The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DARRELL CADLE, JR.,
Plaintiff,
v. Civil Action No. 1:17CV218
(Judge Keeley)
JIM RUBENSTEIN, MIKE COLEMAN,
MARVIN PLUMLEY, Warden, HCC,
official and individual capacity,
JEREMY SMITH, CO, Bailiff, official
and individual capacity
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 57],
GRANTING DEFENDANTS’ MOTIONS TO DISMISS [DKT. NOS. 29, 47, 51],
AND DISMISSING PLAINTIFF’S SECOND AMENDED COMPLAINT [DKT. NO. 21]
On December 18, 2017, pursuant to 42 U.S.C. § 1983, the pro se
plaintiff, Darrell Cadle, Jr. (“Cadle”), filed a civil rights
complaint against multiple employees of the West Virginia
Department of Corrections (“WVDOC”) (Dkt. No. 1). Cadle’s claims
arise out of an alleged incident on July 5, 2016, at the
Huttonsville Correctional Center (“HCC”). Id. As a matter of
right, on January 7, 2018, Cadle filed an amended complaint (Dkt.
No. 8). Pursuant to 28 U.S.C. § 636 and the local rules, the Court
referred the matter to United States Magistrate Judge Michael J.
Aloi for initial review.
On April 18, 2018, Cadle moved for leave to file a second
amended complaint (Dkt. No. 19), which Magistrate Judge Aloi
granted on April 24, 2018 (Dkt. No. 20). According to the second
amended complaint (“Complaint”), Cadle fell down a stairway at HCC
CADLE V. RUBENSTEIN, ET AL. 1:17CV218
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 57],
GRANTING DEFENDANTS’ MOTIONS TO DISMISS [DKT. NOS. 29, 47, 51],
AND DISMISSING PLAINTIFF’S SECOND AMENDED COMPLAINT [DKT. NO. 21]
while fully restrained by ankle shackles, a belly chain, and
handcuffs. As a result of the fall, Cadle contends he suffered
injuries to his wrist, arm, back, neck, shoulder, and hip. Id. at
5, 9. Cadle alleges that the defendants violated his Eighth
Amendment rights by acting with deliberate indifference and failing
to protect him from falling (Dkt. Nos. 21 at 7,9; 21-1 at 2-3, 6).
He further alleges that the defendants violated WVDOC policy by
failing to ensure that he was properly assisted when he descended
the stairs while fully restrained (Dkt. No. 21-1 at 6). For relief,
Cadle seeks compensatory and punitive damages, as well as
injunctive relief in the form of reprimands, sanctions, training,
and terminations. Id. at 9; Dkt. No. 19-2 at 6-7.
On May 30, 2018, defendant Marvin Plumley (“Plumley”) moved to
dismiss the Complaint under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim on which relief can be
granted (Dkt. No. 29). Thereafter, on August 27, 2018, defendants
Jim Rubenstein (“Rubenstein”) and Mike Coleman (“Coleman”) joined
the motion (Dkt. No. 47). Then, on September 4, 2018, defendant
Jeremy Smith (“Smith”) moved to dismiss the Complaint for failure
to state a claim and because he is entitled to qualified immunity
(Dkt. No. 51). Despite his receipt of three Roseboro notices
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CADLE V. RUBENSTEIN, ET AL. 1:17CV218
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 57],
GRANTING DEFENDANTS’ MOTIONS TO DISMISS [DKT. NOS. 29, 47, 51],
AND DISMISSING PLAINTIFF’S SECOND AMENDED COMPLAINT [DKT. NO. 21]
advising him of his right to respond to the motions (Dkt. Nos. 35,
53, 56), Cadle failed to do so.
Magistrate Judge Aloi’s Report and Recommendation (“R&R”),
entered on October 24, 2018, recommended that the Court grant the
defendants’ motions and dismiss the Complaint with prejudice (Dkt.
No. 57). Noting first that the Complaint alleged no personal
involvement on the part of Plumley, Rubenstein, or Coleman, the R&R
concluded that Cadle’s allegations failed to give rise to any claim
for supervisory liability against those defendants. Id. at 9-10.
The R&R also concluded that Cadle had failed to allege facts
sufficient to state a claim that Smith was deliberately indifferent
to his safety when escorting him down the stairs. Specifically, the
R&R concluded that, at most, Cadle’s allegations stated a claim for
negligence, which is insufficient to state a cognizable claim under
§ 1983. Id. at 10-13.
Finally, to the extent Cadle sought to bring a claim regarding
a violation of WVDOC policy, the R&R concluded that he had failed
to state a claim founded upon a violation of constitutional rights.
Id. at 13-14.
The R&R informed the parties of their right to file written
objections, identifying those portions of the recommendation to
which objections are made, and the basis for such objections. Id.
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CADLE V. RUBENSTEIN, ET AL. 1:17CV218
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 57],
GRANTING DEFENDANTS’ MOTIONS TO DISMISS [DKT. NOS. 29, 47, 51],
AND DISMISSING PLAINTIFF’S SECOND AMENDED COMPLAINT [DKT. NO. 21]
at 15. It further warned that failure to do so could result in
waiver of the right to appeal. Id. To date, no party has filed any
objections to the R&R.
When reviewing a magistrate judge’s R&R, the Court must review
de novo only those portions of the R&R to which an objection has
been 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. 2005)). Courts will uphold those portions of the
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).
Because no party has objected, the Court is under no
obligation to conduct a de novo review. Dellacirprete, 479 F. Supp.
at 603-04. Upon review of the R&R and the record for clear error,
the Court:
1. ADOPTS the R&R (Dkt. No. 57);
2. GRANTS Plumley’s motion to dismiss (Dkt. No. 29);
3. GRANTS Coleman and Rubenstein’s motion to dismiss (Dkt.
No. 47);
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CADLE V. RUBENSTEIN, ET AL. 1:17CV218
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 57],
GRANTING DEFENDANTS’ MOTIONS TO DISMISS [DKT. NOS. 29, 47, 51],
AND DISMISSING PLAINTIFF’S SECOND AMENDED COMPLAINT [DKT. NO. 21]
4. GRANTS Smith’s motion to dismiss (Dkt. No. 51); and
5. DISMISSES Cadle’s second amended complaint WITH PREJUDICE
for failure to state a claim upon which relief can be
granted (Dkt. No. 21).
It is so ORDERED.
The Court DIRECTS the Clerk of Court to transmit copies of
this Order to counsel of record and the pro se plaintiff, certified
mail and return receipt requested, to enter a separate judgment
order, and to remove this case from the Court’s active docket.
DATED: November 20, 2018
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
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