Opinion
C. A. 9:21-cv-03590-DCC-MHC 9:21-cv-04030-DCC-MHC
07-28-2023
Joshua Dylan LeDay, Plaintiff, v. Joanne Clarey and Shirley Glover, Defendants. Joshua Dylan LeDay, Plaintiff, v. Amy Glover, Sgt.; Clark Ard, Major; and Neil Johnson, Director, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE
Plaintiff, proceeding pro se and in forma pauperis, brings these actions alleging a violation of his constitutional rights. Before the Court is a Motion for Summary Judgment (“Motion”) filed by Defendants Joanne Clarey (“Capt. Clarey”), Amy Glover, Sgt. (“Sgt. Glover”), Clark Ard, Major (“Maj. Ard”), and Neil Johnson, Director (“Dir. Johnson”) (collectively, “Defendants”), pursuant to Rule 56 of the Federal Rules of Civil Procedure, in these consolidated cases: C/A 9:21-cv-03590-DCC-MHC (“LeDay I”) and C/A 9:21- cv-04030-DCC-MHC (“LeDay II”). ECF Nos. 64 and 23, respectively. Plaintiff filed a Response to the Motion, ECF Nos. 69 (LeDay I) and 27 (LeDay II), and Defendants filed a Reply, ECF No. 73 (LeDay I) and 29 (LeDay II). The Motion is ripe for review.
According to Defendants, Amy Glover is misidentified as “Shirley Glover” in the caption of C/A No. 9:21-cv-3590-DCC-MHC. Plaintiff acknowledges she has been misidentified. See ECF No. 1 at 13 in 9:21-cv-4030-DCC-MHC.
These cases are consolidated for purposes of discovery, motions and trial. ECF No. 35 (LeDay I); ECF No. 29 (LeDay II). Unless otherwise indicated, the references to the docket entries throughout this Report and Recommendation are in C/A 9:21-cv-03590-DCC-MHC (LeDay I).
All pretrial proceedings in these cases were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.). Because the Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. The undersigned recommends granting the Motion.
The facts in this case are taken primarily from the evidence attached to Defendants' Motion. Plaintiff has not submitted any evidence and contends the information contained in Defendants' summary judgment materials are “for the most part true.” ECF No. 69 at 1. The only fact Plaintiff generally contests is destroying the floor in holding 5. Id.
Plaintiff is a pre-trial detainee at the Georgetown County Detention Center (“Detention Center”), having been originally booked at the Detention Center on or around February 25, 2021. Plaintiff's claims in these consolidated cases involve three distinct events that occurred in May and June 2021: (1) an incident where Plaintiff alleges he was given “300 days on solitary confinement/lockdown” and not provided newspapers and religious material (LeDay II, ECF No. 1 at 6-8); (2) an incident involving Plaintiff being tased after he broke a television (LeDay I, ECF No. 1 at. 4-5; LeDay II, ECF No. 1 at 7); and (3) an incident involving Plaintiff's mattress being temporarily taken after he destroyed it. (LeDay I, ECF No. 1 at 4-5; LeDay II, ECF No. 1 at 5-7).
A. Solitary Confinement: May 19, 2021 Disciplinary Sanctions and Related Discipline
On May 17, 2021, Plaintiff was implicated in a criminal conspiracy to smuggle drugs into the Detention Center using Plaintiff's legal mail. ECF No. 64-1, Affidavit of Clark Ard at ¶ 8, and attached Exhibits 1 (5/17/21 Incident Reports, pp. 10-21) and 2 (GCSO Case Report, pp. 22-45). Specifically, Detention Center staff had learned that Plaintiff allegedly was selling drugs in the form of sublingual strips. Detention Center staff requested assistance from Georgetown County Sheriff's Office (“GCSO”) narcotics officers, and their joint investigation revealed that Plaintiff allegedly was operating a conspiracy with his mother, sister, and others to smuggle the drugs into the Detention Center using legal mail. ECF No. 64-1 at 11-12, 23-26. According to the alleged scheme, Plaintiff would market the drugs to other inmates, who would make payments through their inmate accounts, which would be picked up by Plaintiff's sister while Plaintiff's mother would send Plaintiff the drugs through items marked as legal mail. Id. at 23-26. When an inmate made a payment, Plaintiff allegedly would distribute the drugs using other inmates within the Detention Center. Id. On May 17, drugs were found in a suspicious package addressed to Plaintiff as “legal mail.” Id. at 10-12, 24-25.
