Berryman v. Mullen

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

MICHAEL BERRYMAN,

Plaintiff,

v. // CIVIL ACTION NO. 1:16CV47

(Judge Keeley)

OFFICER CHRISTOPHER MULLEN;

OFFICER JOHN DOE 1, BOP Officer;

OFFICER JOHN DOE 2, BOP Officer;

LT. JERALD RIFFLE; OFFICER BRAD

BROWN; OFFICER JOHN BRADY;

FOUR UNKNOWN BOP OFFICERS;

and PA CHRISTOPHER MEYER,

Defendants.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

On March 23, 2016, the plaintiff, Michael Berryman (“Berryman”),

filed this Bivens1 action, alleging that the defendants failed to

protect him from a dangerous cellmate, violated his due process rights

by placing him in punitive segregation, and failed to provide

appropriate medical treatment (Dkt. No. 1). Pursuant to 28 U.S.C. § 636

and the local rules, the Court referred the complaint to the Honorable

James E. Seibert, United States Magistrate Judge, for initial review.

Now pending is Magistrate Judge Seibert’s Report and Recommendation

(“R&R”), recommending that the Court grant in part and deny in part the

1 In Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971), the Supreme Court permitted suit

against federal employees in their individual capacity, creating a

counterpart to suit under 42 U.S.C. § 1983.

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

defendants’ motion to dismiss or, in the alternative, for summary

judgment (Dkt. No. 60).

I. BACKGROUND2

A. The Complaint

While asleep in the Special Housing Unit (“SHU”) at United States

Penitentiary, Hazelton (“USP Hazelton”) during the early morning hours

of May 8, 2014, Berryman was allegedly attacked by his cellmate.

Berryman claims that he was awakened when his cellmate began stomping

on his “left ribcage.” Although able to activate an emergency call

button, Berryman was quickly knocked unconscious by his assailant. He

regained consciousness sometime during the assault and alleges that,

as he attempted to protect himself, he was quickly knocked unconscious

again.

After Berryman regained consciousness the second time, Officer

Christopher Mullen (“Officer Mullen”), who had arrived on the scene,

helped him to his feet and took him to an observation cell where

Berryman was left with paper clothing and bedding.3 According to

2 The R&R contains a more thorough recitation of Berryman’s

factual allegations, as well as the procedural history of the case.

3 Berryman alleges that he and his cellmate were placed in paper

clothing the previous day due to his cellmate’s belligerent behavior

after receiving word of his father’s death (Dkt. No. 1 at 12-13).

2

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

Berryman, he was awakened later that morning by Physician’s Assistant

Christopher Meyer (“PA Meyer”), who noted his superficial injuries but

left without conducting a full examination (Dkt. No. 1 at 14-15).

The central allegation of Berryman’s complaint that forms the

basis for claims one, two, and three of his complaint is that, prior

to the attack, Berryman had repeatedly advised the defendants that his

cellmate, who had a history of violence toward other inmates, had

threatened variously to beat, rape, and kill him if Berryman was not

moved to another cell. Id. at 11-14. Berryman alleges that, despite

having notice of this risk, Officer John Doe I, Officer John Doe II,

Lieutenant Jerald Riffle (“Lt. Riffle”), Officer Brad Brown (“Officer

Brown”), Officer John Brady (“Officer Brady”), Officer Mullen, and Four

Unknown B.O.P. Officers ignored the warning, failed to respond

reasonably, and took no action to prevent the attack. Id. at 9-10, 16.

In his fourth claim, Berryman alleges that Officer Brown, Lt. Riffle,

and the Four Unknown B.O.P. Officers violated his due process rights

by taking his property, placing him in paper clothing, and subjecting

him to punitive segregation without a hearing. Id. at 16. Finally, he

claims that PA Meyer failed to provide timely and sufficient medical

treatment for his injuries. Id. at 17.

In his complaint, Berryman describes the following injuries:

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BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

I have 4 protruding disk [sic] in lower lumbar, severe

stenosis in L lumbar, thecal sac encroachments in lower

lumbar, sliped [sic] disk in L lumbar, stenosis in cervical

spine C3-C7, disk herniation present moderately encroaching

upon the thecal sac at the C03/04 level[,] thecal sac

encroachment and Y hard disks/osteophyt[e] complex thecal

sac encroaching C6/seven, evidence of remote rib fractures

and rib deformity lower left ribs.

