# Spicer v. Riffle

> District Court, N.D. West Virginia · February 19, 2019

URL: https://www.frixlaw.com/law-library/cases/10725330

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** February 19, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS

DEONTE VONDELL SPICER,
Plaintiff,
v.
CIVIL ACTION NO. 2:17-CV-122
(BAILEY)
LIEUTENANT RIFFLE, Special
Housing Unit Lieutenant; OFFICER
M. BLEDSOE, Special Housing Unit
Officer; M. LISTEN, Special Housing
Unit Officer; OFFICER K. PEARCE,
Special Housing Unit Officer; D.
HARVISCHAK, Special Housing Unit
Officer; and C. MEYER, Nurse/P.A.,
Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge James P. Mazzone [Doc.
97]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge
Mazzone for submission of a proposed report and a recommendation ("R&R"). Magistrate
Judge Mazzone filed his R&R on January 22, 2019, wherein he recommends the plaintiff's
Complaint be dismissed.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge's findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the

factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo
review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91 ,
94 (4th Cir. 1984). Here, objections to Magistrate Judge Mazzone’s R&R were due within
fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
The docket indicates the plaintiff accepted service on January 28, 2019 [Doc. 100].
Plaintiff timely filed his Objections [Doc. 102] on February 12, 2019. Accordingly, this Court
will review the portions of the R&R to which plaintiff objects under a de novo standard of
review. The remaining portions will be reviewed for clear error.
Discussion
Plaintiff's first allegation is that in late 2015 or early 2016, he was put in full body
restraints and beaten and tortured by Defendant Riffle for complaining about staff
misconduct [Doc. 1 at 7]. Plaintiff alleges that he was denied medical attention by
Defendent Meyer following the beating [/d. at 8]. In addition, Plaintiff alleges that on June
24, 2016, he and his cell mate were taken out of their cell so that Plaintiff could speak to
the Special Investigative Agent (“SIA”) about staff misconduct [/d.]. Plaintiff contends that
Defendants Bledsoe, Harvischak, Liston and Pearce then entered his cell and “flushed all
records" he was using as evidence against staff misconduct [/d.]. Plaintiff also alleges that
Defendant Bledsoe put a razor in his ceil in order to have his cell mate kill him for going to
SIA [/d.]. Although Plaintiff did not allege this in his Complaint, the grievances also allege

that Defendant Bledsoe called him a rat and a snitch. Finally, in addition to alieging that
Defendant Meyer denied him medical attention following the alleged beating, Plaintiff also
asserts that Defendant Meyer refused to provide him his “mental medication.” For the
reasons stated below, this Court adopts the Report and Recommendation given by
Magistrate Judge Mazzone.
I. Christopher Meyer
Plaintiff's first objection is that he “should be held to less stringent standards tha[n]
those drawn by legal counsel who knew’ that Plaintiff should file a complaint under
42 U.S.C. § 233(a) [Doc. 102]. Defendant Christopher Meyer is employed by the Federal
Bureau of Prisons as a Physician's Assistant at FC] Hazelton where he has held that
position since February 28, 2011 [Doc. 97]. Defendant Meyer has been a Commissioned
Officer in the United States Public Health Service (“PHS”) since August 3, 2012 [/d.]. Title
42 U.S.C. § 223(a) makes the Federal Tort Claims Act (“FTCA”) the exclusive civil remedy
against members of the PHS. Specifically, it protects employees of the PHS from liability
for any “personal injury, including death, resulting from the performance of medical,
surgical, dental, or related functions” by requiring that lawsuits be brought against the
United States instead. Congress made proceedings under the FTCA as the sole avenue
for relief against any PHS employee for injuries resulting from the employee's performance
of medical functions within the scope of employment. See Hui v. Castaneda, 599 U.S.
799, 802 (2001) (holding specifically that immunity provided by § 233(a) precludes a
Bivens action against individual PHS employees for harms arising out of constitutional
violations committed while acting within the scope of employment).

Because Defendant Meyer is an employee of the PHS, he has absolute immunity
from personal liability and ail claims arising from the Plaintiffs medical treatment or
investigation related to medical treatment. Therefore, Defendant Meyer must be dismissed
as a defendant in this action.
Il. Exhaustion of Administrative Grievances
Plaintiff's second objection is that the staff's “unethical misconducts directly and
proximately caused some failures and some successes of exhaustion of administrative
grievances" [Doc. 102]. Under the Prison Litigation Reform Act (“PLRA"), a prisoner
bringing an action with respect to prison conditions must first exhaust all available
administrative remedies. 42 U.S.C. § 1997(e)(a). Exhaustion as provided in § 1997(e}(a)
is mandatory and all available administrative remedies must be exhausted prior to filing a
complaint in federal court. See Porter v. Nussle, 534 U.S. 516, 524 (2002) (citing Booth
v. Churner, 532 U.S. 731, 741 (2001)). Mandatory exhaustion of available administrative
grievances may be excused when defendant's actions render the grievance procedure
unavailable. See Ziemba v. Wezner, 366 F.3d 161 (2d Cir. 2004). To exhaust all available
administrative remedies, an inmate must first request an informal resolution by presenting
an issue of concern informally to a staff member. 28 U.S.C. § 542.13(a). If the informal
resolution fails, or if an inmate is dissatisfied with the response, or if there is no response,
the inmate may then submit a Request for Administrative Remedy in the form of a formal
written complaint to the Warden. 28 C.F.R. § 542.14(a). If the inmate’s request is denied,
or if an inmate is dissatisfied with the response, or if there is no response, the inmate may
file an appeal with the appropriate Regional Office. 28 C.F.R. §§ 542.18; 542.15(a). Ifthe