Plaintiff claimed the legal mail package in front of GCSO narcotics officers, who proceeded to detain him. Id. A search of Plaintiff and his cell turned up additional contraband, including a shank, razor blades, and tattooing materials. Id. at 12-21. According to the Georgetown County Public Index, Plaintiff was charged with five criminal charges, while Plaintiff's mother and sister were also criminally charged.
See https://publicindex.sccourts.org/Georgetown/PublicIndex/PISearch.aspx (last visited April 13, 2023), and searching for case numbers 2021A2210100118, 2021A2210100119, 2021A2210100120, 2021A2210100121, and 2021A2210100122 (against Plaintiff); 2021A2210500368 and 2021A2210500369 (against Plaintiff's mother); and 2021A2210100117 (against Plaintiff's sister). All of these charges remain pending. This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. S.C. Highway Patrol, No. 0:09-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009); In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2008 WL 4185869 at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records).
In addition to the criminal charges, the drug smuggling and contraband seized in the related search of Plaintiff's cell also led to Plaintiff being charged on May 17, 2021, with ten separate major Detention Center disciplinary violations. ECF No. 64-1, Ard Aff. at ¶ 9, and attached Exhibit 3 (Disciplinary Documents for 5/17/2021 disciplinary charges, pp. 46-65). On May 17, 2021, Plaintiff received written notice for each of these charges and signed acknowledgements of same. ECF No. 64-1 at 46-65. Two days later, on May 19, 2021, Plaintiff received a hearing on these ten charges chaired by Maj. Ard and was found guilty on all charges based upon evidenced including the mailings, photos, and reports. ECF No. 64-1, Ard Aff. at ¶ 10, 46-65. Plaintiff received the maximum sanction of thirty days for each charge, with each sanction to run consecutively. Id.
On May 26, 2021, Plaintiff was charged with two major disciplinary violations for destroying a Detention Center television and for exposing himself to a nurse who worked for the Detention Center's medical provider. ECF No. 64-1, Ard. Aff. at ¶ 12, and attached Exhibit 4 (5/26/21 and 5/30/21 Disciplinary Documents). On May 30, 2021, Plaintiff was charged with a major disciplinary violation for throwing a liquid he described as “piss” on the same nurse to whom he had exposed himself recently. Id. Again, Plaintiff received written notification of these three new charges and a hearing was held with Maj. Ard as the hearing officer. Id. Plaintiff received the maximum sanction of thirty days for each charge, with each to run consecutively to each other and the charges he was already being sanctioned for. Id.
Plaintiff refers to this period as “solitary confinement/lockdown.” ECF No. 1 at 6-8 (Leday II). However, the Detention Center does not have any “solitary confinement” housing areas. ECF No. 64-1, Ard Aff. at ¶ 13. Instead, inmates who receive disciplinary sanctions are housed in the D-Block housing unit. Id., Ard Aff. at ¶¶ 13-14. While in D-Block, Plaintiff had access to socialize with other inmates, but he did not have a cellmate for two reasons: (1) generally, D-Block inmates are housed individually in cells as a safety and security policy as housing needs allow, and (2) Plaintiff's own behavior dictated that he could not have a cellmate. Id. at ¶¶ 14-17. Specifically, Plaintiff was on suicide protocol numerous times while on D-Block status. Id. at ¶ 17; ECF No. 64-2 at 19-22 (Plaintiff's Medical Records). Additionally, when Detention Center staff tried to assign Plaintiff a cellmate, Plaintiff claimed he could not have a cellmate because he was “homicidal.” ECF No. 64-1, Ard Aff. at ¶ 17, and attached Exhibit 5 (12/2/2021 Incident Report, p. 79). Finally, Plaintiff received 103 days of good behavior credit while on D-Block status (out of a maximum 130 days possible), which decreased his disciplinary detention time. Id. at ¶ 19.
