Greene v. Ballard et al

Filing 433

ORDER scheduling an evidentiary hearing for 12/14/2022 at 1:00 p.m. Plaintiff and counsel for defendants are ORDERED to appear in person. The Clerk is directed to issue a Writ of Habeas Corpus Ad Testificandum for the transport of the Plaintiff fr om the Huttonsville Correctional Center for his appearance at the hearing. The Plaintiff's 389 , 391 , and 400 Motions for Leave to Amend Second Amended Complaint are DENIED. The Defendants' 388 Motion to Stay Discovery and D efendants' 412 and 415 Motions for Protective Order are GRANTED. Further directing that, outside of the evidentiary hearing that will be held on the administrative exhaustion issue, discovery in this matter is stayed and Defendants are n ot required to respond to Plaintiff's discovery requests absent further order of the Court. Consequently, Plaintiff's 340 , 346 , and 349 Motions for Leave to Serve Discovery and his 359 and 419 Motions for Order Compelling Dis covery are DENIED WITHOUT PREJUDICE. The 355 and 409 Motions for Appointment of Counsel are DENIED WITHOUT PREJUDICE. Plaintiff's 337 Motion for Order Directing Counsel to Copy Plaintiff on All Filings is GRANTED. As addressed on the record, Plaintiff's 428 Request for Correction of Docket Entries 411 and 418 is GRANTED, but the 427 Motion for Order to Investigate All Clerks/Staff Who Docket Court Documents is DENIED. Finally, Plaintiff's 417 Motion to Join Defendant Matthew Hypes in Response to Motion to Dismiss is GRANTED. Plaintiff's response contained in ECF No. 399 will be treated as also being responsive to the Motion to Dismiss filed by Defendant Hypes at ECF No. 410. Signed by Magistrate Judge Dwane L. Tinsley on 12/1/2022. (cc: Plaintiff; counsel of record) (ts)

Case 2:17-cv-02897 Document 433 Filed 12/01/22 Page 1 of 8 PageID #: 2234

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
MICHAEL JERMAINE GREENE,
Plaintiff,
v.

Case No. 2:17-cv-02897

DAVID BALLARD, et. al.,
Defendants.
ORDER AND NOTICE
On November 29, 2022, the undersigned held a status conference and motions
hearing on all pending motions. The pro se Plaintiff, Michael Jermaine Greene, appeared
by video conference from the Huttonsville Correctional Center. John P. Fuller, Jordan K.
Herrick, and Robert A. Lockhart, counsel for the various defendants who have made an
appearance, also participated by video conference. The Court addressed each of the
pending motions on the record. This Order and Notice reflects the rulings made during
the hearing.
A.

Defendants’ Motions to Dismiss.

This matter is proceeding on Plaintiff’s Second Amended Complaint (ECF No. 79
and 186).

On August 5, 2022, the undersigned filed a Proposed Findings and

Recommendation recommending the dismissal of various claims and defendants (ECF
No. 266). However, the undersigned further found that the following claims were
potentially plausible and warranted further development: (1) Eighth Amendment claims
concerning denial of allegedly necessary medical treatment against Defendants Dr.