Id. In his prayer for relief, Berryman seeks a declaration that his

constitutional rights have been violated, and an award of “compensatory

and punitive damages to the sum of 3,000,000 dollars,” attorneys’ fees

and costs, and anything else that the Court deems just. Id.

B. The Defendants’ Motion

After Magistrate Judge Seibert concluded that Berryman’s

complaint did not warrant summary dismissal, he directed the United

States Marshals Service to effect service on the defendants (Dkt. No.

22). The defendants later moved to dismiss Berryman’s complaint or, in

the alternative, for summary judgment (Dkt. No. 51). In the motion,

they argued that 1) they are entitled to qualified immunity, 2) they

did not fail to protect Berryman from an assault, 3) they were not

deliberately indifferent to Berryman’s medical condition, and 4) PA

Meyer is immune from suit as a commissioned officer of the Public

Health Service (Dkt. No. 52 at 6-15).

In response, Berryman moved to dismiss the defendants’ motion,

asserting that he could not adequately oppose it “until[] he is granted

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BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

some limited discovery” (Dkt. No. 56 at 2). He also submitted a sworn

declaration that many of the individual defendants had falsely stated

that he had never indicated he was in danger (Dkt. No. 56-1).

C. Report and Recommendation

Magistrate Judge Seibert thoroughly considered these issues in an

R&R filed on May 15, 2017 (Dkt. No. 60). First, he reasoned that

Berryman’s failure-to-protect allegations stated a cognizable Eighth

Amendment claim that the defendants had been deliberately indifferent

to a known risk of harm. Id. at 13. Because the defendants had not

provided enough evidence, however, Magistrate Judge Seibert could not

“make a determination . . . as to whether Plaintiff did in fact

repeatedly request to be moved; whether Inmate V.A. did in fact have

a known track record for attacking cellmates; or whether Plaintiff had

more involvement in the May, 2014 incident than the parties have

admitted.”

Furthermore, Magistrate Judge Seibert found that the only

evidence of record was in conflict: Berryman averred that he had

repeatedly advised the defendants of a dangerous situation and had

asked to be moved; the defendants averred that they were completely

unaware Berryman was at risk of harm. Moreover, the defendants had not

provided any medical records, incident reports, separatee lists,

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BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

disciplinary records, or video surveillance tending to support their

contentions. Id. at 15-16. Given that material facts were in dispute,

Magistrate Judge Seibert recommended that the defendants’ motion to

dismiss Berryman’s failure-to-protect allegations be denied. Id. at 17-

18.

The R&R also construed Berryman’s fourth claim - labeled “due

process” - as asserting two constitutional violations: 1) confinement

in punitive segregation without a hearing in violation of the Fifth

Amendment’s provision of due process; and 2) denial of access to

regular clothing, regular bedding, and personal belongings in violation

of the Eighth Amendment prohibition against cruel and unusual

punishment. Id. at 26-32. As to the Fifth Amendment due process

violation, Magistrate Judge Seibert reasoned that, even assuming

Berryman’s segregation had been based on false allegations, he “does

not have a constitutional right to be free from false disciplinary

reports.” Id. at 28-29. As to Berryman’s Eighth Amendment claim, he

reasoned that involuntary confinement in the SHU without regular

clothing or personal belongings does not constitute cruel and unusual

punishment. Id. at 31-32. He therefore recommended that Berryman’s

fourth claim against Lt. Riffle, Officer Brown, Officer Brady, and Four

Unknown B.O.P. Officers be dismissed.

6

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

Magistrate Judge Seibert further concluded that Berryman’s fifth

claim, alleging that PA Meyer had failed to timely and adequately treat

his injuries, must be dismissed in its entirety because, as a

commissioned officer of the Public Health Service, under 42 U.S.C. §

233(a), PA Meyer is immune from Bivens suits, and can only be sued

pursuant to the Federal Tort Claims Act (“FTCA”). Id. at 25-26.

Finally, Magistrate Judge Seibert recommended that the Court dismiss

all of Berryman’s claims against John Doe I, John Doe II, and the Four

Unknown B.O.P. Officers, as he has failed for more than a year to

provide their true identities and to effect service of process upon

them. Id. at 32-33.