B. May 26, 2021 Use of Force Incident
On May 26, 2021, Plaintiff was housed in D-Block, but he was being allowed to conduct his daily recreation period in the dayroom of another housing unit, H-Block. ECF No. 64-3, Affidavit of Brittany Byers at ¶ 6. Officers Alexis Grove and Brittany Byers were monitoring the inmates from the Tower 2 security post, which overlooks H-Block and other housing units at the Detention Center. Id., Byers Aff. at ¶ 6, and attached Exhibit 1 (Byers 5/26/21 Incident Report, p. 6). Plaintiff knocked over the water cooler in H-Block, spilling ice and water all over the floor, then took the cover of the water cooler and began to throw it at the H-Block dayroom television in an attempt to destroy the television. Id., Byers Aff. at ¶ 7; ECF No. 64-4, Declaration of Amy Glover at ¶¶ 6-7, and attached Exhibit 1 (Glover 5/26/21 Incident Report, p. 7). Officers Grove and Byers radioed for assistance, and Sgt. Amy Glover, a shift supervisor, responded. ECF No. 64-3, Byers Aff. at ¶ 8; ECF No. 64-4, Glover Decl. at ¶¶ 5-6. Sgt. Glover and Ofc. Byers then entered H-Block to address the situation. ECF No. 64-3, Byers Aff. at ¶ 8; ECF No. 64-4, Glover Decl. at ¶ 8. By this time, Plaintiff had shimmied out of his waist chains, allowing them to dangle between his arms as a potential weapon, and had grabbed a broom in the dayroom and was brandishing it as a weapon. ECF No. 64-3, Byers Aff. at ¶¶ 7-8; ECF No. 64-4, Glover Decl. at ¶ 8. Both officers tried to speak to Plaintiff to calm him down to no avail. ECF No. 64-3, Byers Aff. at ¶ 10; ECF No. 64-4, Glover Decl. at ¶¶ 7-8. While Sgt. Glover moved to secure another inmate who had approached, Plaintiff began to throw the broom at the television and ultimately destroyed it. ECF No. 64-3, Byers Aff. at ¶¶ 10-11; ECF No. 644, Glover Decl. at ¶ 9. Officer Byers twice approached Plaintiff to take the broom from him but backed off when Plaintiff threatened her. ECF No. 64-3, Byers Aff. at ¶ 11.
Because of Plaintiff's erratic behavior and refusal to give up the broom, Sgt. Glover radioed for additional officer assistance. ECF No. 64-4, Glover Decl. at ¶ 12. Plaintiff then walked across the dayroom and began to try to rip the shower door off the wall. ECF No. 64-3, Byers Aff. at ¶ 12; ECF No. 64-4, Glover Decl. at ¶ 10. Both officers again spoke to Plaintiff to get him to calm down and give up the broom, with no effect. ECF No. 64-3, Byers Aff. at ¶ 12; ECF No. 64-4, Glover Decl. at ¶ 11. Because Plaintiff was attempting to damage a third piece of Detention Center property, additional officers had not yet arrived, and Plaintiff was growing more hostile, Sgt. Glover elected to Tase Plaintiff. ECF No. 64-3, Byers Aff at ¶ 13; ECF No. 64-4, Glover Decl. at ¶ 11. The taser prongs hit Plaintiff and were effective, causing him to “lock up,” drop the broom, and fall down. ECF No. 64-3, Byers Aff. at ¶ 13; ECF No. 64-4, Glover Decl. at ¶ 12. Officer Byers secured Plaintiff with handcuffs behind his back and removed the waist chains. ECF No. 64-3, Byers Aff. at ¶ 14; ECF No. 64-4, Glover Decl. at ¶ 14. The officers were then able to sit Plaintiff up, and Sgt. Glover removed the taser prongs from Plaintiff, as she had been trained to do. ECF No. 64-3, Byers Aff. at ¶ 14; ECF No. 64-4, Glover Decl. at ¶ 16. The officers then escorted Plaintiff to the medical office where he was evaluated, prescribed Tylenol and cleared by a nurse after requiring two band-aids for treatment. ECF No. 64-3, Byers Aff. at ¶ 15; ECF No. 64-4, Glover Decl. ¶ at 17; ECF No. 64-2 at 19, 26.
Two overhead surveillance videos of this incident were downloaded for purposes of the Detention Center's use of force investigation. ECF No. 64-1, Ard Aff. at ¶ 5; ECF No. 64-6, Video 1 and 2). These videos generally corroborate the testimony of Ofc. Byers and Sgt. Glover. Video 1 shows Plaintiff throwing the top of the water cooler at the television. ECF No. 64-6. Next, Plaintiff can be seen picking up a broom and moving around H-Block. Id., Video 1. When Sgt. Glover arrives, she and Ofc. Byers enter H-Block and immediately begin to talk to Plaintiff, who is still holding the broom. Id. When Sgt. Glover escorts another inmate away from the situation, Plaintiff proceeds to throw the broom at the television. Id. Plaintiff then walks across the dayroom towards the shower and proceeds to try to damage it. Id. It appears that Sgt. Glover then Tases Plaintiff, though that part cannot be seen on the video. Sgt. Glover and Ofc. Byers then exit H-Block with Plaintiff in handcuffs, and Sgt. Glover escorts him out of Tower 2. ECF No. 64-6, Video 2.