Case 2:17-cv-02897 Document 433 Filed 12/01/22 Page 2 of 8 PageID #: 2235

Charles Lye and P.A. Josh Shrewsberry; (2) Eighth Amendment claims grounded in the
failure to protect Plaintiff from a serious risk of harm posed by threats/assaults by other
inmates brought against Defendants David Ballard, Jonathan Frame, Andy Mitchell,
Margaret Clifford, and Sherrill Snyder; and (3) Eighth Amendment and state law assault
and battery claims arising out of eight different instances of uses of force against Plaintiff,
brought against Officer Matthew Isaac, Officer Kevin Baker, Officer Skylar Santiago,
Officer Dustin Rose, Officer Dylan Hayhurst, Officer Matthew Hypes, Officer John
Woods, Officer John Blankenship, Cpl. John Bowlin, Cpl. James Taylor, Sgt. Charles
Legg, Sgt. Donald Slack, Sgt. Jessie Smith, Lt. James Smith, and Capt. Margaret Clifford.
(Id. at 38-39).
Defendants Ballard, Frame, Mitchell, Clifford, and Snyder had previously been
served with process and have now filed Answers to the Second Amended Complaint. (ECF
Nos. 332-336). However, the remaining defendants had not been served with process, so
the Court stayed the matter pending their service and appearance. The stay was lifted on
July 25, 2022. (ECF No. 330). Now pending before the Court are eleven Motions to
Dismiss (ECF Nos. 300, 302, 312, 314, 316, 318, 341, 371, 386, 387, and 410). The
Defendants’ motions and answers almost universally assert the affirmative defense of
failure to exhaust administrative remedies, which is a threshold issue that must be
addressed by the Court before the merits of Plaintiff’s claims are considered.
Plaintiff is a prolific grievance filer and a number of his grievances have been made
a part of the record herein. (See ECF Nos. 1, 8, 36, 61, 69, 71, 75, 79, 86, 128, 199, 253,
and 254). As further set forth in the hearing, because these documents are not integral to
the Second Amended Complaint, pursuant to Rule 12(d) of the Federal Rules of Civil
Procedure, the parties are hereby NOTIFIED that the Court intends to convert the
2

Case 2:17-cv-02897 Document 433 Filed 12/01/22 Page 3 of 8 PageID #: 2236

Defendants’ motions to dismiss to motions for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure and will consider the grievance documents and related
evidence in determining whether Plaintiff failed to properly exhaust the available
administrative remedies prior to filing his Second Amended Complaint.
Pursuant to the holding of Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the
pro se Plaintiff is hereby NOTIFIED that he has the right and an obligation to oppose
the Defendants’ motions for summary judgment, submitting affidavits or statements
subject to the penalties of perjury, sworn testimony, exhibits, or other legal or factual
material supporting his position in the case.
Plaintiff is advised that factual statements in affidavits or other sworn evidence
submitted by Defendants will be accepted as true unless Plaintiff sets forth facts
indicating the existence of a genuine or actual dispute of material fact. Plaintiff must set
out either in his own affidavit or sworn evidence, or the affidavits or sworn evidence of
other witnesses, specific facts that show that Plaintiff and Defendants disagree about one
or more important facts present in this case. Plaintiff should be aware that a knowing
assertion of a falsehood to avoid dismissal could, if proven, constitute perjury punishable
by law.
The undersigned further FINDS that an evidentiary hearing will be helpful to the
Court to develop the evidence necessary to expedite proposed rulings concerning the
threshold exhaustion issue. During the hearing, the parties will have the opportunity to
present any evidence to support their positions concerning the Plaintiff’s failure to
exhaust the available administrative remedies concerning the remaining claims at issue
in this matter, and Plaintiff may present any evidence he believes will demonstrate the
unavailability of the grievance process with respect to any of his remaining claims.
3

Case 2:17-cv-02897 Document 433 Filed 12/01/22 Page 4 of 8 PageID #: 2237

Accordingly, it is hereby ORDERED that an evidentiary hearing shall be held in
this matter on Wednesday, December 14, 2022 at 1:00 p.m. Plaintiff and counsel
for defendants are hereby ORDERED to appear in person. The Clerk is directed to issue
a Writ of Habeas Corpus Ad Testificandum for the transport of the Plaintiff from the
Huttonsville Correctional Center for his appearance at the hearing.
B.

Motions to Amend Second Amended Complaint.

