Opinion
C. A. 5:22-650-DCC-KDW
03-20-2023
Deshawn Ford, Plaintiff, v. Officer Cleveland; Officer Delk; Lieutenan Levels; and Officer Duffy, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge.
Deshawn Ford, Plaintiff, proceeding pro se and in forma pauperis, brought this action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff, a state prisoner, alleges that on two separate occasions, Defendants violated his right to be free from cruel and unusual punishment afforded to him under the Eighth Amendment. By order dated August 30, 2022, Defendants Cook and Parker were dismissed from this lawsuit without prejudice. ECF No. 42. Thereafter, on October 6, 2022, Defendants Cleveland, Delk, Duffy, and Levels filed a Motion for Summary Judgment. ECF No. 50. On November 9, 2022, Plaintiff filed a document, styled as an affidavit, in response to the Motion for Summary Judgment. ECF No. 54. Plaintiff did not file anything additional with the court. This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) and (e), D.S.C. Because this Motion is dispositive, a Report and Recommendation (“R&R”) is entered for the court's review.
I. Factual Background
Plaintiff complains that Defendants' actions on two separate occasions violated his constitutional rights. During the time period relevant to the Complaint, Plaintiff was incarcerated at Broad River Correctional Institution, and Defendants were all officers at this facility. ECF No. 1 at 2-4, 7. First, on March 26, 2019, Plaintiff asserts that Defendants Cleveland and Delk used excessive force by punching Plaintiff in the face while he was in restraints. ECF No. 1 at 7. Second, on September 26, 2019, Plaintiff asserts that Defendant Duffy used excessive force by spraying Plaintiff in the face with an excessive amount of chemical munitions. Id. Plaintiff further asserts that during this same incident, Defendant Cleveland used excessive force by dragging Plaintiff to his cell while Plaintiff was in restraints. Id. Plaintiff alleges that, with respect to the September 26, 2019 incident, Defendants Levels, Duffy and Cleveland violated Plaintiff's Eighth Amendment rights by denying Plaintiff medical treatment and acting deliberately indifferent to a substantial risk of harm to Plaintiff's health. Id. at 8-9. Plaintiff alleges that as a result of these actions described above, he suffered physical, mental and emotional pain. Id. at 9.
Plaintiff also alleged that Defendant Parker violated his rights in this manner, as well as by denying him medical treatment and being deliberately indifferent to a substantial risk of harm; however, Defendant Parker has previously been dismissed from this lawsuit.
Plaintiff also alleged that Defendant Cook violated his rights in this manner, as well as by denying him medical treatment and being deliberately indifferent to a substantial risk of harm; however, Defendant Cook has previously been dismissed from this lawsuit.
In their Motion for Summary Judgment, Defendants provide additional facts surrounding these two incidents. According to Defendants, on March 26, 2019, Plaintiff, as well as another inmate, refused directives from Defendant Cleveland to report back to their cells. Defs.' Br. at 2; ECF No. 50. Defendants state that Plaintiff became aggressive, struck an officer in the face, and struck Defendant Cleveland in the face when Defendant Cleveland attempted to place Plaintiff in restraints. Defs.' Br. at 2; see generally Use of Force Report and Post-Use of Force Videos, ECF Nos. 50-1, 50-2, and 50-3. At Plaintiff's subsequent medical visit on the same day, the medical report indicates Plaintiff did not have any obvious injuries. See Medical Report, dated March 26, 2019, ECF No. 50-4. As a result of this incident, Defendants assert that Plaintiff was charged with refusing or failing to obey and striking an employee, to which Plaintiff pled guilty and was sanctioned. Defs.' Br. at 2; see also Disciplinary System Records, ECF No. 50-5. Defendants acknowledge Plaintiff filed both a Step 1 Grievance and a Step 2 Appeal after this incident. Defs.' Br. at 2; see also Inmate Grievance Form Step 1 and Inmate Grievance Form Step 2, ECF No. 506.
