# Pumphrey v. Coakley

> District Court, S.D. West Virginia · March 16, 2018

URL: https://www.frixlaw.com/law-library/cases/10727314

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** March 16, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

WILLIAM C. PUMPHREY,

Plaintiff,

v. CIVIL ACTION NO. 5:15-cv-14430

JOE COAKLEY, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Proposed Findings and Recommendation (PF&R) (Document
106), filed by the Honorable Omar J. Aboulhosn, United States Magistrate Judge, and the
Defendants’ Limited Objections to the Proposed Findings and Recommendation of the United
States Magistrate Judge (Document 107). For the reasons stated herein, the Court finds that the
Defendants’ objections should be overruled, and the Magistrate Judge’s PF&R adopted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Magistrate Judge provided a thorough summary of the alleged facts and procedural
history in this case in his PF&R. The Court adopts the statement of facts and procedural history
set forth in the PF&R, but provides the following as a concise summary. The Plaintiff, then an
inmate at Federal Correctional Institution-Beckley (FCI-Beckley), initiated this action with the
filing of a Complaint (Document 2) on October 28, 2015. The Plaintiff raised a number of claims
for violation of his constitutional and civil rights under Bivens v. Six Unknown Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). The Plaintiff named a number of FCI-Beckley
employees as defendants, and asserted that the Warden orchestrated a scheme, perpetuated by the
other defendants, to systematically torture him by using secret, hidden devices to pump “irritating,
nonsensical music” into his cell in the FCI-Beckley Special Housing Unit (SHU). (Pl.’s Compl.,
at 4-5.) The Plaintiff contended that the music increased his anxiety and “exacerbated serious
pre-existing health issues.” (Id. at 5.) The Plaintiff further maintains that FCI-Beckley staff have
harassed him by banging and kicking his cell door. The Plaintiff alleges that because of this

harassment, he grinds his teeth compulsively and has lost numerous fillings, and also suffered from
headaches. The Plaintiff also alleges that the Defendants have endangered his life, by spreading
false rumors that he is a child molester, and caused him mental anguish, by making sexual
overtures to him in the shower. Finally, the Plaintiff maintains that Defendant B. Coleman struck
him without provocation, resulting in swelling and bruising, and that other Defendants have
verbally threatened him, intentionally injured him when placing him in restraints, and, when
pushing him in a wheelchair, have purposefully rammed other objects in order to cause him injury.
The United States filed the Defendants Motion to Dismiss, or in the Alternative for
Summary Judgment (Document 44) on February 12, 2016. The United States made four core

arguments: (1) that the Plaintiff failed to properly exhaust his administrative remedies; (2) that the
Plaintiff failed to state a claim for relief on any of his allegations, (3) that the Plaintiff could not
recover emotional or psychological damages without a showing of physical injury, and (4) that the
Defendants were entitled to qualified immunity. (Def. Mot. to Dismiss, at 1-2.)
On July 18, 2016, the Magistrate Judge submitted his PF&R, recommending that the Court
grant the motion of the United States, and dismiss the case from the docket. The Magistrate Judge
found that the Plaintiff had failed to exhaust his administrative remedies, as required by the Prison
Litigation Reform Act (PLRA), 42 U.S.C. §1997e(a). (PF&R, at 15.) The Plaintiff filed his

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objections to the PF&R on July 28, 2016. In its September 7, 2016 Memorandum Opinion and
Order (Document 70), this Court adopted the Magistrate Judge’s PF&R and granted the
Defendants’ Motion to Dismiss, or in the Alternative for Summary Judgment (Document 44). The
Plaintiff filed his Notice of Appeal (Document 74) on September 14, 2016, and on April 11, 2017,
the United States Court of Appeals for the Fourth Circuit issued its Opinion (Document 81) finding

