Spradlin v. Henson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

JACOB COLBY SPRADLIN,

Plaintiff,

v. Case No. 3:19-cv-00363

SUPERINTENDENT JOSEPH WOOD

and OFFICER HENSLEY,

Defendants

MEMORANDUM OPINION AND ORDER

Pending before the Court are Plaintiff’s Application to Proceed Without

Prepayment of Fees and Costs, (ECF No. 1), and his Complaint filed pursuant to 42 U.S.C.

§ 1983. (ECF No. 2). In keeping with 28 U.S.C. § 1915(e)(2), the undersigned has

conducted a preliminary review of Plaintiff’s complaint to determine if the action is

frivolous, fails to state a claim upon which relief may be granted, or seeks monetary relief

from a defendant who is immune from such relief. Although pro se complaints, such as

the one filed in this case, must be liberally construed to allow the development of

potentially meritorious claims, the court may not rewrite the pleading to include claims

that were never presented, Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998),

develop the plaintiff’s legal theories for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th

Cir. 1993), or “conjure up questions never squarely presented” to the court. Beaudett v.

City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). At the same time, to achieve justice,

the court may allow a pro se plaintiff the opportunity to amend his complaint in order to

correct deficiencies in the pleading. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).

Plaintiff alleges the following in his complaint:

1. That on April 27, 2019, he was incarcerated at the Western Regional Jail in

Barboursville, West Virginia;

2. That same date, he observed another inmate being pushed and shoved by a

correctional officer;

3. When he asked the officer for his name, the officer identified himself as Officer

Hensley;

4. Officer Hensley then ordered Plaintiff on lockdown and pushed him into his cell;

5. Plaintiff suffered mental anguish due to the “excessive force.”

(ECF No. 2 at 4-8). Plaintiff requests $250,000 in damages and asks that the defendants

pay the filing fee. (Id. at 9). In response to a question contained in the form complaint

about the steps Plaintiff has taken to exhaust administrative remedies, he indicates that

he wrote a statement and filed a grievance, but the grievance remains undecided. (Id. at

3).

The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust

administrative remedies prior to filing a complaint in federal court. 42 U.S.C. § 1997e(a)

(“No action shall be brought with respect to prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are exhausted.”);

Porter v. Nussle, 534 U.S. 516, 524 (2002) (“Once within the discretion of the district

court, exhaustion in cases covered by § 1997e(a) is now mandatory. All available remedies

must now be exhausted; those remedies need not meet federal standards, nor must they

be plain, speedy, and effective. Even when the prisoner seeks relief not available in

grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.”)

(citations and internal quotation marks omitted). The purpose of the exhaustion

requirement is twofold: first, “exhaustion protects administrative agency authority” by

giving an agency “an opportunity to correct its own mistakes with respect to the programs

it administers before it is haled into federal court … and it discourages disregard of the

agency’s procedures;” second, “exhaustion promotes efficiency,” as claims “generally can

be resolved much more quickly and economically in proceedings before an agency than

in litigation in federal court” and sometimes “claims are settled at the administrative level,

and in others, the proceedings before the agency convince the losing party not to pursue

the matter in federal court.” Woodford v. Ngo, 548 U.S. 81, 89, (2006) (citations and

internal quotation marks omitted). Further, “even where a controversy survives

administrative review, exhaustion of the administrative procedure may produce a useful

record for subsequent judicial consideration.” Id.

The only exception to exhaustion is when administrative remedies are

“unavailable” to an inmate. Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). There are “three

kinds of circumstances in which an administrative remedy, although officially on the

books, is not capable of use to obtain relief;” and thus is unavailable. Id. at 1859. First,

“an administrative procedure is unavailable when (despite what regulations or guidance

materials may promise) it operates as a simple dead end—with officers unable or

consistently unwilling to provide relief to aggrieved inmates.” Id. Second, an

administrative process is likewise unavailable when it is “so opaque” that “no ordinary

prisoner can discern or navigate it.” Id. Finally, an inmate need not exhaust

administrative remedies when prison officials thwart the inmate’s access to the grievance

procedure “through machination, misrepresentation, or intimidation.” Id. at 1860.

“[S]uch interference with an inmate’s pursuit of relief renders the administrative process

unavailable.” Id.

Generally, exhaustion need not be alleged by the plaintiff, but is instead “an

affirmative defense that should be pleaded or otherwise properly raised by the

defendant.” Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 681 (4th

Cir. 2005). Nonetheless, the fact that exhaustion is an affirmative defense “does not

foreclose in all cases the possibility of a sua sponte dismissal on exhaustion grounds.” Id.

