United States District Court, W.D. Virginia, Roanoke Division
Brandon Luke Herron, Pro Se Plaintiff
A. Piasta, Johnson, Ayers & Matthews P.L.C., Roanoke,
Virginia, for Defendant.
AMENDED OPINION AND ORDER
P. JONES UNITED STATES DISTRICT JUDGE
plaintiff, Brandon Luke Herron, a Virginia inmate proceeding
pro se, brought this civil rights action pursuant to 42
U.S.C. § 1983, alleging that a jail official used
excessive force against him, in violation of his
constitutional rights. The defendants have filed a Motion to
Dismiss Herron's Complaint, as amended,  under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Herron has
responded, making the motion ripe for disposition. After
review of the record, I conclude that the defendants'
motion must be granted in part and denied in part.
Herron's claims arose, he was confined at the Southwest
Virginia Regional Jail facility in Duffield,
Virginia. On October 30, 2017, another inmate told
Herron that the defendant, Officer Berlin W. Skeen III, had
dared Herron “to flood [his] cell” during pill
call. Mot. Amend 1, ECF No. 37. As Skeen came by, Herron got
on the floor of his cell and yelled under the door,
“Fuck you, Skeen. Go kill yourself.” Id.
Another officer told Herron to pack his things, because he
was going to “the hole.” Id. Herron
thought the officer was joking with him, as officers often
did, and said, “[Y]ou are full of shit and . . .
I'm not going to the hole, I didn't do anything
wrong.” Id. Herron then went to pill call.
Skeen told him again to pack his things to go to the hole.
Still thinking that the officers were joking, Herron said,
“Fuck you, no, fuck off.” Id.
Sergeant Rhymer ordered Herron to pack his things.
Eventually, Herron went to pack his property, although he
continued complaining. Skeen followed him. In his cell,
Herron finished drinking a cup of coffee and threw it at his
bunk in the back of the cell. Then, he turned around to face
Skeen, who said, “I told you to give me the chance and
I will put you in the hole.” Id. at 2. Skeen
also called Herron obscene names. Herron then said,
“Fuck you Pussy, if you want to fuck me up so bad, then
let's get it.” Id. Herron tried to turn
back to his packing. Before he could do so, Skeen entered the
cell, pushed Herron into the bunk, hit him in the face,
pushed him to the ground, and began “stomping
[Herron's] entire body.” Id. Herron says
he “pass[ed] out due to the pain on [his] back.”
Id. As Herron came to, bleeding from his face, he
saw Rhymer enter the cell and pull Skeen away. Virginia State
Troopers came to the jail, took pictures, and prepared
reports. No. criminal charges were filed.
district court should grant a motion to dismiss a complaint
under Rule 12(b)(6) if, accepting all well-pleaded
allegations in the Complaint as true and drawing all
reasonable factual inferences in the plaintiff's favor,
the complaint does not allege “enough facts to state a
claim to relief that is plausible on its face.”
Twombly. 550 U.S. at 570. To state a claim under
§ 1983, a plaintiff must allege “the violation of
a right secured by the Constitution and laws of the United
States, and must show that the alleged deprivation was
committed by a person acting under color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988).
initial matter, I note that Herron fails to indicate whether
he was a convicted felon or a pretrial detainee on October
30, 2017, when Skeen allegedly used excessive force against
him. His status on that date dictates the legal standard I
must apply in considering his excessive force claim.
Herron was a pretrial detainee on October 30, 2017, I must
consider his claim under the Due Process Clause of the
Fourteenth Amendment. To state an excessive force claim,
“a pretrial detainee must show only that the force
purposely or knowingly used against him was objectively
unreasonable.” Kingsley v. Hendrickson, 135
S.Ct. 2466, 2473 (2015). In making an objective
reasonableness analysis, I must consider the totality of the
circumstances “from the perspective of a reasonable
officer on the scene, including what the officer knew at the
time, not with the 20/20 vision of hindsight.”
Id. However, I must also defer appropriately
“to policies and practices that in the judgment of jail
officials are needed to preserve internal order and
discipline and to maintain institutional
Considerations such as the following may bear on the
reasonableness or unreasonableness of the force used: the
relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff's
injury; any effort made by the officer to temper or to limit
the amount of force; the severity of the security problem at
issue; the threat reasonably perceived by the officer; and
whether the plaintiff was actively resisting.
Herron was a convicted prisoner on October 30, 2017, I must
analyze his excessive force claim under the Eighth Amendment.
Id. at 2475. In an Eighth Amendment analysis, I must
consider “whether the prison official acted with a
sufficiently culpable state of mind (subjective component)
and whether the deprivation suffered or injury inflicted on
the inmate was sufficiently serious (objective
component).” Williams v. Benjamin, 77 F.3d
756, 761 (4th Cir. 1996). “The objective component
focuses not on the severity of any injuries inflicted, but
rather on the nature of the force which must be
nontrivial.” Tedder v. Johnson, 527 Fed.Appx.
269, 272 (4th Cir. 2013) (unpublished). To meet the
subjective component, a convicted prisoner “plaintiff