Also pending before the Court are Plaintiff’s Motions to Amend Second Amended
Complaint (ECF Nos. 389, 391, and 400), which have been opposed by Defendants Slack,
Woods, and Jessie Smith (ECF Nos. 407 and 414). In connection with those motions,
Plaintiff filed two documents containing proposed amendments (ECF Nos. 392 and 4001) which are largely focused on the allegations against Defendants Slack, Woods, and
Jessie Smith contained in paragraphs 17, 18, 19, 20, 22, and 23 of the Second Amended
Complaint.
For the most part, Plaintiff’s proposed amendments seek to provide more details
concerning factual allegations already contained in the Second Amended Complaint.
Specifically, in ECF No. 392, Plaintiff merely attempts to provide more details
surrounding the uses of force against him by Slack and Woods on October 20, 2017, which
were already set forth in paragraphs 22 and 23 of the Second Amended Complaint.
Likewise, in ECF No. 400-1, Plaintiff seeks to provide more details concerning the conduct
of Jessie Smith and others on December 15, 2017, December 28, 2017, and January 31,
2018, which is already addressed in paragraphs 17, 18, and 20 of the Second Amended
Complaint. The undersigned sees no need for these delayed amendments. If these claims
survive summary judgment on the exhaustion issue, Plaintiff will be able to provide more
details concerning these specific allegations during discovery.
4

Case 2:17-cv-02897 Document 433 Filed 12/01/22 Page 5 of 8 PageID #: 2238

In his proposed amendments in ECF No. 400-1, Plaintiff also restates paragraph
19 concerning the alleged failure of certain defendants, including Jessie Smith, to deliver
food trays to Plaintiff on enumerated dates, which Plaintiff claims was retaliatory for his
prior filing of grievances and civil actions against staff at the Huttonsville Correctional
Center and the initial complaint in this matter. (ECF No. 400-1 at 6). However, the
undersigned previously recommended the dismissal of all of Plaintiff’s First Amendment
retaliation claims for failure to state a claim upon which relief could be granted. Nothing
that Plaintiff has re-stated concerning paragraph 19 in the document in ECF No. 400-1
would alter the undersigned’s prior analysis of that claim. Accordingly, the undersigned
FINDS that proposed amendment would be futile. Finally, in ECF No. 400-1, Plaintiff’s
seeks to add an entirely new claim concerning a use of force against Plaintiff on December
26, 2017, and Plaintiff’s alleged loss of 180 days of Good Conduct Time resulting from a
related disciplinary proceeding. (ECF No. 400-1 at 3). These facts were not previously
alleged in any way in the Second Amended Complaint.
As noted by Defendants, Plaintiff has provided no valid grounds to excuse the delay
in seeking his proposed amendments, which are not based on newly discovered evidence.
Plaintiff merely contends that he did not earlier assert these allegations because he did
not have access to documents from his separate cases which were dismissed when he filed
his Second Amended Complaint herein adding similar allegations to those he had made
in the other cases. As further addressed on the record, the undersigned FINDS that
Plaintiff’s belated attempts to amend his Second Amended Complaint in this matter,
which is more than five years old, are dilatory and will cause undue prejudice to
Defendants. Accordingly, it is hereby ORDERED that Plaintiff’s Motions for Leave to
Amend Second Amended Complaint (ECF Nos. 389, 391, and 400) are DENIED.
5

Case 2:17-cv-02897 Document 433 Filed 12/01/22 Page 6 of 8 PageID #: 2239

C.

Plaintiff’s Motion for Summary Judgment.

On November 17, 2022, Plaintiff filed a Motion for Summary Judgment (ECF No.
420), seeking summary judgment on the merits of his Eighth Amendment failure to
protect claims brought against Defendants Ballard, Frame, and Snyder. As addressed on
the record, the undersigned FINDS that Plaintiff’s motion is premature due to the need
to resolve the threshold issues concerning the exhaustion of administrative remedies
before addressing the merits of Plaintiff’s claims. Accordingly, by separate Proposed
Findings and Recommendation, the undersigned will recommend that Plaintiff’s motion
for summary judgment be denied without prejudice.
D.

Discovery Motions.