The R&R informed the parties of their right to file “written

objections identifying the portions of the recommendation to which

objections are made, and the basis for such objections.” It further

warned them that the failure to do so may result in waiver of their

right of appeal. Id. at 34. Although the defendants did not file

any objections to Magistrate Judge Seibert’s recommendations, after

receiving an extension of time, Berryman did file timely objections

on June 30, 2017 (Dkt. Nos. 63; 67).4

4 On August 14, 2017, the Court dismissed Berryman’s separately

filed FTCA case for failure to state a claim (Civ. No. 1:16cv63).

7

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

II. STANDARD OF REVIEW

When reviewing a magistrate judge’s R&R, the Court must review

de novo only the portions to which an objection is timely made. 28

U.S.C. § 636(b)(1)(C). On the other hand, “the Court may adopt,

without explanation, any of the magistrate judge’s recommendations

to which the prisoner does not object.” Dellacirprete v. Gutierrez,

479 F. Supp. 2d 600, 603-04 (N.D.W. Va. 2007) (citing Camby v.

Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those

portions of a recommendation to which no objection has been made

unless they are “clearly erroneous.” See Diamond v. Colonial Life

& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

Vague objections to an R&R distract a district court from

“focusing on disputed issues” and defeat the purpose of an initial

screening by the magistrate judge. McPherson v. Astrue, 605 F.

Supp. 2d 744, 749 (S.D.W. Va. 2009) (citing Howard’s Yellow Cabs,

Inc. v. United States, 987 F. Supp. 469, 474 (W.D.N.C. 1997)).

Failure to raise specific errors waives the claimant’s right to a

de novo review because “general and conclusory” objections do not

Thereafter, Officer Mullen, Officer Brown, Officer Brady, and Lt.

Riffle moved to dismiss this case pursuant to the judgment bar of 28

U.S.C. § 2676 (Dkt. No. 69).

8

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

warrant such review. Id. (citing Orpiano v. Johnson, 687 F.2d 44,

47 (4th Cir. 1982); Howard’s Yellow Cabs, 987 F. Supp. at 474); see

also Green v. Rubenstein, 644 F. Supp. 2d 723 (S.D.W. Va. 2009).

Indeed, failure to file specific objections waives appellate review

of both factual and legal questions. See United States v. Schronce,

727 F.2d 91, 94 & n.4 (4th Cir. 1984); see also Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991).

III. DISCUSSION

In his “Motion of Objection” to the R&R, Berryman objects “to all

the summary judgment that has been ruled in favor of the defendants and

to the fact that Plaintiff filed two [] motions for discovery and they

were denied” (Dkt. No. 67 at 2). Aside from several inconsequential

factual inaccuracies,5 Berryman’s objections fail to identify

specific errors in Magistrate Judge Seibert’s findings, thereby

placing the Court under no obligation to conduct a de novo review.

Diamond, 414 F.3d at 315.

5 For instance, the R&R states that “officers” saw Berryman being

attacked upon arrival at his cell, while only one officer’s declaration

actually says as much; the R&R suggests that Berryman must have arrived

at USP Hazelton in May 2014, but he claims to have arrived in March

2014; and the R&R states that Nurse “Frind” returned Berryman’s

clothing, but he claims “Lt. Frindley” did so (Dkt. No. 67 at 2-3).

9

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

When his objections are liberally construed, however, it is

clear that Berryman takes issue with the R&R’s conclusion that he

failed to allege a due process violation, and its recommendation

that his failure-to-treat claim against PA Meyer be dismissed. See

DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 (S.D.N.Y.

2009) (noting that pro se objections should be “construed to raise

the strongest arguments that they suggest” (internal quotation

omitted)). Upon de novo review of those issues, the Court discerns

no errors in Magistrate Judge Seibert’s recommendations.

A. Due Process Rights

Berryman’s fourth claim alleges that Officer Brown, Lt. Riffle,

and Four Unknown B.O.P. Officers violated his due process rights when

they “took all property from [him], placeing [sic] into paper clothing

without anything for 11 days.” According to Berryman, this “punitive

segregation” imposed such an “atypical and significant hardship” that

he was entitled to the protection of a hearing, which he did not

receive (Dkt. No. 1 at 16). Magistrate Judge Seibert reasoned that

Berryman took issue with being placed in segregation on the basis of

a charge that later was determined to have been false, a claim that he

further reasoned has no constitutional basis (Dkt. No. 60 at 27-28).

