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denying summary judgment where the defendant asserted qualified immunity, but there were issues of fact as to whether the use of chemical spray was necessary based upon the circumstances and noting that the unconstitutional nature of applying chemical spray when not necessary was clearly established when the incident occurred in March 2018
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C/A No. 5:19-CV-01051-MGL-KDW
05-06-2020
Tedric Delvion Hill, Plaintiff, v. Sergeant Sally Crowe, in Her Individual Capacity, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se, brought this civil rights action under 42 U.S.C. § 1983 alleging violation of his Eighth Amendment constitutional rights for excessive use of force. ECF No. 1. This matter is before the court on Defendant's Motion for Summary Judgment, filed December 23, 2019. ECF No. 57. As Plaintiff is proceeding pro se, the court entered a Roseboro order on December 23, 2019, advising Plaintiff of the importance of such motions and the need for him to file a response. ECF No. 60. Plaintiff responded to Defendant's motion on January 16, 2020. ECF No. 66. Accordingly, this matter is now ripe for consideration.
Roseboro v. Garrison, 528 F. 2d 309 (4th Cir. 1975) (requiring that the court provide explanation of dismissal/summary judgment procedures to pro se litigants).
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 is entered for the court's review. For the reasons outlined below, the undersigned recommends that Defendant's Motion for Summary Judgment be denied.
I. Factual Background
At the time of the events giving rise to this lawsuit, Plaintiff was incarcerated in the Restrictive Housing Unit ("RHU") at Kershaw Correctional Institution ("KCI"). ECF No. 1. Defendant Crowe was a correctional officer in this facility. Neither party disputes that the date of the incident was March 15, 2018. ECF Nos. 1 at 5, 57-1 at 1.
Plaintiff's Complaint alleges that Defendant Crowe assaulted Plaintiff by striking him on the arm with a set of security keys and then spraying Plaintiff with 21 grams of chemical munitions. ECF No. 1 at 6. As a result, Plaintiff claims that he suffered injuries including "psychological trauma and mental anguish (depression)" that required mental health treatment. Id. Plaintiff seeks $30,000.00 in compensatory damages and $25,000.00 in punitive damages. Id.
Defendant Crowe provided her version of events in an Incident Report dated March 15, 2018. ECF No. 57-1 at 7. According to Defendant Crowe, she initially went to Plaintiff's cell to retrieve a phone that Plaintiff had been using. Id. She stated that Plaintiff threw a cup of light-colored liquid at her and some of the liquid struck her vest and right shirtsleeve. Id. Defendant Crowe stated that she administered a "short burst of gas at [Plaintiff's cell] flap to get the inmate to move." Id. Thereafter, another officer secured Plaintiff's cell flap and instructed Plaintiff to decontaminate his cell. ECF No. 57-1 at 6-7. Defendant Crowe reported that 21 grams of chemical munitions were deployed in the incident. Id. at 7.
A Use of Force Report attached to Defendant's Motion for Summary Judgment provides details on actions taken following the incident. ECF No. 57-1 at 2-3. In the section of the report labeled "Warden Review" and dated May 8, 2018, Gary D. Lane concludes that the use of force was necessary, and the type of force was appropriate; however, the circumstances did not preclude a planned use of force. ECF No. 57-1 at 2. The Warden Review indicates that "conflict resolution and/or cool down time" was not utilized "because the event was spontaneous." Id. The review note indicates that "a training session was held after this incident and staff were instructed that if it occurred in an inmate[']s cell, then this would be a planned use of force." Id. at 2. The Use of Force Report also includes a Compliance Review created by Tyler S. Hauptman dated February 28, 2019. Id. Hauptman indicates "Actions Appropriate" but determined that "[t]his should have been a planned use of force, once the inmate threw the substance, the threat was over. If the inmate was going for another hit, then it is different, but the way this reads it is a violation of OP-22.01, 2017, Paragraph 6.7." Id.
Plaintiff was charged with a disciplinary offense for "throwing/exposure" on March 15, 2018. ECF No. 66-2 at 12. This charge was dismissed and does not appear on his disciplinary record. Id., ECF No. 57-2. Plaintiff appropriately filed grievances related to the incident stating that he was subjected to excessive force by Defendant's actions. ECF No. 57-3. Plaintiff's grievances were ultimately denied upon the determination that Plaintiff failed to follow SCDC policies and he did not show that "SCDC Staff have failed to perform their duties appropriately." Id. at 3.
