Opinion

Greene v. Feaster

Court
District Court, N.D. West Virginia
Filed
Aug 16, 2017
Cited by
0 cases
Authority
More cited than 32.7%

concluding that use of pepper spray to force an inmate’s 11 submission to a haircut did not constitute a serious injury because the inmate was decontaminated and examined by a nurse

How later courts described this case

  • concluding that use of pepper spray to force an inmate’s 11 submission to a haircut did not constitute a serious injury because the inmate was decontaminated and examined by a nurse

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The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

MICHAEL JERMAINE GREENE,

Plaintiff,

v. Civil Action No. 5:16CV51

(STAMP)

SIDNEY FEASTER and DOUG WHITE,

Defendants.

MEMORANDUM OPINION AND ORDER

ADOPTING AND AFFIRMING MAGISTRATE

JUDGE’S REPORT AND RECOMMENDATION,

GRANTING DEFENDANTS’ MOTION TO DISMISS OR,

ALTERNATIVELY, FOR SUMMARY JUDGMENT

OVERRULING PLAINTIFF’S OBJECTIONS AND

DENYING PLAINTIFF’S MOTION FOR VOLUNTARY DISMISSAL

The pro se1 plaintiff, Michael Jermaine Greene (“Greene”),

filed this civil action asserting claims under 42 U.S.C. § 1983.

The case was referred to United States Magistrate Judge James E.

Seibert. The defendants filed a motion to dismiss or,

alternatively, for summary judgment. Magistrate Judge Seibert

issued a report recommending that the defendants’ motion be

granted. The plaintiff filed objections to the report and

recommendation. He also filed a motion to voluntarily dismiss his

complaint. For the following reasons, the magistrate judge’s

report and recommendation is adopted and affirmed, the defendants’

motion is granted, the plaintiff’s objections are overruled, and

1“Pro se” describes a person who represents himself in a court

proceeding without the assistance of a lawyer. Black’s Law

Dictionary 1416 (10th ed. 2014).

the plaintiff’s motion to voluntarily dismiss his complaint is

denied.

I. Background

Greene alleges that, while incarcerated at the Huttonsville

Correctional Facility, he was pepper sprayed then not permitted to

timely and thoroughly wash the irritant off. Greene claims that,

while in his cell, he repeatedly activated his staff-call light

without a response. The defendants then instructed Greene to stop

hitting his call light. ECF No. 1-1 at 3. He then repeatedly

kicked his cell door. Id. The defendants instructed Greene stop

kicking his door. ECF No. 40-2. Greene then continued to kick his

door, and the defendants pepper sprayed him. Id. The defendants

then removed Greene from his cell and allowed him to shower. Id.

Greene was then examined by medical staff and returned to his cell.

Id.

Greene alleges he was not taken to the shower for at least

five minutes and that he was not given enough time to shower. He

further alleges that the next day he gave a nurse a request for a

sick-call note, and that his request “went missing” in retaliation

for his earlier noncompliance. Finally, Greene alleges that the

incident and lack of followup medical care constitute deliberate

indifference of his medical needs. He claims the defendants

violated the Eighth Amendment by pepper spraying him, by

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retaliating, and by being deliberately indifferent to his medical

needs.

The defendants filed a motion to dismiss the complaint for

failure to state a claim under Federal Rule of Civil Procedure

12(b)(6) or, alternatively, for summary judgment under Rule 56.

The magistrate judge entered a report recommending that the

defendants’ motion be granted as a motion for summary judgment.

Greene then filed a motion for voluntary dismissal of his

complaint. He also later filed timely objections to the magistrate

judge’s report and recommendation.

II. Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de

novo review of any portion of the magistrate judge’s recommendation

to which objection is timely made. Because Greene filed objections

to the report and recommendation, the magistrate judge’s

recommendation will be reviewed de novo as to those findings to

which objections were made. As to those findings to which

objections were not filed, those findings and recommendations will

be upheld unless they are “clearly erroneous or contrary to law.”

