Moore v. Rife
| Decision Date | 12 January 2023 |
| Docket Number | Civil Action 1:20-00575 |
| Parties | LEWIS MOORE, III, Plaintiff, v. B. RIFE, et al., Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
PROPOSED FINDINGS AND RECOMMENDATION
Pending before the Court is Defendants' “Motion to Dismiss or in the Alternative, Motion for Summary Judgment” (Document No. 37), filed on August 24, 2022. 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 Defendants' Motion 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. 41.) Plaintiff filed his Responses in Opposition on November 2 2022. (Document No. 44.) Having examined the record and considered the applicable law, the undersigned has concluded that Defendants' “Motion to Dismiss, or in the Alternative, Motion for Summary Judgment” (Document No 37) should be granted.
On August 31, 2020, Plaintiff, acting pro se,[1] filed his Motion to Proceed Without Prepayment of Fees and Costs and a Complaint 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). (Document Nos. 1 and 2.) In his Complaint, Plaintiff names the following as Defendants: (1) B. Rife, Food Services Supervisor; (2) W. Hacker, Head of Safety; (3) B. Rickard, former Warden; and (4) FCI McDowell. (Document No. 2.) Plaintiff alleges that on March 11, 2018, “at or around 6:10 p.m. in Food Services at FCI McDowell, Officer B. Rife neglectfully locked me in a cooler for more than an hour and a half withstanding a temperature near freezing.” (Id., pp. 5 - 7.) Plaintiff states that Officer Rife “did this on purpose as a cruel joke and it is captured on film.” (Id.) Plaintiff explains that he was “able to break down the door by running into it with [his] shoulder.” (Id.) Plaintiff, however, complains that he injured his “shoulder and neck in the process of knocking the door down.” (Id.) Although Plaintiff states that “most of the blame is on B. Rife,” Plaintiff claims that Officer W. Hacker failed to ensure the emergency exit in the cooler was functioning properly. (Id.) Plaintiff states that there is an “emergency exit” in every cooler or freezer. (Id.) Plaintiff, however, complains that the “emergency exit” in the cooler at FCI McDowell was “broken.” (Id.) Plaintiff alleges that Officer Hacker was the “head of safety at the time” and “it is his job to make sure all of the emergency exits are functional.” (Id.) Plaintiff acknowledges that all “emergency exits” were replaced within a week of the above incident. (Id.) As to Warden B. Rickard, Plaintiff alleges that she “was the Warden at the time and was responsible for the overall functioning of the prison.” (Id.) Finally, Plaintiff alleges that Officer Rife retaliated against him for filing administrative remedies involving the above incident. (Id.) Specifically, Plaintiff complains that Officer Rife used “racial slurs” against Plaintiff and told “gang members that [Plaintiff] was a snitch with the intent of having someone to cause [Plaintiff] harm.” (Id.) Plaintiff states that “[o]n December 9, 2019, [he] stated that [he] feared for [his] life and was placed in protective custody.” (Id.) Plaintiff acknowledges that “[a]n investigation was hatched on this subject.” (Id.) Plaintiff alleges that being locked in the cooler has “haunted” him “mentally and emotionally.” (Id.) As relief, Plaintiff requests monetary damages. (Id., p. 8.)
As Exhibits, Plaintiff attaches the following: (1) Plaintiff's “Request to Staff” dated March 11, 2019 (Document No. 2-1, p. 1.); (2) Plaintiff's “Request for Administrative Remedy Informal Resolution Form” dated March 14, 2019 (Id., pp. 2 - 3.); (3) A copy of Correctional Counselor G. Prout's “Notice of Rejection To Informal Resolution Attempt” dated March 14, 2019 (Id., p. 4.); (4) A copy of Plaintiffs “Request for Administrative Remedy” dated April 24, 2019 (Id., pp. 5 -6.); (5) A copy of FCI McDowell Administrative Remedy Coordinator's “Rejection Notice -Administrative Remedy” dated May 6, 2019 and June 4, 2019 (Remedy ID No. 976694-F1 and F2) (Id., pp. 7 - 8.); (6) A copy of Plaintiffs “Regional Administrative Remedy Appeal” dated June 18, 2019 (Remedy ID No. 976694-R1) (Id., p. 9.); (7) A copy of the Mid-Atlantic Regional Office Administrative Remedy Coordinator's “Rejection Notice - Administrative Remedy” dated July 15, 2019 (Remedy ID No. 976694-R1) (Id., p. 10.); (8) A copy of Plaintiffs “Central Office Administrative Remedy Appeal” dated August 27, 2019 (Id., p. 11.); and (9) A copy of a “Memorandum for Administrative Remedy Coordinator” from Unit Counselor A. Lilly requesting that Plaintiff be provided an extension of time “due to a month long Institutional Lockdown and recent modified movement schedule” (Id., p. 12.).
