Greene v. Ballard et al
Filing
211
MEMORANDUM OPINION AND ORDER: The court overrules plaintiff's 208 objections; adopts and incorporates in full the 197 Proposed Findings and Recommendation by Magistrate Judge Dwane L. Tinsley; denies in part, without prejudice, and grants in part, defendants' 141 Motion to Dismiss as more fully set forth herein. This case is again referred to United States Magistrate Judge Dwane L. Tinsley for additional proceedings. Signed by Senior District Judge John T. Copenhaver, Jr. on 3/27/2020. (cc: counsel of record, any unrepresented parties, and the United States Magistrate Judge) (arb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MICHAEL JERMAINE GREENE,
Plaintiff,
v.
Civil Action No. 2:17-cv-02897
DAVID BALLARD, Warden, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is a motion to dismiss the second amended
complaint filed on March 11, 2019 by defendants David Ballard,
Jonathan Frame, Margaret Clifford, and Andy Mitchell, in which
Sherrill Snyder has, on March 14, 2019, joined.
This action was previously referred to United States
Magistrate Judge Dwane L. Tinsley for submission to the court of
his Proposed Findings and Recommendation (“PF&R”) for
disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
On February
25, 2020, the magistrate judge entered his PF&R recommending
that the court grant defendants’ motion to dismiss with respect
to plaintiff’s claims arising out of the alleged “liquid item”
placed in his body, dismiss these “liquid item” claims as
frivolous against all defendants1 named in the second amended
complaint, grant the motion to dismiss with respect to
plaintiff’s Eighth Amendment deliberate indifference to medical
treatment claims against these five defendants, and otherwise
deny the motion without prejudice.
See ECF No. 197 at 19–20.
On March 12, 2020, plaintiff Michael Jermaine Greene filed a
timely objection to the PF&R.
See ECF No. 208.
Defendants have
neither objected nor responded to the plaintiff’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) (first alteration added) (quoting 28 U.S.C. § 636(b)(1)).
First, plaintiff objects to the magistrate judge’s
finding that plaintiff’s claims that he was injected with a
“liquid item” that allowed prison staff at the Mount Olive
Correctional Complex to read his mind are legally and factually
frivolous and should be dismissed against all defendants named
in the second amended complaint under 28 U.S.C.
1
The second amended complaint named an additional 50 defendants,
who have not been served with process.
2
§§ 1915(e)(2)(B)(i) and 1915A(b)(1), and 42 U.S.C. § 1997e(c).
Plaintiff argues that there is video footage, declarations filed
by plaintiff, and declarations of “two eyewitnesses” to support
the claim that the “liquid item” in plaintiff’s body does exist
and controls his thoughts.
122, 154 and 183.
See ECF No. 208 at 2–4; ECF Nos.
Plaintiff further asserts that the magistrate
judge overlooked the allegation in the second amended complaint
that to prove the existence of the “liquid item,” plaintiff
“spoke to myself in my head AND made up a lie to see if I could
get Counselor Nancy Johnson (Defendant) to unintentionally help
me prove they was listening to radio’s speaking of my thoughts,
AND it shows on camera.”
2–3.
ECF No. 79 at 16, ¶ 31; ECF No. 208 at
Plaintiff maintains that further investigation of these
claims with court-appointed counsel is necessary.
ECF No. 208
at 4.
The magistrate judge considered the declarations
plaintiff filed on his own behalf as well as the two
declarations other inmates filed which summarily assert that
plaintiff’s allegations regarding the “liquid item” are true.
ECF Nos. 122 and 154.
The magistrate judge properly found that
allegations that prison officials installed mind control devices
to manipulate a prisoner are frivolous and subject to summary
dismissal.
See, e.g., LaVeau v. Snyder, 84 F. App’x 654, 655
3
(7th Cir. 2003) (“[Inmate’s] allegations of a surveillance
device that can read minds and manipulate thoughts are fantastic
and delusional, and accordingly [the] complaint was properly
dismissed without an evidentiary hearing.”).
Accordingly,
plaintiff’s objections regarding the “liquid item” claims are
without merit.
Second, plaintiff objects to the magistrate judge’s
finding that his Eighth Amendment deliberate indifference claim
concerning medical care should be dismissed.
Plaintiff argues
that defendants acted with deliberate indifference by not taking
adequate measures in response to plaintiff cutting himself.
ECF No. 208 at 5.
See
The second amended complaint alleges that
after plaintiff had “cut his wrist while in MHU for not being on
medication for voices/hallucinations,” plaintiff was put on
medication and when he asked “MHU staff” about a medical
appointment, he was informed that the hospital appointment would
need to be rescheduled.
ECF No. 79 at 4, ¶ 4.
As the magistrate judge found, the second amended
complaint does not plead the subjective component necessary to
state a plausible claim of deliberate indifference inasmuch as
it does not specifically allege that any of Ballard, Frame,
Clifford, Mitchell, and Snyder interfered with plaintiff’s
medical treatment.
The magistrate judge reasoned that insofar
4
as plaintiff was denied follow-up outside medical appointments,
plaintiff only refers to “MHU staff” and “medical staff” without
identifying which defendants, if any, made those decisions.
ECF No. 197 at 19.
See
At most, plaintiff alleges “mere negligence
or malpractice” on their part, which does not constitute
deliberate indifference to a medical need.
See Miltier v.
Beorn, 896 F.2d 848, 852 (4th Cir. 1990) (“[M]ere negligence or
malpractice does not violate the eighth amendment.”).
Insofar
as the objections add new allegations regarding these
defendants, it is “axiomatic that the complaint may not be
amended by the briefs in opposition to a motion to dismiss.”
See Katz v. Odin, Feldman & Pittleman, P.C., 332 F. Supp. 2d
909, 917 n.9 (E.D. Va. 2004) (quoting Morgan Distrib. Co., Inc.
v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989)); Car
Carriers v. Ford Motor Co., 745 F. 2d 1101, 1107 (7th Cir. 1984)
(“[C]onsideration of a motion to dismiss is limited to the
pleadings.”).
Accordingly, the court finds that these
objections lack merit.
The court, accordingly, ORDERS as follows:
1. That plaintiff’s objections to the PF&R be, and they hereby
are, overruled.
2. That the magistrate judge’s PF&R entered February 25, 2020
be, and it hereby is, adopted and incorporated in full.
5
3. That defendants’ motion to dismiss be, and it hereby is,
denied without prejudice, except that it is granted with
respect to plaintiff’s claims arising out of the alleged
“liquid item” placed in his body, which is also
dismissed
as frivolous against all defendants named in the second
amended complaint, and it is granted with respect to his
Eighth Amendment deliberate indifference to medical
treatment claims against Ballard, Frame, Clifford,
Mitchell, and Snyder.
4. That this case 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 all counsel of record, any
unrepresented parties, and the United States Magistrate Judge.
ENTER: March 27, 2020
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