28 U.S.C. § 636(b)(1)(A).

To survive a motion to dismiss under Rule 12(b)(6), “a

[pleading] must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This plausibility

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standard requires a plaintiff to articulate facts that, when

accepted as true, demonstrate that the plaintiff is plausibly

entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th

Cir. 2009) (citing Iqbal, 556 U.S. at 678; Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “The plausibility standard is

not a probability requirement, but asks for more than a sheer

possibility that a defendant has acted unlawfully.” Hall v.

DirectTV, 846 F.3d 757, 765 (4th Cir. 2017). “[C]ourts must accept

as true all of the factual allegations contained in the complaint

and draw all reasonable inferences in favor of the plaintiff.” Id.

“[A] [pleading] is to be construed liberally so as to do

substantial justice.” Id. (internal quotation marks omitted).

Further, this Court must liberally construe pro se complaints.

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon v. Leeke, 574

F.2d 1147, 1151 (4th Cir. 2007). However, while the plaintiff’s

allegations are assumed to be true, Erickson, 551 U.S. at 93, this

Court may not ignore a clear failure in the pleading to allege

facts that set forth a claim. See Weller v. Dep’t of Soc. Servs.,

901 F.2d 387, 390-91 (4th Cir. 1990). This Court may not rewrite

a complaint to include claims that were never presented, Barnett v.

Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), construct the

plaintiff’s legal arguments for him, id., or “conjure up questions

never squarely presented” to the court. Beaudett v. City of

Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

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Under Federal Rule of Civil Procedure 56, this Court must

grant a party’s motion for summary judgment if “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). A fact is

“material” if it might affect the outcome of the case. Anderson v.

Liberty Lobby, 477 U.S. 242, 248 (1986). A dispute of material

fact is “genuine” if the evidence “is such that a reasonable jury

could return a verdict for the non-moving party.” Id. If the

nonmoving party “fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial,” summary

judgment must be granted against that party. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). In reviewing the supported

underlying facts, all inferences must be viewed in the light most

favorable to the party opposing the motion. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The party seeking summary judgment bears the initial burden of

showing the absence of any genuine issues of material fact. See

Celotex, 477 U.S. at 322-23. “The burden then shifts to the

nonmoving party to come forward with facts sufficient to create a

triable issue of fact.” Temkin v. Frederick County Comm’rs, 945

F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992).

However, “a party opposing a properly supported motion for summary

judgment may not rest upon the mere allegations or denials of his

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pleading, but . . . must set forth specific facts showing that

there is a genuine issue for trial.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986). Moreover, “[t]he nonmoving party

cannot create a genuine issue of material fact through mere

speculation or the building of one inference upon another.”

Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008)

(internal quotation marks omitted). The nonmoving party must

produce “more than a ‘scintilla’” of evidence “upon which a jury

could properly proceed to find a verdict for the party producing

it.” Id. (internal quotation marks omitted) (quoting Anderson, 477

U.S. at 251).

III. Discussion

While the magistrate judge did not expressly consider

qualified immunity, the defendants raise the issue in their motion

to dismiss or, alternatively, for summary judgment. Accordingly,

this Court considers the issue de novo.

“The doctrine of qualified immunity protects government

officials from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks

omitted). Courts must consider two steps in determining whether an

official is entitled to qualified immunity. Id. at 232. “First,

a court must decide whether the facts that a plaintiff has alleged

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. . . make out a violation of a constitutional right. Second,

. . . the court must decide whether the right at issue was ‘clearly

established’ at the time of the defendant’s alleged misconduct.”

Id. Courts need not determine whether a violation has occurred if

the court finds the right at issue was not clearly defined. Id. at

236. For the reasons set forth below, this Court finds the

defendants are entitled to qualified immunity because Greene fails

to demonstrate that his Eighth Amendment rights were violated.

A. Eighth Amendment

The Eighth Amendment prohibits cruel and unusual punishment.