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. 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
A. Excessive Force
The Eighth Amendment prohibition of cruel and unusual punishment "protects inmates from inhumane treatment and conditions while imprisoned." Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). To establish a constitutional excessive force claim, the inmate must establish that the "prison official acted with a sufficiently culpable state of mind (subjective component); and [that] the deprivation suffered or injury inflicted on the inmate was sufficiently serious (objective component)." Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citing Wilson v. Seiter, 501 U.S. 294, 298-300 (1991)). Thus, courts must analyze both subjective and objective components.
For the subjective component, Plaintiff must prove that Defendant used chemical munitions on 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). The Supreme Court has identified the following four factors to consider when determining whether a prison official's actions were carried out "maliciously and sadistically" to cause harm: (1) the need for application of force; (2) "the relationship between the need and the amount of force" used; (3) "the extent of the injury inflicted"; and (4) "the extent of the threat to the safety of staff and inmates as reasonably perceived by the responsible officials on the basis of the facts known to them." Whitley, 475 U.S. at 321.
"The fact that pepper spray was used in this incident . . . does not mandate that [plaintiff's] claim go forward, as the use of mace, tear gas or pepper spray by prison officials is not a per se violation of a prisoner's constitutional rights when used appropriately." Townsend v. Anthony, No. 0:03-2528-RBH, 2006 WL 2076920, at *9 (D.S.C. July 24, 2006). The Fourth Circuit's decision in Williams v. Benjamin, 77 F.3d 756, provides additional 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). While the use of mace on prisoners confined in their cells in not per se unconstitutional, "it is necessary to examine the totality of the circumstances, including provocation, the amount of gas used, and the purpose for which the gas is used to determine the validity of the use of tear gas in the prison environment." Id. (internal citation omitted). "The absence of serious injury is a relevant, but not dispositive, additional factor to be considered in the subjective analysis." Id. at 762.
Concerning the first and second Whitley factors, the need for application of force and the relationship between the need and the amount of force used, Defendant contends she "was attempting to close the Inmate's service flap on his cell door when the Inmate threw a clear liquid substance on [her], at which time she immediately administered a single shot of chemical munitions totaling 21 grams." ECF No. 57 at 1. Defendant's argument appears to be that Plaintiff provoked the use of force and Plaintiff's actions made force necessary. Id. Defendant refers to the Use of Force Report's description of the incident as support for her assertion that the application of force was necessary and appropriate. ECF No. 57-1 at 2.
Plaintiff denies that he threw a liquid at Defendant and points out that the charge against him of throwing a substance on March 15, 2018 was dismissed. ECF Nos. 1, 66, 66-2. Plaintiff cites to the Compliance Review contained in the Use of Force Report wherein Hauptman states that it appears that the way the use of force "reads it is a violation of OP-22.01, 2017, Paragraph 6.7." ECF No. 66-2 at 13. Plaintiff also points out that in that same report the Warden Review indicates the circumstances did not preclude the use of planned force. Id. Furthermore, Plaintiff maintains that the need for application of force was unnecessary because he was locked in his cell when force was applied. ECF No. 66 at 7. In addition to being sprayed with chemical munitions, Plaintiff alleges that he was assaulted by Defendant with a set of security keys. ECF No. 66 at 7-8. Plaintiff complains that Defendant never gave Plaintiff any warning, instructions, or opportunity to move before spraying Plaintiff with munitions. Id. at 7. Defendant did not reply to allegations in Plaintiff's Response related to the dismissal of disciplinary charges, written statements made by Hauptman and Lane, justification for lack of planned force, assault, and specific institutional reasoning for employing chemical munitions on an inmate in a locked cell. In light of the differing accounts of the facts offered concerning the need for application of force and the relationship between the need and the amount of force used, the undersigned finds that the first and second Whitley factors weigh in favor of Plaintiff.
In her Motion for Summary Judgment Defendant did note, however, that "the use of force incident review did find that the use of force should have been planned versus unplanned." ECF No. 57 at 2, n. 2.
In examining the third Whitley factor, the extent of the injury inflicted, Defendant argues "there is no evidence Inmate suffered any injury, other than that which is normally associated with the use of chemical munitions." ECF No. 57 at 5. Defendant insists that "Inmate had access to his sink in his cell, medical was notified, and he indicated there were no problems." ECF No. 57 at 4. Defendant references the medical notations in the Use of Force Report following the incident to support this contention. ECF No. 57-1. The report includes a Medical Treatment Statement and two Medical Injuries Statements. Id. at 2-3. The first Medical Injuries Statement, created March 22, 2018, indicates that "[inmate] was not examined by medical staff. Medical not notified to see [inmate]." Id. at 3. A second Medical Injuries Statement "signed off on" March 23, 2018 indicates that "[inmate] seen at RHU cell door for security reasons. Talked to [inmate] due to use of force by chemical munitions. No problems expressed but [inmate] asked if he could have his Colace from his property sack. Medical said he could have the medication. K. Copeland R.N." Id. at 2. A Medical Treatment Statement, created April 30, 2018, indicates Plaintiff was treated on March 23, 2018 and provides the same notes from Nurse Copeland as in the Medical Injuries Statement. Id. The Use of Force Report also contains a Mental Health Review created April 16, 2018. ECF No. 57-1 at 3. In this mental health review, a medical provider recorded that Plaintiff self-reported that he has issues with anger. Id. The Use of Force Report does not indicate that Plaintiff suffered any mental or physical injuries due to the use of force.