The two overhead videos are from the overhead camera behind the Tower 2 post at the Detention Center. “Video 1” (identified as CSO 000002-20210526111500mpg.avi) shows Ofc. Byers and Sgt. Glover's interactions with Plaintiff through the taser deployment. “Video 2” (identified as GCSO 000001-202105261115001mpg.avi) shows Ofc. Byers and Sgt. Glover escorting Plaintiff out of H-Block and Tower 2 after the taser deployment.
C. May 29, 2021 Mattress Incident
On May 28, 2021, two days after the Tasing incident, Plaintiff was again in H-Block for his daily recreation. Corporal Flint entered H-Block and noticed that the screen on the inmate kiosk was broken. ECF No. 64-5, Affidavit of Capt. Clarey at ¶ 7, and attached Exhibit 2 (5/28/2021 Incident Reports, pp. 12-13). Corporal Flint asked the inmates in H-Block, including Plaintiff, who broke the screen and all denied breaking it, though Plaintiff subsequently admitted that he had broken the screen by punching it. ECF No. 64-5 at 12. As Cpl. Flint was cleaning up the broken glass from the kiosk Plaintiff destroyed, he saw Plaintiff trying to break the glass light fixture in his cell. ECF No. 64-5 at 12. When Plaintiff was examined by a nurse for the cuts on his hands, he told the nurse he would continue his destructive behavior. ECF No. 64-5, Clarey Aff. at ¶ 7, and attached Exhibit 3 (5/28/2021 Nurse Statement, p. 14). Because of his behavior, Plaintiff was moved to the Detention Center's padded cell, Holding 5, for the safety and security of Plaintiff and the Detention Center. ECF No. 64-5, Clarey Aff. at ¶ 8, and attached Exhibit 1 (Holding 5 photos, pp. 7-11). Upon being moved to the padded cell, Plaintiff's regular clothes were removed, and Plaintiff was provided a fabric suicide smock, suicide blanket, and suicide mattress. ECF No. 64-5, Clarey Aff. at ¶ 9; LeDay I, ECF No. 1 at 5; LeDay II, ECF No. 1 at 7.
The next day, May 29, 2021, it was discovered that Plaintiff had destroyed his suicide mattress, something Plaintiff admits. ECF No. 64-5, Clarey Aff. at ¶ 10; LeDay I, ECF No. 1 at 5; LeDay II, ECF No. 1 at 7. Because Plaintiff had recently destroyed a television, shower door, and kiosk, and to prevent Plaintiff from potentially harming himself, Capt. Clarey decided that Plaintiff's destroyed mattress should be removed from the padded cell. ECF No. 64-5, Clarey Aff. at ¶¶ 11-12. Plaintiff was also informed that he would not receive a new mattress until he stopped his destructive behavior. Id. at ¶ 13. Plaintiff did not immediately stop his behavior and over the next few days continued to be disruptive, including threatening to throw feces and urine on Detention Center staff and continue to destroy property. Id. at ¶ 14, and attached Exhibit 4 (logbook excerpts, pp. 19-21). By June 5, 2021, Plaintiff's behavior had improved, and he was provided with a new suicide mattress. Id. at ¶ 15 and p. 22.
II. LEGAL STANDARD
Defendants move for summary judgment on Plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, 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, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only 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.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
III. DISCUSSION
Plaintiff's Complaints in LeDay I and LeDay II allege the following claims pursuant to 42 U.S.C. § 1983: (1) deliberate indifference to Plaintiff's conditions of confinement for the alleged “solitary confinement,” including not providing him reading material; (2) deliberate indifference to Plaintiff's conditions of confinement, as against Capt. Clarey and “Maj/Dir” for allegedly not providing Plaintiff a mattress; and (3) excessive force arising from the use of the taser as against Sgt. Glover.
A. Claims Against Defendants in their Official Capacities
Plaintiff asserts claims against all Defendants in their official capacities, in addition to their individual capacities. LeDay I, ECF No. 1 at 2-3; LeDay II, ECF No. 1 at 2-3. The United States Supreme Court has long held the Eleventh Amendment precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001); see Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (holding that, as against a governmental employee, “an officialcapacity suit is, in all respects other than name, to be treated as a suit against the entity”).