This right extends to “the treatment an inmate receives in prison

and the conditions under which he is confined.” Danser v.

Stansberry, 772 F.3d 340, 346 (4th Cir. 2014) (citing Farmer v.

Brennan, 511 U.S. 825, 832-33 (1994)). To prove this kind of

Eighth Amendment violation, the plaintiff must show: (1) an

objectively serious deprivation of his rights; and (2) that

subjectively the defendant prison official acted with a

“sufficiently culpable state of mind.” Id. (internal quotation

marks omitted). Greene alleges the defendants violated his Eighth

Amendment rights by using excessive force, by retaliating against

his complaints regarding that use of force, and by failing to

provide adequate medical care.

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1. Excessive Force

“[T]he Eight Amendment forbids ‘the unnecessary and wanton

infliction of pain’” by a prison official. Hill v. Crum, 727 F.3d

312, 317 (4th Cir. 2013) (quoting Whitley v. Albers, 475 U.S. 312,

319 (1986)). To prove an excessive force claim, a plaintiff must

show: (1) that the prison official’s use of force was objectively

harmful such that it violates contemporary standards of decency;

and (2) that the prison official’s use of force was not “applied in

a good-faith effort to maintain or restore discipline,” but was

intended to “maliciously and sadistically . . . cause harm.”

Hudson v. McMillian, 503 U.S. 1, 7 (1992). It is the nature of the

force used, and not the extent of the injury caused, that serves as

the relevant inquiry. Wilkins v. Gaddy, 559 U.S. 34, 34 (2010).

However, “not every malevolent touch by a prison guard gives rise

to a federal cause of action.” Id. at 37-38. Thus, “an inmate who

complains of a ‘push or shove’ that causes no discernible injury

almost certainly fails to state a valid excessive force claim.”

Id. at 38.

The magistrate judge concluded that Greene failed to state an

excessive force claim. Greene alleges he repeatedly hit his call

light after not receiving an initial response. He then kicked his

door two or three times the defendants told him to stop or he would

be pepper sprayed. While Green alleges he did not kick his door

again after that, the Use of Force Review Committee’s findings and

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the defendants’ use of force reports indicate that Greene was

ordered multiple times to stop kicking his door and that he did not

comply. See ECF No. 40-2. Only then did the defendants pepper

spray Greene. Although the magistrate judge concluded that Greene

failed to state a claim, this Court further finds that there is no

genuine factual dispute regarding whether Greene failed to comply

with the defendants’ commands. Thus, this Court finds that the use

of pepper spray by the defendants was “applied in a good-faith

effort to maintain or restore discipline.” Hudson, 503 U.S. at 7.

Accordingly, the defendants are entitled to summary judgment on

Greene’s excessive force claim.

2. Retaliation

To state a retaliation claim, a plaintiff “must allege either

that the retaliatory act was taken in response to the exercise of

a constitutionally protected right or that the act itself violated

such a right.” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994)

(citing Neitzke v. Williams, 490 U.S. 319, 327 (1989)). “A claim

of retaliation that fails to implicate any constitutional right

‘lacks even an arguable basis in law,’ and is properly subject to

dismissal.” Id. (citation omitted) (quoting Neitzke, 490 U.S. at

328).

Greene offers only conclusory allegations that the defendants

caused his sick-call note to go missing in retaliation for his

earlier noncompliance with their commands. These allegations do

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not state a plausible claim that the defendants caused his note to

go missing. Further, Greene fails to allege that the defendants

caused his note to go missing in retaliation for the exercise of a

constitutional right. In his objections, Greene argues that the

retaliation occurred after he filed his complaint. However, he

fails to offer sufficient factual allegations to support such a

claim and has not sought to amend his complaint to include any such

additional allegations. Accordingly, Greene’s retaliation claim

must be dismissed.

3. Deliberate Indifference

The magistrate judge concluded that Greene failed to state a

claim for deliberate indifference. Greene did not object to this

conclusion. Accordingly, the magistrate judge’s conclusions as to

this issue will be reviewed for clear error.

