The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TRAE JAVAR COMPTON,
Plaintiff,
v. Civil Action No. 5:15CV150
(STAMP)
STATE OF WEST VIRGINIA,
TERRY O’BRIEN, Retired,
KEVIN PEARCE, Officer,
MICHAEL BLEDSOE, Officer,
JERALD RIFLE, Lieutenant,
JOHN HUNT, Officer,
SHANE HIXENBAUGH,
Correctional Officer,
WANDA SINES, RN,
TREVOR GEORGE, Officer,
KENNETH CRADDOCK,
Discipline Hearing Officer,
CHRISTOPHER MEYER, P.A. and
TERRENCE GASSER, Officer,
Defendants.
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
GRANTING DEFENDANTS’ MOTION TO DISMISS
OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION TO AMEND HIS COMPLAINT
The pro se1 plaintiff, Trae Javar Compton, filed this civil
action asserting claims under Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971). ECF No. 51. In his amended
complaint, the plaintiff alleges that staff at U.S.P. Hazleton used
excessive force while moving him to a holding cell. ECF No. 51
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).
at 8. The plaintiff alleges that correction officers intentionally
moved the plaintiff to a position outside the view of security
cameras in order to slam, punch, and kick the plaintiff. ECF No.
51 at 8. The plaintiff alleges that he was then put in tight
restraints and denied medical treatment overnight. ECF No. 51
at 9. The plaintiff then alleges that the officers filed a false
incident report pertaining to these events. ECF No. 51 at 8. The
plaintiff is bringing claims under Bivens for excessive force,
deliberate indifference to medical needs, filing a false incident
report, and “1st Amendment [and] 5th Amendment violations.” ECF
No. 51 at 9. The plaintiff claims he has suffered cuts and bruises
from being restrained, nerve damage from the lack of medical
attention, and psychological harm. ECF No. 51 at 9. For relief,
the plaintiff is seeking $200,000.00 in compensatory damages from
each defendant, $1,000,000.00 in punitive damages, and for the
defendants who are correctional officers to be charged for criminal
conduct. ECF No. 51 at 9. Further, the plaintiff alleges that he
was unable to file administrative grievances due to retaliation
against him from staff at U.S.P. Hazleton. ECF No. 51 at 6.
The defendants filed a motion to dismiss or, alternatively,
for summary judgment. ECF No. 113. The defendants argue that the
plaintiff is precluded from bringing his claims because he failed
to exhaust his administrative remedies through the Federal Bureau
of Prisons (“BOP”). ECF No. 114 at 6. Defendants state that,
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under the Prison Litigation Reform Act, an inmate must exhaust
administrative remedies before filing a Bivens lawsuit. ECF No.
114 at 7 (citing Porter v. Tussle, 534 U.S. 516, 524-32 (2002)).
Here, the defendants contend that the plaintiff’s administrative
grievances relating to the events giving rise to this suit remain
unexhausted. ECF No. 114 at 10. Further, the defendants contend
that the plaintiff has not established that he was prevented from
filing a grievance. ECF No. 114 at 11.
Next, the defendants argue that, even if the plaintiff had
exhausted his administrative remedies, he cannot establish a
cognizable Bivens suit. ECF No. 114 at 13. First, the defendants
argue that the plaintiff has not alleged the type of “personal or
supervisory involvement” required in a Bivens claim. ECF No. 114
at 13. Second, the defendants argue that the plaintiff cannot
establish an excessive force claim because the force applied to the
plaintiff was reasonably necessary to maintain security after the
plaintiff became combative. ECF No. 114 at 16-18. Third, the
defendants argue that the plaintiff has not made any specific
factual allegations to support a deliberate indifference claim.
ECF No. 114 at 18. Fourth, the defendants argue that the
plaintiff’s allegation of a false incident report does not relate
to a constitutionally protected right, and thus is not cognizable
under a Bivens claim. ECF No. 114 at 21-23. Fifth, the defendants
argue that the plaintiff has not shown that any of the defendants
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took specific, purposeful action that prevented him from pursuing
administrative remedies. ECF No. 114 at 23-24. Sixth, the
defendants argue that defendant Meyer is immune because Public
Health Service employees are not subject to Bivens liability for
medical decisions within the scope of their employment. ECF No.
114 at 15-16. Finally, the defendants argue that because monetary
damages are the exclusive relief in a Bivens claim, the plaintiff’s
request to have correction officers polygraph tested and criminally
charged is not a cognizable claim. ECF No. 114 at 25.
The plaintiff filed a response to the defendants’ motion. ECF
No. 124. In response, the plaintiff argues that several of the
defendants’ statements in the incident report violate 18 U.S.C.
