Smith v. Western Regional Jail et al

Filing 52

MEMORANDUM OPINION AND ORDER adopting the 48 Proposed Findings and Recommendations by Magistrate Judge Eifert; dismissing without prejudice Plaintiff's 5 Amended Complaint; granting Defendant's 42 Motion for Summary Judgment insofar as the Plaintiff has not yet exhausted all administrative remedies; and directing that this action be removed from the docket of the Court. Signed by Judge Robert C. Chambers on 9/19/2018. (cc: counsel of record; any unrepresented parties) (jsa)

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

STEVEN ALLEN SMITH,
Plaintiff,
v.

CIVIL ACTION NO. 3:16-cv-12736

CORRECTIONAL OFFICER STEVE ADKINS
Defendant.

MEMORANDUM OPINION AND ORDER
Proceeding pro se, Plaintiff, Steven Allen Smith, commenced this suit under 42 U.S.C.
§1983, seeking prospective and monetary relief for injuries he received during an assault at the
Western Regional Jail (“WRJ”) in Barboursville, West Virginia. Compl., ECF No. 2. Pending are
Plaintiff’s Amended Complaint and Defendant Steve Adkins’ Motion for Summary Judgment. Am.
Compl., ECF No. 5; Mot. Summ. J., ECF No. 42.1 Per standing order, the case was referred to The
Honorable Cheryl A. Eifert, Magistrate Judge, for Proposed Findings and Recommendations
(“PF&R”). Standing Order, at 2, ECF No. 3. In her PF&R issued on May 4, 2018, Magistrate
Judge Eifert recommends this Court dismiss, without prejudice, Plaintiff’s Amended Complaint.
PF&R, at 11-12, ECF No. 48. As explained below, the Court ADOPTS Magistrate Judge Eifert’s
Proposed Findings and Recommendations, consistent with this Memorandum Opinion and Order,
DISMISSES WITHOUT PREJUDICE Plaintiff’s Amended Complaint, and GRANTS

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The Motion for Summary Judgment is incorrectly styled as a Motion to Dismiss, but the
certificate of service and memorandum in support establish that Defendant moves for summary
judgment on Plaintiff’s amended complaint. ECF Nos. 42 at 3, 43.
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Defendant’s Motion for Summary Judgment insofar as the Plaintiff has not yet exhausted all
administrative remedies available to him.
Plaintiff filed objections to the PF&R on May 10, 2017, (Pl.’s Objs. to PF&R, ECF No.
49) which the Court will review de novo. Plaintiff objects to Magistrate Judge Eifert’s Proposed
Findings and Recommendations on the grounds Plaintiff was (1) not an “inmate” as contemplated
by the Prison Litigation Reform Act (“PRLA”) and (2) had sufficiently exhausted the
administrative remedies for the instant case because (a) an oral report to WRJ officials was
sufficient when handling threats and (b) there was not sufficient time to file a formal written
grievance because immediacy of the attack. Id. For the forgoing reasons, the Court rejects
Plaintiff’s objections.
I. Background
At the time of filing the Complaint, Plaintiff was a West Virginia Division of Corrections
(“WVDOC”) inmate incarcerated in the Western Regional Jail (“WRJ”) within this judicial
district. Compl., at 3. Plaintiff filed an Amended Complaint alleging Defendant, a WRJ
correctional officer, allowed another inmate to assault Plaintiff on November 4, 2016. Am. Compl.,
at 1. Plaintiff contends he was housed in the protective custody unit, which allowed only one
inmate out of a cell at a time. Id., at 1; Resp., ECF No. 45, p. 1. According to Plaintiff, he was
released from his cell that morning for a shower and a phone call. However, another inmate had
placed a toothpaste cap in a manner that prevented that inmate’s cell door from locking (“had
capped his door”) and the inmate allegedly emerged from his cell and attacked Plaintiff. Resp., at
1. Plaintiff argues the fact the door was “capped” should have been visible to Defendant, who was
working in the guard tower at the time of the assault, as other guards told him it was “plain as day”
when a door was capped, because electronic equipment displayed a red light when a door was

