Harper v. Blagg

• Court: U.S. District Court — Southern District of West Virginia
• Writing for the Court: THOMAS E. JOHNSTON UNITED STATES DISTRICT JUDGE
• Decision Date: 28 October 2015
• Docket Number: CIVIL ACTION NO. 2:13-cv-19796
• Citation: Harper v. Blagg, CIVIL ACTION NO. 2:13-cv-19796 (S.D. W.Va. Oct 28, 2015)
• Parties: CEDEAL HARPER, Plaintiff, v. MICHAEL BLAGG, et al. Defendants.

CEDEAL HARPER, Plaintiff, v. MICHAEL BLAGG, et al. Defendants.

CIVIL ACTION NO. 2:13-cv-19796

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

October 28, 2015

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants Michael Blagg, Margaret Clifford, and James McCloud's Motion for Summary Judgment (the "Motion"). (ECF No. 94.) By its Memorandum Opinion and Order entered on March 18, 2014, the Court referred this action to United States Magistrate Judge Dwane L. Tinsley for submission of proposed findings of fact and recommendations for disposition. (See ECF No. 47 at 17.) On July 30, 2015, Magistrate Judge Tinsley filed proposed findings of fact and recommendations for disposition (the "PF&R"), in which he recommends that the Court grant the Motion and dismiss this action. (ECF No. 97.) Plaintiff filed timely objections to the PF&R (the "Objections") on August 14, 2015. (ECF No. 98.)

For the reasons discussed herein, the Court SUSTAINS IN PART and OVERRULES IN PART the Objections, (id.), ADOPTS the PF&R, (ECF No. 97), to the extent it is consistent with this Memorandum Opinion and Order, and GRANTS IN PART and DENIES IN PART Defendants' Motion, (ECF No. 94).

I. Background

This is a civil rights action pursuant to 42 U.S.C. § 1983 brought by an inmate at the Mount Olive Correctional Complex ("Mount Olive"). Plaintiff is "a prisoner of the State of West Virginia in the custody of the West Virginia Division of Corrections" (the "DOC") and "is currently confined in [Mount Olive]." (ECF No. 65 ¶ 2.) Defendants are correctional officers at Mount Olive. (See id. ¶¶ 3-5.) Defendant Blagg holds the rank of sergeant, Defendant Clifford "is a [l]ieutenant," and Defendant McCloud holds the rank of captain. (Id.)

Correctional officers conducted "a mass cell search in the Quilliams segregation units at [Mount Olive] on Monday, June 3, 2013 through Friday, June 7, 2013." (ECF No. 95, Ex. B ¶ 4.) On June 6, 2013, Plaintiff was confined in the Quilliams Two segregation unit at Mount Olive. (ECF No. 65 ¶ 12; ECF No. 95 at 11.) On this date, Defendants entered the Quilliams Two segregation unit to conduct part of the mass cell search. (See ECF No. 65 ¶ 12.) Plaintiff alleges that "two [correctional] officers" escorted Plaintiff out of his cell "with his hands cuffed behind his back and legs shackled together." (Id. ¶ 13.) Plaintiff was then "secured to the a [sic] stool." (ECF No. 95 at 11.)

The record is not clear as to precisely what occurred once Plaintiff was seated on the stool. Plaintiff provided deposition testimony that he sat on the stool "quietly just waiting to be put back in [his] cell." (Id., Ex. A at 28:18-19.) Defendant Blagg provided a slightly different account and stated that Plaintiff began "moving about on the stool he was sitting on," which "caus[ed] the posted K-9 to become agitated." (Id., Ex. E at 64.)

However, the record is clear that Defendant Clifford gave Plaintiff verbal directions to look at the wall and not move. (ECF No. 65 ¶¶ 16-17; ECF No. 95 at 11; cf. ECF No. 65 ¶ 15 (providing Plaintiff's allegation that Defendant "Clifford jumped in front of [Plaintiff] and started yelling look at the wall," while "a container" of pepper spray "was pointed [Plaintiff's] face").) Defendant Clifford then told Defendant Blagg "that if Plaintiff were to move, then Plaintiff was to be sprayed with O.C.," i.e. pepper spray. (ECF No. 95 at 11; see, e.g., ECF No. 65 ¶ 17 (providing Plaintiff's averment that, "[w]hile [he] was looking at the wall, [Defendant] Clifford told [Defendant] Blagg to spray [Plaintiff] if [he] moved").)