It is well settled that a sheriff and his or her deputies are arms of the state, not municipal departments. See Gulledge v. Smart, 691 F.Supp. 947, 954-55 (D.S.C. 1988) (finding that a South Carolina sheriff is a state official), aff'd, 878 F.2d 379 (4th Cir. 1989); see also Taylor v. McGhaney, No. 2:18-CV-0264-CMC-MGB, 2019 WL 7461624, at *4 (D.S.C. Dec. 6, 2019) (“The Sheriff's Office is considered a state agency for the purposes of Plaintiff's [§ 1983] claims”), report and recommendation adopted, 2020 WL 42862 (D.S.C. Jan. 3, 2020); Cone v. Nettles, 417 S.E.2d 523, 524 (S.C. 1992) (holding that, for § 1983 purposes, sheriffs and deputies are state officials). By the same token, because they are considered a part of the state, Defendants - in their official capacities - are not “person[s]” within the meaning of 42 U.S.C. § 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 65-67 (1989).
Accordingly, the undersigned recommends that Plaintiff's claims for money damages against Defendants in their official capacities be dismissed. See Smith v. Koon, No. 3:19-2155-JMC-SVH, 2020 WL 4437982, at *7 (D.S.C. Aug. 3, 2020) (recommending summary judgment and dismissal of official capacity claims against Sheriff's deputies), adopted in part and rejected in part on other grounds, 2021 WL 1172692 (D.S.C. Mar. 29, 2021).
B. Claim Against Dir. Johnson
Plaintiff has named Dir. Johnson as a defendant in C/A No. 9:21-cv-04030-DCC-MHC. Plaintiff's only allegation arguably directed at Dir. Johnson is that a “Capt/Maj/Dir.” ordered Plaintiff's mattress to be taken from him. ECF No. 1 at 7.
“The law is clear that personal participation of a defendant is a necessary element of a § 1983 claim against a government employee in his personal capacity.” Campbell v. City of N. Charleston, No. 2:20-cv-00959-RMG, 2020 WL 2723487, at *2 (D.S.C. May 26, 2020) (citing Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001)). Thus, “[i]n order for an individual to be liable under Section 1983, it must be affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights, and the defendant must have had personal knowledge of and involvement in the alleged deprivation of the plaintiff's rights.” Blessing v. Scaturo, No. 6:16-1832-BHH-KFM, 2017 WL 3575734, at *9 (D.S.C. July 28, 2017) (internal quotation marks omitted), report and recommendation adopted, 2017 WL 3535104 (D.S.C. Aug. 17, 2017); see also Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009) (recognizing that “vicarious liability is inapplicable” in § 1983 suits and liability must be established “through the official's own individual actions”).
Dir. Johnson, who was the senior executive at the Detention Center, was not involved with any of the day-to-day details of Plaintiff's detention, including the mattress incident. ECF No. 647, Declaration of Neil Johnson at ¶¶ 3-5. Plaintiff has not presented any evidence to establish otherwise. Beyond naming Dir. Johnson as a defendant because he is the Director of the Detention Center, Plaintiff has failed to show, much less allege, how Dir. Johnson did anything to violate Plaintiff's rights. The law does not permit a § 1983 plaintiff to hold a defendant individually liable based on their position of authority. See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (“Section 1983 will not support a claim based on a respondeat superior theory of liability”); Orange v. Fielding, 517 F.Supp.2d 776, 790 (D.S.C. 2007) (explaining that “vicarious liability and respondeat superior are not applicable in § 1983 actions”); Walker v. Keel, No. 8:19-cv-03043-JMC-JDA, 2019 WL 9341413, at *3 (D.S.C. Oct. 31, 2019) (recommending summary dismissal of claims because “[i]t is not enough to name individuals as Defendants and then complain generally, without specific facts as to each defendant's conduct. For a defendant to be liable under § 1983 in his individual capacity, Plaintiff must allege facts indicating how each defendant personally participated in the alleged denial of rights.”), report and recommendation adopted, 2020 WL 1910155 (D.S.C. Apr. 20, 2020).
Plaintiff has not come forward with any evidence to support a claim against Dir. Johnson. Accordingly, Dir. Johnson is entitled to summary judgment on Plaintiff's claims.
C. Claims Based on the Conditions of Plaintiff's Confinement
As set forth in Claims 1 and 2 above, Plaintiff asserts deliberate indifference to the conditions of his confinement related to his time in disciplinary detention, as well as to the issues with his mattress while in the padded cell. He is seeking relief for emotional injuries, specifically pain and suffering, mental health and humiliation. ECF No. 1 at 7 (LeDay I); ECF No. 1 at 6 (LeDay II). For the reasons that follow, the undersigned finds that Defendants' Motion should be granted as to these conditions-of-confinement claims.
