Hill v. Rose, Civil Action No. 5:18-01535

• Decision Date: 10 June 2019
• Docket Number: Civil Action No. 5:18-01535
• Parties: JERMAIN HILL, Plaintiff, v. OFFICER ROSE, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

JERMAIN HILL, Plaintiff, v. OFFICER ROSE, et al., Defendants.

Civil Action No. 5:18-01535

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

June 10, 2019

PROPOSED FINDINGS AND RECOMMENDATION

Pending before the Court is Plaintiff's Application to Proceed Without Prepayment of Fees (Document No. 4), filed on January 2, 2019. Having examined Plaintiff's letter-form Complaint and form Complaint, the undersigned has concluded that Plaintiff fails to state a claim for which relief can be granted in this matter and therefore respectfully recommends that Plaintiff's Application to Proceed Without Prepayment of Fees be denied and this matter be dismissed.

FACTUAL BACKGROUND

On December 21, 2018, the Court filed what it construed as a letter-form Complaint claiming entitlement to relief pursuant to Bivens v. Six Unknown Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 24 L.Ed.2d 619 (1971).¹ (Document No. 1.) Plaintiff alleges on December 18, 2018, he "was singled out and harassed by medical staff member Mr. Rose." (Id.) Plaintiff states that "Mr. Rose called me to the back office, slammed thedoor, and became very aggressive shouting and yelling at me saying and asking me if I had a problem with something he'd said." (Id.) Plaintiff acknowledges that he responded "no" and then he questioned Mr. Rose "What was the purpose of him calling me back there?" (Id.) Plaintiff claims that Mr. Rose then placed Plaintiff against the wall, searched him, and directed him to go back outside. (Id.) Plaintiff alleges Mr. Rose "appeared to be upset by not being able to provoke me into a confrontation or reaction." (Id.) Plaintiff explains that about ten minutes later "an institutional recall was issued ordering all inmates to return back to their housing unit." (Id.) Plaintiff claims that as he was returning to his unit, he was called back to medical by Mr. Rose and several other officers. (Id.) Plaintiff states that he was questioned by Lieutenant Metsker as to whether Plaintiff had a problem. (Id.) Plaintiff acknowledges that he responded as follows: "No, he said take your hat off, and I took my hat off. So what is the problem?" (Id.) Plaintiff alleges that a correctional officer known as "House" or "Officer Act Right," accused Plaintiff of "talking shit around all [his] boys." (Id.) Plaintiff complains that "Officer Act Right," Lt. Metsker, and Mr. Rose continued to "grill" him for about ten minutes. (Id.) Plaintiff claims he was then taken to the Lieutenant's Office where a strip search was ordered. (Id.) Plaintiff explains that after he got undressed, he was given the order to bend over and Plaintiff "attempted to squat and cough as protocol or procedural calls for." (Id.) In response, Plaintiff complains that "Officer Act Right" stated as follows: "Now not like that. You've been to jail before. You know how to do that shit. Now bend over from the waist and spread that shit with both hands." (Id.) Plaintiff contends that "Officer Act Right" was insinuating that Plaintiff was "familiar with performing homosexual actions and ordered [him] to get in a comprising position while he and other officers shared a laugh about it." (Id.) Plaintiff states that he is now "mentally and emotionally traumatized by thisoccurrence and suffers from mental anguish." (Id.)

On January 2, 2019, Plaintiff filed his Application to Proceed Without Prepayment of Fess or Costs and a form Complaint. (Document Nos. 4 and 7.) Plaintiff names the following as Defendants: (1) Officer K. Crawford, FCI Beckley; (2) Officer Williams, aka "House", FCI Beckley; (3) Officer Lieutenant Metsker, FCI Beckley; and (4) "Other Individual Officers Unknown." (Document No. 7.) Plaintiff again asserts the same allegations as set forth in his letter-form Complaint. (Id., p. 4.) As relief, Plaintiff requests monetary damages.² (Id., p. 5.)

THE STANDARD

Pursuant to 28 U.S.C. § 1915A, the Court is required to screen each case in which a person seeks redress from a governmental entity or officer or employee of a governmental entity. 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 infact 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

1. Exhaustion:

The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a)(1996), requires that inmates exhaust available administrative remedies prior to filing civil actions though the administrative process may not afford them the relief they might obtain through civil proceedings.³ Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2382-83, 165 L.Ed.2d 368 (2006); Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)(The Prison Litigation Reform Act's exhaustion requirement applies to all inmate suits about prison life whether they involve general circumstances or particular episodes and whether they allege excessive force or some other wrong.); Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 1820,149 L.Ed.2d 958 (2001)("Under 42 U.S.C. § 1997e(a), an inmate seeking only money damages must complete any prison administrative process capable of addressing the inmate's complaint and providing some form of relief, even if the process does not make specific provision for monetary relief."). Exhaustion of administrative remedies is also required when injunctive relief is requested. Goist v. U.S. Bureau of Prisons, 2002 WL 32079467, *4, fn.1 (D.S.C. Sep 25, 2002), aff'd, 54 Fed.Appx. 159 (4^th Cir. 2003), cert. denied, 538 U.S. 1047, 123 S.Ct. 2111, 155 L.Ed.2d 1088 (2003). "[A] court may not excuse a failure to exhaust" because the PLRA's mandatory exhaustion scheme "foreclose[es] judicial discretion." Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850, 1856-57, 195 L.Ed.2d 117 (2016)("[A] court may not excuse a failure to exhaust, even to take [special circumstances] into account."). But the plain language of the statute requires that only"available" administrative remedies be exhausted. Id. at 1855("A prisoner need not exhaust remedies if they are not 'available.'"); also see Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003)(inmate lacked available administrative remedies for exhaustion purposes where inmate was unable to file a grievance because prison officials refused to provide him with the necessary grievance forms); Miller v. Norris, 247 F.3d 736, 740 (8^th Cir. 2001)(allegations that prison officials failed to respond to his written requests for grievance forms were sufficient to raise an inference that inmate had exhausted his available administrative remedies.)

If an inmate exhausts administrative remedies with respect to some, but not all, of the claims he raises in a Section 1983, Bivens or FTCA action, the Court must dismiss the unexhausted claims and proceed with the exhausted ones. See Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 913, 166 L.Ed.2d 798 (2007)("The PLRA does not require dismissal of the entire complaint when a prisoner has failed to exhaust some, but not all, of the claims included in the complaint. * * * If a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad.") It appears to be the majority view as well that exhausting administrative remedies after a Complaint is filed will not save a case from dismissal. See Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001)(overruled on other grounds), a Section 1983 action, citing numerous cases. The rationale is...