Bates v. Saad

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

DONALD CHOYA BATES,

Plaintiff,

v. Civil Action No. 5:16CV161

(STAMP)

JENNIFER SAAD, Warden,

FCI Hazelton,

R. MULAC, Correctional Officer,

FCI Hazelton,

R. SMITH, Correctional Officer,

FCI Hazelton,

C. FLOYD, Correctional Officer,

FCI Hazelton,

J. SQUIRES, Correctional Officer,

FCI Hazelton,

M. DOYLE, Correctional Officer,

FCI Hazelton

and UNKNOWN PARTIES,

Defendants.

MEMORANDUM OPINION AND ORDER

ADOPTING AND AFFIRMING MAGISTRATE

JUDGE’S REPORT AND RECOMMENDATION,

GRANTING DEFENDANTS’ MOTION TO DISMISS,

DENYING PLAINTIFF’S MOTION FOR DISCOVERY

AND OVERRULING PLAINTIFF’S OBJECTIONS

The pro se1 plaintiff filed this civil action asserting claims

under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388

(1971). The case was referred to United States Magistrate Judge

Michael John Aloi. The defendants filed a motion to dismiss or,

alternatively, for summary judgment, and the plaintiff filed a

motion for discovery. Magistrate Judge Aloi issued a report

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).

recommending that the defendants’ motion be granted and that the

plaintiff’s motion be denied as moot. The plaintiff filed timely

objections to the report and recommendation.

I. Background

The plaintiff, Donald Choya Bates, raises claims of excessive

force, deliberate indifference to serious medical needs, and

destruction of personal property arising out of an incident at the

federal correctional institution in Hazelton, West Virginia, (“FCI

Hazelton”). The plaintiff alleges in his complaint that, on

December 10, 2015, he was assaulted by an FCI Hazelton staff member

who accused him of not saying “good morning.” ECF No. 1 at 9. The

plaintiff alleges that he was grabbed by the top front of his shirt

or neck, thrown to the floor of his cell, kicked and punched,

jumped on, and taken to an outside stairwell where he was dragged

backwards down the stairs. The plaintiff alleges that the beating

and kicking of his face and head continued even through he was

handcuffed and not resisting. After the assault, the plaintiff

alleges that he was placed in a holding cell for “numerous hours,”

not fed anything, and not provided with medical care. ECF No. 1 at

12. The plaintiff also alleges that all of his legal and personal

property was destroyed by “[O]fficer R. Mulac or whoever packed

[his] property.” Id. Next, the plaintiff alleges that he was

“sent to a USP from a lower security” institution and transferred

far away from his family because they “jacked up [his] points

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beyond the norm.” Id. Lastly, the plaintiff alleges that the

staff participated in creating a false incident report against him,

which blamed him for the altercation and resulted in the loss of 40

days good time and other sanctions. As a result of the alleged

assault, the plaintiff alleges that he sustained a dislocated or

broken middle finger, injury to his lower back, a swollen right

eye, and bruises and/or scarring to both elbows, knees, wrists, and

his face.

The plaintiff maintains that he has exhausted his

administrative remedies with regard to all claims in his complaint.

For relief, the plaintiffs requests $50,000,000.00 in compensation

for his personal injuries and $2,000,000.00 in compensation for the

destruction of his personal property. The plaintiff also requests

injunctive relief in the form of dismissal of the incident report

and the sanctions against him, the restoration of his 40 days of

lost good time, that he be “restored back to FCI,” and that all of

the officers involved be held accountable for their actions.

The defendants’ motion to dismiss or, alternatively, for

summary judgment, contends that the complaint should be dismissed

because: (1) defendants Saad, Doyle, Floyd, and Squires had no

personal involvement in the plaintiff’s alleged incident of

excessive force, and thus they should be dismissed from this

action; (2) the use of force by defendants Mulac and Smith was a

good faith effort to restore discipline to an unrestrained

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aggressive inmate, and was not excessive; (3) the plaintiff’s

version of events is discredited by the video and documentary

evidence submitted to the Court for in camera review; (4) as

government officials performing discretionary functions, the

defendants are entitled to qualified immunity; (5) the plaintiff’s

claims regarding his disciplinary actions over his incident report

are not cognizable in a Bivens action but must be brought under 28

U.S.C. § 2241; (6) the plaintiff’s claim that he was left without

medical attention for hours is contradicted by documentary

evidence; and (7) the plaintiff’s claim that his property was

destroyed is contradicted by documentary evidence.