1. There is no evidence of any physical injury related to conditions of confinement.
The Prison Litigation Reform Act (“PLRA”) requires that a plaintiff demonstrate a physical injury to pursue a federal claim for any emotional injury: “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act.” 42 U.S.C. § 1997e(e). Here, Plaintiff has not established or shown any physical injury arising from his conditions of confinement claims (Claims 1 and 2).
There is no evidence in the record of any physical injury. Plaintiff's conclusory allegations regarding a physical injury from his disciplinary detention and from the period he did not have a mattress in the padded cell, without more, are insufficient to create a question of fact for purposes of summary judgment. See Thompson, 312 F.3d at 649 (noting conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion). Moreover, Plaintiff has not pointed to any evidence to support these conclusory allegations. Plaintiff's Sick Call requests, the Nursing Progress Notes, and the Physician's Orders in the record show that Plaintiff neither requested, nor was seen, for any physical injury that might plausibly be related to either his disciplinary detention status or the temporary removal of his mattress. ECF No. 64-2.
Because Plaintiff has not established any actual physical injury from these incidents, his claims are barred by the PLRA. See Bolick v. Thompson, No. 5:20-cv-03119-RBH, 2021 WL 1220826, at *2 (D.S.C. Apr. 1, 2021) (dismissing detainee's claim under 42 U.S.C. § 1997e(e) because he did “not allege or claim that he suffered a physical injury resulting from his conditions of confinement”); Babb v. Spartanburg Cty. Det. Ctr., No. 8:21-cv-00250-JFA-JDA, 2021 WL 1821981, at *5 (D.S.C. Mar. 16, 2021) (recommending dismissal of complaint under 42 U.S.C. § 1997e(e) where plaintiff “fails to identify a compensable injury”), report and recommendation adopted, 2021 WL 1259662 (D.S.C. Apr. 5, 2021). Accordingly, the undersigned recommends granting summary judgment to Defendants on Plaintiff's claims regarding his conditions of confinement.
2. Plaintiff has failed to establish a constitutional violation related to his conditions of confinement.
Moreover, Plaintiff has not established a constitutional violation based upon his claims for deliberate indifference to the conditions of his confinement related to his time in disciplinary detention, as well as to the issues with his mattress while in the padded cell. To make out a prima facie case in this context, “a plaintiff must show both (1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.” Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (citation and internal quotation marks omitted). The Supreme Court has explained that “the first showing requires the court to determine whether the deprivation of the basic human need was objectively sufficiently serious, and the second requires it to determine whether subjectively the officials acted with a sufficiently culpable state of mind.” Id. (citations and internal quotation marks omitted) (emphasis in original). “[E]xtreme deprivations are required to make out a conditions-of-confinement claim,” and “only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of [a constitutional] violation.” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (internal quotation marks omitted).
To demonstrate such an extreme deprivation, a prisoner “must produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions,” Strickler, 989 F.2d at 1381, or demonstrate a substantial risk of such serious harm resulting from the prisoner's unwilling exposure to the challenged conditions. See Helling v. McKinney, 509 U.S. 25, 33-36 (1993).
i. No serious deprivation.
As discussed in detail above, Plaintiff has not put forth or otherwise pointed to any evidence in the record showing any physical injury related to his conditions of confinement claim. Nor has Plaintiff put forth any evidence of any serious or significant emotional injury resulting from the conditions of confinement. See Strickler, 989 F.2d at 1381 (4th Cir. 1993) (finding that to demonstrate an “extreme deprivation” required for a conditions of confinement claim, a prisoner “must produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions”); Nelson v. Jones, No.: 2:17-cv-00815-RBH, 2018 WL 3633897, at *4 (D.S.C. July 31, 2018) (collecting cases and finding that inmate must “come forward with some evidence of significant/serious injury” to avoid summary judgment on conditions-of-confinement claim); see also Holcomb v. Greenville Cnty., No. 1:15-03582-MGL, 2015 WL 6125358, at *3 (D.S.C. Oct. 15, 2015) (summarily dismissing conditions of confinement claim “because [plaintiff] has not alleged a significant physical or emotional injury from the challenged conditions”).