As to the September 26, 2019 incident, Defendants assert that Plaintiff was found actively attempting to destroy facility property by bending a leg iron bar and subsequently refusing to obey orders to return to his cell. As a result, Defendant Duffy applied a single burst of 9 grams of chemical munitions toward Plaintiff. Defs.' Br. at 3; see also Use of Force Report, ECF No. 50-7; Post Use-of-Force Video, ECF No. 50-8. Defendants acknowledge that Plaintiff filed a Step 1 Grievance, which was denied, but Plaintiff did not appeal this decision. Defs.' Br. at 3; see also Inmate Grievance Form Step 1, ECF No. 50-9. Plaintiff's Step 1 Grievance Form notes that Plaintiff accepted the decision of the Warden.
II. Standard of Review
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own argument, affidavit, or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).
Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc.Servs., 901 F.2d 387, 391 (4th Cir. 1990).
III. Analysis
Defendants raise the following arguments in their Motion: (1) Plaintiff failed to establish that Defendants used excessive force; (2) the March 2019 incident should be dismissed pursuant to Heck v. Humphrey; (3) the September 2019 incident should be dismissed for failure to exhaust administrative remedies; and (4) Defendants are entitled to qualified immunity. In response, Plaintiff filed an affidavit stating that he did file a Step 2 Grievance (which the court construes as referring to the September 2019 incident); however, he asserts that “due to the situation,” Plaintiff went straight into the Administrative Law Court to exhaust his administrative remedies. Plaintiff does not otherwise address the substantive response by Defendants to his excessive force claims.
1. March 2019 Incident - Barred by Heck v. Humphrey
Prior to considering the substance of Plaintiff's allegations, the undersigned considers Defendants' argument that Plaintiff's excessive use of force claim stemming from the March 2019 incident against Defendants Delk and Cleveland should be dismissed pursuant to Heck v. Humphrey. In Heck, the Supreme Court held that in order to recover damages pursuant to § 1983, Plaintiff must first prove that a conviction or sentence had been reversed on direct appeal, expunged by an executive order, declared invalid by a state tribunal, or called into question by a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). The petitioner in Heck, a prisoner convicted of voluntary manslaughter, brought a claim pursuant to § 1983, asserting that officers engaged in an arbitrary investigation and destroyed exculpatory evidence leading to his arrest, thereby calling into question the validity of his conviction. Defendants argue that Plaintiff pled guilty to striking an officer during the March 2019 incident, and he did not elect to have his conviction reviewed. See ECF No. 50-5. Defendants then argue that pursuant to Heck, any finding in this court that Plaintiff did not, in fact, assault an officer would imply the invalidity of the South Carolina Department of Corrections (“SCDC”) Disciplinary System finding. The undersigned does not find Heck applicable to this case. Plaintiff is not questioning the validity of the disciplinary proceeding, or the punishment imposed, which in this case was loss of canteen and phone privileges for thirty days. Further, even if the evidence of record in this question supported a finding that one or more officers struck Plaintiff or otherwise applied excessive force, such a finding would not invalidate a previous finding that Plaintiff struck an officer, as well, or otherwise failed to obey orders. Plaintiff does not make any allegation in his Complaint regarding an impropriety as to the disciplinary hearing and subsequent plea of guilty related to this incident. Accordingly, the undersigned recommends denying summary judgment on the grounds that Plaintiff's allegations are barred by Heck.