In response to the defendants’ motion, the plaintiff contends

that the defendants have withheld parts of the video surveillance

recording that would reveal the guards assaulting him. The

plaintiff further contends that the sworn declarations of the

prison guards regarding the incident are conflicting and

inconsistent with their statements. Lastly, the plaintiff argues

that the copies of his medical records produced by the defendants

are inconsistent with the guards’ statements. In sum, the

plaintiff argues that the guards “are now attempting to cover up

their misconduct by withholding evidence of the assault that took

place in the stairwell after [the plaintiff] was removed from the

housing unit.” ECF No. 53 at 2. The plaintiff also filed a

separate motion for discovery, which asks that the Court compel the

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defendants to disclose to the Court the recording from the camera

that is located in the stairwell area where the alleged excessive

force took place.

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 the petitioner 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, the findings and recommendations will be

upheld unless they are “clearly erroneous or contrary to law.” 28

U.S.C. § 636(b)(1)(A).

III. Discussion

A. Excessive Force Claims

“[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.”

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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.

As to the excessive force claim against defendant Saad, this

Court agrees with the magistrate judge that the plaintiff does not

allege any personal involvement on the part of defendant Saad. See

Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (“In a Bivens

suit, there is no respondeat superior liability. . . . Instead,

liability is personal, based upon each defendant’s own

constitutional violations.”). Thus, remedy under Bivens is not

available against defendant Saad in her official capacity, and she

must be dismissed with prejudice from this civil action.

The plaintiff does allege that the other defendants named in

the excessive force claim all subjected him to excessive force.

However, this Court agrees with the magistrate judge that a review

of the materials supplied by the defendants establishes that the

force used was applied in good faith and in an effort to restore

discipline and order. In reaching this conclusion, this Court

reviewed the DVD containing the Vicon surveillance video footage of

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eight different views of the December 10, 2015 incident, the sworn

declarations of the defendants involved, and the plaintiff’s

medical records.

The video surveillance shows that defendant Mulac did not

throw the plaintiff to the ground without provocation. Rather, it

shows that the incident began in the dayroom with the plaintiff’s

initial refusal to comply with defendant Mulac’s directive to turn

around to submit to a pat-down. The dayroom footage shows the

plaintiff pushing defendant Mulac’s hands away from him and then

shoving defendant Mulac. The footage of the stairwell,

specifically “View L4 Inner” and “View L4 Outer,” shows defendants

Smith and Mulac escorting the plaintiff without issue until the

plaintiff begins to struggle again, at which point defendant Smith

grabs the plaintiff and pulls him down. Defendant Mulac then

assists defendant Smith in regaining control of the plaintiff.

Other correctional officers arrive to help in subduing the

plaintiff, and there does not appear to be any hitting, punching,

or kicking. Once the plaintiff is subdued, he is escorted away

from the area.

This Court also reviewed the sworn declarations of defendants

Mulac and Smith, which clarify the views provided by the Vicon

surveillance footage. Defendant Mulac’s sworn declaration states

as follows:

The plaintiff refused multiple commands to submit to a

pat search. He became aggressive and pushed and slapped

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my hands away. He then became assaulted [sic] toward me,

knocking me to the ground. I did not know if he had a

weapon on him, and was concerned for my safety. I then

activated my body alarm. At this point, the inmate

started to comply, and I escorted him away from the other

inmates and out of the housing area. At that point, I

gave inmate Bates multiple commands to turn around and

cuff up. The inmate refused my commands. He then

appeared to raise his hands in my direction, and another

officer on site brought inmate Bates to the ground. That

officer, inmate Bates, and I fell to the ground, and

other officers, who had responded to the earlier body

alarm, were present and also attempted to subdue the

inmate. Once the inmate was subdued, he was escorted to

Health Services by a Lieutenant. I had no further

interaction with the inmate, and to the best of my

recollection, I was not involved in packing or shipping

the inmate’s property.

ECF No. 37-2 at 2. Defendant Smith’s sworn declaration states:

Another housing officer in the adjacent unit activated

his body alarm at approximately 7:51 am. When I arrived

on scene the other officer was escorting inmate Bates out

of the unit compound’s side door. I witnessed inmate

Bates refuse multiple direct commands to turn and face

the wall. I then saw him begin to lift his hands towards

the officer, and at that point I intervened and brought

him to the ground. On the way to the ground, inmate

Bates landed on top of me. Other officers, who had

responded to the earlier body alarm, were present and

also attempted to subdue the inmate. Once the inmate was

subdued, he was escorted to Health Services by a

Lieutenant. I had no further interaction with the

inmate, and I had no contact with the inmate, and I had

no contact with his property.

ECF No. 37-3 at 2-3.

