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Herron v. Skeen

United States District Court, W.D. Virginia, Roanoke Division

February 12, 2019


          Brandon Luke Herron, Pro Se Plaintiff

          Joseph A. Piasta, Johnson, Ayers & Matthews P.L.C., Roanoke, Virginia, for Defendant.



         The 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, [1] 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.


         When Herron's claims arose, he was confined at the Southwest Virginia Regional Jail facility in Duffield, Virginia.[2] 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.

         Then, 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.


         A 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).

         As an 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.

         If 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 security.”[3] Id.

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.


         If 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 ...

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