Regional Office denies relief, the inmate completes the administrative remedy process by
appealing the decision to the Office of General Counsel in Washington, D.C. fd. The
inmate has not fully exhausted his administrative remedies until the request has been filed
and acted upon at all the required agency levels. /d.
The administrative remedies provided by Plaintiff clearly establish that Plaintiff did
not exhaust his administrative grievances with respect to his allegations that Defendant
Riffle beat and tortured him. Plaintiff did file a grievance at the facility ievel complaining
of the assault by Defendant Riffle and at the Regional Office. [Doc. 59-7 p. 6, Remedy ID
815619-F1 & 815619-R1]. However, Plaintiff never filed an appeal to the central office,
which is the last step to complete the exhaustion of administrative remedies. Plaintiff does
not allege that he was unable to use the grievance procedure available at FCC Hazelton.
Because Plaintiff failed to exhaust the administrative remedies and did not allege any fact
that he was unable to fully use the grievance procedure available, Plaintiff's claim against
Defendant Riffle is dismissed.
lil. Destruction of Papers
Plaintiff's third objection is that this Court should not decide which party is telling the
truth or compare the strength of evidence both sides permitted (Doc. 102]. Plaintiff arques
that there is a genuine issue of material fact because of the specific facts provided in the
witnesses’ affidavits [/d.]. The United States Constitution “requires no more than
reasonable access to the courts.” Konigberg v. LeFevre, 267 F.Supp.2d 255, 261
(N.D.N.Y. 2003). When a prisoner asserts a denial of access to courts, the prisoner must
satisfy the constitutional standing requirement by alleging an actual injury. Lewis

v. Casey, 518 U.S. 343, 349 (1996). The prisoner must show that the prison officials
“hindered [the prisoner's] efforts to pursue a nonfrivolous claim.” fd. at 354.
Here, Plaintiff fails to allege any facts that indicate his litigation efforts were hindered
due to the destruction of his legal papers. Even if Plaintiff's Opposition to the Magistrate
Judge's R&R alleged facts establishing that his litigation efforts were hindered by the
Defendants, there are no allegations that show he suffered any actual injury. Thus, the
destruction of papers claim is dismissed.
IV. Snitch Label
Plaintiff's fourth objection is that the snitch label he alleges the Defendant's labeled
him as is what prevented Plaintiff from filing complaints at all levels to exhaust his remedy
options. [Doc. 102]. Prisoners who allege a deliberate indifference under the Eighth
Amendment arising from failure to protect must satisfy two components: an objective
component and a subjective component. “First, the deprivation alleged must be
objectively, ‘sufficiently serious,” (objective component) and second, “a prison official must
have a ‘sufficiently culpable state of mind” (subjective component). Farmer y. Brennan,
511 U.S. 825, 834 (1994) (citations omitted). To satisfy the objective component, the
prisoner must show that “he is incarcerated under conditions posing a substantial risk of
serious harm.” /d. (emphasis added). To satisfy the subjective component, a prisoner
must show that a prison official acted with “deliberate indifference,” which entails
“something more than mere negligence,” but “is satisfied by something less than acts or
omissions for the very purpose of causing harm or with knowledge that harm will result.”
Id. at 834-35. Deliberate indifference “requires that a prison official actually know of and

disregard an objectively serious condition, medica! need, or risk of harm." De'Lonta vy.
Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (emphasis added).
In his objections, Plaintiff does not allege that he was faced with a substantial risk
of serious harm or allege facts that a prison official actually knew of and disregarded a risk
of harm to Plaintiff. Even if Plaintiff alleged that he feared for his safety, Plaintiff was
transferred from Hazelton thirty (30) days after he was allegedly labeled a snitch by
Defendant Bledsoe. Because Plaintiff no longer has a risk of injury, Plaintiff's allegations
with respect to Defendant Bledsoe are dismissed.
Conclusion

Upon careful review of the above, it is the opinion of this Court that the Report and
Recommendation [Doc. 97] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge's report. Accordingly, this Court
ORDERS that the Defendants’ Motion to Dismiss, or in the Alternative, Motion for
Summary Judgment [Doc. 58] be GRANTED, and that plaintiff's Complaint [Doc. 1] be
DISMISSED WITH PREJUDICE against C. Meyer because he has absolute immunity as
a Commissioned Officer in the United States Public Health Service and against M.
Bledsoe, M. Listen, K. Pearce, and D. Harvischak for failure to state a claim upon which
relief can be granted. In addition, the plaintiff's Complaint [Doc. 1] is DISMISSED
WITHOUT PREJUDICE against Lt. Riffle for failure to exhaust administrative grievances.
Further, the Plaintiffs Request for Production of Documents [Doc. 95] and Motion for
Summary Judgment [Doc. 99] are DENIED. The plaintiffs Objections [Doc. 102] are
OVERRULED. This Court further DIRECTS the Clerk to enter judgment in favor of the

defendants and to STRIKE this case from the active docket of this Court.
□□ □□ so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se plaintiff.
DATED: February 9 2019.
JOWN PRESTON BAILEY
UNI STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10725330. Public record. Not legal advice.