To be clear, the evidence of record before the court does not support Plaintiff's version of events, other than Plaintiff's own Step 1 Grievance Form. The incident reports attached to Defendants' Motion for Summary Judgment state that Plaintiff and another inmate were aggressive and combative in refusing to return to their cell when asked, and that Plaintiff struck an officer in the face. See Incident Reports, ECF No. 50-1 at 6,8. The video footage provided by Defendants support these contentions, as well, although the incident itself is not included within the footage. For example, the first video, a little more than 4 minutes in length, shows an inmate in handcuffs being led to a separate interior room, while another inmate, also in handcuffs is in an outdoor area, restrained by two officers. ECF No. 50-2. In another video, approximately 3 minutes in length, two inmates in handcuffs are being escorted in an outdoor area back toward the correctional facility. Approximately six seconds into the video an officer states, “charge them both with assault. This one here punched me in the face when we were trying to go back to the room.” ECF No. 503 at 0:06-12. Upon entry into the building in what appears to be a medical area, an individual states that he is bleeding. ECF No. 50-3 at 2:35-2:38. Another individual states, “let's see the officer first,” with another individual stating, “officers got hurt.” ECF No. 50-3 at 2:40-2:51. Someone identifies one of the harmed officers as “Burkett.” ECF No. 50-3 at 2:45-2:54. Officer Burkett is also identified in the incident reports as an assisting officer. In the affidavit provided to the court, Plaintiff did not respond or otherwise question the version of events described in the incident reports and relied upon by Defendants.
2. September 2019 Incident - Failure to Exhaust
Defendants next argue that Plaintiff's claims against Defendants related to the September 2019 incident should be dismissed because Plaintiff has failed to exhaust his administrative remedies. The Prison Litigation Reform Act (the “PRLA”), 42 U.S.C. § 1997e(a), provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” This requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). To satisfy this requirement, a plaintiff must avail himself of all available administrative remedies. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies “need not meet federal standards, nor must they be ‘plain, speedy, and effective.'” Porter, 534 U.S. at 524 (quoting Booth, 532 U.S. at 739).
The purpose of the exhaustion requirement is twofold. First, it gives an administrative agency “an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court[.]” Woodford v. Ngo, 548 U.S. 81, 89 (2006) (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). Second, “[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court.” Id. Satisfaction of the exhaustion requirement requires “using all steps that the agency holds out, and doing so properly.” Id. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (emphasis in original)). Thus, “it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). Defendants have the burden of establishing that a plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 681 (4th Cir. 2005).
To support their contention that Plaintiff failed to exhaust his administrative remedies with respect to claims brought related to the September 2019 incident, Defendants refer to SCDC Grievance Policy 01.12, as well as provide the Step 1 Inmate Grievance Form completed by Plaintiff after this incident. ECF No. 50-9. After Plaintiff submitted his Step 1 Inmate Grievance the Warden provided a decision, explaining his reason for denying Plaintiff's grievance. ECF No. 50-9 at 2. On October 31, 2019, Plaintiff signed the form and checked a box affirming that, “I accept the Warden's decision and consider the matter closed.” ECF No. 50-9 at 2. There is no Step 2 Grievance within the record. Instead, in the affidavit Plaintiff provided to the court in response to summary judgment, Plaintiff states that he filled out a Step 2 Grievance and turned it in, but he is unsure whether the officers turned it in. ECF No. 54 at 1. Alternatively, he states that he was not sure if the officers turned it in, so instead he went “straight into the Administrative Law Court” (“ALC”) to exhaust his remedies. ECF No. 54 at 1. Beyond this affidavit, Plaintiff does not provide any evidence to support his contention that he went “straight to the [ALC],” nor does Plaintiff indicate what occurred thereafter. Additionally, Plaintiff does not refute the veracity of the document filed by Defendants, indicating he accepted the Warden's decision at the Step 1 level and considered the case closed.
Within Plaintiff's Complaint, in response to the form question regarding what steps Plaintiff took in appealing any grievances filed, he cites to Ross v. Blake, 578 U.S. 632 (2016) and generally notes that administrative remedies were unavailable but does not otherwise explain why. ECF No. 1 at 12.
