Mack v. Turner

• Decision Date: 13 December 2016
• Docket Number: Civil Action No. 5:15-03589
• Parties: BENNIE AUSTIN MACK, JR., Plaintiff, v. CHARLES TURNER, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

BENNIE AUSTIN MACK, JR., Plaintiff, v. CHARLES TURNER, et al., Defendants.

Civil Action No. 5:15-03589

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

December 13, 2016

PROPOSED FINDINGS AND RECOMMENDATION

Pending before the Court are the following: (1) Defendant Stock's Motion for Summary Judgment (Document No. 66; (2) Defendant Elmore's Motion for Summary Judgment (Document No. 68); and (3) Defendant Turner's Motion for Summary Judgment (Document No. 70). The Court notified Plaintiff pursuant to Roseboro v. Garrison, 528 F.2d 304 (4^th Cir. 1975), that Plaintiff had the right to file a response to Defendants' Motions and submit Affidavit(s) or statements and/or other legal or factual material supporting his claims as they are challenged by the Defendants in moving to dismiss. (Document No. 73.) Plaintiff filed his Response in Opposition on December 2, 2016. (Document No. 85.) Defendants filed their Reply on December 5, 2016. (Document No. 89.) Having examined the record and considered the applicable law, the undersigned has concluded that Defendants' Motions should be denied.

FACTUAL AND PROCEDURAL HISTORY

On March 25, 2015, Plaintiff, acting pro se and an inmate at FPC Beckley, filed his 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 No. 1.) Plaintiff names the following as Defendants: (1) Officer Charles Turner; (2) Travis Elmore; (3) Charles E. Samuels, Jr.; (4) Joel Coakley; (5) David LeMaster; and (6) E. Stock. (Id.) Plaintiff alleges that on November 6, 2014, Defendant Charles Turner, "an off duty BOP employee who is not assigned to the Federal Prison Camp, approached the Plaintiff (the only black person in the lobby) and ordered him to go outside in the rain to his personal vehicle and 'close the lid on his black bitch.'"² (Document No. 1, p. 3.) Plaintiff states that he "looked at Defendant Charles Turner andjust walked out of the message center." (Id., p. 4.) Plaintiff alleges that once he had returned to the housing unit, he became concerned that Defendant Turner was giving him a direct order. (Id.) Plaintiff states that he and his co-worker Ricky Smith, returned to the message center to inquire whether Defendant Turner was giving him a direct order. (Id.) Plaintiff claims that "Defendant Turner stated that he was giving me a direct order, but then changed his mind and stated that he was kidding." (Id.) Plaintiff contends that Defendant Turner then became verbally abusive and instructed Plaintiff to "turn around so that he could search him and give a real reason to write him up." (Id.) Plaintiff alleges that "under the guise of a pat search, [Defendant Turner] began hitting Plaintiff on his arms and the back of his neck, he continued to strike Plaintiff on his legs and then viciously struck Plaintiff in his groin area twice, causing the Plaintiff severe pain and discomfort." (Id.) Plaintiff claims that when he "winced in pain Defendant Turner screamed in his ear 'shut the f**k up." (Id., p. 5.) Plaintiff asserts that "[a]fter the pat search . . ., Defendant Turner turned his rage on inmate Ricky Smith and called him 'a f**king coward and a spineless bastard' for being there as a witness." (Id.) Plaintiff claims that Defendant Turner continued to be verbally abusive and instructed him and Inmate Smith to "get the f**k out of his sight before he f**ked us up." (Id.) Plaintiff alleges that he and Inmate Smith only responded by obeying Defendant Turner's orders. (Id.) Plaintiff complains that Defendant Travis Elmore was present and merely laughed "as Defendant Charles Turner physically and verbally assaulted the Plaintiff." (Id.) Plaintiff further claims that Defendant E. Stock was present for a portion of the assault, but took no action. (Id.)

Plaintiff claims that approximately 20 minutes after leaving the message center,Defendant Elmore instructed all camp orderlies to report to the message center. (Id.) Plaintiff asserts that Defendant Elmore asked all the inmate orderlies their names and then ordered them to return to their housing unit with the exception of Inmate Smith. (Id., p. 6.) Plaintiff alleges that Defendant Turner and Elmore proceeded to assault Inmate Smith "and attempted to intimidate and coerce him into saying that Defendant Turner didn't make any derogatory statements to the Plaintiff." (Id.) Plaintiff contends that Defendant Stock was again present, but did nothing to stop the intimidation or assault. (Id.) As a result of the foregoing, Plaintiff alleges that he "suffered pain and injuries, including soreness and bruising to his groin, arms, and legs, and has experienced anxiety attacks, an inability to sleep through the night, elevated blood pressure, loss of appetite, nightmares, and feelings of anger." (Id., pp. 6 - 7.) Plaintiff requests monetary and declaratory relief. (Id., pp. 8 - 9.)

