Mack v. Turner

169 F. Supp. 3d 666, 2016 WL 1057054, 2016 U.S. Dist. LEXIS 32137
District Court, S.D. West Virginia·Decided March 14, 2016·No. CIVIL ACTION NO. 5:15-cv-03589·Published

Opinion

MEMORANDUM OPINION AND ORDER

IRENEN C. BERGER, UNITED STATES DISTRICT JUDGE, SOUTHERN DISTRICT OF WEST VIRGINIA

The Court has reviewed the Plaintiffs pro se Complaint for Damages (Document 1), brought on the grounds that a prison employee intentionally struck him during a pat search, causing pain and injury. By Standing Order (Document 3) entered on March 25, 2015, this action was referred to the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission to this Court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636. On January 6, 2016, following the retirement of Magistrate Judge VanDervort, this action was referred to the Honorable Omar J. Aboulhosn. On January 20, 2016, Magistrate Judge Aboulhosn submitted a Proposed Findings and Recommendation (PF&R) (Document 32), wherein it is recommended that this Court deny the Plaintiffs motion for default judgment, grant the Defendants’ motion to dismiss, or in the alternative, motion for summary judgment, deny the Plaintiffs motion for a temporary restraining order and preliminary injunction, dismiss the Plaintiffs complaint, and remove this matter from the Court’s docket. The Plaintiff timely objected to the PF&R. For the reasons stated herein, the Court finds that the Plaintiffs objections should be sustained in part and overruled in part.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Magistrate Judge Aboulhosn’s PF&R sets forth in great detail the procedural and factual history surrounding the Plaintiffs claims. The Court now incorporates by reference those facts and procedural history. In order to provide context for the ruling herein, the Court provides the following summary.

Plaintiff Bennie Mack filed his complaint on March 25, 2015. He named the following Defendants: Charles Turner, Travis Elmore, Charles E. Samuels, Jr., Joel Coakley, David LeMaster, and [Erica] Stock, all in their official and individual capacities. On June 9, 2015, the Defendants filed their Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Document 18), Memorandum of Law in Support (Document [669]*66919), and supporting exhibits.1 The Plaintiff filed a Motion for Temporary Restraining Order and Preliminary Injunction (Document 25) on June 19, 2015. The Plaintiff filed his Response to Defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Document 27) and supporting exhibits on July 8, 2015. The Magistrate Judge entered his PF&R on January 20, 2016, and following an extension of time, the Plaintiff filed his Objections to Proposed Findings and Recommendations of Magistrate Judge (Document 38) on February 22, 2016. The Defendants filed their Response to Plaintiffs Objection to the Proposed Findings and Recommendation (Document 39) on February 29, 2015.

The Plaintiff, an African-American male inmate at the Satellite Prison Camp (Camp) at FCI-Beckley, and another inmate, Ricky Smith, were both orderlies at FCI-Beckley. They went to the Camp message center on November 6, 2014, to seek a ride to the FCI. Defendants Travis El-more and Charles Turner were both present. Mr. Elmore told the Plaintiff and Mr. Smith that they would report to work later that day. Mr. Turner’s trained police dog was in his personal vehicle outside. According to the Plaintiff, Mr. Turner walked over to him, bypassing Mr. Smith, and, while looking directly at him, said “hey, you, I need you to go outside and put the lid down on my black bitch.” (B. Mack Declaration at ¶ 19) (Document 27-1.) Mr. Turner admits to making a statement along those lines. (C. Turner Declaration at ¶ 8) (Document 18-2.) He claims that it was raining heavily and he realized the side vents on the dog kennel in the back of his vehicle, holding his highly trained and valuable black female German Shepard, were open. (Id. at ¶ 7.) Mr. Turner further explains that he was speaking jokingly to Mr. Elmore, and that it is common for dog trainers to refer to female dogs as “bitches.” (Id. at ¶¶ 8-10.) Mr. Elmore indicates that he did not hear Mr. Turner’s statement. The Plaintiff contends that he saw Mr. Elmore watching the exchange and laughing. (T. Elmore Declaration at ¶ 5) (Document 18-4); (B. Mack Declaration at ¶ 20.)

The Plaintiff and Mr. Smith left the message center. In discussing the incident with Mr. Smith, the Plaintiff became concerned that he had disregarded a direct order. (B. Mack Declaration at ¶25.) Mr. Smith returned to the message center with the Plaintiff to serve as a witness to any further inappropriate behavior by Mr. Turner. (R. Smith Affidavit at 2) (Document 2.) The Plaintiff asked Mr. Turner if he had given him a direct order when he was there previously. (B. Mack Declaration at ¶ 30.)2 Both the Plaintiff and Mr. Smith recall that Mr. Turner responded with a series of racially provocative insults. (B. Mack Declaration at ¶¶ 30-32; R. Smith Affidavit at 2.)

Mr. Turner then conducted a pat search of the Plaintiff. Mr. Smith states that Mr. Turner ordered Mr. Mack “to turn around [670] so that [Mr. Turner] could search [Mr. Mack] and give [Mr. Mack] something else to write [Mr. Turner] up about.” (R. Smith Affidavit at 2.) Mr. Smith described the pat search as “aggressive,” and, in an affidavit submitted during the administrative remedy process,' stated that he observed Mr. Turner strike Mr. Mack in the groin twice during the search. (Id.; March 24, 2015 R. Smith Affidavit at ¶¶ 14-15, att’d as Def.’s Ex. 5, Document 18-5.) The Plaintiff states that:

Defendant Turner started the “pat search” with open handed violent, forceful pats or hits .to my arms, shoulder, neck and torso areas. As the extremely violent “pat search” continued, defendant Turner bent down and began to violently strike my lower back and legs, eventually reaching my groin area from the back. Upon reaching my groin area, I felt two extremely violent blows in my groin area. I winced in pain at which time defendant Turner shouted in my ear “shut the f**k up.”

(B. Mack Declaration at ¶ S4.)3 The Plaintiff contends that he saw Mr. Elmore and Defendant Erica Stock watching the assault and laughing.

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Mack v. Turner, 169 F. Supp. 3d 666, 2016 WL 1057054, 2016 U.S. Dist. LEXIS 32137 (S.D.W. Va. 2016).

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