By Proposed Findings and Recommendations (“PF&R”) entered on October 8, 2020, the undersigned recommended that the District Court dismiss Plaintiff's Complaint as to the following: (1) Claims against FCI McDowell; (2) Claims of verbal abuse or harassment in violation of the Eighth Amendment; and (3) Claims of retaliation in violation of the First Amendment; and refer the matter back to the undersigned for further proceedings on Plaintiff's claim of negligence and deliberate indifference concerning his allegation that he was locked in the kitchen cooler/freezer. (Document No. 8) By separate Order also entered on October 8, 2020, the undersigned granted Plaintiff's Motion to Proceed Without Prepayment of Fees and Cost concerning Plaintiff's negligence and deliberate indifference claim against Defendants Rife, Hacker, and Rickard concerning Plaintiff being locked in the kitchen cooler/freezer. (Document No. 7.) The Clerk's Office issued process the same day. (Document No. 9.)
On November 9, 2020, Plaintiff filed a letter with the Court advising that he did not wish to prosecute the above matter at this time. (Document No. 16.) The above action was terminated from the active docket based upon Plaintiff's foregoing letter. On September 30, 2021, however, Plaintiff filed a “Motion to Set Aside Magistrate's Findings and Recommendations [Pursuant to] Federal Rules of Civil Procedure 60(b)(6) & 15(c) Request for Leave to Amend Complaint.” (Document No. 18.) By Memorandum Opinion and Order entered on March 18, 2022, United States District Judge David A. Faber adopted the undersigned's PF&R, dismissed Plaintiff's Complaint as to (1) all claims against FCI McDowell; (2) claims of unconstitutional verbal abuse or harassment in violation of the Eighth Amendment; and (3) claims of retaliation in violation of the First Amendment; and referred the matter back to the undersigned for further proceedings on Plaintiff's claim of negligence and deliberate indifference concerning Plaintiff's allegation that he was locked in the kitchen cooler/freezer. (Document No. 19.) By Order entered on April 22, 2022, the undersigned denied Plaintiff's Motion to Set Aside the PF&R Pursuant to Rule 60(b) and granted in part and denied in part Plaintiff's Motion to Amend. (Document No. 20.) Specifically, the undersigned denied Plaintiff's Motion to Amend as to Plaintiff's request to amend his Complaint after he has fully exhausted his administrative remedies and to the extent he wished to rename FCI McDowell as a Defendant.[2] (Id.) The undersigned granted Plaintiff's Motion to Amend to the extent Plaintiff requested permission to amend his Complaint to state additional facts in support of his negligence and deliberate indifference claim that he was locked in the kitchen cooler/freezer and to add the correct party as a defendant for his FTCA claim. (Id.)
On June 27, 2022, Plaintiff filed his Amended Complaint. (Document No. 27.) As Defendants, Plaintiff names the following: (1) B. Rife, Food Service Supervisor at FCI McDowell; (2) W. Hacker, Head of Safety at FCI McDowell; and (3) United States of America. (Id.) Plaintiff alleges that Defendants acted with negligence and deliberate indifference resulting in Plaintiff being locked in a freezer for more than one and a half hours. (Id., p. 4.) Specifically, Plaintiff states as follows:
B. Rife purposely and neglectfully locked me in a freezer for more than 1 ½ hours in near freezing temperatures. The act was committed as a cruel joke and was captured on film. I was forced to ram my shoulder into the door to bust it open and injured by neck and shoulder in the process of knocking the door down. The Head of Safety, W. Hacker, failed to keep the emergency latch operable. I am requesting a jury trial. Due to a month long lockdown, my transfer, modified movement procedure and COVID 19 restrictions, I was hindered from exhausting remedies. I was retaliated against by racial slurs and accused of being a snitch, which caused retaliation by gang members against me. This caused an investigation, which ultimately, I was transferred.
(Id.) By Order entered on June 28, 2022, the undersigned direct the Clerk issue process on behalf of Plaintiff. (Document No. 28.) The Clerk issued process the same day. (Document No. 29.)
On August 24, 2022, following the granting of an extension of time, Defendants filed their “Motion to Dismiss, or in the Alternative, Motion for Summary Judgment” and Memorandum in Support. (Document Nos. 37 and 40.) First, Defendants argue that Plaintiff's Bivens claim should be dismissed based on the following: (1) Plaintiff failed to exhaust his administrative remedies (Document No. 40, ...
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