Lineberry v. Johnson, Civil Action No. 5:17-04124

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Writing for the CourtOmar J. Aboulhosn United States Magistrate Judge
PartiesCHRISTOPHER LINEBERRY, Plaintiff, v. CASE MANAGER JOHNSON, et al., Defendants.
Decision Date10 August 2018
Docket NumberCivil Action No. 5:17-04124

CHRISTOPHER LINEBERRY, Plaintiff,
v.
CASE MANAGER JOHNSON, et al., Defendants.

Civil Action No. 5:17-04124

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

August 10, 2018


PROPOSED FINDINGS AND RECOMMENDATION

Pending before the Court are the following: (1) Defendant Martin's "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" (Document No. 25), filed on March 20, 2018; and (2) Defendant Martin's "Supplemental Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" (Document No. 35), filed on April 12, 2018. The Court notified Plaintiff pursuant to Roseboro v. Garrison, 528 F.2d 304 (4th Cir. 1975), that Plaintiff had the right to file a response to Defendant Martin's Motions and submit Affidavit(s) or statements and/or other legal or factual material supporting his claims as they are challenged by the Defendant in moving to dismiss. (Document Nos. 28 and 37.) Plaintiff filed his Response and Affidavit on May 17, 2018. (Document Nos. 40 and 41.) Having examined the record and considered the applicable law, the undersigned has concluded that the Defendant Martin's original Motion (Document No. 25) should be denied as moot, and his Supplemental Motion (Document No. 35) should be granted in part and denied in part.

PROCEDURAL HISTORY

On October 5, 2017, Plaintiff, acting pro se and formerly an inmate at FCI Beckley, filed

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his Application to Proceed Without Prepayment of Fees and Complaint in this matter seeking relief pursuant to the Federal Tort Claims Act [FTCA], 28 U.S.C. §§ 1346(b) and 2671, et seq., and for alleged violations of his constitutional and civil rights 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 Nos. 1 and 2.) Plaintiff names the following as Defendants: (1) United States of America; (2) Federal Bureau of Prisons; (3) Correctional Officer Martin; (4) John Doe(s); and (5) Jane Doe(s). (Document No. 2.) In his sworn Complaint, Plaintiff alleges that on July 5, 2016, Defendant Martin physically assaulted Plaintiff in violation of his Eighth Amendment rights. (Id.) Plaintiff explains that he had a prior altercation with Defendant Martin on March 26, 2016. (Id., pp. 3 - 4.) Plaintiff alleges that Defendant Martin attempted to cause a dispute between Plaintiff and his fiancée during visitation. (Id.) During the same visit, Plaintiff states that another officer (unknown name) accused Plaintiff of attempting to conceal contraband and Plaintiff was moved to the "strip-room" for a search. (Id.) Plaintiff complains that C.O. Lucas then entered the strip-room during the search and exposed Plaintiff's nakedness to people located in the visiting room. (Id.) Plaintiff alleges that Defendant Martin then entered the strip-room again exposing Plaintiff's nakedness to people located in the visiting room. (Id.) Plaintiff acknowledges that during the encounter that he "pointed his finger at Martin and said, 'You're the one who told my fiancée I was e-mailing other women.'" (Id.) Plaintiff alleges that Defendant Martin responded that he "would break Plaintiff's fingers off and send him to medical with his fingers in a bag" and "beat [Plaintiff] three ways to Sunday." (Id., p. 4.) Plaintiff alleges that he was not allowed to return to

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his visit until Plaintiff offered an apology that was satisfactory to Defendant Martin. (Id.) Plaintiff alleges that he reported the above harassment to the Warden and SIA Officer. (Id.) Plaintiff contends that the Warden assured Plaintiff that he would not experience any more harassment. (Id.) Plaintiff acknowledges that he was not subjected to any further harassment until July 5, 2016. (Id.)

Plaintiff claims that on July 5, 2016, Defendant Martin assaulted Plaintiff "by applying extreme and unwarranted pressure while cuffing Plaintiff's wrists behind Plaintiff's back." (Id., p. 2.) Plaintiff explains that while he was incarcerated at FCI Beckley, he was taken to the Special Housing Unit ["SHU"]. (Id.) While in the holding cell, Defendant Martin instructed Plaintiff to back up and put his hands through the food tray slot so that Defendant Martin could cuff Plaintiff's hands behind his back. (Id., p. 3.) Plaintiff states that he complied with Defendant Martin's instructions, but Defendant Martin closed the cuffs on Plaintiff's wrists with such force that Plaintiff's "cried out in pain." (Id.) Plaintiff alleges that he informed Defendant Martin that the cuffs were too tight, but Defendant Martin stated something to the effect that "You're lucky that's all I did you." (Id.) Plaintiff states that Defendant Martin then walked away laughing. (Id.) After approximately 45 minutes, a lieutenant arrived at Plaintiff's cell and observed Plaintiff's "distress, and that Plaintiff's right hand, wrist, and arm were abnormal." (Id., pp. 4 - 5.) Plaintiff states that the lieutenant removed the cuff from Plaintiff's left wrist, but due to the condition of Plaintiff's right wrist, the lieutenant called for medical personnel to remove the cuff from Plaintiff's right wrist. (Id., p. 5.) Plaintiff acknowledges that the lieutenant further instructed Defendant Martin to leave the area and called internal affairs to investigate. (Id.) Plaintiff alleges that he was transported to Beckley ARH Hospital for evaluation and treatment. (Id.) Plaintiff acknowledges that x-ray results were negative for a fracture, but he received an injection of Ketorolac and a splint was

