaint. See
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). “[I]t does not resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party
of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A C. Wright & A. Miller, Federal
Practice and Procedure § 1356 (1990)).
“To survive a motion to dismiss, a complaint 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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
court decides whether this standard is met by separating the legal conclusions from the factual
allegations, assuming the truth of only the factual allegations, and then determining whether those
allegations allow the court to reasonably infer that “the defendant is liable for the misconduct
alleged.” Id. A motion to dismiss will be granted if, “after accepting all well-pleaded allegations
in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts

3

in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support
of his claim entitling him to relief.” Edwards, 178 F.3d at 244.
III.

ANALYSIS

A. Plaintiff’s Possible Retaliation Claims
Defendants’ sole objection relates to the PF&R’s finding that Plaintiff has sufficiently pled
a First Amendment Retaliation cause of action against certain Defendants. The PF&R finds that,
though it is not alleged as a specific count, Plaintiff’s Second Amended Complaint sets out a First
Amendment Retaliation claim against Defendants Jane Lucas, Laura Angel, Kathy Dillon, Lisa
Boggs, Abie Hart, and Vladimir Iotov. In order to state a § 1983 First Amendment retaliation
claim, a plaintiff must allege (1) he engaged in a protected First Amendment Activity; (2) the
defendants took some action that adversely affected the First Amendment rights; and (3) there was
a causal connection between the protected activity and the defendants’ conduct. Constantine v.
Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005) (citing Suarez Corp.
Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000)).
Plaintiff has alleged that he filed a § 1983 lawsuit against correctional officers at the
Western Regional Jail (the “WRJ Suit”) where he had been incarcerated before he was housed at
the Mount Olive Correctional Center.3 (ECF No. 25 ¶ 5.) This clearly satisfies the first element,
as such suits are protected under the First Amendment. See Hudspeth v. Figgins, 584 F.2d 1345,
1347 (4th Cir. 1978) (“State prisoners have a constitutional right of meaningful access to the courts
which a state may not abridge nor impair; nor may it impermissibly burden its exercise.”); see also

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Plaintiff’s prior suit, Civil Action 3:14-cv-25533, alleges claims against correctional officers employed by the West
Virginia Regional Jail & Correctional Facility Authority and the Western Regional Jail in Barboursville, WV, while
the instant action asserts claims against employees of the West Virginia Department of Corrections at the Mount Olive
Correctional Complex. (ECF No. 25 ¶ 1, 4.)

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Pronin v. Johnson, 628 F. App'x 160, 162 (4th Cir. 2015) (“Prisoners have a right under the First
and Fourteenth Amendments to litigate claims challenging their sentences or the conditions of
their confinement to conclusion without active interference by prison officials.”)
With regard to the latter elements, as noted in the PF&R, Plaintiff’s Second Amended
Complaint is peppered with references to retaliatory conduct, and one of the alleged counts of
denial of access even directly alleges that Defendants Boggs’ and Hart’s refusals to attach postage
to the Plaintiff’s legal documents were done “in a retaliatory nature” for the filing of the WRJ Suit.
(ECF No. 25 ¶ 98.) The PF&R also infers retaliation claims against Defendant Lucas for her
alleged denial of materials to Plaintiff to file his WRJ complaint, against Defendant Angel for her
refusal to mail Plaintiff’s WRJ documents as “legal mail,” against Defendant Dillon for her seizure
of video evidence mailed to Plaintiff for the WRJ matter, and against Defendant Iotov for using
pepper spray on Plaintiff after he sought the assistance of a shift commander in locating legal
documents. (ECF No. 56 at 14-15.) With the exception of the claim against Defendant Iotov,
the conduct that forms the basis for each of these claims is identical to conduct Plaintiff alleged as
the basis for his denial of access claims.
Defendants’ objections do not challenge that Plaintiff’s lawsuit constituted a protected
activity, but instead assert that Plaintiff has not properly alleged that he suffered any adverse effect
or that his protected lawsuit motivated any of the Defendants’ actions. The Court will address
these two contentions in turn.
1. Adverse Effect
Defendants’ objections argue that Plaintiff has not pled a retaliation claim because he has
not suffered any actual injury or adverse consequence to the exercise of his constitutional right.
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Defendants correctly note that in order to prove a retaliation claim, Plaintiff must show he
“suffered some adversity in response to [his] exercise of protected rights.” ACLU of Md., Inc. v.
Wicomico Cty., Md., 999 F.2d 780, 785 (4th Cir. 1993); see also Constantine, 411 F.3d at 500
(“[A] plaintiff seeking to recover for retaliation must show that the defendant's conduct resulted in
something more than a de minimis inconvenience to her exercise of First Amendment rights.”
(quotations omitted)).