Additionally, the plaintiff’s medical records do not support

his claim that the defendants took him into the stairwell to

continue beating him. The medical records from the plaintiff’s

first visit on the day of the incident show that the plaintiff had

suffered no trauma except a superficial abrasion below the right

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eye with swelling, and abrasions on the left elbow, right hand,

right wrist, left knee, left hand, and third digit. ECF No. 37-4

at 6-7. The medical records from that visit also show that the

plaintiff was in no apparent respiratory or cardiac arrest. Id.

The plaintiff was seen by Health Services fifty-eight minutes after

the incident. Id.

Thus, based on the video surveillance, the sworn declarations,

and the plaintiff’s medical records, this Court finds on de novo

review that the plaintiff’s excessive force claims against the

other defendants must also be dismissed.

B. Deliberate Indifference Claims

The Eighth Amendment’s prohibition of cruel and unusual

punishments covers “the treatment a prisoner receives in prison and

the conditions under which he is confined,” Helling v. McKinney,

509 U.S. 25, 31 (1993), including the provision of medical care.

Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[A] prison

official’s ‘deliberate indifference to serious medical needs of

prisoners constitutes the unnecessary and wanton infliction of pain

proscribed by the Eighth Amendment.’” Scinto v. Stansberry, 841

F.3d 219, 225 (4th Cir. 2016) (quoting Estelle v. Gamble, 429 U.S.

97, 104 (1976)). To state a claim for an Eighth Amendment

violation, a prisoner must establish that: (1) “the deprivation

alleged [was], objectively, ‘sufficiently serious’” and (2) the

“prison officials acted with a ‘sufficiently culpable state of

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mind.’” Id. (alteration in original) (internal quotation marks

omitted) (quoting Farmer, 511 U.S. at 834).

Under the first “objective” prong, an official’s actions are

“sufficiently serious” if the deprivation is “extreme,” “meaning

that it poses a serious or significant physical or emotional injury

resulting from the challenged conditions, or a substantial risk of

such serious harm resulting from . . . exposure to the challenged

conditions.” Id. (internal quotation marks omitted) (alteration in

original). Where the prisoner alleges deprivation of medical care,

the prisoner must establish “a ‘serious’ medical need that has

either been diagnosed by a physician as mandating treatment or

. . . is so obvious that even a lay person would easily recognize

the necessity for a doctor’s attention.” Id. (alteration in

original) (internal quotation marks omitted).

Under the second “subjective” prong, prison officials must

have acted with deliberate indifference. Id. “To prove deliberate

indifference, plaintiffs must show that ‘the official kn[ew] of and

disregard[ed] an excessive risk to inmate health or safety.’” Id.

(alterations in original) (quoting Farmer, 511 U.S. at 297).

“[T]he plaintiff must show that the official was ‘aware of facts

from which the inference could be drawn that a substantial risk of

serious harm exist[ed], and . . . dr[ew] th[at] inference.’” Id.

(alterations and emphasis in original) (quoting Farmer, 511 U.S. at

297). Where the prisoner alleges deprivation of medical care, the

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prisoner must show “the official’s actual subjective knowledge of

both the inmate’s serious medical condition and the excessive risk

posed by the official’s action or inaction.” Id. at 226 (internal

quotation marks omitted) (brackets omitted). The prisoner must

prove either that the official had actual knowledge of the medical

condition and risk or that the risk was obvious. Id. 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, and

“even officials who acted with deliberate indifference may be ‘free

from liability if they responded reasonably to the risk.’” Scinto,

841 F.3d at 226 (quoting Farmer, 511 U.S. at 844).

This Court agrees with the magistrate judge that the

defendants’ sworn declarations directly contradict the plaintiff’s

contentions. The plaintiff contends that, after the December 10,

2015 incident, he was not fed all day, received no treatment for

his injuries, and was left in a holding cell for numerous hours.

The defendants’ sworn declarations state that, as soon as the

plaintiff was cuffed and subdued, he was taken to Health Services

by a Lieutenant. ECF No. 37 at 4. The defendants also attach a

copy of the plaintiff’s medical record for the visit to Health

Services, which shows that the plaintiff received medical attention

within an hour of the incident, and a total of four times within

the first twenty-eight hours after the incident. ECF No. 37-4 at

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6-7. Thus, the plaintiff cannot establish that the alleged

deprivation was, objectively, sufficiently serious or that,

subjectively, the defendants acted with deliberate indifference.

Accordingly, upon de novo review, this Court finds that the

plaintiff’s deliberate indifference claims should be dismissed.