In his objections, Berryman clarifies that he “received a disciplinary

10

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

for a torn sheet and blanket after [he] was placed into paper clothing

and it was found to be no good for due process reasons[.] [He] spent

11 days in paper, no blankets, hygiene strip cell, and [he] did nothing

wrong to be there” (Dkt. No. 67 at 3).

Although touched on briefly in the R&R, Berryman’s due process

claim is procedural and obliges the Court to determine 1) whether there

is a protectable liberty interest at issue, and 2) whether the interest

was, in fact, protected by adequate process. Incumaa v. Stirling, 791

F.3d 517, 526 (4th Cir. 2015). As Berryman recognizes, “prisoners have

a liberty interest in avoiding confinement conditions that impose

‘atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.’” Id. (quoting Sandin v. Conner, 515

U.S. 472, 484 (1995)). Importantly, atypical conditions do not “in and

of themselves provide the basis of a liberty interest,” but must arise

from “policies or regulations,” id. at 527, such as prison

classification regulations. Prieto v. Clarke, 780 F.3d 245, 249 (4th

Cir. 2015); Wilkinson v. Austin, 545 U.S. 209, 221, (2005) (“We have

held that the Constitution itself does not give rise to a liberty

interest in avoiding transfer to more adverse conditions of

confinement.”).

11

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

When an inmate is sentenced to the general population and

subsequently is placed in administrative segregation, the “baseline for

atypicality” is the condition of general population prison life.

Incumaa, 791 F.3d at 527-28. Nonetheless, “[t]he mere limitations on

privileges, property, and activities for administratively segregated

inmates ‘fall[] within the expected perimeters of the sentence imposed

by a court of law.’” Hubbert v. Washington, No. 7:14-cv-00530, 2017 WL

1091943 (W.D.Va. Mar. 22, 2017) (quoting Sandin, 515 U.S. at 485).

Thus, to determine whether an “atypical and significant hardship” has

been imposed, the Supreme Court has outlined a fact intensive inquiry

into “(1) the magnitude of confinement restrictions; (2) whether the

administrative segregation is for an indefinite period; and (3) whether

assignment to administrative segregation had any collateral

consequences on the inmate’s sentence.” Incumaa, 791 F.3d at 530

(citing Wilkinson, 545 U.S. 209); see also Rivera v. Virginia Dep’t of

Corrections, No. 7:15CV00156, 2016 WL 7165997, at *9-*10 (W.D.Va. Dec.

8, 2016).

Several decisions by the Supreme Court and Fourth Circuit are

particularly instructive in this regard. In Beverati v. Smith, the

plaintiff inmates complained of their six-month administrative

12

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

confinement with conditions “more onerous than those specified in

prison regulations.” 120 F.3d 500, 503-04 (4th Cir. 1997).

They claim that when they were initially placed in

segregation, their cells were infested with vermin; were

smeared with human feces and urine; and were flooded with

water from a leak in the toilet on the floor above. And,

they assert, they were forced to use their clothing and

shampoo to clean the cells. In addition, Inmates maintain

that their cells were unbearably hot and that the food they

received was cold.

Id. at 504. Even accepting these allegations as true, the Fourth

Circuit concluded that, “although the conditions were more burdensome

than those imposed on the general prison population, they were not so

atypical that exposure to them for six months imposed a significant

hardship in relation to the ordinary incidents of prison life.” Id.

In Wilkinson v. Austin, the Supreme Court analyzed whether due

process protections adhered to a prisoner’s designation to Ohio’s

Supermax facility, a “maximum-security prison[] with highly restrictive

conditions, designed to segregate the most dangerous prisoners from the

general population.” 545 U.S. at 213. The conditions in Supermax were

more restrictive than even Ohio’s death row or administrative control

units, as inmates remained in their constantly lit, 7 by 14 foot cell

for 23 hours per day. Moreover, the cells and daily routine were

designed to prevent human contact, making the prison “synonymous with

extreme isolation.” The classification system also meant that inmates

13

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

could remain confined in Supermax indefinitely - limited only by the

length of their sentence - and inmates in Supermax also lost parole

eligibility. Id. at 214-15. The Supreme Court found that, “[w]hile any

of these conditions standing alone might not be sufficient to create

a liberty interest,” the combination of severe conditions, indefinite

placement, and parole ineligibility “impose[d] an atypical and

significant hardship,” thus creating a liberty interest in avoiding

Supermax. Id. at 224 (distinguishing Sandin, in which the Supreme Court

found no liberty interest in avoiding 30-day placement in restrictive

disciplinary confinement).