§ 1001. ECF No. 124 at 8. Further, the plaintiff adds that in
“Jones v. Bock, 549 U.S. 199 (1997), the courts stated that a
prisoner do not need [sic] to show in their complaint that they
have exhausted all grievance procedures.” ECF No. 124 at 10.
After the defendants had filed the motion to dismiss, the
plaintiff also filed another amended complaint. ECF No. 121.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule of
Prisoner Litigation 2, this case was referred to United States
Magistrate Judge James E. Seibert. The magistrate judge entered a
report and recommendation. ECF No. 135. In that recommendation,
the magistrate judge recommended that the defendants’ motion to
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dismiss or for summary judgment be granted and the complaint be
dismissed with prejudice. ECF No. 135 at 29.
First, the magistrate judge found that the plaintiff had
failed to exhaust his administrative remedies. The magistrate
judge found that the plaintiff alleges no specific facts to show
that he reasonably feared retaliation which prevented him from
filing grievances. ECF No. 135 at 13. Further, even if the
plaintiff were prevented from pursuing administrative remedies at
U.S.P. Hazleton, he offers no reason why, after being transferred
to U.S.P. Lewisburg, he waited seven months before filing a
grievance. ECF No. 135 at 13.
Second, the magistrate judge found that the plaintiff cannot
establish his claim of excessive force. ECF No. 135 at 20. The
magistrate judge found that the force applied “was in a good-faith
effort to maintain or restore discipline and not maliciously or
sadistically to cause harm.” ECF No. 135 at 20. Further, the
magistrate judge found that the plaintiff’s medical records do not
support his allegation that he was slammed, punched, and kicked
off-camera. ECF No. 135 at 18.
Third, the magistrate judge found that the plaintiff has
failed to present a deliberate indifference claim because he “does
not identify any individual who he asserts failed to provide him
medical care”. ECF No. 135 at 22-25. Further, the magistrate
judge notes that the plaintiff did not request medical attention at
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any time after this incident while at U.S.P. Hazleton. ECF No. 135
at 25.
Fourth, the magistrate judge found that “the plaintiff does
not have a constitutional right to be free from false disciplinary
reports.” ECF No. 135 at 26. Thus, the magistrate judge found
that this claim was not cognizable in a Bivens action. ECF No. 135
at 25-26.
Fifth, the magistrate judge noted that to the extent that the
plaintiff is attempting to name the State of West Virginia and the
United States of America as defendants, they are improperly named
in a Bivens action. ECF No. 135 at 28.
Lastly, the magistrate judge addressed the plaintiff’s most
recent “amended complaint,” ECF No. 121, filed December 4, 2017.
ECF No. 135 at 128. Construing it as a motion to amend the
complaint, the magistrate judge noted that the plaintiff had
already been allowed to amend his complaint several times, and that
the latest amendment only adds that the plaintiff is seeking
declaratory judgment and injunctive relief. ECF No. 135 at 28-29.
The magistrate judge found that allowing the plaintiff to amend his
complaint at this late stage in the proceedings would be
prejudicial to the defendants because they have already filed a
motion to dismiss or for summary judgment. ECF No. 135 at 29.
Therefore, the magistrate judge recommended that the proposed
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amended complaint be treated as a motion to amend and be either
denied or, alternatively, dismissed as moot. ECF No. 135 at 29.
The plaintiff timely filed objections. ECF No. 137. First,
the plaintiff objects to all facts alleged by the defendants. ECF
No. 137 at 1. Second, the plaintiff objects to the complaint being
dismissed for failing to exhaust remedies. ECF No. 137 at 1. The
plaintiff argues that the requirement to exhaust remedies does not
apply when a threat deterred the prisoner from lodging a grievance,
and a reasonable prisoner would have also been deterred. ECF No.
137 at 3-4. Here, the plaintiff argues that administrative
remedies were effectively rendered unavailable to him because of
his fear of retaliation, specifically as a result of threats from
the warden to transfer the plaintiff to another facility. ECF No.
137 at 4. Finally, the plaintiff objects to his amended complaint
(ECF No. 121) being construed as a motion to amend and being
denied. ECF No. 137 at 1-2. The plaintiff argues that he should
have been allowed to amend his complaint because he “did not have
repeated failures to amend.” ECF No. 137 at 3. The plaintiff does
not address the magistrate judge’s reasoning that allowing
plaintiff to amend would cause undue prejudice to the defendants.
Further, the plaintiff asserts that he was given permission by the
Court to amend his complaint. ECF No. 137 at 3.
