Greene v. Ballard et al

Filing 485

MEMORANDUM OPINION AND ORDER granting 318 MOTION to Dismiss by Kevin Baker; denying as moot 341 MOTION to Dismiss by Charles Lyle; granting 371 MOTION to Dismiss by Donald Slack; granting in part denying in part 386 MOTION to Dismiss by Dylan Hayhurst; granting 387 MOTION to Dismiss by John Wood; granting 410 MOTION to Dismiss by James Smith; denying without prejudice plaintiff's 420 MOTION for Summary Judgment; granting 435 MOTION for Summary Judgment by Char les Lyle and Josh Shrewsberry; denying as moot 300 MOTION to Dismiss by Josh Shrewberry; granting 312 MOTION to Dismiss by James Taylor; granting 314 MOTION to Dismiss by Matthew Isaacs; granting 316 MOTION to Dismiss by Dustin Rose; the plaintiff has claims remaining, this matter shall remain referred to Magistrate Judge Dwane L. Tinsley. Signed by Senior Judge John T. Copenhaver, Jr. on 3/31/2023. (cc: counsel of recortd; any unrepresented party; Mag. Judge) (tmr)

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, JONATHAN
FRAME, AWS, CPT. MARGARET
CLIFFORD, SGT. ANDY MITCHELL,
OFFICER MATTHEW ISAAC, OFFICER
KEVIN BAKER, OFFICER DUSTIN ROSE,
OFFICER DYLAN HAYHURST, OFFICER
MATTHEW HYPES, OFFICER JOHN WOODS,
CPL. JAMES TAYLOR, SGT. DONALD
SLACK, SGT. JESSIE SMITH,
DR. CHARLES LYE, LT. JAMES SMITH,
and P.A. JOSH SHREWSBERRY
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court are plaintiff Michael
Jermaine Greene’s “Mandatory Objections,” ECF No. 478, to the
Proposed Findings and Recommendation (“PF&R”) of United States
Magistrate Judge Dwane L. Tinsley, submitted on February 23,
2023.

PF&R, ECF No. 475.
The PF&R addresses 10 motions to dismiss filed by 12

defendants, a motion for summary judgment filed by two
defendants, and the plaintiff’s motion for summary judgment.
Id. at 1-2.

The magistrate judge recommended finding that the

following defendants are entitled to judgment as a matter of law

as to all of plaintiff’s claims against them: (1) Kevin Baker;
(2) Margaret Clifford; (3) Dylan Hayhurst; (4) Matthew Hypes;
(5) Matthew Isaac; (6) Charles Lye; (7) Dustin Rose; (8) Josh
Shrewsberry; (9) Donald Slack; (10) James Smith; (11) James
Taylor; and (12) John Woods.

Id. at 43-44.

The magistrate judge recommended dismissing
plaintiff’s claim against Andy Mitchell concerning the use of
force on February 2, 2017, as well as his claims against Jessie
Smith concerning the use of force on December 28, 2017 and
alleged interference with plaintiff’s receipt of medication on
December 15, 2017.

Id. at 44.

The magistrate judge recommended

denying as moot motions to dismiss filed by defendants
Shrewsberry and Lye.

Id.

The magistrate judge recommended denying without
prejudice the plaintiff’s motion for summary judgment.

Id. at

44-45.
Finally, the magistrate judge recommended finding that
the defendants Ballard, Frame, Mitchell, and Snyder 1 were not
entitled to judgment as a matter of law concerning plaintiff’s
claims in paragraphs 10, 14, and 29 of the Second Amended
Subsequent to the submission of the PF&R, defendant Snyder and
plaintiff filed a partial dismissal order, representing that “all claims and
controversies existing between them have been compromised and settled and are
now moot.”

1

2

Complaint, as well as the excessive force claim against
defendant Jessie Smith on January 31, 2018, as set forth in
paragraph 20 of the Second Amended Complaint.

Id. at 42-43.

Upon an objection to the PF&R, the court reviews de
novo those portions of the PF&R properly and timely objected to.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005).

General objections which fail to address portions or

specified proposed findings or recommendations “do not meet the
requirements set forth in 28 U.S.C. § 636(b)(1)(C) or Rule
72(b), and, therefore, constitute a waiver of de novo review.”
Elswick v. Plumley, Civ. A. No. 2:14-cv-29300, 2022 WL 2919291,
at *1 (S.D.W. Va. July 25, 2022) (citing Howard's Yellow Cabs,
Inc. v. United States, 987 F. Supp. 469, 474 (W.D.N.C. 1997));
see also United States v. Midgette, 478 F.3d 616, 622 (4th Cir.
2007) (“[T]o preserve for appeal an issue in a magistrate
judge’s report, a party must object to the finding or
recommendation on that issue with sufficient specificity so as
to reasonably alert the district court of the true ground for
the objection.”).
In the absence of an objection, the court may accept a
magistrate judge’s PF&R when there is no clear error on the face

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of the record.

