Gibbs v. Ames

• Decision Date: 02 February 2022
• Docket Number: Civil Action 2:21-00392
• Parties: ANTWYN GIBBS, Plaintiff, v. WARDEN DONALD AMES, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

ANTWYN GIBBS, Plaintiff, v. WARDEN DONALD AMES, et al., Defendants.

Civil Action No. 2:21-00392

United States District Court, S.D. West Virginia, Charleston Division

February 2, 2022

PROPOSED FINDINGS AND RECOMMENDATION

Omar J. Abculhosn United States Magistrate Judge

On November 17, 2021, Plaintiff, acting pro se, filed his Amended Complaint seeking relief for alleged violations of his constitutional rights pursuant to 42 U.S.C. § 1983.^[1] (Document No. 31.) Plaintiff names the following as Defendants: (1) Donald Ames, Warden; (2) John Frame; (3) Josh Ward; (4) Ms. Becky, Mental Health Therapist (5) Sgt. White; (6) Sgt. Bouts; (7) Sgt. Legg; (8) CO II Moles; (9) CO I Reid; (10) CO II Brown; (11) Brenda Ward Programming; (12) Pam Givings; (13) Lt. Michell; (14) CO II Benitt; (15) Captain Clifford; (16) Wooden; (17) Brad; and (18) CO I McDowell. (Id.) First, Plaintiff alleges that Defendants Ames, Frame, and Ward are violating his constitutional rights by improperly “answering grievances for medical” and telling Plaintiff not to file anymore grievances. (Id., p. 4.) Plaintiff further contends that he “can't exhaust his grievances due to [Defendant] McDowell holding Plaintiff's legal mail by signing Plaintiff's signature.” (Id., p. 6.) Plaintiff states that his constitutional rights are further violated because he files grievances and “never gets them back.” (Id., p. 8.) Second, Plaintiff alleges Defendants Ames and Frame “train their officers to be untrained in lack of training by beating up Plaintiff” in violation of his Eighth Amendment right. (Id., p. 4.) Plaintiff contends that the correctional officers that beat him up are Sgt. Bouts, Lt. Michell, and CO II Moles. (Id., p 5.) Plaintiff further alleges that CO Reid and CO Brown sprayed Plaintiff “behind a cell door of Q2 pod 5 for complaining about his store call.” (Id.) Plaintiff argues that inmates are not to be sprayed behind a cell door unless the inmate is a danger to himself or others. (Id.) Plaintiff alleges he even though he was “cuff from behind and shackled, ” Sgt. White used force by dragging Plaintiff. (Id., p. 6.) Third, Plaintiff complains that Defendant McDowell “gave Plaintiff's legal mail without signing off on the legal mail.” (Id., p. 4.) Fourth, Plaintiff complains that his “child's mother” is keeping Plaintiff's child from him, and Defendant McDowell “is working with them to keep me in prison.” (Id.) Fifth, Plaintiff alleges that Mr. Wooden takes items from Plaintiff's “store call, ” money, and TV without due process. (Id., p. 5.) Sixth, Plaintiff alleges that he is harassed and threated by MOCC staff, Donald Ames, and John Frame for filing grievances. (Id., p. 6.) Sixth, Plaintiff complains that he is being denied proper medical treatment for “a root that was cracked in his mouth” because Ms. Becky in “Mental Health” claims that Plaintiff has a mental problem. (Id.) Finally, Plaintiff appears to challenge the validity of his underlying criminal conviction. (Id., pp. 7 - 8.) Plaintiff alleges that the “Supreme Court” violated his constitutional rights by failing to allow Plaintiff to present an oral argument “about the cumulative error of the cell phone that was used in Plaintiff's trial” and the use of “illegal evidence that was used in Plaintiff's trial.” (Id., p. 7.) Plaintiff claims that it was a violation of his “constitutional rights that he went to trial with his co-defendant, Kevin Goodman.” (Id.) Plaintiff argues that his Sixth Amendment right to counsel was violated when he was “illegal extradited from South Carolina.” (Id.) Plaintiff alleges that prosecutor withheld “exculpatory evidence of the government warrant to use against Plaintiff at a supplemental hearing.” (Id.)