Plaintiff has not demonstrated a substantial risk of such serious harm resulting from his challenged conditions in this case or otherwise established a “serious deprivation.” Regarding his claim about being housed in disciplinary detention, “[t]here is no constitutional right for a state prisoner or federal prisoner to be housed in a particular institution, at particular custody level, or in a particular portion or unit of a correctional institution.” Allah v. Burt, No. 4:08-1538-TLW-TER, 2010 WL 476016, at *4 (D.S.C. Feb. 3, 2010) (collecting cases). Thus, Plaintiff's generalized allegation that he was housed for 300 days in what he described as “solitary confinement” does not, by itself, implicate any constitutional issues related to his confinement conditions. Furthermore, the evidence in this case shows that as to “basic human needs,” i.e., food, clothing, hygiene, and safety, Detention Center inmates housed in disciplinary detention receive the same conditions as general population. ECF No. 64-1, Ard. Aff at ¶ 14.
Moreover, the evidence shows that Plaintiff was not housed in “solitary confinement,” but instead was repeatedly housed on suicide watch - where a roommate is not allowed - and when Detention Center staff attempted to assign him a cellmate, Plaintiff claimed he was “homicidal.” ECF No. 64-1, Ard Aff. at ¶¶ 13, 15-17, and at 79; ECF No. 64-1, at 19-22; ECF No. 64-5, Clarey Aff. at ¶¶ 8-9. Further, even when housed in disciplinary detention without a cellmate, Plaintiff was still able to socialize with other inmates. ECF No. 64-1, Ard Aff. at ¶¶ 13-14. Under these circumstances, Plaintiff has not established a viable constitutional claim based upon the conditions of confinement related his disciplinary detention.
Plaintiff's allegations about being housed for a few days without a mattress also do not establish a serious deprivation for purposes of a deliberate indifference claim. “[N]umerous courts have held that depriving an inmate of a mattress for short periods of time does not constitute cruel and unusual punishment.” Joyner v. Patterson, No. 0:13-cv-2675-DCN, 2014 WL 3909531, at *6 (D.S.C. Aug. 11, 2014) (collecting cases), aff'd, 597 Fed.Appx. 748 (4th Cir. 2015); see also Brown v. West, No. 4:14-cv-04732-TLW, 2015 WL 4162457, at *9 (D.S.C. July 9, 2015) (granting summary judgment on conditions of confinement claim based upon allegations that plaintiff “had to sleep on the cold floor without a mattress or covers, finding plaintiff had “not presented evidence to create a genuine issue of material fact as to whether he was denied the minimal civilized measure of life's necessities”). The undersigned notes that, in this instance, Plaintiff was assigned to a cell with padded flooring, and thus, for the few days he was without a mattress after he destroyed the one he had been provided, he was not sleeping on bare, hard floor. ECF No. 64-5 at 7-11.
Further, to the extent Plaintiff's claims are based upon allegations that he was cold because he did not have a blanket, those allegations do not establish a serious deprivation or deliberate indifference. See Ajaj v. United States, 479 F.Supp.2d 501, 547-48 (D.S.C. 2007) (granting summary judgment and dismissing conditions of confinement claims based on allegations that plaintiff did not have a mattress for multiple days, that his cell was too cold, and that he was not given sufficient clothes and blankets). Plaintiff was provided a suicide smock, which is a one-piece clothing item made of sturdy fabric designed to keep inmates who are on suicide protocol from tearing the fabric and potentially endangering themselves. LeDay I, ECF No. 1 at 5; LeDay II, ECF No. 1 at 7. “Courts in this district have held that an inmate's ‘mere exposure to cold air' when he has the protection of clothing or blankets is insufficiently serious to rise to the level of a Constitutional violation.” King v. McPherson, No. 0:15-2358-RBH-PJG, 2016 WL 8673006, at *8 (D.S.C. Aug. 12, 2016) (internal citation omitted), report and recommendation adopted, 2016 WL 4523465 (D.S.C. Aug. 29, 2016); see also Strickland v. Spartanburg Cty. Sheriff's Dep't, No. 7:18-2439-MGL-KFM, 2018 WL 6313953, at *1, *3 (D.S.C. Oct. 12, 2018) (recommending dismissal of conditions of confinement claim because allegation of “being placed in a cold cell” was insufficient to state a claim), report and recommendation adopted sub nom. Strickland v. Spartanburg Cty. Sheriff's Office, 2018 WL 6305830 (D.S.C. Nov. 30, 2018). Plaintiff has not established a constitutional violation regarding his conditions of confinement claim based upon his temporary lack of a mattress or blanket.