In Incumaa v. Stirling, the Fourth Circuit relied on Beverati and

Wilkinson to conclude that inmates had a liberty interest in avoiding

confinement in North Carolina’s Special Management Unit (“SMU”). 791

F.3d at 532. First, conditions in the SMU were severe: the plaintiff

had “provided uncontested evidence describing . . . the near-daily

cavity and strip searches; the confinement to a small cell for all

sleeping and waking hours, aside from ten hours of activity outside the

cell per month; the inability to socialize with other inmates; and the

denial of educational, vocational, and therapy programs.” Id. at 531

(distinguishing Beverati because it did not involve such a high degree

of social isolation). Further, confinement in the SMU was indefinite

14

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

and could last many years; the plaintiff himself had been confined

there for 20 years. Id.

Here, the entirety of Berryman’s due process claim is the

allegation that, without a hearing or just cause, he was placed in a

“strip cell” for 11 days without his own clothing, hygiene products,

or other personal property. Taking these allegations in the light most

favorable to Berryman, they do not demonstrate the existence of a

liberty interest. Beverati, 120 F.3d at 503. As an initial matter,

Berryman failed to allege that his segregation arose from “policies or

regulations.” Incumaa, 791 F.3d at 527. But more importantly, he failed

to allege facts plausibly sufficient to support the bare legal

conclusion that the conditions or duration of his confinement subjected

him to an “atypical and significant hardship” (Dkt. No. 1 at 16).

First, the property restrictions allegedly imposed upon Berryman

are not such a “dramatic departure” from the ordinary conditions of

general population prison life that they establish a state-created

liberty interest. See Prieto, 780 F.3d 254; see also Prince v.

Crawford, No. 3:16-cv-02317, 2017 WL 2991350, at *15 (S.D.W. Va. May

31, 2017). There is no allegation that Berryman’s segregation involved

the invasive or extremely isolated conditions described in Incumaa. 791

F.3d at 532. Much like the six months of filthy and uncomfortable

15

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

conditions to which inmates were allegedly subjected in Beverati,

deprivation of normal clothing and hygiene products for 11 days is not

atypical enough to merit constitutional protections. Beverati, 120 F.3d

at 503; see also Sandin, 515 U.S. at 486 (30 days).

In addition, “the concerns espoused in Wilkinson and Incumaa

focus on the indefinite nature of supermax confinement.” Hubbert, No.

7:14-cv-00530, 2017 WL 1091943, at *6. Berryman simply does not allege

that his brief tenure in “punitive segregation” was indefinite or that

it had any collateral consequences on his sentence. Incumaa, 791 F.3d

at 530. Rather, his allegations regarding the conditions of his

segregation are exactly the type that, “standing alone,” are

insufficient to create a liberty interest. Wilkinson, 545 U.S. at 224.

The Court “do[es] not in any way minimize the harshness of”

Berryman’s 11-day segregation, as his conditions of confinement were

no doubt undesirable during that time. Prieto, 780 F.3d at 254

(discussing the conditions on Virginia’s “death row”). Nonetheless, for

the reasons discussed, it is plain that his segregation fell within the

bounds of the “broad latitude” that the Supreme Court affords

correctional officers “to set prison conditions as they see fit.” Id.

(Wilkinson, 545 U.S. at 227). Therefore, the Court agrees that Berryman

16

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

has failed to state a plausible claim for relief regarding alleged

procedural due process violations.

B. Failure to Provide Treatment

Magistrate Judge Seibert recommended that Berryman’s fifth claim

asserting that PA Meyer failed to provide timely and appropriate

treatment for his injuries be dismissed because PA Meyer is immune from

a Bivens suit as a commissioned officer of the Public Health Service

(Dkt. No. 60 at 26). In his objections, Berryman reiterates that the

BOP has consistently delayed proper medical treatment - including X-

ray, CT, and MRI scans. Although Berryman believes that he experiences

neck and back problems, along with associated pain, that are the direct

result of the attack in question, few doctors have credited his

complaints (Dkt. No. 67 at 4-5).

