King v. Rubenstein

• Decision Date: 11 December 2014
• Docket Number: Civil Action No. 3:14-cv-42
• Court: U.S. District Court — Northern District of West Virginia
• Parties: ADRIAN F. KING, JR., Plaintiff, v. JIM RUBENSTEIN, Commissioner; et al., Defendants.

ADRIAN F. KING, JR., Plaintiff, v. JIM RUBENSTEIN, Commissioner; et al., Defendants.

Civil Action No. 3:14-cv-42

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

December 11, 2014

REPORT AND RECOMMENDATION/ORDER

On March 7, 2014, pro se Plaintiff Adrian F. King, Jr. ("Plaintiff") filed a Complaint initiating this civil rights action pursuant to 42 U.S.C. § 1983 in the Circuit Court of Kanawha County, West Virginia. (Docket No. 1-2.) On April 11, 2014, Defendants Rubenstein, Plumley, Miller, Rosencrance, Thompson, Davis, Smith, Sr., Gsell, and Smith (collectively, "Defendants") removed the matter to the Southern District of West Virginia and filed a motion to dismiss and memorandum in support. (Docket Nos. 1, 2, 3.) On April 23, 2014, United States Magistrate Judge Dwane L. Tinsley entered an Order directing that the case be transferred to this Court pursuant to 28 U.S.C. § 1406. (Docket No. 5.) On April 28, 2014, the undersigned issued notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), informing Petitioner of his right to file material responsive to Defendants' motion to dismiss. (Docket No. 10.) Plaintiff filed his response on May 12, 2014 (Docket No. 16), and Defendants filed a reply on May 19, 2014 (Docket No. 17). Plaintiff filed what was titled "Response to Defendants' Second Motion to Dismiss" on June 9, 2014. (Docket No. 18.) Defendants filed a motion to strike that filing on June 10, 2014. (Docket No. 19.) On June 26, 2014, Plaintiff filed a "Motion for Leave to File a Surreply," which also included a request for the appointment of counsel. (Docket No. 20.)

I. Contentions of the Parties

A. Plaintiff's Complaint

In his Complaint, Plaintiff alleges that in 2008, he had a surgical procedure to implant marbles in his penis. (Docket No. 1-2 at 10.) In January 2013, while incarcerated at Huttonsville Correctional Center ("HCC"), Defendant states that he was placed in administrative segregation for an alleged violation of Policy Directive 325.00-1.26, "Exposing Body Fluids/Tattooing/Piercing." (Id. at 19-20.) According to Plaintiff, HCC staff believed that he had implanted the marbles since arriving at HCC. (Id. at 19.) Plaintiff was found guilty of the violation and was sentenced to sixty (60) days of segregation, sixty (60) days of lost privileges, and ninety (90) days of lost good time. (Id. at 20.) Subsequently, Plaintiff alleges that Unit Manager Sherri Davis had him sign consent forms to go to Ruby Memorial Hospital to have a doctor examine the implants and, if necessary, remove them. (Id.)

Plaintiff further alleges that on January 31, 2013, he was taken to Ruby Memorial Hospital, where he was examined by Dr. Henry Fooks, Jr. (Id.) According to Plaintiff, Dr. Fooks determined that the implants had not been recently done, that there was no medical reason to remove them, and that staff at HCC could not force him to remove them. (Id.) Plaintiff was taken back to HCC, where he alleges Deputy Warden Grover Rosencrance placed him in the segregation unit again. (Id.) Plaintiff states that he remained in segregation from January 31 until June 19, 2013, when he consented to be taken to Ruby Memorial Hospital to have the marbles removed. (Id.)

As a result, Plaintiff alleges the following claims:

1. Violation of Eighth Amendment right to be free from cruel and unusual punishment;2. Violation of Fourteenth Amendment right to equal protection; and

3. Violation of Fourth Amendment right to be free from illegal seizures.

(Id. at 9-12, 18-21.) As relief, he requests:

1. Compensation (including punitive damages) in the amount of $500,000;

2. Replacement of implants and repair of tattoo "due to scarring through tattoo after unwanted/forced surgery at Ruby Memorial";

3. Full restoration of good time credit;

4. Expungement of all disciplinary infractions pertaining to the incident;

5. Reimbursement of any attorney fees, filing fees, and court costs;

6. An injunction to prevent any retaliatory actions by prison staff; and

7. A formal investigation into staff misconduct and appropriate sanctions implemented.

(Id. at 14, 22.)

B. Defendants' Motion to Dismiss

Defendants allege that Plaintiff's Complaint should be dismissed for the following reasons:

1. Plaintiff's Complaint fails to allege sufficient facts to state a claim upon which relief can be granted;

2. Individuals sued in their official capacities are not "persons" under 42 U.S.C. § 1983 and must be dismissed;

3. These Defendants are entitled to qualified immunity to the extent they are sued in their individual capacities;

4. Defendant Jim Rubenstein must be dismissed because the Plaintiff fails to state a claim upon which relief can be granted against him;

5. Plaintiff is barred from recovering for an action to which he consented;

6. Plaintiff cannot maintain a claim for punitive damages; and7. Plaintiff's claim for injunctive relief should be denied.

(Docket No. 3 at 3-15.)

C. Plaintiff's Response

In his response, Plaintiff asserts that the "Administration and Staff at HCC, had no jurisdiction/cause to "FORCE" the Plaintiff to consent to the surgery in question." (Docket No. 16 at 2.) He further alleges that he "resisted the threats by Staff for as long as he possibly could, and then he gave in due to the several months he was deprived of his "RIGHT" to live in General Population and coexist with individuals he has lived with for several years." (Id.)

D. Defendants' Reply

Again, Defendants assert that Plaintiff's Complaint should be dismissed because:

1. Plaintiff's Complaint fails to allege sufficient facts to state a claim upon which relief can be granted;

2. Defendant Jim Rubenstein must be dismissed because Plaintiff fails to state a claim upon which relief can be granted against him; and

3. Plaintiff is barred from recovering for an action to which he consented.

(Docket No. 17 at 2-4.)

E. Plaintiff's Surreply

In his surreply, Plaintiff again alleges that his Eighth Amendment rights have been violated because he has been subjected to psychological and emotional abuse since undergoing the procedure. (Docket No. 18 at 1-5.) Plaintiff has attached memoranda from his administrative segregation hearing reviews as well as affidavits from fellow prisoners. (Docket Nos. 18-1 and 18-2.)

II. Standard of Review

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly,it does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1999)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952.

The Federal Rules of Civil Procedure "require only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Courts long have cited the "rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [a] claim which would entitle him to relief." Conley, 355 U.S. at 45-46. In Twombly, the United States Supreme Court noted that a complaint need not assert "detailed factual allegations," but must contain more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." 550 U.S. at 555 (citations omitted). Thus, the "[f]actual allegations must be enough to raise a right to relief above the speculative level," (Id). (citations omitted), to one that is "plausible on its face," id. at 570, rather than merely "conceivable," id. Therefore, in order for a complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I.DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir.2002); Iodice v. United States, 289 F.3d 279, 281 (4th Cir.2002)). In so doing, the complaint must meet a "plausibility" standard, instituted by the Supreme Court inAshcroft v. Iqbal, where it held that a "claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, a well-pleaded complaint must offer more than "a sheer possibility that a defendant has acted unlawfully" in order to meet the plausibility standard and survive dismissal for failure to state a claim. Id.

III. Analysis

A. Plaintiff's Motion for Leave to File Surreply; Defendants' Motion to Strike

As noted above, Plaintiff filed a surreply in this matter on June 9, 2014. (Docket No. 18.) Defendants filed a motion to strike the surreply, citing L.R. Civ. P. 7.02(b)(3), which provides that "[p]arties shall not file surreply memoranda except by leave of court." (Docket No. 19.) Subsequently, Plaintiff filed a motion for leave to file a surreply. (Docket No. 20.) Although Plaintiff filed his motion for leave to file subsequent to filing his surreply, the Court will consider the surreply, GRANT his motion to the extent it requests leave to file, and DENY Defendants' motion to strike.

In his motion, Plaintiff also requests that the Court "appoint counsel so that the Plaintiff will have the opportunity of Full and Fair litigation." (Docket No. 20 at 2.) It is well settled that in a civil action, the Court should appoint counsel to represent an indigent only after a showing of...