that the Court made inappropriate credibility determinations in granting the Defendants’ motion
to dismiss, reversing this Court’s order adopting the Magistrate Judge’s PF&R, and remanding the
case for further proceedings. The Fourth Circuit issued the Mandate (Document 92) returning the
case to this Court on June 5, 2017.
On June 5, 2017, the Defendants’ filed their Renewed Motion to Dismiss, or in the
Alternative for Summary Judgment (Document 90). In their motion, the Defendants, again,
argued that the Plaintiff failed to exhaust his administrative remedies, and also that his claim of
torture, his claim of excessive force by Officer Coleman, and his other constitutional claims failed
to state a claim for relief. The Defendants further argued that the Plaintiff may not recover

emotional or psychological damages without a showing of physical injury, that the Defendants are
entitled to qualified immunity, and that the Court should revoke the Plaintiff’s in forma pauperis
status based on his litigious misconduct. On June 19, 2017, the Plaintiff filed his Affidavit
Response and Objection to Defendants’ Renewed Motion to Dismiss or, in the Alternative, for
Summary Judgment (Document 97).
On January 30, 2018, the Magistrate Judge submitted his PF&R, recommending that the
Defendants’ renewed motion be granted in part and denied in part. The Magistrate Judge
specifically recommended that the Defendants’ motion should be denied to the extent it asserts

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that the Plaintiff failed to exhaust administrate remedies, as to the request to revoke the Plaintiff’s
in forma pauperis status, and as to the Plaintiff’s claims for excessive force against Defendants
Coleman and Harvey. The Magistrate Judge found that the Court would have to undertake
credibility determinations, in contravention of the Fourth Circuit’s opinion, and that these claims
should, therefore, proceed to the discovery process. However, the Magistrate Judge

recommended that the Court grant the Defendants’ motion as to the Plaintiff’s claims of
conspiracy, audio torture, food tampering, verbal abuse, sexual harassment, invasion of privacy,
mail tampering/access to court, violation of the administrative remedy process, and failure to
intervene. (PF&R, at 51.) The Defendants filed their limited objections to the PF&R on
February 8, 2018, and those objections are ripe for review.

STANDARD OF REVIEW
A. Objections to PF&R
This Court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).
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,
this Court need not conduct a de novo review when a party “makes general and conclusory

objections that do not direct the Court to a specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). When reviewing
portions of the PF&R de novo, the Court will consider the fact that the Petitioner is acting pro se,

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and his pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106
(1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).
B. Summary Judgment
The well-established standard for consideration of a motion for summary judgment is that
summary judgment should be granted if the record, including the pleadings and other filings,

discovery material, depositions, and affidavits, “shows that 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)–
(c); see also Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hoschar v. Appalachian
Power Co., 739 F.3d 163, 169 (4th Cir. 2014). A “material fact” is a fact that could affect the
outcome of the case. Anderson, 477 U.S. at 248; News & Observer Publ’g Co. v. Raleigh-
Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine issue” concerning a
material fact exists when the evidence is sufficient to allow a reasonable jury to return a verdict in
the nonmoving party’s favor. FDIC v. Cashion, 720 F.3d 169, 180 (4th Cir. 2013).

The moving party bears the burden of showing that there is no genuine issue of material
fact, and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp.,
477 U.S. at 322–23. When determining whether summary judgment is appropriate, a court must
view all of the factual evidence, and any reasonable inferences to be drawn therefrom, in the light
most favorable to the nonmoving party. Hoschar, 739 F.3d at 169. However, the nonmoving
party must satisfy its burden of showing a genuine factual dispute by offering more than “[m]ere
speculation” or a “scintilla of evidence” in support of its position. Anderson, 477 U.S. at 252;
JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). If disputes

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over a material fact exist that “can be resolved only by a finder of fact because they may reasonably
be resolved in favor of either party,” summary judgment is inappropriate. Anderson, 477 U.S. at
250. On the other hand, if the nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case,” then summary judgment should be
granted because “a complete failure of proof concerning an essential element . . . necessarily

renders all other facts immaterial.” Celotex, 477 U.S. at 322–23.
APPLICABLE LAW
Bivens v. Six Unknown Federal Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971), provides a legal framework for alleging constitutional violations against federal officials.
For purposes of the Defendants’ objections to the PF&R, Mr. Pumphrey asserts violations of his