The viability of Berryman’s failure-to-treat claim depends on

whether he may sue PA Meyer, not the extent of his injuries. As

Magistrate Judge Seibert discussed, the sole recourse an inmate

such as Berryman has for injury inflicted by a commissioned officer

of the Public Health Service acting within the scope of his

employment is against the United States pursuant to the Federal

Tort Claims Act. 42 U.S.C. § 233(a); Carlson v. Green, 446 U.S. 14,

18-19 (1980). In most cases, immunity is “established by a

17

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

declaration affirming that the defendant was a PHS official during

the relevant time period.” Hui v. Castaneda, 559 U.S. 799, 811

(2010). PA Meyer submitted such a declaration in this case, the

veracity of which has not been contested (Dkt. No. 52-7).

Therefore, despite Berryman’s contentions concerning his injuries

and treatment, PA Meyer is not subject to suit in this

Bivens action, and the failure-to-treat claim against him cannot

survive.

IV. CONCLUSION

For the reasons discussed, as well as those more fully outlined

in the R&R, the Court:

1) ADOPTS the R&R (Dkt. No. 60);

2) DENIES in part the defendants’ Motion to Dismiss or, in the

Alternative, for Summary Judgment as to Berryman’s failure-

to-protect claims against Lt. Riffle, Officer Brady, Officer

Brown, and Officer Mullen (Dkt. No. 51);

3) GRANTS in part the defendants’ Motion to Dismiss or, in the

Alternative, for Summary Judgment as to Berryman’s due

process claim against Officer Brown, Officer Brady, and Lt.

Riffle; his claim that PA Meyer was deliberately indifferent

18

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

to his medical needs; and all of his claims against John Doe

I, John Doe II, and the Four Unknown BOP Officers; and

4) GRANTS in part and DENIES in part Berryman’s Motion to

Dismiss or Stay the Defendants’ Motion to Dismiss or for

Summary Judgment (Dkt. No. 56).

V. ROSEBORO NOTICE

The Court ADVISES Berryman that, on August 15, 2017, Officer

Mullen, Lt. Riffle, Officer Brown, and Officer Brady filed a

further motion to dismiss Berryman’s claims against them (Dkt. No.

69). More particularly, they argue that the “judgment bar” of 28

U.S.C. § 2676 precludes Berryman’s pending Bivens claims because

the Court recently dismissed his separate FTCA case (Dkt. No. 70 at

6). Berryman has a right to respond to their motion, and the

failure to do so could result in the entry of an order of dismissal

against him. Davis v. Zahradrich, 600 F.2d 458, 460 (4th Cir.

1979); Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975).

Fed. R. Civ. P. 12(b)(6) allows a defendant to move for

dismissal on the grounds that a complaint does not “state a claim

upon which relief can be granted.” When reviewing a complaint, the

Court “must accept as true all of the factual allegations contained

19

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d 181, 188

(4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94

(2007)). “While a complaint . . . does not need detailed factual

allegations, a plaintiff’s obligation to provide the ‘grounds’ of

his ‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause

of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (internal citation omitted).

A court is “not bound to accept as true a legal conclusion

couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265,

286 (1986). “[A] complaint must contain ‘enough facts to state a

claim to relief that is plausible on its face.’” Anderson, 508 F.3d

at 188 n.7 (quoting Twombly, 550 U.S. at 547). “A claim has facial

plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). A motion to dismiss “does not resolve contests

surrounding the facts, the merits of a claim, or the applicability

of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952

(4th Cir. 1992).

20

BERRYMAN V. MULLEN, ET AL. 1:16CV47

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND

RECOMMENDATION [DKT. NO. 60] AND GRANTING IN PART AND

DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS OR, IN

THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 51], AND

ROSEBORO NOTICE REGARDING MOTION TO DISMISS [DKT. NO. 69]

Therefore, the Court DIRECTS Berryman to file any opposition to

the defendants’ motion within 21 days of the entry of this Order,

explaining why his case should not be dismissed. Berryman’s response

may not exceed 25 pages.

It is so ORDERED.

The Court DIRECTS the Clerk to transmit copies of this Order to

counsel of record and to the pro se plaintiff, certified mail and

return receipt requested.

DATED: August 17, 2017.

/s/ Irene M. Keeley

IRENE M. KEELEY

UNITED STATES DISTRICT JUDGE

21