C. Destruction of Personal Property Claim

This Court also agrees with the magistrate judge that the

plaintiff’s destruction of personal property claim should be

dismissed. The defendants contend that on May 12, 2016, less than

one month after the plaintiff arrived at USP McCreary, the

plaintiff received all of his personal property that was mailed

from FCI Hazelton and signed the BP-382 form indicating that no

items were missing. The plaintiff does not identify in his

pleadings what items of his personal property were allegedly

intentionally destroyed or missing when his property arrived from

FCI Hazelton.

In his objections to the report and recommendation, the

plaintiff contends that he “could not submit his property receipts

to the Court as evidence because they are possessed by prison

officials, and the defendants have not turned over to the Court

[his] property receipts because . . . the property receipts show

that [his] personal property was in fact either lost or destroyed

by prison guards.” ECF No. 59 at 6. However, there is no evidence

on the record to support that contention. Thus, on de novo review,

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this Court finds that the destruction of personal property claim

should be dismissed.

D. Loss of Good Conduct Time

The magistrate judge found that the disciplinary action

decisions resulting in loss of good conduct time are not cognizable

in a Bivens action. The magistrate judge concluded that such

claims should be brought under 28 U.S.C. § 2241. See Preiser v.

Rodriguez, 411 U.S. 475, 487-88 (1973) (finding that challenges to

the fact or length of confinement are properly considered in the

context of habeas corpus). Furthermore, the magistrate judge found

that, even if the misconduct charge were false, the plaintiff does

not have a right to be free from disciplinary reports. See Lewis

v. Viton, No. 07-3663, 2007 WL 2362587, at *9 (D.N.J. Aug. 14,

2007) (“The act of filing false disciplinary charges does not

itself violate a prisoner’s constitutional rights.”). On de novo

review, this Court finds that the magistrate judge is correct, and

that any such claim seeking to expunge a disciplinary action and

restore good conduct time should be dismissed.

E. Unknown Parties/John Doe Defendants

The magistrate judge found that the claims against the unknown

parties/John Doe defendants should be dismissed for failure to

timely effectuate service. A district court is not required “to

wait indefinitely” for a plaintiff to provide a John Doe

defendant’s true identity to the Court. Glaros v. Perse, 628 F.2d

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679, 685 (1st Cir. 1980). Here, it has been one year and over two

months since the plaintiff filed his complaint. This Court agrees

with the magistrate judge that the plaintiff has had more than

sufficient time to provide the correct information in order to

effectuate service on the John Doe defendants. Thus, on de novo

review, this Court finds that the claims against the John Doe

defendant should be dismissed.

F. Motion for Discovery

The plaintiff’s motion for discovery asks that the Court

compel the defendants to disclose to the Court the recording from

the surveillance camera that is located in the stairwell area where

the alleged excessive force took place. The magistrate judge

recommends that the plaintiff’s motion for discovery be denied as

moot based on his recommendation that the defendants’ motion to

dismiss or, alternatively, for summary judgment, be granted. On de

novo review, this Court finds that the motion for discovery should

be denied on the merits rather than denied as moot.

In support of his argument, the plaintiff cites Ogurek v.

Gabor, 827 F.3d 567 (7th Cir. 2016). In Ogurek, a case in which

the plaintiff sought by motion the security video he claimed was

the basis of his disciplinary action, the United States Court of

Appeals for the Seventh Circuit held that “[t]he district judge

erred in refusing to compel production of the security video, which

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would have been the dispositive piece of evidence in this case.”

Ogurek, 827 F.3d at 568.

Upon review of the surveillance footage provided by the

government, this Court finds that the government has already

provided the surveillance footage requested by the plaintiff in his

motion for discovery. Thus, this civil action is distinguishable

from Ogurek. The relevant surveillance footage containing views of

the stairwell, “View L4 Inner” and “View L4 Outer,” is discussed

above in the section dealing with the excessive force claims.

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. 36) is GRANTED. The plaintiff’s motion for

discovery (ECF No. 47) is DENIED, and the plaintiff’s objections to

the report and recommendation (ECF No. 59) are OVERRULED. It is

ORDERED that this civil action be DISMISSED and STRICKEN from the

active docket of this Court.

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 or those that this Court

otherwise determined de novo, he is ADVISED that he must file a

notice of appeal with the Clerk of this Court within 60 days after

the date of the entry of this order.

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IT IS SO ORDERED.

The Clerk is DIRECTED to transmit a copy of this memorandum

opinion and order to the pro se petitioner 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: March 13, 2018

/s/ Frederick P. Stamp, Jr.

FREDERICK P. STAMP, JR.

UNITED STATES DISTRICT JUDGE

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