Eighth Amendment right to be free from cruel and unusual punishment.
A. Ziglar v. Abbasi
The Supreme Court recently clarified the analysis courts should perform when addressing
Bivens claims in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017). That case involved claims by non-
citizens detained pre-trial in the United States during the course of the investigation into the
September 11, 2011 terrorist attacks, who had since been released and removed from the United
States. The plaintiffs brought claims against top officials in the Executive Branch, including the
attorney general, the head of the FBI, and the Immigration and Naturalization Service
Commissioner, and against the warden and associate warden at the detention center. They alleged

violations of both the due process and the equal protection components of the Fifth Amendment
based on the harsh conditions of confinement, abuse by guards, and mistreatment based on race,
religion, or national origin, and unjustified strip searches in violation of the Fourth Amendment.
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The Supreme Court cautioned courts against engaging too readily in the “disfavored”
judicial activity of expanding the Bivens remedy absent Congressional direction. Ziglar v.
Abbasi, 137 S.Ct. 1843, 1857 (2017). The Court set forth the following “test for determining
whether a case presents a new Bivens context:”
If the case is different in a meaningful way from previous Bivens
cases decided by this Court, then the context is new. Without
endeavoring to create an exhaustive list of differences that are
meaningful enough to make a given context a new one, some
examples might prove instructive. A case might differ in a
meaningful way because of the rank of the officers involved; the
constitutional right at issue; the generality or specificity of the
official action; the extent of judicial guidance as to how an officer
should respond to the problem or emergency to be confronted; the
statutory or other legal mandate under which the officer was
operating; the risk of disruptive intrusion by the Judiciary into the
functioning of other branches; or the presence of potential special
factors that previous Bivens cases did not consider.
Id. at 1859–60. Where a case does present a new context, the Bivens remedy should not be
expanded “if there are ‘special factors counselling hesitation in the absence of affirmative action
by Congress.’” Id. at 1857 (citing Carlson v. Green, 446 U.S. 14, 18 (1980) and Bivens, 403 U.S.
at 397). The special factors “inquiry must concentrate on whether the Judiciary is well suited,
absent congressional action or instruction, to consider and weigh the costs and benefits of allowing
a damages action to proceed.” Id. at 1857-58.
B. Eighth Amendment
The standard for Eighth Amendment claims involving excessive force recognizes that use
of force is sometimes necessary to maintain order in the prison context. The United States
Supreme Court held in 1992 that the “core inquiry” in excessive force cases is “whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). It specified that the bar on cruel and
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unusual punishment “necessarily excludes from constitutional recognition de minimis uses of
physical force, provided that the use of force is not of a sort repugnant to the conscience of
mankind.” Id. at 9–10 (internal quotation marks omitted). The Supreme Court has explained
that its decision in Hudson did not set an injury threshold for excessive force claims, but instead
“shift[ed] the core judicial inquiry from the extent of the injury to the nature of the force—

specifically, whether it was nontrivial and was applied maliciously and sadistically to cause harm.”
Wilkins v. Gaddy, 559 U.S. 34, 39 (2010) (per curiam) (internal quotation marks and punctuation
omitted). The Fourth Circuit has since held that, in light of Wilkins, “there is no de minimis injury
threshold for an excessive force claim.” Hill v. Crum, 727 F.3d 312, 316 (4th Cir. 2013). Thus,
although every encounter with a prison guard will not rise to the level of a federal cause of action
under the Eighth Amendment, “[a]n inmate who is gratuitously beaten by guards does not lose his
ability to pursue an excessive force claim merely because he has the good fortune to escape without
serious injury.” Wilkins, 559 U.S. at 38.
The Fourth Circuit has prescribed four factors to be balanced in determining whether force

