Varner v. Tibbs

1

JACOB VARNER, Plaintiff, v. TIMOTHY TIBBS, MICHAEL COSTELLO, SHANNON SAMS, and SUPERINTENDENT JOSEPH WOOD, Defendants.

Civil Action No. 5:22-CV-273

United States District Court, N.D. West Virginia, Wheeling

July 31, 2023

REPORT AND RECOMMENDATION

JAMES P. MAZZONE UNITED STATES MAGISTRATE JUDGE

I. Background

Plaintiff initiated this action on September 8, 2022, by filing a Complaint under 42 U.S.C. § 1983. Plaintiff is a state inmate who at the time of the allegations in this case was incarcerated at North Central Regional Jail and Correctional Facility (“NCJR”). On November 20, 2022 defendants Sams and Wood filed a Motion to Dismiss Plaintiff's Complaint, [Doc. 18], along with a memorandum in support. On December 12, 2022, plaintiff filed a response to the Motion, [Doc. 24], and on December 19, 2022 defendants Sams and Wood filed a reply [Doc. 25]. The Motion is now fully briefed and ripe for decision. The matter is assigned to the Honorable John Preston Bailey, United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, the undersigned recommends that the Motion be granted and that this case be dismissed for failure to exhaust administrative remedies.

II. The Complaint

According to the Complaint, plaintiff is a state inmate who at the time of the allegations was incarcerated at NCRJ. [Doc. 1 at ¶ 3]. Defendants are individuals employed at the NCRJ: defendant Wood is the Superintendent, defendants Costello and Tibbs were correctional officers, and defendant Sams was a captain. [Id. at ¶¶ 4-7]. Following a lockdown, around May 3, 2022, plaintiff was moved to Unit A5, where he was “strip-celled” in an empty cell without clothing besides underwear for twenty-four hours. [Id. at ¶¶ 19-20]. While in Unit A5, defendant Tibbs told plaintiff that two homemade weapons had been found in his former cell and that he would be charged, though he has heard nothing about it since that time. [Id. at ¶ 21]. After two nights on Unit A5, plaintiff was moved to Unit A8. [Id. at ¶ 23].

On May 6, 2023, while defendant Costello was delivering dinner trays, plaintiff's cellmate requested toilet paper; Costello responded that he would get toilet paper when he felt like it, which prompted the cell mate to say “That ain't right, man.” [Id. at ¶¶ 2628]. In response, defendant Costello dropped the bean hole to plaintiff's cell and deployed multiple bursts of oleoresin capsicum spray (“OC spray”); once Costello had deployed his own cannister of OC spray, another correctional officer provided a second can, which Costello deployed into plaintiff's cell. [Id. at ¶¶ 29-30].

Plaintiff further alleges that his placement in segregation in Unit A8 was part of a “Step Down Program” run either formally or informally at NCRJ. [Id. at ¶ 60-61]. While in segregation, plaintiff was denied access to hygiene products including toilet paper and toothpaste, access to a shower, clean linens and clothing, and recreation. [Id. at ¶¶ 6873].

After being released from segregation, plaintiff was assigned to Unit B2, which was overcrowded, and was told by other inmates he would have to leave or fight someone for a spot on the unit. [Id. at ¶¶ 83-85]. After informing a correctional officer of this, he was told he had the option to either return to Unit B2 or to go back into segregation for sixty days; plaintiff was placed back in segregation. [Id. at ¶¶ 84-91].

The Complaint raises five claims for relief. First, plaintiff brings two claims against defendants Costello, Sams, and Wood for excessive force in relation to the May 6, 2022 incident; plaintiff alleges that defendants Sams and Wood explicitly or tacitly condoned the actions of defendant Costello. Second, plaintiff alleges that all four defendants violated his due process rights in relation to placing him in disciplinary segregation. Third, plaintiff alleges that all four defendants violated plaintiff's right to be free from cruel and unusual punishment as it relates to the deprivations experienced while in segregation. Finally, plaintiff brings a claim against defendant Costello for assault and battery.

III. Motion to Dismiss

In their memorandum in support of the motion, defendants Sams and Wood argue, first, that plaintiff's claims should be dismissed because he has failed to exhaust administrative remedies as required by the Prison Litigation Reform Act (“PLRA”). Second, they argue that Counts I and II should be dismissed as to defendants Sams and Wood because there are no allegations that they used excessive force against plaintiff. Third, they argue that there are insufficient facts to support a claim against them for deliberate indifference to excessive force employed by defendants Tibbs and Costello.

Fourth, they argue that Count III should be dismissed against them because the Complaint does not allege that they denied plaintiff due process. Fifth, they argue that claims against them for deliberate indifference to conditions of confinement do not allege sufficient facts to support a claim against them. Sixth, they argue that they are entitled to qualified immunity. Finally, they argue that they have not caused plaintiff any physical injury.

IV. Standard of Review

A. Section 1983 Claims

The Supreme Court has held that:

Title 42 U.S.C. § 1983 provides a cause of action against “[e]very person who, under color of any statute ... of any State ... subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws....” The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.

Wyatt v. Cole, 504 U.S. 158, 161 (1992) (citing Carey v. Piphus, 435 U.S. 247, 254-257 (1978)). In Gomez v. Toledo, 446 U.S. 635 (1980), the Supreme Court succinctly stated what a plaintiff must allege to sustain a civil rights action:

By the plain terms of § 1983, two-and only two-allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.

Gomez, 446 U.S. at 640.

B. Motion to Dismiss

“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 (1990)). 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)). 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.” Conley, 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 in Ashcroft 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.

C. Motion for Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is appropriate “if the pleadings, depositions answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, the Court must conduct “the threshold inquiry of determining whether there is the need for a trial - whether, in other words, there are...