McKelvey v. WRJ Staff et al

Filing 192

MEMORANDUM OPINION AND ORDER accepting and incorporating the 161 and 162 Proposed Findings and Recommendations of the Magistrate Judge; denying Plaintiff's 178 Objections to the Proposed Findings and Recommendations; granting Defendant Jer ry Ryder's 102 Motion to Dismiss and dismissing, with prejudice, Plaintiff's Complaint against Defendant Jerry Ryder for failure to state a claim compensable at law; dismissing, with prejudice, Plaintiff's Complaint against Defendant Correctional Officer Ryder as barred by the statute of limitations; and granting Defendants Erwin, Chastain, and Chapman's 105 MOTION for summary judgment and dismissing Defendants Erwin, Chastain, and Chapman. Signed by Judge Robert C. Chambers on 3/25/2015. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

JAMES McKELVEY,
Plaintiff,
v.

CIVIL ACTION NO. 3:13-22206

WESTERN REGIONAL JAIL, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant Jerry Ryder’s Motion to Dismiss pursuant to Fed.
R. Civ. P. 12(b)(6) and West Virginia Code Section 55-2-12 (ECF No. 102) and Defendants
Erwin, Chastain, and Chapman’s Motion for Summary Judgment (ECF No. 105). Pursuant to 28
U.S.C. § 636(b)(1)(B), this action was referred to the Honorable Cheryl A. Eifert, United States
Magistrate Judge, for submission to this Court of proposed findings of fact and recommendations
for disposition. Magistrate Judge Eifert performed a thorough review of the pending Petition and
motions, affording Petitioner’s claims the liberal construction required for pro se pleadings. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). On February 3, 2015, Magistrate Judge Eifert
submitted Proposed Findings and Recommendations (ECF Nos. 161 and 162). On March 5,
2015, Plaintiff timely filed Objections to the Proposed Findings and Recommendations (ECF No.
178). 1

1

Plaintiff moved for and was granted an extension of time to file objections to the
Proposed Findings and Recommendations (ECF Nos. 176 and 177).

The Court has reviewed de novo those portions of Magistrate Judge Eifert’s Proposed
Findings and Recommendations to which Plaintiff objects, and it finds that Plaintiff’s objections
lack merit. For the reasons set forth below, the Court ACCEPTS AND INCORPORATES the
Proposed Findings and Recommendations of the Magistrate Judge (ECF Nos. 161 and 162);
DENIES Plaintiff’s Objection to the Proposed Findings and Recommendations (ECF No. 178);
GRANTS Defendant Jerry Ryder’s Motion to Dismiss (ECF No. 102) and DISMISSES, with
prejudice, Plaintiff’s Complaint against Defendant Jerry Ryder for failure to state a claim
compensable at law; DISMISSES, with prejudice, Plaintiff’s Complaint against Defendant
“Correctional Officer Ryder” as barred by the statute of limitations; and GRANTS Defendants
Erwin, Chastain, and Chapman’s motion for summary judgment (ECF No. 105) and DISMISSES
Defendants Erwin, Chastain, and Chapman.
I.

PLAINTIFF’S OBJECTIONS
In the Proposed Findings and Recommendations, Magistrate Judge Eifert has set forth the

factual and procedural history in considerable detail. The material facts need not be repeated here
as the Magistrate Judge has more than adequately detailed them in her report. Rather, the Court
incorporates by reference that factual and procedural history and next dedicates itself to setting out
Plaintiff’s Objections to the proposed findings and recommendations.
The Court first notes that Plaintiff does not object to the proposed findings that Defendant
Jerry Ryder and Defendant Erwin were not present at the Jail at the relevant time. However,
Plaintiff does maintain by his objections that summary judgment with respect to Defendants
Chastain and Chapman is inappropriate. Specifically, Plaintiff notes that he believes he has not
yet received adequate discovery and that Defendants’ self-serving affidavits are insufficient proof.
Moreover, Plaintiff avers that there is evidence to prove that Defendant Chastain is lying or

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colluding based on his failure to write a report and apparent history of inadequate reporting and
assault allegations.
II.

STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1), the Court must conduct a de novo review of any portion

of the Magistrate Judge’s report to which objection is timely made. As to those portions of the
report to which no objection is made, the Magistrate Judge’s report will be upheld unless it is
“clearly erroneous” or “contrary to law.” See Webb v. Califano, 468 F.Supp. 825, 828 (E.D. Cal.
1979) (citing 28 U.S.C. § 636(b)(1)(A)). Furthermore, a court need not conduct a de novo review
“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.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982) (citations omitted).
III.

MOTION TO DISMISS DEFENDANT JERRY RYDER
The Magistrate Judge recommended that the Court grant Jerry Ryder’s unopposed Motion

to Dismiss and further dismiss “Correctional Officer Ryder” as any claims based on the alleged
assault on February 17, 2011, are barred by the two-year statute of limitations. Plaintiff has not
offered objections to these findings and recommendations, and the Court finds no clear error in the
Magistrate Judge’s analysis or conclusions.