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applied. (Id.) Plaintiff states that he was returned to FCI Beckley and placed back in SHU. (Id.) Plaintiff states that the following day, on July 6, 2016, he notified Defendant Martin of his extreme pain and Defendant Martin refused to assist Plaintiff. (Id.) Plaintiff states that he pressed his emergency call until Defendant Martin "turned it off." (Id.) Plaintiff states that another inmate pressed his emergency call button on Plaintiff's behalf, but Defendant Martin threatened to charge that inmate with a disciplinary infraction if he pressed the button again on Plaintiff's behalf. (Id., pp. 5 - 6.) Plaintiff alleges that Defendant Martin refused to seek any medical treatment for Plaintiff until mid-afternoon on July 6, 2016. (Id., p. 6.) At this point, Plaintiff contends that he was in extreme pain, his arm was very swollen and discolored. (Id.) Plaintiff states that he was evaluated by Dr. McLain, who made the provisional diagnosis of compartment syndrome. (Id.) Plaintiff states that he was transported to Raleigh General Hospital, where he underwent two surgeries. (Id.) As relief, Plaintiff requests monetary damages. (Id., p. 7.)

As Exhibits, Plaintiff attaches the following: (1) A copy of his "Regional Administrative Remedy Appeal" dated October 26, 2016 (Remedy ID No. 878958-R1) (Id., pp. 9 - 10.); (2) A copy of Regional Director J.F. Carawy's Response to Remedy ID No. 878958-RI dated January 12, 2016 (Id., p. 11.); (3) A copy of Plaintiff's "Request for Administrative Remedy" dated September 21, 2016 (Remedy ID No. 878958-F1) (Id., pp. 12 - 13.); (4) A copy of Warden Thomas B. Smith's Response to dated October 14, 2016 (Id., p. 14.); (5) A copy of Plaintiff's "Central Office Administrative Remedy Appeal" dated March 20, 2017 (Remedy ID No. 87895-A1) (Id., pp. 15 - 16.); (6) A copy of Administrator Ian Connor's Response dated May 5, 2017 (Id., p. 17.); (7) A copy of Plaintiff's "Claim for Damage, Injury, or Death" dated October 20, 2016 (Id., pp. 18 - 20.); (8) A copy of the BOP's acknowledgment letter regarding Administrative Claim Number TRT-MXR-2017-01126 dated November 30, 2016 (Id., p. 21.); and (9) A copy of the BOP's denial

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letter regarding Administrative Claim Number TRT-MXR-2017-01126 dated April 10, 2017 (Id., pp. 22 - 23.).

By Order entered on October 24, 2017, the undersigned granted Plaintiff's Application to Proceed Without Prepayment of Fees and directed the Clerk to issue process upon receipt of Plaintiff's initial partial payment of the filing fee. (Document No. 7.) On November 20, 2017, the Court received Plaintiff's initial partial payment of the filing fee and the Clerk issued process on the same day. (Document Nos. 8 and 9.) On March 20, 2018, the United States filed its Answer. (Document No. 23.) Also on March 20, 2018, Defendant Martin filed his "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" and Memorandum in Support. (Document Nos. 25 and 26.) Defendant argues that Plaintiff's claim should be dismissed based on the following: (1) To the extent Plaintiff is naming the BOP as a defendant concerning his claim under Bivens, the BOP is an improper Defendant (Document No. 26, p. 1, fn. 1.); (2) The Supreme Court has not established a Bivens cause of action for excessive force claims (Id., pp. 9 - 22.); (3) "Even if a cause of action did exist, there is no constitutional violation" (Id., pp. 22 - 25.); and (4) "The Defendant is entitled to qualified immunity" (Id., pp. 25 - 26.).

As Exhibits, Defendant attaches the following: (1) The Declaration of Dominick McLain, D.O. (Document No. 25-1, pp. 2 - 4.); (2) A copy of Plaintiff's pertinent medical records (Id., pp. 5 - 207.); (3) A copy of a video that is on file in the Clerk's Office (Id., p. 208 and Document No. 29.); (4) The Declaration of Special Investigative Agent ("SIA") A. Hussion (Document No. 25-1, pp. 210 - 212 .); (5) A document entitled "Rigid Handcuffs" (Id., p. 214.); (6) The Declaration of D. Betkijian (Id., pp. 216 - 217.); (7) The Declaration of R. Martin (Id., pp. 219 - 220.); (8) The Declaration of E. Bishop (Id., p. 222.); and (9) The Declaration of K. Kincaid-Wimbish (Id., pp. 224 - 225.).

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Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), was issued to Plaintiff on March 21, 2018, advising him of the right to file a response to Defendant's "Motion to Dismiss, or in the Alternative, Motion for Summary...

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