# Bates v. Saad

> District Court, N.D. West Virginia · March 13, 2018

URL: https://www.frixlaw.com/law-library/cases/10724929

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** March 13, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10724929

## How later opinions describe it (automated extraction)

- finding that challenges to the fact or length of confinement are properly considered in the context of habeas corpus

## Opinion text

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
2
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
3
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
4
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
7
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
8
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
9
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
10
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
11
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,
12
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
13
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

14
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10724929. Public record. Not legal advice.