Adkins v. Ballard et al
Filing
72
MEMORANDUM OPINION AND ORDER granting 61 MOTION for Summary Judgment; denying 64 MOTION for Leave to File Amended Complaint and denying 70 MOTION to Appoint Counsel. Directing that this case be dismissed with prejudice and removed from the docket of the court. Signed by Senior Judge John T. Copenhaver, Jr. on 9/17/2020. (cc: counsel of record; any unrepresented party) (lca)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
STEVEN LEE ADKINS, JR.,
Plaintiff,
v.
Civil Action No. 2:18-cv-00342
CAPTAIN TONEY, C.O. DEMPSEY,
JOHN DOE #1, and JOHN DOE #2,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the renewed motion for summary judgment of
the remaining named defendants, Captain Toney and C.O. Dempsey,
filed June 19, 2020.
See ECF No. 61.
The plaintiff filed a
response on July 6, 2020, to which the defendants replied on
July 13, 2020.
See ECF Nos. 67, 69. Also pending is the
plaintiff’s motion to amend the complaint, filed June 25,2020,
ECF No. 64, and plaintiff’s motion for appointment of counsel,
filed July 27, 2020, ECF No. 70.
In his complaint, the plaintiff brought claims of
(1) Eighth Amendment excessive use of force, (2) supervisory
liability, and (3) emotional and mental distress.
ECF No. 2.
See Compl.,
These claims relate to a July 25, 2017 incident in
which the plaintiff refused to leave his cage in the recreation
yard of Mount Olive Correctional Complex (“MOCC”), resulting in
the correctional officers (“COs") removing him by force.
The court entered a memorandum opinion and order on
February 25, 2020 on the prior motion for summary judgment,
granting summary judgment for all defendants “with respect to
plaintiff’s claim of supervisory liability,” and denying summary
judgment “insofar as there is a genuine dispute of material fact
regarding the alleged choking.”1
See ECF No. 46 at 15.
As a
result, the only remaining claims are excessive force relating
to the alleged choking of the plaintiff after he was placed in
mechanical restraints and subdued by Correctional Officers
(Count I) and what plaintiff deems emotional and mental distress
(Count III).
Id.
I.
Excessive Use of Force
An Eighth Amendment claim for excessive use of force
is composed of a subjective component, whether a prison official
acted with a sufficiently culpable state of mind, and an
objective component, whether the official inflicted a
sufficiently serious injury.
Williams v. Benjamin, 77 F.3d 756,
1
The February 25, 2020 order dismissed Warden David Ballard, the only other
named defendant in this action, inasmuch as the only claim against him was
that of supervisory liability.
2
761 (4th Cir. 1996) (citing Wilson v. Seiter, 501 U.S. 294, 302
(1991).
The defendants’ initial motion for summary judgment
and the magistrate judge’s proposed findings and recommendations
focused on the subjective component of the inquiry.
See Defs.’
Mem. Supp. Mot. Summ. J., ECF No. 24; PF&R, ECF No. 44.
That
inquiry turns on whether force was applied in good faith by
prison officials “to maintain or restore discipline, or
maliciously and sadistically to cause harm.”
McMillian, 503 U.S. 1, 6–7 (1992).
Hudson v.
Courts use the following
four factors to assess a defendant’s subjective intent: (1) “the
need for the application of force”; (2) “the relationship
between the need and the amount of force that was used”; (3) the
extent of any reasonably perceived threat that the application
of force was intended to quell; and (4) “any efforts made to
temper the severity of a forceful response.”
Iko v. Shreve, 535
F.3d 225, 239 (4th Cir. 2008) (quoting Whitley v. Albers, 475
U.S. 312, 321); see also Brooks v. Johnson, 924 F.3d 104, 116
(4th Cir. 2019).
In its prior order, the court found the limited use of
Oleoresin Capsicum spray (“OC”) to gain compliance from the
plaintiff while he remained hostile was supported by the
audio/video evidence and that the incident reports and
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audio/video also showed that restraining the plaintiff’s head
and neck was necessary to subdue him and apply the mechanical
restraints.
Id. at 10.
The court further found that the plaintiff’s
contention that he was choked for no reason after he “was
already subdued, restrained and not resisting” was still subject
to a genuine dispute of material fact.
¶ 6.
Id. at 12;
see Compl.
The video of the incident does not clearly show what
happened immediately after the plaintiff was tackled when the
plaintiff’s body was obscured by a team of COs.
Exhibits.
See DVD
The defendants did not address the choking allegation
in their initial motion and supporting memoranda, though they
denied it in their answer.
The court, finding that the incident
may have amounted to a malicious and sadistic use of force, was
unable to dismiss on the subjective component.
Nor was the court then able to dismiss the count on
the objective component as a trivial use of force.
The
plaintiff alleged that his “throat was bruised, and sore for 3-4
weeks” and that he “could not swallow or eat, lost weight, and
muscle/neck soreness.”
The alleged injury was sufficient to
survive summary judgment.
ECF No. 46.
The defendants were delayed in conducting the
plaintiff’s deposition because of limitations arising out of the
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COVID-19 pandemic, but ultimately conducted his deposition using
the Zoom platform on May 27, 2020.