In response, Plaintiff alleges that "Defendant Sally Crowe sadistically ordered Corporal Devore to close the food portal flap and cut off all Plaintiff's cell plumbing sink and toilet water and for hours and days without water to immediately decontaminate himself with after being assaulted by Defendant on March 15th, 2018." ECF No. 66 at 16. Plaintiff complains that after the incident he experienced severe pain, an intense burning sensation, and tearing of the skin on his body. Id. at 17. The record before the court does not include Plaintiff's medical records. The Employee Narrative in the Use of Force Report indicates that "inmate Tedric Hill #344029 is to follow up with Kershaw medical staff on the morning 3/16/18," however, the court is not privy to any medical records from March 15, 2018 to March 23, 2018. ECF No. 57-1 at 3. Additionally, the March 22, 2018 Medical Injuries Statement offers no information as to when medical was notified or if Plaintiff was seen by medical the day after the incident. Id. Therefore, the undersigned finds that there are genuine issues of material fact as to the extent of the injury inflicted and the third Whitley factor weighs in Plaintiff's favor.
Defendant argues that the fourth factor, the extent of the threat to the safety of staff and inmates as reasonably perceived by the responsible officials on the basis of the facts known to them, weighs in her favor and describes Plaintiff's demeanor during the incident as "combative and aggressive." ECF No. 57 at 1. Defendant notes that "[i]nmate has a lengthy disciplinary history concerning aggressive behavior." Id. at 2, n. 1. Defendant points to a mental health statement in the Use of Force Report in which Plaintiff admits that he was "stagging on the flap" because he found a hair in his food tray and was angry. Id. at 2, citing ECF No. 57-1 at 3. Defendant does not articulate how Plaintiff was posing a safety threat to other staff or inmates. ECF No. 57. Plaintiff responds that Defendant "was not in fact in any imminent danger of bodily harm, as Plaintiff was lock[ed] down behind a 500 pound steel[] door at all times." ECF No. 66 at 7. Accordingly, the undersigned finds that questions of fact exist concerning the extent of the threat to the safety of staff and inmates as reasonably perceived by the responsible officials on the basis of the facts known to them; the fourth Whitley factor weighs in Plaintiff's favor.
Additionally, to successfully bring a claim for excessive force, Plaintiff must establish an objective component that "the deprivation suffered or injury inflicted on the inmate was sufficiently serious." Iko v. Shreve, 535 F.3d at 238. Defendant's motion acknowledges that this objective component is necessary, ECF No. 57 at 4, yet she does not analyze the facts of this case under this standard of inquiry other than stating that "there is no evidence Inmate suffered any injury, other than that which is normally associated with the use of chemical munitions," Id. at 5. As discussed previously, the undersigned finds that there exist genuine issues of material fact regarding Plaintiff's claims. When the evidence is viewed in the light most favorable to Plaintiff, as the court must, the facts show that Plaintiff was sprayed with chemical munitions and there is insufficient evidence as to whether he was allowed to rinse off the chemical munitions and inadequate information about any injuries. The undersigned recommends that Defendant be denied summary judgment on Plaintiff's excessive force claim.
B. Qualified Immunity
When evaluating a qualified immunity defense, the court must determine (1) whether the facts alleged show that the defendants' conduct violated a constitutional right, and (2) whether that right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Based on the analysis of the facts presented in the excessive force section above and considering the facts in the light most favorable to Plaintiff, the undersigned recommends denying Defendant qualified immunity. The record before the court shows that there are genuine questions of fact as to whether Defendant transgressed any of Plaintiff's statutory or constitutional rights. Consequently, the undersigned recommends that Defendant be denied summary judgment based on qualified immunity.
IV. Conclusion
Based on the foregoing, the undersigned recommends that Defendant's Motion for Summary Judgment, ECF No. 57, be denied.
IT IS SO RECOMMENDED. May 6, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge