King v. Rubenstein

Decision Date07 June 2016
Docket NumberNo. 15–6382,15–6382
Citation825 F.3d 206
PartiesAdrian F. King, Jr., Plaintiff–Appellant, v. Jim Rubenstein, Commissioner; Marvin C. Plumley, Warden; Dianne R. Miller, Associate Warden Programs/Housing; Sergeant Grover Rosencrance, Deputy Warden; Lester Thompson, Unit Manager E–1 Segregation; Sherri Davis, Unit Manager E–2 Segregation; Stacy Scott, Supervised Psychologist/Ad Seg Board; Mike Smith, Sr., Unit Manager Ad Seg Board; Samantha Gsell, Case Manager Ad Seg Board; Adam Smith, Unit Manager/Ad Seg Board Chairman; Cliff Goodin, Head Psychologist, in their official and personal capacities, Defendants–Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Tennille Jo Checkovich, McGuireWoods LLP, Richmond, Virginia, for Appellant. Natalie C. Schaefer, Shuman, McCuskey & Slicer, PLLC, Charleston, West Virginia, for Appellees. ON BRIEF: Michael W. Stark, McGuireWoods LLP, Richmond, Virginia, for Appellant. Kimberly M. Bandy, Shuman, McCuskey & Slicer, PLLC, Charleston, West Virginia, for Appellees Jim Rubenstein, Marvin C. Plumley, Dianne R. Miller, Grover Rosencrance, Lester Thompson, Sherri Davis, Mike Smith, Sr., Samantha Gsell, and Adam Smith.

Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.

Affirmed in part, reversed, vacated, and remanded in part by published opinion. Judge Gregory wrote the opinion, in which Judge Duncan and Judge Floyd joined.

GREGORY, Circuit Judge:

Adrian F. King, Jr. appeals the district court's dismissal of his complaint for failure to state a claim. King filed suit under 42 U.S.C. § 1983 against several correctional officers, medical personnel, and prison administrators for alleged violations of his constitutional rights after he underwent surgery to remove penile implants while incarcerated. We conclude that King's complaint properly stated his Fourth, Eighth, and Fourteenth Amendment Equal Protection and Due Process claims. We also hold that King stated a claim against Marvin Plumley. We reverse the district court's decision on those bases, vacate the dismissal, and remand the case for further proceedings. We affirm the dismissal as to Stacy Scott, Cliff Goodin, and Jim Rubenstein, but modify the dismissal of the latter two to be without prejudice.


In reviewing a dismissal for failure to state a claim, we accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in favor of the plaintiff. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc. , 637 F.3d 435, 440 (4th Cir. 2011). We may consider additional documents attached to the complaint or the motion to dismiss “so long as they are integral to the complaint and authentic.” Philips v. Pitt Cty. Mem'l Hosp. , 572 F.3d 176, 180 (4th Cir. 2009). Here, we look to King's complaint, including his attached statement of claims, and his notice of claim, including the grievance attachment, all filed pro se, in laying out the following factual allegations.


King is an inmate at Huttonsville Correctional Center (“HCC”) and has been incarcerated since March 23, 2012. In fall 2008, prior to his incarceration, King had marbles implanted in and tattoos drawn on his penis. He and his then fiancée, who is now deceased, decided to have the implants done during the “body modification” craze, as they had heard about the “intensification of sensitivity and euphoric climaxes” resulting from the procedure. J.A. 16.

On January 8, 2013, King was called to the control booth in his unit, where a corrections officer told him to report to “medical” to be examined. Id. at 25. King was to be examined because an inmate reported seeing King and another inmate implanting marbles into their penises. The nurse who examined King verified that the marbles were not recently implanted and that there was no sign of infection.

King was escorted to the segregation unit, where an officer told him that the implants were not noted in his file. King responded that when he was being processed at Mt. Olive, he informed the processing officer of the marbles and tattoo. The officer told him, “This isn't a pornographic camera, put [your] clothes back on.” Id.

King was subsequently found in violation of Policy Directive 325.00-1.26, which prohibits exposing body fluids, tattoos, and piercings. The policy states:

1.26—Exposing Body Fluids/Tattooing/Piercing: No inmate shall intentionally expose to any person body fluids such as urine, feces, spit, blood, or any other body fluid. No inmate shall give oneself or others a tattoo/piercing or allow another inmate to give him/her a tattoo/piercing. No inmate shall possess any tattooing/piercing equipment, to include, tattooing ink, tattooing patterns, tattooing needles, etc.

King Br. 24. Due to this violation, King was sentenced to sixty days of punitive segregation, sixty days loss of privileges, and ninety days of loss of good time.

While King was in segregation, Sherri Davis, the unit manager of segregation unit E-2, brought King to her office. There, she had King sign a piece of paper without giving him the opportunity to read it. Davis told him that he was signing consent papers to go to Ruby Memorial Medical Center to have a doctor examine his implants and, if necessary, remove them. King was taken to Ruby Memorial, where he was examined by Dr. Henry Fooks, Jr. Fooks determined that the implants were not recently inserted and that there was no medical need to remove them. When King was transported back to HCC, Deputy Warden Grover Rosencrance told him, “Get comfortable you stupid Son of a Bitch, you'll be placed in Administrative Segregation until you do as I say and have those marbles removed.” J.A. 26. King responded that Rosencrance could not punish him twice for the same violation. Rosencrance said, “I can do what the Fuck I want.” Id. King was then returned to administrative segregation. King alleges that HCC officials threatened him with segregation for the remainder of his sentence and loss of parole eligibility if he did not consent to surgery.

On June 19, 2013, King “gave in” and let them remove the marbles at Ruby Memorial. Id. The surgery was done “practically against [his] will as [he] was coerced by the administration because of the threats they made” about continued segregation and loss of parole eligibility. Id. at 31.

As a result of the surgery, King now experiences physical symptoms. He has tingling and numbness in his penis; pain in the area where the marbles were removed; an “uncomfortable, stretching feeling where the cut was made”; pain in his penis when it rains, snows, or gets cold; and “stabbing pain [that] shoots into [his] stomach” if he bumps into something or the scar on his penis is touched. Id. at 15, 27. King never experienced these symptoms until after his implants were removed.

King also experiences mental and emotional anguish as a result of the surgery. He gets “very depressed every time [he] shower[s] or urinate[s] because he sees the scarring and is reminded of his deceased fiancée. Id. at 15. He worries about “the possibilities that [his] penis will still be numb when [he] ... is with another woman” and about how he will explain what happened if in the future someone is “sickened by the scarring.” Id. at 16. Additionally, King is unable to urinate when any of his five roommates are in the cell with him, a problem he did not previously experience. He is also frightened every time he sees any of the defendants. He is ridiculed by the staff: they refer to him as “Marble Man” and when they search him, they ask where his marbles are. Id. at 15. Correctional officers make [h]omosexual remarks” when they see him. Id. He also now has gay inmates approach him, because of the way the staff have gossiped about him. These inmates ask him questions that make him feel uncomfortable and “place [him] in a compromising situation, where it is a strong possibility that a physical confrontation” might occur. Id. at 17.


King originally filed suit under 42 U.S.C. § 1983 in the Circuit Court of Kanawha County, West Virginia. His complaint named as defendants Jim Rubenstein (Commissioner), Warden Marvin Plumley, Dianne R. Miller (Associate Warden Programs/Housing), Deputy Warden Rosencrance, Lester Thompson (Unit Manager E-1 Segregation), Sherri Davis, Stacy Scott (Supervised Psychologist/Ad Seg Board), Mike Smith, Sr. (Unit Manager, Ad Seg Board), Samantha Gsell (Case Manager Ad Seg Board), Adam Smith (Unit Manager Ad Sec Board Chairman), and Cliff Goodin (Head Psychologist). A circuit court judge in the Circuit Court of Kanawha County, West Virginia, reviewed the initial pleadings and found that the complaint was not “frivolous, malicious or fails to state a claim,” and accordingly had the clerk issue process against the defendants. Id. at 33. The defendants removed the case to the U.S. District Court for the Southern District of West Virginia and moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The case was transferred to the Northern District of West Virginia, where a magistrate judge entered his report and recommendation on the motion to dismiss. Both sides filed objections; only the defendants filed responses. The district court rejected in part and adopted in part the magistrate's recommendation and granted the defendants' motion to dismiss in full. King timely appeals.


This Court reviews de novo the grant of a motion to dismiss. Simmons v. United Mortg. & Loan Inv., LLC , 634 F.3d 754, 768 (4th Cir. 2011). A Rule 12(b)(6) motion tests the sufficiency of a complaint; it does not, however, “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Edwards v. City of Goldsboro , 178 F.3d 231, 243 (4th Cir. 1999) (quoting Republican Party v. Martin , 980 F.2d 943, 952 (4th Cir. 1992) ). To survive a motion to dismiss, the complaint's [f]actual allegations must be enough to raise a right to relief above the speculative level”—that is, the complaint must contain “enough facts to...

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