Corrections officers violate the Eighth Amendment if they were

deliberately indifferent to a risk of substantial harm to an

inmate. Farmer v. Brennan, 511 U.S. 825, 833, 834 (1994). To show

such a claim, the plaintiff must show: (1) that he suffered a

“serious or significant physical or emotional injury”; and (2) that

[the] offic[er]s were deliberately indifferent to a known risk of

such injury. Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir.

2014). To show that a prison official acted with deliberate

indifference, the plaintiff must show two things. First, “that the

official in question subjectively recognized a substantial risk of

10

harm. It is not enough that the officers should have recognized

it; they actually must have perceived the risk.” Parrish ex rel.

Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (emphasis in

original). Second, “that the offic[er] . . . subjectively

recognized that his actions were inappropriate in light of that

risk . . . . [I]t is not enough that the offic[er] should have

recognized that his actions were inappropriate; the offic[er]

actually must have recognized that his actions were insufficient.”

Id. (internal quotation marks omitted) (emphasis in original).

Knowledge of the risk may be inferred, but the risk “must be so

obvious that the fact-finder could conclude that the [official] did

know of it because he could not have failed to know of it.” Id.

(internal quotation marks omitted) (emphasis in original).

Moreover, a claim for deliberate indifference requires more than

mere negligence, as “deliberate indifference describes a state of

mind more blameworthy than negligence.” Farmer, 511 U.S. at 835.

Greene was exposed to pepper spray then taken to a shower for

decontamination after a delay of a few minutes. He was then

examined by a nurse, who found no injuries. Further, Greene does

not allege his exposure to pepper spray led to some lasting

physical reaction or injury. These allegations do not constitute

serious or significant physical or emotional injury. See, e.g.,

Siggers v. Renner, 37 F. App’x 138, 140-41 (6th Cir. 2002)

(concluding that use of pepper spray to force an inmate’s

11

submission to a haircut did not constitute a serious injury because

the inmate was decontaminated and examined by a nurse). Thus, this

Court finds no clear error in the magistrate judge’s conclusions.

B. Motion for Voluntary Dismissal

Greene filed a motion to voluntarily dismiss his complaint for

“improper venue.” He states that the Northern District of West

Virginia is not the proper venue for this action, and that he will

refile his complaint in the Southern District. However, the

Huttonsville Correctional Center is located in Huttonsville,

Randolph County, West Virginia, within the Northern District of

West Virginia. Because “a substantial part of the events or

omissions giving rise to the claim[s] occurred” in this district,

venue is proper in this Court. 28 U.S.C. § 1391(b)(2).

Accordingly, Greene’s motion to voluntarily dismiss his complaint

for improper venue is DENIED.

IV. Conclusion

For the above reasons, the magistrate judge’s report and

recommendation (ECF No. 57) is ADOPTED AND AFFIRMED. The

defendants’ motion to dismiss or, alternatively, for summary

judgment (ECF No. 39) is GRANTED, Greene’s motion for voluntary

dismissal (ECF No. 59) is DENIED, and Greene’s objections to the

report and recommendation (ECF No. 61) are OVERRULED. It is

ORDERED that this civil action be DISMISSED WITH PREJUDICE and

STRICKEN from the active docket of this Court.

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Should the plaintiff choose to appeal the judgment of this

Court to the United States Court of Appeals for the Fourth Circuit

on the issues to which objection was made, he is ADVISED that he

must file a notice of appeal with the Clerk of this Court within 30

days after the date of the entry of this order.

IT IS SO ORDERED.

The Clerk is DIRECTED to transmit a copy of this memorandum

opinion and order to the pro se plaintiff by certified mail and to

counsel of record herein. Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this

matter.

DATED: August 16, 2017

/s/ Frederick P. Stamp, Jr.

FREDERICK P. STAMP, JR.

UNITED STATES DISTRICT JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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