On January 27, 2022, Plaintiff filed a “Motion for Injunctions.” (Document No. 37.) Plaintiff appears to allege that his constitutional rights are being violated by Plaintiff's “child's mother” being in danger by verbal threats to Plaintiff from Defendant Frame and other “confidential informants.” (Id.) As relief, Plaintiff requests that he be transferred to South Carolina for his criminal case. (Id.)

THE STANDARD

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court is required to screen each case in which a plaintiff seeks to proceed in forma pauperis, and must dismiss the case if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. Pursuant to 28 U.S.C. § 1915A, a similar screening is conducted where a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. This screening is done prior to consideration of an Application to Proceed Without Prepayment of Fees and Costs, and notwithstanding the payment of any filing fee. On screening, the Court must recommend dismissal of the case if the complaint is frivolous, malicious or fails to state a claim upon which relief can be granted. A “frivolous” complaint is one which is based upon an indisputably meritless legal theory. Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). A “frivolous” claim lacks “an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831 - 32, 104 L.Ed.2d 338 (1989). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Id., 490 U.S. at 327, 109 S.Ct. at 1833. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id., 490 U.S. at 327 - 328, 109 S.Ct. at 1833. A complaint therefore fails to state a claim upon which relief can be granted factually when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. With these standards in mind, the Court will assess Plaintiff's allegations in view of applicable law.

This Court is required to liberally construe pro se documents, holding them to a less stringent standard than those drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (1978). Liberal construction, however, “does not require courts to construct arguments or theories for a pro se plaintiff because this would place a court in the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Miller v. Jack, 2007 WL 2050409, at * 3 (N.D.W.Va. 2007)(citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978)). Further, liberal construction does not require the “courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4^th Cir. 1985). In other words, a court may not construct legal argument for a plaintiff. Small v. Endicott, 998 F.2d 411 (7th Cir.1993). Finally, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Servs., 901 F.2d 387 (4th Cir.1990)). Where a pro se Complaint can be remedied by an amendment, however, the District Court may not dismiss the Complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992); also see Goode v. Central Va. Legal Aide Society, Inc., 807 F.3d 619 (4^th Cir. 2015).

DISCUSSION

Title 42 U.S.C. § 1983 provides a remedy for violations of all “rights, privileges, or immunities secured by the Constitution and laws [of the United States].” Thus Section 1983 provides a “broad remedy for violations of federally protected civil rights.” Monell v. Dep't of Social Services, 436 U.S. 658, 685, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Generally speaking, to state and prevail upon a claim under 42 U.S.C. § 1983, a Plaintiff must prove that (1) a person acting under color of State law (2) committed an act which deprived him of an alleged right, privilege or immunity protected by the Constitution or laws of the United States.

1.Administrative Remedy Process:

In his Amended Complaint, Plaintiff alleges that Defendants violated his constitutional rights by denying him access to the administrative remedy process. (Document No. 31, p. 4, 6, 8.) Inmates, however, have no constitutional right to access or participation in the administrative grievance proceedings. See Adams v. Rice, 40 F.3d 72, 75 (4th Cir.) cert. denied, 514 U.S. 1022, 115 S.Ct. 1371, 131 L.Ed.2d 227 (1994)(“[T]he Constitution creates no entitlement to grievance procedures or access to any such procedure voluntarily established by a state.”); Booker v. South Carolina Dept. of Corrections, 855 F.3d 533 (4^th Cir. 2017)(“Adams establishes a clear rule: inmates have no constitutional entitlement or due process interest in access to a grievance procedure.”); Taylor v. Lang, 483 Fed.Appx. 855, 858 (4^th Cir. 2012)(finding that a state inmate's access and participation in the prisoner's grievance process are not constitutionally protected); Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)(“[T]he federal regulations providing for an administrative remedy procedure do not in and of themselves create a liberty interest in access to that procedure. When the claim underlying the administrative grievance involves a constitutional right, the prisoner's right to petition the government for redress is the right of access to the courts, which is not compromised by the prison's refusal to entertain his grievance.”) A prison employee's refusal to respond to an inmate's administrative complaint, or conduct that otherwise prevents an inmate from pursuing such complaints through the administrative remedy process,...