Accordingly, the Court adopts the Magistrate

Judge’s Findings and Recommendations with respect to Defendant Ryder’s Motion to Dismiss
(ECF No. 161).
IV.

MOTION FOR SUMMARY JUDGMENT
A. Applicable Legal Standard
To obtain summary judgment, the moving party must show that there is no genuine issue as

to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.
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Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the
evidence and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in
the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).
Although the Court will view all underlying facts and inferences in the light most favorable
to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence
from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477 U.S. at
256. Summary judgment is appropriate when the nonmoving party has the burden of proof on an
essential element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). The nonmoving party must satisfy this burden of proof by offering more than a mere
“scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252.
B. Analysis
As observed by the Magistrate Judge, Defendants Erwin, Chastain, and Chapman have
each produced concrete evidence showing that they were not involved in the alleged assault on
September 11, 2011, and Plaintiff, after having the benefit of adequate time for discovery, has not
come forward with any evidence suggesting otherwise. Beginning with Defendant Erwin, the
Court notes that Defendant Erwin was not on duty at the relevant time (ECF No. 105-1 at 2), that
Plaintiff himself testified that he was not certain he saw Erwin during the alleged assault (ECF No.
105-1 at8), and none of the eight incident reports submitted after the alleged assault make any
mention of Erwin. Plaintiff has offered no contradictory or competing evidence suggesting that
Erin was at all involved, and Plaintiff has not objected to the Magistrate Judge’s conclusion that an

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action against Defendant Erwin cannot be maintained. Finding no clear error in the Magistrate
Judge’s analysis, the Court agrees that Defendant Erwin is entitled to summary judgment.
Continuing on to Defendant Chastain, like Erwin, Chastain’s name does not appear in any
of the incident reports. Moreover, Plaintiff himself was unable to testify whether Chastain was in
fact involved (ECF No. 137-2 at 5, 6), while Defendant Chastain has provided an affidavit stating
under oath that he was assigned to, and did not leave, the C-Pod tower during the alleged assault
(ECF No. 156 at 2). While Plaintiff questions the veracity of Defendant Chastain’s affidavit, he
has offered only speculation, and not concrete evidence related to Defendant Chastain’s
whereabouts and activities on the relevant day. By his Objections, Plaintiff argues that:
The fact that [Chastain] denied being present and the . . . rover officer who was in
the C-pod didn’t write a report, is sufficient evidence to prove that he is either lying
or colluded with the other defendants and didn’t write a report.
ECF No. 178 at 2. In effect, Plaintiff seeks to rely on evidence of other acts by Defendant
Chastain to create the presumption that his conduct on September 11, 2011, conformed with his
conduct on other, unrelated occasions.

While recognizing the intuitive appeal of such an

argument, the Federal Rules of Evidence and fundamental notions of fairness prohibit the Court
from making precisely the presumption or inference urged by Plaintiff. Instead, the Court
observes that evidence related to Chastain’s conduct on other occasions is no evidence of his
whereabouts or activities on September 11, 2011. Because Plaintiff has offered no evidence to
establish that Defendant Chastain was involved in, or even present for, the alleged assault,
Defendant Chastain is entitled to summary judgment, as recommended by the Magistrate Judge.
Finally, with respect to Defendant Chapman, like Chastain, Chapman has provided a sworn
affidavit testifying that he was assigned to the A-Pod tower on September 11, 2011, and remained
at his post during the alleged assault. ECF No. 153 at 2. Defendant Chapman’s recounting of the

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day is corroborated by the duty roster (ECF No. 105-1 at 2) as well as numerous incident reports.
Indeed, Plaintiff himself testified that he had no evidence to support his speculation that Defendant
Chapman left the A-Pod tower. ECF No. 105-1 at 6, 8. Again, because Plaintiff has offered no
evidence to establish that Defendant Chapman was present during the alleged assault, Defendant
Chapman is entitled to summary judgment, as recommended by the Magistrate Judge.
V.

CONCLUSION
For the foregoing reasons, the Court ACCEPTS AND INCORPORATES the Proposed

Findings and Recommendations of the Magistrate Judge (ECF Nos. 161 and 162); DENIES
Plaintiff’s Objections to the Proposed Findings and Recommendations (ECF No. 178); GRANTS
Defendant Jerry Ryder’s Motion to Dismiss (ECF No. 102) and DISMISSES, with prejudice,
Plaintiff’s Complaint against Defendant Jerry Ryder for failure to state a claim compensable at
law; DISMISSES, with prejudice, Plaintiff’s Complaint against Defendant “Correctional Officer
Ryder” as barred by the statute of limitations; and GRANTS Defendants Erwin, Chastain, and
Chapman’s motion for summary judgment (ECF No. 105) and DISMISSES Defendants Erwin,
Chastain, and Chapman.
The Court DIRECTS the Clerk to forward copies of this written opinion and order to all
counsel of record, and any unrepresented parties.

ENTER:

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March 25, 2015