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unsecured. Id. Plaintiff further claims Defendant should have checked to make sure that the other
inmate’s door was locked before allowing Plaintiff to exit his cell. Id.
Defendant moves for summary judgment on Plaintiff’s Amended Complaint, arguing
Plaintiff has not pursued, much less exhausted, his available administrative remedies as required
under the PLRA, 42 U.S.C. § 1997e(a). Mot. Summ. J.; Memo in Supp., ECF No. 43. Defendant
cites to Plaintiff’s deposition testimony in which Plaintiff stated he did not file any administrative
grievances regarding his claim that Defendant should have conducted proper surveillance to
prevent Plaintiff from being assaulted. Memo in Supp., at 2-3.
II. Standard of Review
This Court conducts a de novo review of those portions of the magistrate judge’s proposed
findings and recommendations to which a party objects. 28 U.S.C. § 636(b)(1)(C) (“A judge of
the court shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. A judge of the court may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate.”). The
Court, however, is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendations
to which no objections are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).2

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Plaintiff does not contest the factual findings made by the Magistrate Judge. Instead,
Plaintiff only objects to two of the Magistrate Judge’s legal conclusions. Finding support in the
record for the Magistrate Judge’s factual conclusions, the Court adopts the factual findings relevant
to Defendants’ Amended Complaint as presented in the PF&R. Likewise, finding support in the
factual record and the applicable law, the Court adopts the legal conclusions of the Magistrate
Judge to which no objections were made, and are not contradicted in this Memorandum Opinion
and Order.
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III. Discussion
In his first objection, Plaintiff argues he was a “pre-trial felon” and not considered an
“inmate” under the PLRA. Pl.’s Objs. to PF&R. In the PF&R, Magistrate Judge Eifert found
Plaintiff to be an “inmate incarcerated in the Western Regional Jail.” PF&R, at 1. While the
Magistrate Judge did not directly address the scope of who qualifies as a “prisoner,” the statute is
cited as applying to “prisoner[s] confined in any jail, prison, or other correctional facility.” Id., at
4 (citing 42 U.S.C. § 199e(a)).
To define a “prisoner,” the PLRA clarifies that this term “means any person incarcerated
or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent
for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or
diversionary program.” 42 U.S.C. § 1997e(h). The plain language of the statute places incarcerated
“pre-trial felons” within the realm of this definition as detained persons “accused of . . . violations
of criminal law.” Id. Plaintiff does not cite, nor does this Court find, legal precedence meriting a
deviation from the plain text of this statute. As such, the Court rejects Plaintiff’s first objection.
In his second objection, Plaintiff argues Magistrate Judge Eifert incorrectly states the
required grievance procedure. Plaintiff asserts the Handbook of Inmate Rules and Procedures
(“WRJ Handbook”), which “serves as the basis for internal discipline in the regional jails” (W. Va.
Code §94-5-2), does not state an inmate “’must’ file a grievance in such matters” and that an
inmate may file a complaint orally to satisfy the procedure. Pl.’s Objs. to PF&R, at 1. Plaintiff
further argues he does not “have time to file a [g]rievance in the time [i]t takes for the the (sic)
other Inmate to [a]ttack me.” Id.
Here, Plaintiff conflates his original action regarding the threats he received as an action
on his present complaint. While plaintiff had filed an oral report under the special procedures of

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the WRJ Handbook for the threats preceding the assault, nowhere in the record has Plaintiff
claimed he invoked any of the internal procedures to trigger an internal investigation of
Defendant’s alleged failure to act upon Plaintiff’s report. This failure to act is a separate legal issue
from the attack itself and is the basis for Plaintiff’s present suit.
Magistrate Judge Eifert has laid out, in detail, the multiple avenues for Plaintiff to file a
routine request or grievance. Plaintiff has admitted to not availing himself of these procedures
within the context of his present complaint, nor has he alleged any functional unavailability of
these procedures. Pl. Depo. Trans., at 24, ECF No. 42-1. As such, Plaintiff’s oral report of threats
does not constitute any action on his claim against Defendant. Furthermore, while this Court takes
seriously the safety of prisoners and the availability of procedures to address potentially dangerous
situations, Plaintiff’s objections miss the mark on the instant legal issue. Therefore, the Court
rejects Plaintiff’s second objection.
IV. Conclusion
Accordingly, for these reasons, the Court ADOPTS the Proposed Findings and
Recommendations of Magistrate Judge Eifert, DISMISSES WITHOUT PREJUDICE Plaintiff’s
Amended Complaint, GRANTS Defendants’ Motion for Summary Judgment insofar as the
Plaintiff has not yet exhausted all administrative remedies, and ORDERS this action be removed
from the docket of the Court.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unpresented parties.
ENTER: September 19, 2018

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
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