In the rare instance when the face of a complaint clearly demonstrates a prisoner’s failure

to exhaust administrative remedies, sua sponte dismissal on that ground is appropriate.

Anderson, 407 F.3d at 682 (citing Nasim v. Warden, 64 F.3d 951 (4th Cir. 1995)). When

exhaustion is not clear on the face of the complaint, a district court may still sua sponte

raise that affirmative defense, but may not dismiss the complaint on that ground without

first giving the plaintiff an opportunity to respond. Id. at 682-83.

By his own report, Plaintiff has a grievance procedure available at his institution,

which he has accessed. However, Plaintiff has not exhausted the available remedies,

because he has not yet received a decision on his grievance. At the time Plaintiff submitted

the instant complaint, only three days had passed from the date of the alleged use of

excessive force. Clearly, that time period does not allow a sufficient opportunity for the

correctional facility to consider Plaintiff’s grievance, or for Plaintiff to progress through

all of the steps of the facility’s grievance procedure. Consequently, it is unlikely that

Plaintiff has exhausted administrative remedies, and he has not demonstrated that such

remedies are unavailable to him. As such, a lack of exhaustion may preclude his lawsuit

at this time.

In addition, as written, Plaintiff’s complaint likely does not state a violation of

constitutional law. Plaintiff alleges that Officer Hensley used excessive force when

pushing Plaintiff into his cell. The Eighth Amendment to the United States Constitution

“imposes duties on [prison] officials who must provide humane conditions of

confinement; prison officials must ensure that inmates receive adequate food, clothing,

shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of

the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer,

468 U.S. 517, 526–27 (1984)). A prison official violates this constitutional mandate when

he uses excessive force against a prisoner, Hudson v. McMillian, 503 U.S. 1, 4 (1992). To

establish a constitutional claim of excessive force, a plaintiff must show that a prison

official “inflicted unnecessary and wanton pain and suffering.” Taylor v. McDuffie, 155

F.3d 479, 483 (4th Cir. 1998) (quoting Whitley v. Albers, 475 U.S. 312, 320, (1986)). There

is a subjective component to the claim in that the official must have “acted with a

sufficiently culpable state of mind.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.

1996). Objectively, the injury inflicted on the inmate must be “sufficiently serious.” Id.

However, the predominate focus is not on the severity of the injury because when

prison officials “maliciously and sadistically use force to cause harm, contemporary

standards of decency always are violated whether or not significant injury is evident.”

Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). “The proper inquiry is whether the force applied

was in a good faith effort to maintain or restore discipline or maliciously and sadistically

for the very purpose of causing harm.” Taylor, 155 F.3d at 483. “In determining whether

[this] constitutional line has been crossed, a court must look to such factors as the need

for the application of force, the relationship between the need and the amount of force

used, the extent of the injury inflicted, and whether the force was applied in a good faith

effort to maintain and restore discipline or maliciously and sadistically for the very

purpose of causing harm.” Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008) (quoting

Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). Accordingly, “[w]hile excessive

force does require malicious intent, it does not require that the prisoner victim suffer a

‘significant injury.’ … [A] prisoner who suffers a minor, but malicious, injury may be able

to prevail on an excessive force claim but not on a deliberate indifference claim.”

Thompson v. Commonwealth of Virginia, 878 F.3d 89, 98 (4th Cir. 2017).

Nevertheless, the absence of serious injury is not irrelevant to the Eighth

Amendment inquiry. Hudson v. McMillian, 503 U.S. 1, 7 (1992) (“The absence of serious

injury is therefore relevant to the Eighth Amendment inquiry, but does not end it.”). The

extent of the injury provides some indication of the amount of force applied. Wilkins, 559

U.S. at 37. “[N]ot ‘every malevolent touch by a prison guard gives rise to a federal cause

of action.’” Id. (quoting Hudson, 503 U.S. at 9). “An inmate who complains of a push or a

shove that causes no discernible injury almost certainly fails to state a valid excessive force

claim.” Hudson, 503 U.S. at 9; see also Jackson v. Holley, 666 F. App'x 242, 244 (4th Cir.

2016). In an action brought under § 1983, a plaintiff may recover damages for monetary

loss, physical pain and suffering, mental and emotional distress, impairment of

reputation, and personal humiliation. Slicker v. Jackson, 215 F.3d 1225, 1231 (11th Cir.