The parties' accounts again diverge as to what occurred next. Plaintiff alleges that he responded to Defendant Clifford speaking to Defendant Blagg by "turn[ing] his head to see who [Defendant] Clifford was talking to." (ECF No. 65 ¶ 17.) Defendant Blagg, on the other hand, stated that Plaintiff "immediately began fidgeting and looking around the . . . area." (ECF No. 95, Ex. E at 64.) Nonetheless, it is undisputed that Defendant Blagg responded to Plaintiff's movement by administering two bursts of pepper spray at Plaintiff's facial region (the "Disciplinary Event"). (ECF No. 65 ¶ 17; ECF No. 95 at 14.) Following a brief period of time, Defendant Blagg escorted Plaintiff to another area for decontamination. (See, e.g., ECF No. 95, Ex. E at 64; cf. ECF No. 65 ¶ 19 (providing Plaintiff's allegation that, following the Disciplinary Event, he sat on the stool "for the next ten or so minutes until [he] was removed from the pod for decontamination").)

Plaintiff also avers that roughly "a minute or so" after the Disciplinary Event and while Plaintiff was still seated on the stool, Defendant McCloud "came over and whispered in [Plaintiff's] ear 'now you can file another lawsuit.'" (ECF No. 65 ¶ 19.) Plaintiff "believes" that the actions of Defendants were a "concerted effort to retaliate against [Plaintiff] for filing [two]civil actions" in this District: (1) Harper v. McCloud, Civil Action No. 2:12-cv-00656 (S.D. W. Va.), "an excessive force case against [Defendant] McCloud and others;" and (2) Harper v. Dillion, Civil Action No. 2:12-cv-04751 (S.D. W. Va.), "a suit that includes retaliation claims against [Defendant] McCloud and others." (Id. ¶ 24; see also ECF No. 95, Ex. A at 40:14-41:5 (constituting Plaintiff's deposition testimony, in which he acknowledges that he does not have any testimony or documents to support his retaliation claims, but that he "think[s] the circumstance[s] would imply that" Defendant McCloud directed, conspired, or encouraged Defendant Blagg to spray Plaintiff with pepper spray in retaliation for Plaintiff's prior lawsuits).)

Plaintiff filed his initial complaint in this Court on July 15, 2013 against Defendants and other individuals.¹ (ECF No. 2.) In its Memorandum Opinion and Order entered on March 18, 2014, the Court dismissed with prejudice all defendants except the remaining Defendants. (ECF No. 47 at 17.)

On April 17, 2014, Plaintiff filed a Motion for Leave to File Supplement and/or Amended Complaint (the "Motion to Amend"), which included an amended complaint. (ECF No. 65.) On May 21, 2014, Magistrate Judge Tinsley granted the Motion to Amend, with the exception that Plaintiff "may not attempt to state new or revised allegations against defendants who have been dismissed with prejudice, or concerning forms of relief that have been dismissed." (ECF No. 74 at 1-2.) As such, the amended complaint included with the Motion to Amend (the "Complaint") is currently the operative complaint in this action. (See ECF No. 65 (constituting the operative Complaint).)

The Complaint includes the following causes of action: (1) an Eighth Amendment excessive force claim against Defendant Blagg pursuant to 42 U.S.C. § 1983,² (id. ¶ 36); (2) bystander liability claims against Defendants Clifford and McCloud pursuant to Section 1983, (id. ¶ 38); (3) supervisory liability claims against Defendants Clifford and McCloud pursuant to Section 1983, (id.); (4) First Amendment retaliation claims against all remaining Defendants pursuant to Section 1983,³ (id. ¶¶ 37, 39-40); and (5) common-law battery claims against all remaining Defendants,⁴ (id. ¶ 41). The Complaint alleges that, as a result of the Disciplinary Event,Plaintiff suffered physical and psychological harm, such as "burning of the face, eyes and private parts," "breathing problems," "sinus problems," "swelling of the face," "humiliation," "embarrassment," "fear," "anxiety," "nightmares," "mood swings," and "bepression [sic]." (Id. ¶ 32.) The Complaint requests a wide range of monetary relief, including compensatory and punitive damages for each claim, as well as attorney's fees and costs.⁵ (Id. ¶¶ 47-54.)

Defendants filed the Motion on November 25, 2014, (ECF No. 94), and Plaintiff filed his opposition to the Motion on December 10, 2014, (ECF No. 96). On July 30, 2015, Magistrate Judge Tinsley filed his PF&R, in which he recommends that the Court grant the Motion, in its entirety, and dismiss this action. (ECF No. 97.) Plaintiff then timely filed the Objections on August 14, 2015. (ECF No. 98.) Thus, the PF&R, the Objections, and the Motion are fully briefed and ready for disposition.

II. Legal Standards

A. Review of the PF&R

The Court is required to "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 "when neither party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, the Court need not conduct a de novo review when a petitioner "makes general and conclusory objections that do not direct the Court to a specific error in the magistrate's proposed findings and recommendations." Id. In reviewing those portions of the PF&R to which Plaintiff objected, the Court will consider the fact that Plaintiff is acting pro se 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 Standard

Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. That rule provides that a court should grant summary judgment if "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is inappropriate, however, if there exist factual issues that reasonably may be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v....