Warren v. Tate

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

Wheeling

BRANDON RUSSELL WARREN,

Plaintiff,

v. Civil Action No. 5:24-CV-185

Judge Bailey

DIDYMUS TATE, LT. JANE DOE,

JOSEPH R. KINSER, OFFICER RICE,

TARA MOON, OFFICER BOOTHE,

OFFICER PEREZ, and LARRY PETTE,

Defendants.

REPORT AND RECOMMENDATION

I. Background

On September 12, 2024, the plaintiff, a state pre-trial detainee, filed a pro se

Complaint against the above-named defendants pursuant to 42 U.S.C. § 1983. This

matter is assigned to the Honorable John Preston Bailey, United States District Judge,

and it is referred to the undersigned United States Magistrate Judge for submission of

proposed findings and a recommendation for disposition, pursuant to 28 U.S.C.

§ 636(b)(1)(B). For the reasons that follow, the undersigned recommends that Claims

Five, Seven, Nine, and Ten be dismissed and that the defendants be directed to answer

the remaining claims.

II. The Complaint

The facts alleged in the Complaint occurred while plaintiff was a pretrial detainee

housed at the Eastern Regional Jail and Corrections Facility in Martinsburg, West

Virginia.1 Plaintiff’s Complaint includes ten claims. First, plaintiff asserts a claim that

defendants Rice, Boothe and Superintendent Tate were deliberately indifferent to his

safety and failed to protect him by “hous[ing] me in a pod known for assaulting inmates

with sex charges” and that, as a result, he was assaulted by three inmates in his cell.

[Doc. 1 at 14]. In an attachment, plaintiff alleges that he was not placed in protective

custody despite multiple requests, that the involved inmates knew his name and charges,

that guards ignored emergency buttons during an assault, and that another inmate told

him guards had given them this information and told them “they wouldn’t get in trouble for

it.” [Id. 1 at 10]. Second, he alleges defendant Moon was deliberately indifferent to severe

head trauma, including leaving plaintiff unattended for two days as symptoms worsened.

[Id. at 14]. Third, plaintiff asserts an Eighth Amendment claim for denial of bathroom

facilities, alleging that he was kept in an interview room with no bathroom and forced to

use a drinking cup to urinate for two days. [Id.]. Fourth, he alleges his due process rights

were violated by defendants Kinser, apparently the prosecuting attorney in plaintiff’s

criminal case, and Superintendent Tate, who he alleges conspired to place him in

administrative segregation for approximately two months. [Id.]. Fifth, he alleges

defendant Kinser refused to press charges on plaintiff’s attackers. [Id.]. Sixth, he alleges

that the decision to keep him in solitary confinement for two months was in retaliation for

a phone call plaintiff’s mother made to the jail. [Id. at 15]. Seventh, he alleges his First

Amendment rights were violated when defendants Rice, Boothe, and Jane Doe refused

to file multiple grievances plaintiff gave them. [Id.]. Eighth, plaintiff alleges that Officer

1 Although plaintiff does not include his status as a pretrial detainee in the Complaint, the

undersigned notes that the West Virginia Division of Corrections and Rehabilitation

website lists him as a pretrial felon facing charges in Berkely County, West Virginia.

Boothe, at the direction of Superintendent Tate, intentionally waited to take plaintiff’s

photograph until after the assault by other inmates so that the photograph would show

him beaten up in order to humiliate plaintiff by using the photograph on his ID card and

the jail website. [Id.]. Ninth, plaintiff alleges Officer Perez caused him mental anguish by

attempting to place him back in the housing unit in which he was assaulted. [Id. at 16].

Finally, plaintiff alleges his First Amendment rights were violated because Larry Pette

refused to intervene to prevent the obstruction of his grievance process. [Id.].

III. Standard of Review

Because the plaintiff is a prisoner seeking redress from a governmental entity or

employee, the Court must review the complaint to determine whether it is frivolous or

malicious. Pursuant to 28 U.S.C. § 1915A(b), a court is required to perform a judicial

review of certain suits brought by prisoners and must dismiss a case at any time if the

court determines that the complaint is frivolous, malicious, fails to state a claim upon

which relief can be granted, or seeks monetary relief against a defendant who is immune

from such relief.

A complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke

v. Williams, 490 U.S. 319, 325 (1989). However, the court must read pro se allegations

in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 520 (1972). A complaint which

fails to state a claim under Fed.R.Civ.P. 12(b)(6) is not automatically frivolous. See

Neitzke at 328. Frivolity dismissals should only be ordered when the legal theories are

“indisputably meritless,”2 or when the claims rely on factual allegations which are “clearly

baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). This includes claims in which

2 Id. at 327.

the plaintiff has little or no chance of success. See Estelle v. Gamble, 429 U.S. 97, 106

(1976).

IV. Discussion

Based on a preliminary review of the Complaint, the undersigned finds that

summary dismissal of several of plaintiff’s claims is not appropriate at this time and the

defendants should be directed to answer. However, an initial review shows that Claims

Five, Seven, Nine, and Ten should be dismissed.

A. Claim Five should be dismissed because plaintiff has no right to compel a

prosecutor to bring charges against another.