In Ross v. Blake, the Supreme Court noted that a court may not excuse a failure to exhaust, even taking into account special circumstances; however, a prisoner need not exhaust unavailable remedies. 578 U.S. 632, 638-42 (2016); see also Griffin v. Bryant, 56 F.4th 328, 335 (4th Cir. 2022) (explaining that the Ross court identified three circumstances where an administrative remedy may not be available: “(1) where the remedy ‘operates as a simple dead end,' with prison officials ‘unable to consistently unwilling to provide any relief to aggrieved inmates'; (2) where an administrative scheme is ‘so opaque' that it is ‘practically . . . incapable of use' because ‘no ordinary prisoner can discern or navigate it'; and (3) where ‘prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.'”).
Here, while Plaintiff argues that the grievance procedure was “unavailable” in his Complaint, he does not further specify the circumstances supporting that contention. Instead, in the Affidavit he filed, he states that he turned in a Step 2 Form, and alternatively states that he went straight to the ALC because he was unsure whether the officers turned anything in, which the undersigned takes to mean a Step 2 Form. First, Plaintiff does not support this statement with any documents to support this claim, nor does he explain what response, if any, he received from the ALC. Second, Plaintiff wholly ignores the fact that the evidence before the court affirmatively supports Defendants' contention that Plaintiff accepted the warden's decision at Step 1. The evidence in the record, that is the Step 1 Form, directly contradicts Plaintiff's contention that he continued to appeal the decision. Further, it does not appear that a Step 2 Form was unavailable to Plaintiff, and the evidence in the record establishes that Plaintiff chose not to appeal the findings, thereby electing not to exhaust his administrative remedies. See Rainey v. Ford, No. 206-2267-GRA-RSC, 2006 WL 3513687, at *1 (D.S.C. Dec. 5, 2006) (finding that a plaintiff who checked the appeal form with a similar response chose not to appeal the finding of the SCDC, and therefore failed to exhaust his administrative remedies). Defendants have thus met their burden of showing that Plaintiff did not otherwise exhaust his administrative remedies upon the Step 1 Grievance Form stage. Thus, the undersigned recommends finding that there is no genuine issue of material fact as to whether Plaintiff accepted the Step 1 Grievance decision. Accordingly, the undersigned recommends finding that Plaintiff's claims related to the September 2019 incident against Defendants should be dismissed for failure to exhaust his administrative remedies.
3. Excessive Use of Force
Alternatively, Defendants argue that Plaintiff has failed to prove Defendants used excessive force in violation of the Eighth Amendment. In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege (1) that he or she “has been deprived of a right, privilege or immunity secured by the Constitution or laws of the United States,” and (2) “that the conduct complained of was committed by a person acting under color of state law.” Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983). Excessive force claims brought by convicted prisoners are governed by the Eighth Amendment's prohibition of cruel and unusual punishment. Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). There is both an objective and subjective component to establishing an excessive force claim. Dean v. Jones, 984 F.3d 295, 302 (4th Cir. 2021). The objective component focuses on whether the force applied, “was sufficiently serious to establish a cause of action.” Dean, 984 F.3d at 302 (citing Brooks v. Johnson, 924 F.3d 104, 112 (4th Cir. 2019)). The subjective component focuses on whether the officers involved “acted with a sufficiently culpable state of mind.” Dean, 984 F.3d at 302 (citing Williams, 77 F.3d at 761). Thus, courts must analyze both the subjective and objective components. For the subjective component, Plaintiff must prove that Defendant assaulted and restrained him “maliciously and sadistically for the very purpose of causing harm” rather than in a good-faith effort to maintain or restore discipline. Whitley v. Albers, 475 U.S. 312, 320-21 (1986).
Courts use the following test in order to analyze the subjective component of the excessive force for Plaintiff's cause of action:
(1) “the need for the application of force”; (2) “the relationship between the need and the amount of force that was used”; (3) the extent of any reasonably perceived threat that the application of force was intended to quell; and (4) “any efforts made to temper the severity of a forceful response.”Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008) (quoting Whitley, 475 U.S. at 321). The requisite state of mind is “wantonness in the infliction of pain.” Iko, 535 F.3d at 239 (quoting Whitley, 475 U.S. at 322). The analysis focuses on “whether the force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Whitley, 475 U.S. at 320-21. The use of force on an inmate who is “restrained and compliant and posing no physical threat raises the specter of such an impermissible motive.” Dean, 984 F.3d at 302 (citing Thompson v. Virginia, 878 F.3d 89, 102 (4th Cir. 2017)). Defendants argue that Plaintiff failed to establish any Defendant used excessive force during either the March 2019 incident or the September 2019 incident.