However, “a plaintiff need not actually be deprived of her First

Amendment rights in order to establish First Amendment retaliation.” Constantine, 411 F.3d at
500.

Because retaliation is concerned with conduct that tends to “chill” the exercise of

constitutional rights, for the purposes of a § 1983 retaliation suit, “a plaintiff suffers adverse action
if the defendant's allegedly retaliatory conduct would likely deter ‘a person of ordinary firmness’
from the exercise of First Amendment rights.” Id. (citing Washington v. County of Rockland, 373
F.3d 310, 320 (2d Cir. 2004)). Generally, the question of whether conduct would deter a “person
of ordinary firmness” from exercising their constitutional right is one of fact for a jury. See
Santiago v. Blair, 707 F.3d 984, 992 (8th Cir. 2013).
Defendants’ Objections argue that, because an unchallenged portion of the PF&R
concluded that Plaintiff’s denial of access to courts claims failed because he did not suffer any
actual injury as required for a violation of that right, he has also failed to allege an adverse effect
for the purpose of retaliation claims.4 The PF&R does find that Plaintiff failed to show an injury
for the purpose of the denial of access claim, explaining:
[Plaintiff] wholly fail[s] to address how his ability to prosecute his claims in the
WRJ matter has been “actually injured.” Buzzard’s allegations do not establish that
4

In its analysis of a potential denial of access claim against Defendant Ralph Terry, the PF&R discusses an exhibit
outside the pleadings. (ECF No. 56 at 23.) While exhibits outside the pleadings should generally not be considered
on a 12(b)(6) Motion to Dismiss, the Court notes that the PF&R finds that the claim against Defendant Terry fails due
to Plaintiff’s failure to demonstrate prejudice in the WRJ Suit, and primarily uses the exhibit to provide context.

6

the conduct of any of the defendants actually caused him to miss a court-imposed
deadline or proximately caused the dismissal of any of his claims.
(ECF No. 56 at 10.)5 However, Defendants’ reliance on the failure of Plaintiff’s denial of access
claims is misplaced; as discussed above, Plaintiff need not establish that acts of retaliation deprived
him of the First Amendment rights he was exercising. Rather, he need only show that the
retaliatory conduct was likely to deter “a person of ordinary firmness” from the exercise of such
rights. As the Fourth Circuit has pointed out, to hold that “a plaintiff alleging retaliation must
show that the action taken in response to her exercise of constitutional rights independently
deprives her of a constitutional right . . . would make a cause of action for retaliation wholly
redundant of the protections provided by the Constitution itself.” ACLU of Md., Inc., 999 F.2d at
786 n.6. Accordingly, Plaintiff has not failed to show an adverse effect for the purposes of
retaliation simply because he has failed to allege an injury for the purposes of his denial of access
claims.
2. Causation
Defendants’ Objections also argue that the Complaint fails to allege sufficient facts to show
that there was a causal connection between Plaintiff’s lawsuit and the Defendants’ allegedly
retaliatory conduct. In stating a claim for retaliation under § 1983, Plaintiff cannot rely on
conclusory allegations of retaliatory motive. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th
Cir. 2005); Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996). The Fourth Circuit has also
noted that in the context of prisoners’ suits, “claims of retaliation must therefore be regarded with
skepticism” because “[e]very act of discipline by prison officials is by definition ‘retaliatory’ in

5

Though Plaintiff’s Objections briefly discuss the PF&R’s findings on his denial of access claims, he does not
challenge the finding that there was no injury, and even acknowledges that “[a]t this point, Plaintiff has not suffered
any actual injury in the WRJ civil matter.” (ECF No. 66 at 4.)