2000)). However, “[n]o Federal civil action may be brought by a prisoner confined in a

jail, prison, or other correctional facility, for mental or emotional injury suffered while in

custody without a prior showing of physical injury....” See 42 U.S.C. § 1997e(e). In

addition, “[a] plaintiff seeking compensatory damages for emotional distress cannot rely

on conclusory statements that the plaintiff suffered emotional distress [or] the mere fact

that a constitutional violation occurred, but, rather, the testimony must establish that the

plaintiff suffered demonstrable emotional distress, which must be sufficiently

articulated.” Knussman v. Maryland, 272 F.3d 625, 640 (4th Cir. 2001), quoting Price v.

City of Charlotte, 93 F.3d 1241, 1254 (4th Cir. 1996) (internal quotation marks omitted).

In summary, in order to state a claim in this case, Plaintiff must demonstrate some

physical injury and provide some evidence of emotional distress.

Finally, although Plaintiff names Superintendent Wood as a defendant, Plaintiff fails

to include any allegations in the complaint that implicate Superintendent Wood. Title 42

U.S.C. § 1983 provides a remedy to parties who are deprived of federally protected civil

rights by persons acting under color of any state “law, statute, ordinance, regulation,

custom, or usage.” To state a cause of action under § 1983, a plaintiff must allege facts

showing that: (1) an official deprived the plaintiff of a federally protected civil right,

privilege or immunity and (2) that the official did so under color of State law. 42 U.S.C. §

1983; see also Perrin v. Nicholson, C/A No. 9:10-1111-HFF-BM, 2010 WL 3893792

(D.S.C. Sept. 8, 2010). If either of these elements is missing, the complaint fails to state a

claim for relief under 42 U.S.C. § 1983. For an official to be liable under § 1983, it must

be “affirmatively shown that the official charged acted personally in the deprivation of the

plaintiff’s rights. The doctrine of respondeat superior has no application under this

section.” Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (quoting Bennett v.

Gravelle, 323 F. Supp. 203, 214 (D. Md. 1971)). In other words, if Superintendent Wood

is joined as a defendant simply because of his position at the Jail, then he should be

summarily dismissed from the lawsuit.

In light of these governing principles, Plaintiff must amend his complaint as follows

to cure the above-stated deficiencies:

1. Plaintiff must demonstrate that he has exhausted his administrative remedies, or

that administrative remedies are not “available.”

2. Plaintiff must identify the nature of the physical injury, if any, he claims to have

suffered as a result of the alleged wrongdoing of each defendant and provide some factual

allegations that establish the existence of his reported emotional injuries.

3. Plaintiff must set forth factual allegations explaining how Superintendent Wood

personally violated Plaintiff’s constitutional rights.

Plaintiff is ORDERED to amend his complaint within thirty (30) days of the

date of this Order. Plaintiff is hereby given notice that a failure to amend the

complaint as ordered shall result in a recommendation that the complaint be dismissed

for failure to state a claim under 42 U.S.C. § 1983 and/or for failure to prosecute under

Fed. R. Civ. P. 41 and L. R. Civ. P. 41.1.

Plaintiff is also advised that 28 U.S.C. § 1915 governs actions in which a

prisoner seeks to proceed without prepayment of fees or costs (“in forma pauperis”).

Section 1915(g) of the statute includes a “three strikes” rule, stating as follows:

In no event shall a prisoner bring a civil action or appeal a judgment in a

civil action or proceeding under this section if the prisoner has, on 3 or more

occasions, while incarcerated or detained in any facility, brought an action

or appeal in a court of the United States that was dismissed on the grounds

that it is frivolous, malicious, fails to state a claim upon which relief may be

granted, unless the prisoner is under imminent danger of serious physical

injury.

28 U.S.C. § 1915(g). According to the Court’s docket, Plaintiff has filed three pro se

lawsuits in this Court in the past. In all three, he requested to proceed without prepayment

of fees or costs. One of those cases was dismissed for failure to state a claim and may count

as one strike under the three strikes rule. If two more cases are dismissed for any of the

reasons listed above, Plaintiff shall be barred from filing any other cases in forma

pauperis unless he is in imminent danger of serious physical injury. Therefore,

Plaintiff may wish to carefully review his complaint herein and determine whether he

wishes to proceed with the case at this time. If after considering the issues, Plaintiff wishes

to voluntarily dismiss the pending action, he shall file a Motion for Voluntary Dismissal

with the Clerk of Court, explaining that he currently does not wish to prosecute the matter.

Plaintiff is reminded of his obligation as a pro se plaintiff to promptly advise

the Clerk of Court of any changes in his address.

The Clerk is directed to mail a copy of this Order to Plaintiff.

ENTERED: May 10, 2019

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Uni ates Magistrate Judge

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