A. March 2019 Incident
The court will first consider the March 2019 incident. The undersigned will briefly consider the objective component, that is the focus is on the severity of the force employed. Here, the record contains evidence that officers placed Plaintiff on the ground and put him in restraints. Within the medical report provided after the incident occurred, the medical staff notes that Plaintiff had no obvious injuries, and Plaintiff was not in distress. ECF No. 50-4 at 1. In reviewing the video evidence, the undersigned notes that both inmates do not appear to be in any distress. This evidence does not support Plaintiff's allegation that he was punched in the face; therefore, it is challenging to determine the extent of the force applied in this case.Plaintiff does not provide any response in his affidavit to the medical findings showing that he had no obvious injuries. However, Defendants have produced a “Use of Force Report” related to the incident. The record also establishes that Defendant Delk and Cleveland somehow brought Plaintiff to the ground and put him in restraints. Further, after the incident, Plaintiff was taken to medical. Viewing all of these facts in a light most favorable to Plaintiff, the undersigned finds that there is at least a question of fact as to whether the force use was more than de minimis. See Wilson v. Miller, No. 7:10-cv-00414, 2020 WL 3441238 at *5 (W.D. Va. June 23, 2020) (finding that the grabbing of an inmate from behind and moving him onto the ground, as well as pushing an inmate into his cell, establishes a dispute of fact to survive summary judgment).
While courts once considered the severity of a plaintiff's injuries under this component, the Supreme Court has since clarified that the focus is on the severity of the force employed. Wilkins v. Gaddy, 559 U.S. 34, 39 (2010).
Further, while Plaintiff alleges in his Complaint that he experienced bruising, swelling, burning, stress, depression and anxiety, the evidence before the court does not support a finding that these injuries were as a result of the alleged excessive force related to the March 2019 incident, nor does Plaintiff delineate which injuries were as a result of either incident.
However, even viewing the evidence in a light most favorable to Plaintiff, Plaintiff has failed to establish any set of facts that satisfies the excessive force analysis as to the subjective component. Under the first factor of this component, the evidence clearly establishes that Plaintiff (as well as another inmate) refused to obey orders and struck one or more officers when the officers attempted to restore order. ECF No. 50-1 at 4-11. While the video evidence provided does not capture the actual incident in question, it does capture what appears to be one officer explaining to another officer that both inmates should be charged with assault. ECF No. 50-3 at 0:06-12. In Plaintiff's Step 1 Grievance Form, he states that he was “assaulted” by officers.” ECF No. 50-6. In Plaintiff's Step 2 Grievance Form, Plaintiff states that he was “assaulted” in a “shakedown operation for 5 minutes handcuff to the back” and indicates that “all y'all care about is that I refuse to go back to my cell.” ECF No. 50-6. Plaintiff does not specifically state in either grievance form that he was struck in the face while restrained, despite generally alleging that he was assaulted.Moreover, his admission that he refused to go back to his cell corroborates Defendants' version of events; namely, that Plaintiff refused to obey one or more orders given to him by a correctional officer. In the affidavit filed with this court, Plaintiff does not otherwise provide a response to Defendants' evidence establishing their version of what occurred on March 26, 2019.
The undersigned notes that Plaintiff's only “evidence” brought forward is his own self-serving allegations that he was punched in the face while restrained. See Brown v. Powell, No. 4:12-cv-3057, 2014 WL 691662, at *4 (D.S.C. Feb. 21, 2014) (granting summary judgment to the defendants, explaining in part that the only evidence in the record to support a claim of excessive force was the plaintiff's own allegations).
