The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DALLAS MICHAEL ACOFF,
Plaintiff,
v. Civil Action No. 5:16CV78
(STAMP)
JOHN R. GORBY, SGT.
and MICHAEL CROGHAN,
Defendants.
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
GRANTING DEFENDANTS’ MOTION TO DISMISS,
CONSTRUED AS A MOTION FOR SUMMARY JUDGMENT
AND OVERRULING PLAINTIFF’S OBJECTIONS
The pro se1 plaintiff, Dallas Michael Acoff (“Acoff”), 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, which the
magistrate judge construed as a motion for summary judgment under
Federal Rule of Civil Procedure 12(d). Magistrate Judge Seibert
issued a report recommending that the defendants’ motion be
granted. The plaintiff filed objections to the report and
recommendation. For the following reasons, the magistrate judge’s
report and recommendation is adopted and affirmed, the defendants’
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).
motion to dismiss construed as a motion for summary judgment is
granted, and the plaintiff’s objections are overruled.
I. Facts
Acoff alleges that, while incarcerated at the Northern
Regional Jail (“NRJ”), he was beaten and pepper sprayed in
violation of the Eighth Amendment. A tower guard reported that a
group of inmates were congregating around one of the cells, so
Michael Croghan (“Croghan”) went to investigate. ECF No. 20-1 at
1. At the cell, Croghan smelled alcohol and attempted to enter the
cell to search for it. Id. However, Acoff blocked the cell
entrance while another inmate flushed the contraband. Id. Croghan
pushed Acoff aside, entered the cell, and searched it. Id. John
R. Gorby (“Gorby”) then ordered the inmates back to their cells and
put them into lockdown. Id.
Acoff refused to comply with several orders to be handcuffed
and returned to his cell. Id. Acoff was then pepper sprayed and
ordered to comply again. Id. He continued to refuse and threw a
carton containing milk at the cell door. Id. Acoff eventually
complied, and he was handcuffed, removed from the cell, and taken
to the medical unit where he was examined by a nurse. Id.
Acoff was then taken to the booking room where he was placed
into a restraint chair. Id. Acoff continued to refuse to comply
with commands and thrashed around in the chair until one of his
legs came loose. Id. As the officers attempted to restrain the
2
loose leg, Acoff continued to thrash, throwing his head around.
Id. Gorby and another officer attempted to apply pressure to
Acoff’s hypoglossal pressure point, under the chin, but it was
ineffective. Id. The officers then successfully applied pressure
to Acoff’s jugular notch pressure point, where the neck and sternum
meet, and the officers were able to strap Acoff’s leg down and
regain control over him. Id. During and after this struggle,
Acoff yelled at the officers and made comments that could be
interpreted as vague threats. The defendants provided video of
most of the encounter, which this Court has reviewed and finds to
be consistent with the facts recited above.
The defendants filed a motion to dismiss that relies upon
attached incident reports and the video. The magistrate judge
entered a report recommending that the defendants’ motion to
dismiss, construed as a motion for summary judgment, be granted.
Acoff then filed timely objections to the 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 Acoff 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
3
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).
Under Rule 12(d), if “on a motion under Rule 12(b)(6) . . .,
matters outside the pleadings are presented to and not excluded by
the court, the motion must be treated as one for summary judgment
under Rule 56.” Fed. R. Civ. P. 12(d). 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 the plaintiff. 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).
4
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
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).
III. Discussion
While the magistrate judge did not expressly consider
qualified immunity, the defendants raise the issue in their motion
to dismiss. 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 . . .
make out a violation of a constitutional right. Second, . . . the
5
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.
“[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.
6
First, Acoff argues that Croghan and Gorby “continually
harassed him by excessive cell searches and forcibaly [sic] pushed
[sic] him into a cell using unnecessary force.” ECF No. 28 at 2.
However, the incident report and video evidence provided by the
defendants shows that Acoff obstructed the officers’ investigation
of possession of contraband alcohol, that he intentionally blocked
Croghan’s entry into the cell, and that he refused to comply with
the officers’ orders. This Court finds that the defendants’ push
and search were done in a good faith effort to maintain and restore
discipline. Further, Acoff does not allege an actual injury from
the push, and “an inmate who complains of a ‘push or shove’ that
causes no discernible injury . . . fails to state a valid excessive
force claim.” Wilkins, 559 U.S. at 38.
Second, Acoff alleges the officers used excessive force when
restraining him in the booking room by pepper spraying, choking,
and punching him. However, the video evidence confirms that Acoff
was pepper sprayed only when he refused to comply with orders to be
removed from the cell. He was not pepper sprayed in the booking
room while restrained, he was not punched, he was not choked, and
he did not have any visible injuries immediately after the
struggle. Further, the officers grabbed Acoff’s leg and applied
force to pressure points on and around his neck and head in a good
faith attempt to restore discipline and to protect themselves from
Acoff’s kicking and thrashing. While Acoff provided photos of his
7
alleged facial injuries, at most those photos show minor bruising
and only de minimis injuries.
This Court finds that no reasonable jury could conclude that
the defendants violated Acoff’s Eighth Amendment rights. Thus, the
defendants are entitled to qualified immunity and summary judgment.
IV. Conclusion
For the above reasons, the magistrate judge’s report and
recommendation (ECF No. 26) is ADOPTED AND AFFIRMED. The
defendants’ motion to dismiss, construed as a motion for summary
judgment, (ECF No. 19) is GRANTED and Acoff’s objections to the
report and recommendation (ECF No. 28) are OVERRULED. It is
ORDERED that this civil action be DISMISSED WITH PREJUDICE 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, 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.
8
DATED: August 17, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
9