was applied maliciously and sadistically to cause harm:
(1) the need for the application of force; (2) the relationship between
the need and the amount of force that was used; (3) the extent of any
reasonably perceived threat that the application of force was
intended to quell; and (4) any efforts made to temper the severity of
a forceful response.
Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008) (quoting Whitley v. Albers, 475 U.S. 312, 321
(1986)).
C. Qualified Immunity
The Defendants each assert a defense of qualified immunity. Qualified immunity is an
affirmative defense intended to shield public officials from civil suits arising out of their
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performance of job-related duties. See, e.g., Pearson v. Callahan, 555 U.S. 223, 231–32 (2009).
Defendants asserting a qualified immunity defense first bear the burden of “demonstrating that the
conduct of which the plaintiff complains falls within the scope of the defendant’s duties.” In re
Allen, 106 F.3d 582, 594 (4th Cir. 1997) (internal quotation marks omitted.) The defense of
qualified immunity is available unless the official “knew or reasonably should have known that

the action he took within his sphere of official responsibility would violate the constitutional rights
of the plaintiff….” Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (internal emphases omitted).
Officials are protected even if they make reasonable mistakes of fact or law, so long as they do not
violate a clearly established statutory or constitutional right. Pearson, 555 U.S. at 231–32. “A
constitutional right is ‘clearly established’ when its contours are sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Cooper v. Sheehan, 735 F.3d
153, 158 (4th Cir. 2013) (internal quotation marks and citations omitted). Courts are advised to
“ask first whether a constitutional violation occurred and second whether the right violated was
clearly established.”1 Id.

DISCUSSION
Both Defendant Coleman and Defendant Harvey argue in their objections that the
Plaintiff’s Eighth Amendment excessive force claims should not be extended under Bivens and
that they are entitled to qualified immunity. Defendant Coleman argues that the Magistrate Judge
misapplied the summary judgment standard regarding the Plaintiff’s excessive force claim against
him. Defendant Harvey contends that the excessive force claim against him does not specify

1 “Courts are ‘permitted to exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular case at hand.’” Smith v.
Ray, 781 F.3d 95, 106, fn 3 (4th Cir. 2015) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

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enough information for him to put forth a defense. Finally, both Defendants Coleman and Harvey
argue that the Court should invoke its discretionary authority to revoke the Plaintiff’s IFP status.
A. Bivens Expansion
Defendants Coleman and Harvey argue that the Court should decline any expansion of the
Bivens remedy under the “special factors” analysis set forth in Abbasi, contending that the

Plaintiff’s Eighth Amendment excessive force claims against them do not fall within the Supreme
Court’s three previously recognized Bivens causes of action. Both Defendants further argue that
there are alternative remedies available, and that special factors are present which counsel
hesitation such that this Court’s power to infer a new cause of action is limited.
The Court finds that Mr. Pumphrey’s claims do not involve an expansion of the Bivens
remedy. Mr. Pumphrey claims that both Defendants Coleman and Harvey intentionally injured
him. He alleges that Defendant Coleman entered his cell and struck him in the face, and that
Defendant Harvey put handcuffs on him in a rough manner and intentionally pushed his lower
extremities into walls and other objects while Pumphrey was in his wheelchair. These excessive

force claims against Mr. Coleman and Mr. Harvey involve direct Eighth Amendment allegations
against two individual officers for specific actions taken against an individual inmate. Based on
the Supreme Court’s examination of an Eighth Amendment cruel and unusual punishment claim
and its finding that a damages remedy was appropriate in Carlson v. Green, 446 U.S. 14 (1980),
the Plaintiff’s similar direct Eighth Amendment claim here is not a Bivens expansion. However,
even if this case were considered a Bivens expansion based on the minor differences in fact
between it and Carlson,2 the Court finds appropriate the limited expansion necessary to

2 The Plaintiff in Carlson, a mother representing her deceased son’s estate who died while in federal prison, alleged
that prison staff violated her son’s Eighth Amendment right from cruel and unusual punishment by failing to give him
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incorporate cases of this nature given the claims of direct and specific excessive force allegations
under the Eighth Amendment. Neither of the Plaintiff’s claims at issue in the Defendants’
objections implicate policy or policy-making officials, and both are the type of claims that are
frequently litigated in the prison context. These claims of direct and specific excessive force are
frequently litigated and well-suited to judicial consideration, even absent congressional action.