Also pending before the Court are Plaintiff’s Motions for Leave to Serve Discovery
Requests on Defendants Snyder, Ballard, Frame, Mitchell, and Clifford (ECF Nos. 340,
346, and 349), Plaintiff’s Motions for Order Compelling Discovery (ECF Nos. 359 and
419), Defendants Ballard and Frame’s Motion to Stay Discovery (ECF No. 388), and
Defendants Ballard and Frame’s Motion for Protective Order (ECF No. 412), in which
Defendants Mitchell and Clifford have joined (ECF No. 415). As noted on the record, the
discovery requests served on all of these defendants appear to concern the merits of
Plaintiff’s claims for relief, and do not address the exhaustion of administrative remedies.
In light of the need to initially resolve the administrative exhaustion issue before
turning to the merits of any of Plaintiff’s claims, a stay of discovery on the merits of
Plaintiff’s claims is appropriate. Accordingly, it is hereby ORDERED that Defendants’
Motion to Stay Discovery (ECF No. 388) and Defendants’ Motion for Protective Order
(ECF Nos. 412 and 415) are GRANTED. It is further ORDERED that, outside of the
evidentiary hearing that will be held on the administrative exhaustion issue, discovery in
6

Case 2:17-cv-02897 Document 433 Filed 12/01/22 Page 7 of 8 PageID #: 2240

this matter is stayed and Defendants are not required to respond to Plaintiff’s discovery
requests absent further order of the Court. Consequently, Plaintiff’s Motions for Leave to
Serve Discovery Requests (ECF Nos. 340, 346, and 349) and his Motions for Order
Compelling Discovery (ECF Nos. 359 and 419) are DENIED WITHOUT PREJUDICE.
E.

Plaintiff’s Motions for Appointment of Counsel.

Although he has previously been denied appointment of counsel, Plaintiff has filed
two additional motions for appointment of counsel (ECF Nos. 355 and 409). In these
motions, Plaintiff seeks the appointment of counsel, or at least “stand-by counsel” to
assist him in this matter.
Plaintiff has been advised that he has no right to appointment of counsel and the
undersigned FINDS that this matter does not present “exceptional circumstances”
warranting the court to search for an attorney willing to represent Plaintiff as provided in
28 U.S.C. § 1915(e)(1). See Whisenant v. Yuam, 739 F.2d 160 (4th Cir. 1984) (abrogated
on other grounds by Mallard v. United States Dist. Court, 490 U.S. 296 (1989)). As
previously noted, despite the breadth of Plaintiff’s claims, this is not a complex case and
Plaintiff’s copious filings demonstrate that he is able to present his claims. Accordingly,
it is hereby ORDERED that his Motions for Appointment of Counsel (ECF Nos. 355 and
409) are DENIED WITHOUT PREJUDICE.
F.

Other Pending Motions.

As further addressed on the record, Plaintiff’s Motion for Order Directing Counsel
to Copy Plaintiff on All Filings (ECF No. 337) is GRANTED. Plaintiff is reminded of his
obligation to advise the Court and defense counsel of any changes in his contact
information. Additionally, as addressed on the record, Plaintiff’s Request for Correction
of Docket Entries 411 and 418 (ECF No. 428) is GRANTED, but his Motion for Order to
7

Case 2:17-cv-02897 Document 433 Filed 12/01/22 Page 8 of 8 PageID #: 2241

Investigate All Clerks/Staff Who Docket Court Documents (ECF No. 427) is DENIED.
Finally, Plaintiff’s Motion to Join Defendant Matthew Hypes in Response to Motion to
Dismiss (ECF No. 417) is GRANTED. Plaintiff’s response contained in ECF No. 399 will
be treated as also being responsive to the Motion to Dismiss filed by Defendant Hypes
(ECF No. 410).
The Clerk is directed to mail a copy of this Order and Notice to Plaintiff and to
transmit a copy of this Order to counsel of record.
ENTER:

December 1, 2022

8