Diamond, 416 F.3d at 315 (citing Fed. R. Civ. P.

72 advisory committee's note).
Mr. Greene’s objections consist of five brief
paragraphs.

In objection one, Mr. Greene states that the court

“intentionally overlooked” his remaining claims and “this case
has been compromised against[] the Plaintiff.”

In objection

two, Mr. Greene contends that his claims and his grievance
exhaustion response are being “dismissed prematurely,” because
the court has not appointed an attorney to represent him.

In

objection three, Mr. Greene again maintains that the court
“overlooked intentionally” his grievance exhaustion response.
In objection four, Mr. Greene argues that his grievances were
ignored by prison officials and that the prison’s grievance
process “was not known to Plaintiff.”

Finally, in objection

five, Mr. Green states, “This case has been compromised for the
above reasons against[] Plaintiff.”
Objections one, three, and five are general and
conclusory statements, which are insufficient to warrant de novo
review under 28 U.S.C. § 636(b)(1)(C) or Rule 72(b).

Orpiano v.

Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (de novo review is
unnecessary “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”);
4

Midgette, 478 F.3d at 622.

Moreover, far from “intentionally

overlook[ing]” the plaintiff’s claims and grievance exhaustion
response, the magistrate judge has gone to great lengths to
carefully consider Mr. Greene’s claims.

The court finds no

error in the magistrate judge’s PF&R respecting these issues.
Objections one, three, and five are overruled.
Objection two concerns a matter not addressed in the
presently pending PF&R and is therefore not a matter to which
Mr. Greene may object.

Objection two is overruled.

Construing Mr. Greene’s filing liberally, objection
four comes the closest to warranting de novo review, although it
too falls short of the mark.

Mr. Greene objects as follows:

“Importantly, grievances [were] ignored by the prison
staff/officials for defendants, grievance process [at] the
prison was not known to Plaintiff, and the court still
dismissed excessive force claims in order dated 2/23/23
that had grievances fully exhausted, grievances ignored by
prison officials for defendants, and grievances that [were]
not returned to Plaintiff upon Plaintiff turning them in to
be exhausted.”
ECF No. 478 ¶ 5.

Referring generally to “grievances” is no

guide at all in a case such as this.

At the evidentiary hearing

held on December 14, 2022, the magistrate judge provided the
parties with an evidentiary notebook containing 90 exhibits, of
which 89 are grievances, purported grievances, complaints, or
letters from Mr. Greene concerning the conditions of his
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confinement.
Ex. 1.

Exhibits Notebook, ECF No. 453, Attach. 3, Court’s

While it appears that Mr. Greene is familiar with the

grievance process, having used it extensively, he nonetheless
fails to particularize his objection with respect to any
particular grievance so that the court is unable to evaluate the
basis of his objection to the magistrate judge’s specific
findings.

In so observing the court does not intend to imply

that Mr. Greene’s remaining allegations are not serious, only
that his objections are lacking.

The court has nevertheless

reviewed the magistrate judge’s detailed treatment of these
issues in the PF&R, and finding no error, the court overrules
objection four.
The court orders as follows:
1. That the petitioner’s objections to the PF&R be, and
they hereby are, overruled.
2. That the PF&R be, and it hereby is, adopted in its
entirety.
3. The following motions are GRANTED: James Taylor’s
Motion to Dismiss (ECF No. 312); Matthew Isaac’s
Motion to Dismiss (ECF No. 314); Dustin Rose’s
Motion to Dismiss (ECF No. 316); Kevin Baker’s
Motion to Dismiss (ECF No. 318); Donald Slack’s
Motion to Dismiss (ECF No. 371); Dylan Hayhurst’s
Motion to Dismiss (ECF No. 386); John Wood’s Motion
to Dismiss (ECF No. 387); Matthew Hypes and James
Smith’s Motion to Dismiss (ECF No. 410); and Charles
Lye and Josh Shrewsberry’s Motion for Summary
Judgment (ECF No. 435).

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4. Jessie Smith’s Motion to Dismiss (ECF No. 386) is
GRANTED, respecting Grievance Nos. 17-MOCC-Q2-882,
18-MOCC-Q2-6, 18-MOCC-Q2-7, and 18-MOCC-Q2-8, which
concern issues relating to the plaintiff’s
previously dismissed retaliation claims, and DENIED,
respecting the plaintiff’s Eighth Amendment claim
concerning the use of force on January 31, 2018.
5. Josh Shrewsberry’s Motion to Dismiss (ECF No. 300)
is DENIED AS MOOT.
6. Charles Lye’s Motion to Dismiss (ECF No. 341) is
DENIED AS MOOT.
7. Plaintiff’s Motion for Summary Judgment (ECF No.
420) is DENIED WITHOUT PREJUDICE.
Inasmuch as the plaintiff has claims remaining, this
matter shall remain referred to Magistrate Judge Dwane L.
Tinsley as heretofore.
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 31, 2023

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