The Court therefore finds that the Plaintiff’s excessive force claims under the Eighth Amendment
do not involve a Bivens expansion, and even if they did, there is no indication that congressional
action is necessary to determine whether a Bivens-type remedy is available here. The objections
should therefore be overruled.
B. Qualified Immunity
Both Defendants Coleman and Harvey next object to the PF&R on the grounds that they
are entitled to qualified immunity. In their objections, however, they simply argue that qualified
immunity is appropriate because the Bivens cause of action may not exist for Eighth Amendment
claims of excessive force. Thus, both Defendants contend that qualified immunity must shield

them from suit.
As previously stated, however, the Plaintiff’s excessive force claims do not constitute an
expansion of the Bivens remedy. Further, and regardless of the Bivens expansion issue, the Court
finds that the Defendants have not shown that they are entitled to qualified immunity. Regarding
the first question in a qualified immunity analysis, whether the Plaintiff had a clearly established
right, the Defendants do not object to or assert an argument against the Magistrate Judge’s finding
that the Plaintiff’s constitutional right not to be subjected to excessive force was clearly

proper medical attention and treat his asthma. Carlson, 466 U.S. at 16.
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established. Nor do the Defendants specifically argue in their objections that no constitutional
violation occurred. Defendant Coleman does argue in his objection to the summary judgment
standard that there is no genuine issue of material fact regarding his access to the Plaintiff’s cell.
As the Court will explain below, however, such a finding turns on a credibility determination
regarding the Plaintiff’s allegations which the Court cannot make at this stage. Both Mr. Coleman

and Mr. Harvey present no real argument here regarding how they have established qualified
immunity, and merely rely on their argument that qualified immunity should be found because
Bivens should not be expanded in this case. Therefore, the Defendants’ objections on qualified
immunity should be overruled.
C. Defendant Coleman’s Summary Judgement Standard Argument
Defendant Coleman objects to the Magistrate Judge’s finding that there are genuine issues
of material fact regarding the Plaintiff’s allegations. Mr. Coleman contends that he has presented
objective evidence proving that he did not and could not have entered the Plaintiff’s cell and struck
him in the face, while the Plaintiff has merely presented “self-serving allegations” that this alleged

conduct occurred. (Defs.’ Objections at 8.) Mr. Coleman argues that these self-serving
allegations are not enough to proceed past his supplied objective evidence under the summary
judgment standard, and summary judgment regarding his claim should therefore be granted.
As previously stated, summary judgment should be granted only if the record, including
the pleadings and other filings, discovery material, depositions, and affidavits, “shows that 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)–(c); see also Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Celotex

12
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986); Hoschar v. Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014).
The Court finds that the Magistrate Judge applied the appropriate standard. In finding that
there are genuine issues of material fact such that the case should proceed to the discovery phase,
the Magistrate Judge noted that “Defendant Coleman is clearly requesting that this Court make a

credibility determination as to an issue of material fact.” (PF&R at 29.) Through his objections,
Mr. Coleman again asks the Court to overrule the Magistrate Judge and find that summary
judgment is appropriate because the Plaintiff’s sworn statements are allegedly false. As the
Fourth Circuit cautioned, however, in reviewing a motion for summary judgment, it is not the
Court’s job to determine whether the Plaintiff’s statements are true, or whether the Plaintiff is less
credible. Nor is it “[the Court’s] job to weigh the evidence, to count how many affidavits favor
the Plaintiff and how many oppose him, or to disregard stories that seem hard to believe.” Gray
v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991). Thus, the Magistrate Judge appropriately applied
the applicable standard in finding that an issue of material fact remains based on the Plaintiff’s

statements, and Mr. Coleman’s objection should be overruled.
D. Defendant Harvey’s Objection
Next, Mr. Harvey objects to the Magistrate Judge’s finding that the Plaintiff’s excessive
force claim against him should go forward. Mr. Harvey asserts that the Plaintiff has failed to state
sufficient facts in his claim that allow Mr. Harvey to respond or assert a defense, and it should thus
be dismissed. Again, the Court finds that the objection should be overruled because Mr. Harvey
seeks to have the Court weigh the evidence. The Magistrate Judge found that Mr. Harvey
“acknowledges that ‘he would have pushed Plaintiff in his wheelchair during cell moves and other