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the sense that it responds directly to prisoner misconduct.” Adams v. Rice, 40 F.3d 72, 74 (4th
Cir. 1994).
With the exception of the claim against Defendant Iotov, Plaintiff has failed to plead
sufficient facts to support causation for each of these claims. As Defendants point out, none of
these Defendants were implicated in any way by Plaintiff’s WRJ Suit, as that lawsuit dealt with a
different facility entirely. In a similar context, this Court has found the lack of connection
between a defendant and the plaintiff’s lawsuit that was the asserted reason for the alleged
retaliation to be detrimental to a showing of causation. See Djenasevic v. United States Dep't of
Justice, No. 5:14-CV-14596, 2016 WL 6647938, at *5 (S.D. W. Va. Nov. 9, 2016) (“The Plaintiff
has provided no facts indicating that Defendant Hamrick was in any way implicated by the
Plaintiff's original complaint (which did not name Hamrick) such that Defendant Hamrick would
have incentive to retaliate against the Plaintiff.”); see also Talbert v. Hinkle, 961 F. Supp. 904, 913
(E.D. Va. 1997) (“[I]t is unfathomable why all of these defendants would join in a ‘conspiracy of
retaliation’ over a lawsuit to which none of them were a party.”).
With no alleged facts evidencing any motivation by the Defendants to retaliate against
Plaintiff for the WRJ Suit, the Court would be required to infer causation against Defendants Boggs
and Hart simply on Plaintiff’s bald assertion that “these defendants acted in a retaliatory manner
for the Plaintiff’s filing of [the WRJ Suit]” and against Defendants Lucas, Angel, and Dillon
simply because their conduct occurred after the filing of Plaintiff’s WRJ Suit. The Court finds
that Plaintiff has inadequately pled facts to support an inference of causation as to these

8

Defendants, and so it declines to construe the Second Amended Complaint as stating retaliation
claims against them.6
While the Second Amended Complaint similarly lacks allegations suggesting Defendant
Iotov had any motivation to retaliate against the WRJ Suit, it alleges Defendant Iotov’s retaliatory
incident with greater specificity. The Second Amended Complaint alleges that “Plaintiff was
assaulted with the chemical agent, for seeking the assistance of a shift commander in order to
locate his legal documents.” (ECF No. 25 ¶ 8.) While this allegation does not mention Iotov by
name, later allegations clarify that this paragraph referred to him, noting that “after not receiving
his legal documents back from the law library,” Plaintiff called for correctional officers, and
Defendant Iotov was among the officers who came to his cell. (Id. ¶ 70-72.) Plaintiff alleges
that he requested to speak to a shift commander in order to receive his legal documents, and when
Defendant Iotov refused, the two began to argue about the issue, until Iotov instructed one of the
other officers to drop Plaintiff’s food slot so he could spray Plaintiff with oleoresin capsicum.7
(Id. ¶ 73-75.) Defendant Iotov then “assaulted” Plaintiff with the chemical and then ordered a
cell extraction. (Id. ¶ 75-76.)
While these allegations suggest other possible, and indeed, more likely reasons for
Defendant Iotov’s use of pepper spray on Plaintiff, the Court finds that Plaintiff has alleged
sufficient facts to support the element of causation as to this specific Defendant. Plaintiff alleges

6

The Court notes that to construe these instances as retaliation claims, which are based on the same conduct as
Plaintiff’s denial of access claims against these Defendants, would effectively allow Plaintiff to circumvent the
requirement that he demonstrate that he was prejudiced by any of these actions in his lawsuit as required to state a
claim for denial of access. Without requiring facts supporting causation, this would allow plaintiffs to simply allege
that any conduct supporting a claim of denial of access was also “retaliatory” and thereby present a triable issue even
where the denial of access claims themselves fail due to lack of prejudice in the relevant lawsuit. This is not to say
that certain conduct could not possibly give rise to both claims, but to state a claim for retaliation there must be facts
alleged that support that the protected activity—the lawsuit—actually motivated the allegedly retaliatory conduct.
7
Oleoresin capsicum is commonly known as “pepper spray.”