See ECF Nos. 55, 56.
After
doing so, the defendants informed the court that the plaintiff
asserted during his May 27, 2020 deposition that he was
allegedly choked by C.O. Wilson, who is not a named defendant in
this case.
See ECF No. 59 at 3.
The defendants further
asserted that the plaintiff testified that neither of the only
remaining named defendants, Capt. Toney and C.O. Dempsey,
administered the alleged choking.
The defendants thus
maintained that they were entitled to summary judgment and
sought leave to pursue a second motion for summary judgment.
Id.
On June 10, 2020, the court granted defendants’ motion
for leave to file a renewed motion for summary judgment on the
sole issue of the alleged choking.
II.
See ECF No. 60.
Legal Standard
Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“Material” facts are those necessary to
establish the elements of a party’s cause of action.
Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
5
570, 576 (4th Cir. 2010).
A “genuine” dispute of material fact
exists if, in viewing the record and all reasonable inferences
drawn therefrom in a light most favorable to the non-moving
party, a reasonable fact-finder could return a verdict for the
non-moving party.
Anderson, 477 U.S. at 248.
Inferences that are “drawn from the underlying facts .
. . must be viewed in the light most favorable to the party
opposing the motion.”
654, 655 (1962).
United States v. Diebold, Inc., 369 U.S.
A party is entitled to summary judgment if the
record, as a whole, could not lead a rational trier of fact to
find for the non-moving party.
820, 823 (4th Cir. 1991).
Williams v. Griffin, 952 F.2d
Conversely, summary judgment is
inappropriate if the evidence is sufficient for a reasonable
fact-finder to return a verdict in favor of the non-moving
party.
Anderson, 477 U.S. at 248.
III. Discussion
Excessive Use of Force
The defendants argue in their memorandum in support of
the renewed motion that they are entitled to summary judgment on
the Count I claim of excessive force, based on the plaintiff’s
admission that it was solely C.O. Wilson who did the alleged
choking.
ECF No. 62.
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The plaintiff was asked in his deposition whether he
recalled who choked him and he responded that “it had to be
Wilson because he was in control of my head as the incident
report states.”
Adkins Dep. 20:18-20:20, ECF No. 61-1.
The
plaintiff based this answer on his firsthand knowledge and on
the accident report.
Id. at 20:18-21:6.
was choked by just one individual.
He indicated that he
Id. at 21:16-21:18.
The
plaintiff takes this position again in his opposition
memorandum.
ECF No. 67 ¶7 (“all of them [the defendants] could
see Sgt. Wilson choking me”).
Because the plaintiff concedes
that the defendants did not perform the choking, there is no
genuine issue of material fact as to the excessive force issue
in the case as to the two named defendants.
In his responsive opposition memorandum, the plaintiff
argues that the defendants are still liable because they were
present at the time of the alleged choking incident and could
have acted somehow to stop it.
Id.
Given that the plaintiff
did not plead bystander liability in his complaint, this
argument does not save his claim from summary judgment.
Finally, the plaintiff attempts to introduce “new
evidence” in the form of an alleged conversation with an unnamed
correctional officer who expressed his belief that the
defendants sprayed OC for an excessively long period of time.
7
Id. at ¶11.
The only remaining excessive force issue in this
case is the alleged choking and, even if this allegation were
admitted as evidence, it would not generate a genuine issue of
material fact as to whether these defendants committed the
choking.
The court has already ruled that the record shows the
use of OC was necessary to subdue the plaintiff.
ECF No. 46.
Intentional Infliction of Emotional Distress
The plaintiff asserted in his complaint that he
“suffered mental and emotional distress” and pled a separate
count for “Emotional and mental distress.”
No. 2.
Compl. at 5-6, ECF
In their renewed motion for summary judgment, the
defendants argue that they are entitled to summary judgment on
this count to the extent it is a claim of intentional infliction
of emotional distress.
ECF No. 62.
In order to prove a claim for intentional infliction
of emotional distress, the plaintiff must show: “(1) that the
defendant’s conduct was atrocious, intolerable, and so extreme
and outrageous as to exceed the bounds of decency; (2) that the
defendant acted with the intent to inflict emotional distress,
or acted recklessly when it was certain or substantially certain
emotional distress would result from his conduct; (3) that the
actions of the defendant caused the plaintiff to suffer
emotional distress; and, (4) that the emotional distress
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suffered by the plaintiff was so severe that no reasonable
person could expected to endure it.” Syl. Pt. 3, Travis v. Alcon
Laboratories, Inc., 504 S.E.2d 419 (W. Va. 1998).
The record and the court’s memorandum opinion and
order establish that the defendants did not commit any
outrageous conduct.
ECF No. 46.
Rather, the actions
attributable to the defendants were necessary and appropriate.
Thus, the plaintiff’s intentional infliction of emotional
distress claim fails as he cannot put forth a genuine issue of
fact as to the defendants’ conduct.
Plaintiff’s Motion to File an Amended Complaint
Plaintiff moved to amend his complaint to replace the
John Doe #1 defendant with C.O. Wilson on June 25, 2020 and
provided a memorandum in support of that motion on July 10,
2020.