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times, but never intentionally rammed him into anything.’” (PF&R, at 33.) The Magistrate
Judge appropriately found that he was not in a position to give Mr. Harvey’s declaration more
weight than the Plaintiff’s statements or determine which statements are true or false. Mr.
Harvey’s objections that the Plaintiff’s allegations are so threadbare that he cannot even present
evidence to the contrary are tenuous when he indeed submitted evidence in conjunction with his

motion to dismiss or for summary judgment that the Plaintiff’s allegations were false. Therefore,
the Court finds that the Magistrate Judge’s findings on the claim against Mr. Harvey were
appropriate and the objections should be overruled.
E. Revocation of the Plaintiff’s IFP Status
Finally, the Defendants object to the Magistrate Judge’s decision to deny their request to
revoke the Plaintiff’s in forma pauperis (IFP) status. Although the Defendants concede that the
Plaintiff has not had enough cases dismissed on frivolous grounds to satisfy the three strike rule,
they assert that the Court should use its discretionary authority to revoke the Plaintiff’s IFP status
because he has a “long documented history of fabricating events,” and because he filed this claim

alleging that an elaborate system of devices played sounds in his cell on a regular basis that
amounted to torture while he was the only person who ever heard the sounds. (Defs.’ Objections,
at 12.) The Defendants argue that the Plaintiff “should not be allowed to abuse the court system
and harass law enforcement professionals without cost to him,” and therefore contend that his IFP
status should be revoked. (Id.)
Pursuant to the Prisoner Litigation Reform Act (PLRA) provision known as the “Three
Strike Rule,” an inmate loses the ability to proceed in civil suits without paying the filing fee “if
the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility,

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brought an action or appeal in a court of the United States that was dismissed on the grounds that
it is frivolous . . . .” 28 U.S.C. § 1915(g). Here, the Defendants have conceded that the Plaintiff
has not satisfied the elements of the Three Strike Rule. Further, regardless of whether the
Plaintiff’s remaining allegations are true or not, (a finding this Court is not in a position to make
at this stage of the litigation), the Magistrate appropriately screened the Plaintiff’s complaint and

found that it was not frivolous or malicious. Having presented no evidence to the contrary in their
objections regarding the Plaintiff’s IFP status, the objections should be overruled.
CONCLUSION
WHEREFORE, after careful consideration, the Court ORDERS that the Defendants’
Limited Objections to the Proposed Findings and Recommendation of the United States Magistrate

Judge (Document 107) be OVERRULED and that the Magistrate Judge’s Proposed Findings and
Recommendation (Document 106) be ADOPTED. The Court further ORDERS that the
Defendants’ Renewed Motion to Dismiss, or in the Alternative for Summary Judgment (Document
90) be GRANTED in part and DENIED in part. Specifically, the Court ORDERS that the
Defendants’ Renewed Motion is GRANTED as to the dismissal of the Plaintiff’s claims of
conspiracy, audio torture, food tampering, verbal abuse, sexual harassment, invasion of privacy,
mail tampering/access to court, violation of the administrative remedy process, and failure to
intervene, and DENIED as to (1) the Plaintiff’s alleged failure to exhaust administrative remedies,
(2) dismissal of the Plaintiff’s claim of excessive force against Defendants Coleman and Harvey,

and (3) the Defendants’ request to revoke the Plaintiff’s IFP status.

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The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER: March 16, 2018

IRENE C. 2S q
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF WEST VIRGINIA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10727314. Public record. Not legal advice.