As to the second and third factors, “the relationship between the need and the amount of force that was used” and “the extent of any reasonably perceived threat that the application of force was intended to quell,” none of the Defendants admit to striking Plaintiff in the face on March 26, 2019, nor is there any evidence that Plaintiff was struck in the face “while he was in restraints.” The evidence of record establishes that in the Use of Force Report, there is a notation that three officers, Henderson, Defendant Cleveland, and Defendant Delk, used “empty hand control/defensive tactics” during the incident. ECF No. 50-1 at 1 (emphasis added). Defendants also provide evidence that officers attempted to restrain Plaintiff, that they eventually put restraints on Plaintiff, and that they took Plaintiff to the ground. ECF No. 50-1 at 6, 8. There is also evidence, by way of the several incident reports and in the video provided, that it was Plaintiff who struck one or more officers in the face. In at least one incident report, Defendant Delk states that Plaintiff told him, “ima get y'all killed I promise you.” ECF No. 50-1 at 6. Accordingly, in considering the evidence before the undersigned in a light most favorable to Plaintiff, while it does appear that there was some sort of tense altercation between Plaintiff and the officers, the record before the court does not support Plaintiff's contention that he was struck in the face while restrained. Further, Defendants have brought forth evidence that supports a finding that that Plaintiff appeared to be a threat to officers in that he was described as “belligerent” and “aggressive,” and the post-event video supports a finding that Officer Burkett had been struck by Plaintiff in the altercation. ECF No. 50-1 at 6-9; ECF No. 50-3 at 2:40-2:54.
Finally, as to the fourth factor, “any efforts made to temper the severity of a forceful response,” the record supports a finding that Defendants tried other tactics to quell the disturbance prior to coming into physical contact with Plaintiff. Officer Henderson states in his report that Plaintiff and the other inmate were given several directives to report back to their cell. ECF No. 50-1 at 5. Defendant Cleveland states that he attempted to use “CIT skills” to coerce the inmates to go back to their cells peacefully. ECF No. 50-1 at 8. Obviously, those efforts failed. Accordingly, the evidence in the record supports a finding that Defendants attempted to use other tactics not involving any physical interaction to gain Plaintiff's compliance prior to ultimately resorting to placing Plaintiff on the ground and restraining him. Defendants Delk and Cleveland's application of force thus appears to have been effectuated in a good faith effort to maintain or restore discipline and not for the very purpose of causing harm. See Whitley, 475 U.S. at 320-21. The undersigned therefore recommends finding that as to the March 2019 incident, Defendants' Motion for Summary Judgment should be granted as to the claims against Defendants Delk and Cleveland.
B. September 2019 Incident
Similarly, the undersigned has considered whether Defendants Duffy or Cleveland used excessive force during the events on September 26, 2019. While the undersigned has previously recommended finding that Plaintiff failed to properly exhaust this claim, the undersigned has alternatively considered whether Plaintiff has established an excessive use of force claim as to this incident. Plaintiff alleges Defendant Duffy sprayed him with an excessive amount of munitions while Plaintiff was in restraints. He further alleges that Officer Cleveland dragged Plaintiff to his cell while he was in restraints. Finally, Plaintiff alleges these officers denied him medical treatment and were deliberately indifferent to a substantial risk of serious harm to his health.
As to the objective component, much the like March 2019 incident, the undersigned again recommends finding that, in viewing the facts in a light most favorable to Plaintiff, there is a question of fact as to whether the force applied during the September 2019 incident by Officers Cleveland and Duffy was more than de minimis force. Plaintiff alleges he was sprayed with an excessive amount of chemical munitions (9g) while in restraints, and that he was dragged to his cell while in restraints. Further, he alleges injuries that appear to be related to this incident, for example “burning” and “bruising,” though it is not clear from his Complaint which injuries are specific to the September 2019 incident. At least one officer states in his incident report that Defendant Duffy administered chemical munitions, and additionally, that Plaintiff was placed on the floor and restrained with handcuffs.