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that Defendant Iotov’s use of pepper spray came directly as a result of an argument over Plaintiff’s
access to legal documents he needed for his lawsuit. While the allegations do not suggest
Defendant Iotov had any specific motivation to retaliate against Plaintiff’s WRJ Suit, construed
liberally, these allegations allow for an inference that Iotov was motivated to use pepper spray on
Plaintiff because Plaintiff was seeking documents related to this case. Accordingly, with respect
to Defendant Iotov, the Court agrees with the PF&R that Plaintiff has stated a claim for First
Amendment Retaliation.
B. Plaintiff’s Possible § 1983 Conspiracy Claim
Plaintiff’s second objection relates to the PF&R’s finding that the Second Amended
Complaint does not include allegations sufficient to construe Plaintiff’s alleged § 1985 conspiracy
as a § 1983 conspiracy.8 Plaintiff’s objection on this issue is brief and conclusory, simply stating
that it is “no coincidence that the Plaintiff has suffered repeated acts of obstruction, oppression
and impediments at the hands” of the Defendants. (ECF No. 66 at 5-6.) On that basis, noting
that his pleadings should be “liberally construed,” Plaintiff appears to ask the Court to infer a §
1983 conspiracy.
As noted above, the Court has no obligation to conduct de novo review of these “general
and conclusory objections” that fail to address specific issues in a PF&R. As the PF&R notes, in
order to state a claim for a conspiracy under 42 U.S.C. § 1983, a plaintiff “must present evidence
that the [Defendants] acted jointly in concert and that some overt act was done in furtherance of
the conspiracy which resulted in [Plaintiff’s] deprivation of a constitutional right.” Hinkle v. City

8

Plaintiff’s first objection relates to his retaliation claims. Plaintiff’s objection on these claims alleges some additional
inconveniences in his litigation efforts and “objects to the analysis of the Magistrate [Judge]” that the retaliation claims
“could only be liberally construed.” However, Plaintiff’s Objections offer no substantive challenge on this issue.

10

of Clarksburg, W.Va., 81 F.3d 416, 421 (4th Cir. 1996). “[Plaintiff's] evidence must, at least,
reasonably lead to the inference that [Defendants] positively or tacitly came to a mutual
understanding to try to accomplish a common and unlawful plan.” Id. at 422. To survive a
motion to dismiss, a plaintiff alleging a conspiracy “must plead facts amounting to more than
‘parallel conduct and a bare assertion of conspiracy.’” A Soc'y Without A Name v. Virginia, 655
F.3d 342, 346 (4th Cir. 2011) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556–57
(2007)).
Here, Plaintiff has not alleged any agreement or understanding between the Defendants,
other than conclusory allegations such as “[t]he Defendants in this matter have conspired to violate
and abridge all of these constitutional rights of the Plaintiff” and “these Defendants conspired
together in order to violate the Plaintiff’s constitutional rights.” (ECF No. 25 ¶ 1, 102.) These
conclusory allegations, without factual support, are insufficient to state a claim for a § 1983
conspiracy. Accordingly, this Court agrees with the PF&R and declines to construe the Second
Amended Complaint to state a claim for a conspiracy under 42 U.S.C. § 1983.
IV.

CONCLUSION

Accordingly, the Court ADOPTS the PF&R (ECF No. 56) to the extent consistent with
this opinion, GRANTS IN PART and DENIES IN PART the Motion to Dismiss (ECF No. 39),
DISMISSES each count of the Second Amended Complaint except for Count Nine against
Defendant Iotov, and FINDS that Plaintiff has also stated a First Amendment Retaliation Claim
against Defendant Iotov.9 Accordingly, the Court DISMISSES Laura Angel, David Ballard, Lisa

9

Plaintiff’s objections ask, in the alternative, for an opportunity to file a Third Amended Complaint. This request
seems to be mooted by Plaintiff’s filing of a Motion for Leave to File a Third Amended Complaint (ECF No. 67).
That Motion is no longer referred to Magistrate Judge Tinsley, and the Proposed Third Amended Complaint (ECF
No. 67-1) offers no factual allegations that would impact the Court’s analysis of Plaintiff’s claims. Accordingly, that

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Boggs, Kathy Dillon, Teresa Gregory, Abbie Hart, Larry Propst, Jim Rubenstein, Jane Lucas, and
Ralph Terry as named Defendants in this matter. The Eighth Amendment and First Amendment
Retaliation Claims against Defendant Iotov remain pending. This case is RE-REFERRED to
Magistrate Judge Tinsley for further pretrial management and submission of further proposed
findings and recommendations for disposition.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

Motion (ECF No. 67) is DENIED.

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March 17, 2017