In Claim Five, plaintiff alleges his that 14th Amendment right to equal protection

was violated by defendant Kinser’s refusal to bring criminal charges against plaintiff’s

attackers. Plaintiff has no right to compel a prosecutor to bring charges against another

person, and this claim should be dismissed as frivolous. “No citizen has an enforceable

right to institute a criminal prosecution.” Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir.

1990) (citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“in American

jurisprudence at least, a private citizen lacks a judicially cognizable interest in the

prosecution or nonprosecution of another.”)). Further, defendant Kinser would enjoy

absolute immunity from such a claim. A prosecutor is absolutely immune from § 1983

suits for damages for acts taken within the scope of his prosecutorial duties, including

“whether and when to prosecute.” Imbler v. Pachtman, 424 U.S. 409, 420, n. 33 (1976).

B. Claims Seven and Ten should be dismissed because plaintiff has no

constitutional right to grievance procedures.

In Claims Seven and Ten, plaintiff alleges his First Amendment rights were violated

because he was denied access to the grievance process in the facility. Plaintiff alleges

that he turned in multiple grievances to defendants Rice, Boothe, and Jane Doe, but none

of his grievances were filed. [Doc. 1 at 15]. He alleges he rewrote the grievances and

sent them to Charleston to be filed, but that he has received no response from the

Superintendent level. [Id.]. Similarly, in Claim 10, plaintiff alleges that he made multiple

phone calls and sent letters and emails to defendant Pette, who “refused to take any

action upon Superintendent Tate to get ERJ to comply and stop obstructing my grievance

process.” [Id. at 16]. “[T]he Constitution creates no entitlement to grievance procedures

or access to any such procedure voluntarily established by a state.” Adams v. Rice, 40

F.3d 72, 75 (4th Cir. 1994) (citations omitted). “An inmate thus cannot bring a § 1983

claim alleging denial of a specific grievance process, for example.” Booker v. S.C. Dep’t

of Corr., 855 F.3d 533, 541 (4th Cir. 2017). The undersigned finds that this claim does

not state a claim upon which relief can be granted and should be denied.

C. Claim Nine should be dismissed because the alleged conduct does not rise

to the level of a constitutional violation.

In Claim Nine, plaintiff alleges Officer Perez violated plaintiff’s Eighth Amendment

rights by leading plaintiff down a hallway in an attempt to place plaintiff back in the unit in

which he was assaulted. [Doc. 1 at 16]. Although Perez did not place plaintiff in the unit

after “the captain on shift radioed him to bring [plaintiff] back to the interview room,”

plaintiff asserts this event caused him mental anguish. [Id.]. Insofar as plaintiff frames

his claim as one brought under the Eighth Amendment, he has failed to allege such a

claim, which requires that the official acted with a sufficiently culpable state of mind and

that the deprivation or injury was sufficiently serious. Iko v. Shreve, 535 F.3d 225, 238

(4th Cir. 2008). Plaintiff has clearly not alleged the subjective component of a “sufficiently

culpable state of mind” here. However, this Court has a duty to liberally construe filings

by pro se litigants. Haines v. Kerner, 404 U.S. 519, 520 (1972). This can include

recharacterizing a motion to create a better correspondence between the claim and its

legal basis. Castro v. United States, 540 U.S. 375, 381 (2003). Here, plaintiff is a

pretrial detainee, and “pretrial detainees (unlike convicted prisoners) cannot be punished

at all.” Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015).

Nonetheless, plaintiff’s claim does not rise to the level of a constitutional violation.

Plaintiff’s claim is that he was led down a hallway toward the unit where he was previously

assaulted, but not ultimately placed there, causing him mental anguish. Even assuming,

arguendo, that Officer Perez’s actions were done with the intent of threatening plaintiff,

such threats, alone, do not give rise to a constitutional violation. See, e.g., Henslee v.

Lewis, 153 F. App’x 178, 180 (4th Cir. 2005) (unpublished) (per curiam) (“Mere threats

or verbal abuse by prison officials, without more, do not state a cognizable claim under

§ 1983.”) (citing Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979)).

V. Recommendation

For the foregoing reasons, the undersigned recommends that:

1. claims Five, Seven, Nine, and Ten of the Complaint be DISMISSED, and,

accordingly, defendants Lt. Jane Doe, Officer Perez, and Larry Pette be dismissed from

this case;

2. the plaintiff’s remaining claims proceed and that the remaining defendants

be served with a copy of the summons and Complaint through the United States Marshal

Service.

The plaintiff shall have fourteen days from the date of service of this Report and

Recommendation within which to file with the Clerk of this Court, specific written

objections, identifying the portions of the Report and Recommendation to which

objection is made, and the basis of such objection. A copy of such objections should

also be submitted to the United States District Judge. Objections shall not exceed ten

(10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless

accompanied by a motion for leave to exceed the page limitations, consistent with LR PL

P 12.

Failure to file written objections as set forth above shall constitute a waiver

of de novo review by the District Court and a waiver of appellate review by the

Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas

v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United

States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

The Clerk of the Court is further DIRECTED to mail a copy of this Report and

Recommendation to the pro se plaintiff by certified mail, return receipt requested, to his

last known address as reflected on the docket sheet.

DATED: October 2, 2024.

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JAMES P. MAZZONE

UNITED STATES MAGISTRATE JUDGE