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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 plaintiff 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
Because the plaintiff filed objections to the report and
recommendation, this Court reviews the magistrate judge’s
recommendation de novo as to those findings to which objections
were made.
For the reasons stated below, this Court adopts and affirms
the report and recommendation of the magistrate judge in its
entirety, grants the defendants’ motion to dismiss or, in the
alternative, for summary judgment (ECF No. 113), dismisses the
plaintiff’s motion to amend (ECF No. 121) as moot, and dismisses
the plaintiff’s complaint (ECF No. 51) with prejudice.
A. Plaintiff’s First Objection
The plaintiff has raised an objection “to all facts” alleged
by the defendants in the report and recommendation. ECF No. 137
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at 1. The facts that the magistrate judge relied upon in his
report and recommendation come either from the defendants’ exhibits
attached to their memorandum in support of the motion to dismiss,
or from the plaintiff’s own allegations. Further, the plaintiff
has already had an opportunity to respond to the factual
allegations presented by the defendants in his response in
opposition to the defendants’ motion to dismiss. ECF No. 124.
This Court has conducted a de novo review of the record, and finds
that the plaintiff’s objection is without merit and that the facts
relied upon by the magistrate judge have been established by the
record.
B. Failure to Exhaust Administrative Remedies
In his objections, the plaintiff argues that the requirement
to exhaust administrative remedies does not apply when a prisoner
is deterred from lodging a grievance due to a threat and the threat
is one that would deter a reasonable prisoner. ECF No. 137 at 4.
The plaintiff contends that the Warden of FCI Hazleton threatened
to transfer the plaintiff if he appealed the denial of his
grievance. ECF No. 137 at 4.
In its de novo review of whether the plaintiff was prevented
from pursuing administrative remedies, this Court finds that the
plaintiff’s claim is not supported by the record. As the
magistrate judge correctly noted, the United States Court of
Appeals for the Fourth Circuit has held that an administrative
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remedy can be considered unavailable to a prisoner if he is
prevented from utilizing it. ECF No. 135 at 11 (citing Moore v.
Bennett, 517 F.3d 717, 725 (4th Cir. 2008)). The plaintiff
contends that threats from the Warden effectively prevented him
from utilizing the grievance process. However, this Court agrees
with the magistrate judge that the plaintiff “has presented no
claim that is substantial and serious enough that would deter a
similarly situated prisoner of ordinary fitness from pursuing
administrative remedies.” ECF No. 135 at 13. In his objection,
the plaintiff merely asserts that a threat from the Warden rendered
administrative remedies unavailable.
Further, even assuming the plaintiff was prevented from filing
a grievance at U.S.P. Hazleton, the plaintiff has still not
explained why he waited over six months to file a grievance
relating to this incident after being transferred to U.S.P.
Lewisburg. During that time at U.S.P. Lewisburg, the plaintiff
cannot claim he was prevented from pursuing administrative remedies
because he filed six grievances about matters unrelated to this
case. ECF No. 114-1 at 20-22.
C. Amended Complaint
Lastly, the plaintiff objects to the magistrate judge’s
recommendation that the plaintiff’s amended complaint (ECF No. 121)
be construed as a motion to amend and denied or dismissed as moot.
ECF No. 137 at 1-2. Construing the objection liberally, the
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plaintiff appears to argue that he should be allowed to amend the
complaint because he has not had “repeated failures to amend” and
claims he was given permission by the Court to proceed with his
amended complaint. ECF No. 137 at 3.
In its de novo review of the plaintiff’s proposed amended
complaint (ECF No. 121), this Court finds that the plaintiff seeks
to add only declaratory and injunctive relief claims and he does
not allege any new facts or make any new legal arguments related to
the underlying claims. ECF No. 121. Even if the plaintiff were
permitted to amend his complaint, the proposed amended complaint
would not change the Court’s analysis of his claims. Therefore,
this Court agrees with the magistrate judge, and upholds the
recommendation that the amended complaint (ECF No. 121) should be
construed as a motion to amend and be denied.
IV. Conclusion
For the reasons stated above, the magistrate judge’s report
and recommendation (ECF No. 135) is ADOPTED AND AFFIRMED. The
defendants’ motion to dismiss or, alternatively, for summary
judgment (ECF No. 113) is GRANTED. The plaintiff’s “amended
complaint” (ECF No. 121) is construed as a motion to amend and is
DENIED, and the plaintiff’s objections to the report and
recommendation (ECF No. 137) are OVERRULED. It is ORDERED that
this civil action be DISMISSED and STRICKEN from the active docket
of this Court.
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Should the plaintiff choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made 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.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se plaintiff by certified mail and to
counsel of record herein. Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED: September 14, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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