See ECF Nos. 64, 68.
Defendant C.O. Dempsey filed a
response in opposition to the motion on June 26, 2020.
ECF No.
65.
Under Federal Rule of Civil Procedure 15(a)(2), “a
party may amend its pleading only with the opposing party's
written consent or the court's leave.
The court should freely
give leave when justice so requires.”
Denial of leave to amend
should occur “only when the amendment would be prejudicial to
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the opposing party, there has been bad faith on the part of the
moving party, or the amendment would be futile.”
Johnson v.
Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)).
The standard for futility is the same as a motion to
dismiss under Rule 12(b)(6).
See U.S. ex rel. Wilson v. Kellogg
Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008) (affirming
district court's denial of a motion to amend because “proposed
amended complaint does not properly state a claim under Rule
12(b)(6) and lacks sufficient particularity under Rule 9(b)”);
Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995)
(holding that an amendment is futile if the amended claim would
fail to survive a motion to dismiss).
“Leave to amend should be
denied on the ground of futility only when the proposed
amendment is clearly insufficient or frivolous on its face.”
Cappetta v. GC Servs. Ltd. P'ship, No. 3:08CV288, 2009 WL
482474, at *4 (E.D.Va. Feb. 24, 2009) (citing Davis v. Piper
Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980); Oroweat Foods
Co. at 510)).
C.O. Dempsey argues that the motion should be denied
as futile because the statute of limitations for a § 1983 claim
against C.O. Wilson has expired and the amendment will not
relate back.
While § 1983 does not have an associated statute
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of limitations, federal courts apply the “state’s statute of
limitations governing general personal injury actions” when
considering § 1983 claims.
Battle v. Ledford, 912 F.3d 708, 713
(4th Cir. 2019) (quoting Owens v. Okure, 488 U.S. 235, 251
(1989)).
The West Virginia Code sets a limitations period for
personal injury actions of two years from accrual of the right
to sue.
W. Va. Code § 55-2-12(b).
The incident at issue
occurred on July 25, 2017 and plaintiff’s motion to amend the
complaint was filed on June 25, 2020, almost three years later.
Thus, an action against C.O. Wilson is barred unless it relates
back.
In order for an amendment to the complaint changing a
defendant to relate back, the plaintiff must show that (1) the
newly-added defendant received notice of the original action
within the period provided for in Rule 4(m) (ordinarily 90 days
from filing the complaint) and (2) the newly-added defendant
knew or should have known that the action would have been
brought against him, but for a mistake concerning the proper
party’s identity.
Rule 15(c)(1)(C).
The plaintiff does not allege, argue or present
evidence that C.O. Wilson had notice of the original action or
knew or should have known of the mistake concerning his
identity.
C.O. Wilson was neither identified in nor served with
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the complaint.
The plaintiff did not raise C.O. Wilson’s
involvement until his deposition on May 27, 2020, which was then
incorporated in the present motion to amend the complaint, filed
on June 25, 2020, more than two years after the complaint was
filed.
The plaintiff does not contest that the above
requirements for relation back are not met.
Rather, he argues
that the requirements are inapplicable because application of
the requirements would be unfairly burdensome as he is indigent
and incarcerated.
Simply, Rule 15(c) makes no such exception
for indigent or incarcerated plaintiffs.
The court also notes that the plaintiff had been on
notice of C.O. Wilson’s involvement since at least March 8,
2019, 139 days before the end of the limitations period, when
defendants David Ballard, C.O. Dempsey, and Capt. Toney attached
a set of incident reports as an exhibit to their initial motion
for summary judgment, including Incident Report 00147027.
No. 23-3.
ECF
That report states clearly that C.O. Wilson was the
officer in control of the plaintiff’s head and neck during the
July 25, 2017 incident.
Id.
The plaintiff testified that this
report formed the basis for his knowledge of C.O. Wilson’s
involvement.
Adkins Dep. 20:18-20:20.
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Yet, the plaintiff made
no attempt to add C.O. Wilson to the present action until June
25, 2020.
Because a claim against C.O. Wilson is barred by the
applicable statute of limitations and does not relate back,
amending the complaint as the plaintiff seeks to do would be
futile and the motion to amend must be denied.
Plaintiff’s Motion for Appointment of Counsel
Finally, the plaintiff filed a motion for this court
to appoint counsel on July 27, 2020.
file a response to this motion.
The defendants did not
By this Order, the court
dismisses this matter in its entirety.
The plaintiff's motion
to appoint counsel is denied.
IV.
Conclusion
In view of the foregoing, it is ORDERED:
1. That the renewed motion for summary judgment filed by
defendants Capt. Toney and C.O. Dempsey be, and it hereby
is, granted;
2. That the plaintiff’s motion to amend the complaint be,
and it hereby is, denied;
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3. That the plaintiff’s motion for appointed counsel, be and
it hereby is, denied;
4. That this case be dismissed with prejudice and removed
from the docket of the court.
The Clerk is directed to forward copies of this
memorandum opinion and order to all counsel of record and any
unrepresented parties.
ENTER: September 17, 2020
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