Plaintiff paid the $400.00 filing and administration fee on April 6, 2015. (Document No. 5.) On April 8, 2015, United States Magistrate Judge R. Clarke VanDervort directed the Clerk to issue process in this case by preparing and serving a Summons and a copy of Plaintiff's Complaint upon the Defendants as specified in Rule 4(i)(1) - (3) of the Federal Rules of Civil Procedure. (Document No. 6.)

On June 9, 2015, Defendants filed their "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" and Memorandum in Support. (Document Nos. 18 and 19.) First, Defendants argued that Plaintiff's FTCA claim should be dismissed because: (1) "The United States is the only proper party in an FTCA claim" (Document No. 19, pp. 8 - 9.); and (2) "Plaintiff failed to exhaust his FTCA claim" (Id., pp. 9 - 10.). Next, Defendants argued that Plaintiff's Bivens claims should be dismissed because: (1) "Plaintiff failed to exhaustadministrative remedies on all of his allegations" (Id., pp. 11 - 12.); (2) "The Defendants cannot be sued in their official capacities" (Id., pp. 12 - 13.); (3) "Verbal harassment and/or threats do not rise to the level of a constitutional violation (Id., pp. 13 - 14.); (4) The Court lacks personal jurisdiction over Defendant Samuels (Id., pp. 14 - 15.); (5) "The evidence refutes Plaintiff's allegations of being struck" (Id., pp. 15 - 17.); (6) "Defendants Elmore and Stock were not required to intervene in a pat search" (Id., p. 18.); (7) "Plaintiff cannot recover for emotional or psychological damages without a showing of physical injury" (Id., pp. 18 - 19.); (8) Plaintiff's claim of excessive force should be dismissed (Id., pp. 19 - 22.); and (9) Defendants are entitled to qualified immunity (Id., pp. 22 - 24.).

As Exhibits, Defendants attach the following: (1) The Declaration of Sharon Wahl (Document No. 18-1, pp. 2 - 3.); (2) A copy of Plaintiff pertinent medical records (Id., pp. 5 - 6.); (3) A copy of Administrative Remedy Number 802274 (Id., pp. 8 - 15.); (4) A copy of Plaintiff's "Chronological Disciplinary Record" (Id., p. 17.); (5) The Declaration of Charles Turner (Document No. 18-2.); (5) The Declaration of Erica Stock (Document No. 18-3.); (6) The Declaration of Travis Elmore (Document No. 18-4.); (7) The Declaration of Derek Smith (Document No. 18-5, p. 2.); (8) A copy of a letters addressed to Warden Coakley from Plaintiff and Inmate Smith dated November 6, 2014 (Id., pp. 4 - 9, 15 - 20.); (9) A copy of Plaintiff's SIS Affidavit (Id., pp. 11 - 13.); and (10) A copy of the Affidavit of Inmate Smith (Id., pp. 22 - 25.).

Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4^th Cir. 1975), was issued to Plaintiff on June 11, 2015, advising him of the right to file a response to the Defendants' "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment." (Document No. 22.) On June 18, 2015, Plaintiff filed his Motion for Default Judgment. (Document No. 24.) Plaintifffiled a Motion for Temporary Restraining Order and Preliminary Injunction on June 19, 2015. (Document No. 25.) On July 8, 2015, Plaintiff filed his Response in Opposition to the Defendants' "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment." (Document No. 27.) As Exhibits, Plaintiff attached the following: (1) A copy of Plaintiff's Declaration dated June 17, 2015 (Document No. 27-1, pp. 2 - 7.); (2) A copy the "Sworn Affidavit of Ricky Ray Smith" dated January 12, 2015 (Id., pp. 9 - 13.); (3) A copy of the Declaration of Inmate John Harlow dated July 3, 2015 (Id., pp. 15 - 16.); (4) A copy of the Declaration of Inmate Brian Scott Martin dated June 25, 2015 (Id., pp. 18 - 19.); (5) A copy of the unsigned Declaration of Inmate Lloyd Wendell Layne, Jr. (Id., pp. 21 - 22.);³ (6) A copy of Inmate Smith's letter addressed to Warden Coakley dated November 6, 2014 (Id., pp. 24 - 28.); (7) A copy of the Affidavit of Inmate Nicholas Barbati dated August 31, 2012⁴ (Id., pp. 30 - 31.); and (8) A copy of Inmate Barbati's Complaint as filed in Civil Action No. 5:12-04716 (Id., pp. 33 - 40.)

By Proposed Findings and Recommendation ["PF&R"] entered on January 20, 2016, the undersigned recommended that the District Court deny Plaintiff's Motion for Default Judgment (Document No. 24), grant Defendants' "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" (Document No. 18), and deny Plaintiff's Motion for Temporary Restraining Order (Document No. 25). (Document No. 32.) Plaintiff filed his Objections onFebruary 22, 2016. (Document No. 38.) Defendants filed their Response on February 29, 2016. (Document No. 39.) By Memorandum Opinion and Order entered on March 14, 2016, United States District Judge Irene C. Berger sustained in part and overruled in part the undersigned's PF&R. (Document No. 40.) Specifically, Judge Berger granted Defendant's Motion...