Turner v. West Virginia Regional Jail Authority et al

Filing 38

MEMORANDUM OPINION AND ORDER directing (1) That defendant Holidays objection to the PF&R is overruled; (2) That the magistrate judge's 36 Proposed Findings and Recommendation as to Sgt. Toney and C.O. Holiday are adopted and incorporated in f ull; (3) That the defendants' 29 Motion for Summary Judgment with respect to the plaintiff's claim against Sgt. Toney is granted and that defendant Tony be dismissed from this action; (4) That the defendants' 29 Motion for Summar y Judgment with respect to the plaintiff's claim against C.O. Holiday is denied; and (5) That this matter is again referred to United States Magistrate Judge Dwane L. Tinsley for additional proceedings. Signed by Judge John T. Copenhaver, Jr. on 3/28/2019. (cc: plaintiff; the magistrate judge; counsel of record; any unrepresented parties) (kew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
RICHARD DALE TURNER,
Plaintiff,
v.

Civil Action No. 2:16-cv-04346

WEST VIRGINIA REGIONAL JAIL
AUTHORITY, C.O. PERRY, C.O. ALLEN,
C.O. HOLIDAY, SGT. TONEY, MEDICAL
STAFF,
Defendants.
MEMORANDUM OPINION AND ORDER

Pending is a motion for summary judgment, filed solely
by defendants Sgt. Toney and C.O. Holiday (“Holiday”), on March
8, 2018.
This action was previously referred to United States
Magistrate Judge Dwane L. Tinsley who, on November 20, 2018,
submitted his Proposed Findings and Recommendation (“PF&R”)
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B).
Therein, the magistrate judge recommended the granting of
summary judgment for defendant Toney and the denying of summary
judgment for defendant Holiday.

On November 30, 3018, defendant

Holiday filed a timely objection to the PF&R on November 30,

2018.

Plaintiff has not filed an objection to the PF&R and has

not responded to the defendant’s objection.
Upon an objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a district
court to ‘make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or
recommendations to which objection is made.’”

Diamond v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (emphasis in original) (quoting 28 U.S.C. 636(b)(1)).
Defendant Holiday objects on the ground that the
magistrate judge “failed to address C.O. Holiday’s assertion
that C.O. Holiday performed no acts which would have caused
injuries to plaintiff.”

Def.’s Obj. 1.

In so doing, Holiday

“admit[s] that issue was not as fully briefed and argued as it
might or should have been, [but] it was raised and asserted in
her Motion for Summary Judgment.

Therefore, that issue was

preserved and should be considered.”

Id. at 1-2.

In further support thereof, she cites Quinlan v.
Personal Trans. Servs. Co., 329 F. App’x. 246 (11th Cir. 2009),
claiming that the plaintiff must allege and prove more than a de
minimus injury to establish a constitutional claim.

In

addition, Holiday cites 42 U.S.C. § 19997e(e), which, according
to her, “imposes a limitation on recovery requiring that, before
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there can be a compensation [for] mental or emotional injuries,
there must be a showing of physical injury or a commission of a
sexual act.”

Def.’s Obj. 2.

The conduct in question is plaintiff’s allegation that
he was “being walked up the hallway when CO Holiday came across
the hall and chest bumped me with hers while saying ‘I wish you
would do something motherfucker.’”

PF&R 8.

The defendants

state the following in their motion for summary judgment:
Clearly, when the video is observed, that did not
occur. No black female appears. No one chest bumps
Plaintiff. Once leaving the hallway area of A POD
prior to Plaintiff being brought to his feet and
escorted down the hallway, CO Holiday does not again
appear in the video.
Therefore, based on the clear video evidence, CO
Holiday performed no acts which would have caused
injuries to Plaintiff and summary judgment should be
granted in her favor.
Defs.’s Mot. Summ. J. 5.

In addressing the argument, the

magistrate judge noted that a review of a portion of video
evidence not cited by the defendants “calls into doubt the
defendants’ assertion that the alleged altercation between the
plaintiff and defendant Holiday could not have occurred.”
9.

PF&R

This video footage captured the incident from a different

angle in the hallway, and showed the plaintiff being escorted
down the hallway, with officers surrounding him and moving
toward the left-hand wall.

Id.

A correctional officer, “who

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appears to be a black female,” moves quickly across the hall
from right to left toward where the plaintiff was standing.

Id.

The magistrate judge concluded that “there is no obvious
evidence” that the conduct alleged with respect to Holiday, a
black female, “did not occur or that the plaintiff’s version of
the facts concerning her conduct is ‘so utterly discredited by
the record that no reasonable jury could have believed him.’”
PF&R at 9 (citing Scott v. Harris, 550 U.S. 372, 380-81 (2007)).
It appears that Holiday seeks to raise a new argument
in her objection to the PF&R, rather than address an error in
the magistrate judge’s findings.

Whereas in their motion for

summary judgment, defendants claim that, because the video
footage cited does not reveal a black female present at the
scene or a “chest bump,” Holiday “performed no acts which would
have caused injuries to Plaintiff and summary judgment should be
granted in her favor,” defendant now attempts to argue that the
conduct alleged does not amount to a constitutional injury.

See

Def.’s Obj. 2 (citing 42 U.S.C. § 19997e(e); Quinlan v. Personal
Trans. Servs. Co., 329 F. App’x. 246 (11th Cir. 2009)).

In

other words, Holiday now asserts the argument that, even if she
did chest bump the plaintiff, this should be considered a “de
minimus” injury or emotional injury that lacks the required
accompanying physical injury.

Because this argument was not

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raised in the defendants’ motion for summary judgment, the court
will not address it herein.
Insofar as the video footage identified by the
magistrate judge establishes a genuine issue of material fact
with respect to the issue of whether defendant Holiday engaged
in the alleged conduct in question, the court finds that the
magistrate judge’s PF&R adequately addressed and correctly
resolved all issues presented in the defendants’ motion to
dismiss.
The court, accordingly, ORDERS as follows:
1. That defendant Holiday’s objection to the PF&R be, and
hereby is, overruled.
2. That the magistrate judge’s Proposed Findings and
Recommendation as to Sgt. Toney and C.O. Holiday be, and
hereby are, adopted and incorporated in full.
3. That the defendants’ Motion for Summary Judgment with
respect to the plaintiff’s claim against Sgt. Toney be, and
hereby is, granted and that defendant Tony be dismissed
from this action.

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4. That the defendants’ Motion for Summary Judgment with
respect to the plaintiff’s claim against C.O. Holiday be,
and hereby is, denied.
5. That this matter be, and hereby is, again referred to
United States Magistrate Judge Dwane L. Tinsley for
additional proceedings.
The Clerk is directed to transmit copies of this
memorandum opinion and order to the plaintiff, the magistrate
judge, all counsel of record, and any unrepresented parties.
ENTER: March 28, 2019

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