However, Plaintiff has failed to establish the subjective component regarding the state of mind of Defendants during this incident. There are potentially two instances of force involved as to this incident: the use of chemical munitions, and Plaintiff's contention that he was dragged to his cell while in restraints. The only evidence referencing that this occurred is Plaintiff's allegation in his Complaint and in his grievance form provided by Defendant. However, Plaintiff does not provide a response in the affidavit filed to refute Defendants' version of events. As to the first factor, the need for the application of force, it is clear from the incident reports that Plaintiff was engaged in the attempted destruction of property immediately prior to the use of chemical munitions. Plaintiff was observed attempting to break a metal bar that secures leg irons, and several inmates, including Plaintiff, refused to be escorted back to their cells. Incident Report of Clinton Parker, ECF No. 50-7.
With respect to the fact that chemical munitions were employed, it is not a per se violation for guards to use mace in correctional institutions. Williams v. Benjamin, 77 F.3d 756,763 (4th Cir. 1996). The Fourth Circuit's decision in Williams v. Benjamin provides guidance for courts when considering claims relating to the use of mace, tear gas, or other like substances. There, the Williams court recognized: “it is a violation of the Eighth Amendment for prison officials to use mace, tear gas or other chemical agents in quantities greater than necessary for the sole purpose of infliction of pain.” Id. at 763 (internal citation omitted). However, mace used in small quantities to prevent riots or control a “recalcitrant inmate” may be constitutional. Id. (citing Landman v. Peyton, 370 F.2d 135, 138 & n. 2 (4th Cir. 1966)). In considering the next factor, the relationship between the need for the force and the amount of force that was used, the evidence shows that one burst of 9 grams of chemical munitions was used to halt Plaintiff from continuing to destroy the property after he was given several directives to stop bending the bar, but those efforts were not successful. See Use of Force Report, ECF No. 50-7.
The evidence provided by Defendants also reflects that there were several inmates who refused to obey orders to return to their cells. See Use of Force Report, ECF No. 50-7; Incident Report of Clinton Parker, ECF No. 50-7. Therefore, it appears that some force was used in order to return Plaintiff and other inmates to their cells. Similarly, the evidence supports a finding there was a need for the use of force based upon the perception of a threat as Plaintiff was attempting to bend a piece of iron from a table, and several other inmates were not obeying orders. Further, in at least one incident report, an officer states that Plaintiff was placed on the floor and put in handcuffs because he was exhibiting aggressive behavior and had previously come out of his restraints. ECF No. 50-7 at 5. Finally, as to the fourth factor, the evidence supports a finding that Defendants made efforts to temper the severity of a forceful response. They first attempted to gain compliance by asking the inmates to cease what they were doing more than once. The video related to his incident, approximately one minute and 20 seconds in length, shows an officer speaking to the camera, providing the date and time, and indicating that Plaintiff “was exposed to chemical munitions” and that a nurse was assisting Plaintiff. ECF No. 50-8, at 0:06-:30. The video also shows the nurse speaking from outside a door to Plaintiff while he is inside of a cell. The nurse indicates that there is a sink inside the cell for Plaintiff to wash off. ECF No. 50-8, at 0:47-0:52. Thus, the evidence establishes that Plaintiff was provided the ability to decontaminate after the incident. Plaintiff did not provide any argument in response to Defendants' Motion as to this claim. Accordingly, in reviewing the evidence before the court, the undersigned recommends finding that Defendants are entitled to summary judgment as to these claims against Defendants Cleveland and Duffy.
Relatedly, to the extent Plaintiff's allegations can be construed as a claim for deliberate indifference against all Defendants in failing to provide him medical care, the undersigned recommends finding that Plaintiff has not shown Defendants were deliberately indifferent to his serious medical needs, and therefore, and claims related to this allegation should be dismissed. The government is obligated to provide medical care to incarcerated individuals. Estelle v. Gamble, 429 U.S. 97, 103 (1976). To prevent the entry of summary judgment on a cause of action for deliberate indifference to medical needs, a plaintiff must present evidence sufficient to create a genuine issue of fact that the defendant was deliberately indifferent to his serious medical need. Farmer v. Brennan, 511 U.S. 825, 832-35 (1994); Wilson v. Seiter, 501 U.S. 294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). The Supreme Court has held that deliberate indifference to a prisoner's serious medical needs constitutes the “unnecessary and wanton infliction of pain” proscribed by the Eighth Amendment, whether it is in response to a prisoner's needs, there is an intentional denial or delay in access to medical care, or there is intentional interference with prescribed treatment. Estelle, 429 U.S. at 104.
Plaintiff summarily alleges he was denied medical treatment by “officers” after excessive force was used against him on September 26, 2019. ECF No. 1 at 8. He does not provide any additional facts to support this claim. Similarly, Plaintiff alleges all Defendants were deliberately indifferent to a substantial risk of serious harm to his health when they knew or should have known of “such risk” but did not take action. Put simply, Plaintiff has failed to provide any evidence to support any alleged deliberate indifference claim. Aside from the fact that Plaintiff does not provide any specific factual support for these contentions, the video evidence shows Plaintiff was provided almost immediate medical care in that a nurse spoke with him after the September 2019 incident. Plaintiff does not provide any medical records to substantiate this claim, he does not allege any specific injury directly attributable to the September incident, nor has he provided any set of facts to establish a genuine issue of material fact as to whether Defendants were indifferent to his medical needs. Plaintiff doesn't even allege which officers denied him treatment. Therefore, the undersigned recommends granting summary judgment in favor of Defendants as to any claim of deliberate indifference to Plaintiff's medical needs.
4. Qualified Immunity
Defendants next argue that even were Plaintiff to adduce evidence that Defendants violated Plaintiff's constitutional rights, Defendants are still entitled to qualified immunity. In Harlow v. Fitzgerald, the Supreme Court held that government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known. 457 U.S. 800 (1982). When a qualified immunity defense is raised, the courts apply a two-part test. First, the court must determine whether the facts viewed in the plaintiff's favor make out a violation of one's constitutional rights, and second, whether the violated right was clearly established at that time. Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (citing Pearson v. Callahan, 555 U.S. 233, 231 (2009)). The Fourth Circuit employs a split burden of proof for the qualified immunity defense. The plaintiff bears the burden of proving the first prong, and the [officer] bears the burden on the second prong. Stanton v. Elliott, 25 F.4th at 233 (citing Henry v. Purnell, 501 F.3d 374, 377-78 & n.4 (4th Cir. 2007)). Courts are not required to analyze the two-part qualified immunity test sequentially, though it is often the better approach to first determine whether a plaintiff has alleged a deprivation of a constitutional right. E.W. by & through T.W. v. Dolgos, 884 F.3d 172, 178-79 (4th Cir. 2018) (citing Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 898 (4th Cir. 2016)). Here, the undersigned has recommended granting summary judgment in favor of Defendants because Plaintiff has failed to establish an Eighth Amendment violation on the part of any of the Defendants. Alternatively, the undersigned recommends finding that Defendants are entitled to qualified immunity. As previously analyzed, Plaintiff has failed to show that Defendants' conduct violated a constitutional right for the reasons previously explained. Indeed, Plaintiff did not provide a substantive response to Defendants' request for summary judgment as to the excessive force claims. Plaintiff has not otherwise explained how the conduct in question violates a clearly established right. Therefore, the undersigned recommends finding that Defendants are entitled to qualified immunity.
IV. Recommendation
Based on the foregoing, it is recommended that Defendants' Motion for Summary Judgment, ECF No. 50, be granted as to all Defendants.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).