Finally, to the extent that Plaintiff claims he was denied the Quran he had ordered, Plaintiff has not shown a constitutional violation. To establish a violation of the Free Exercise Clause of the First Amendment, Plaintiff must plead and prove that a Detention Center practice or policy “impose[d] a substantial burden on [his] right to practice his religion.” Wall v. Wade, 741 F.3d 492, 498 (4th Cir. 2014) (internal quotations and citation omitted). A substantial burden is one that “put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas v. Review Bd. of Ind. Emp't Sec. Div., 450 U.S. 707, 718 (1981). Plaintiff has not produced any evidence of, or even alleged, a “substantial burden” on the exercise of his religion. At most, Plaintiff's allegations appear to indicate that he did not receive a Quran he had ordered because he already possessed a Quran that had been provided to him by the Detention Center's chaplain. ECF No. 64-1, Ard. Aff. at ¶ 20. Under these circumstances, Plaintiff has not established a constitutional violation. See Herron v. McCoy, No. 7:19CV00049, 2019 WL 527517, at *2 (W.D. Va. Feb. 11, 2019) (dismissing similar alleged violation because plaintiff did not indicate how denial of Bible substantially burdened his practice of a sincere, religious belief).
For the foregoing reasons, the undersigned recommends granting Defendants' Motion for Summary Judgment on Plaintiff's claim under § 1983 based upon his conditions of confinement.
ii. No deliberate indifference.
Moreover, Plaintiff has not established that any Defendant was deliberately indifferent to prison conditions. “Deliberate indifference is a form of mens rea (or ‘guilty mind') equivalent to criminal-law recklessness.” Campbell v. Florian, 972 F.3d 385, 395, (4th Cir. 2020), as amended (Aug. 28, 2020) (citation and internal quotation marks omitted). In the Fourth Circuit, liability under this standard requires two showings: “The prison official must have both [(a)] subjectively recognized a risk of substantial harm and [(b)] subjectively recognized that his actions were inappropriate in light of that risk.” Id. (citation and internal quotation marks omitted). Thus, deliberate indifference is “a very high standard, and a showing of mere negligence will not meet it.” Id. (citation and internal quotation marks omitted).
Plaintiff has not set forth or pointed to any evidence that any Defendant was aware that Plaintiff was suffering from a condition that was a “serious deprivation of a basic human need.” See Strickler, 989 F.2d at 1379. Regarding his time in disciplinary detention, the evidence shows that Plaintiff received the same provisions as every other inmate at the Detention Center: he was served the same meals, provided the same rotation of clothing and bedding, the same ability to write and mail items, and the same access to medical care and counseling. ECF No. 64-1, Ard Aff. at ¶ 14. Regarding his time without a mattress, there is no evidence that any Defendant was aware that Plaintiff was at any substantial risk of harm in a padded cell. To the contrary, Capt. Clarey and Maj. Ard believed the absence of a mat would create no issue since the floor of Plaintiff's cell offered a level of padding similar to the suicide mattress Plaintiff had destroyed. ECF No. 64-5, Clarey Aff. at ¶ 12; ECF No. 64-1, Ard Aff. at ¶ 6.
Finally, Plaintiff has not set forth any evidence to suggest that any Defendant both “subjectively recognized a risk of substantial harm and subjectively recognized that his [or her] actions were inappropriate in light of that risk.” Campbell, 972 F.3d at 395. Accordingly, the undersigned recommends granting Defendants' Motion for Summary Judgment on Plaintiff's claims under § 1983 based on his conditions of confinement.
C. Claim Based on Excessive Force
Plaintiff's third claim is a claim of excessive use of force when he was tased. Claims of excessive force brought by pretrial detainees are claims for violation of the Due Process Clause of the Fourteenth Amendment. See Kingsley v. Hendrickson, 576 U.S. 389, 397-98 (2015); Cooper v. Dyke, 814 F.2d 941, 948 (4th Cir. 1987) (explaining that “it is the Due Process Clause of the Fourteenth Amendment that applies to pretrial detainees”). In Kingsley, the Supreme Court held that a plaintiff must demonstrate “only that the force purposely or knowingly used against him was objectively unreasonable.” 576 U.S. at 396-97. A consideration of objective reasonableness turns on the “facts and circumstances of each particular case,” and that consideration must be made “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. at 397. Likewise, the court “must take account of the legitimate interests in managing a jail, acknowledging as part of the objective reasonableness analysis that deference to policies and practices needed to maintain order and institutional security is appropriate.” Id. at 399-400.
The reasonableness analysis should protect an officer who acts in good faith. Id. at 399. In Kingsley, the Supreme Court identified several considerations that “may bear on the reasonableness or unreasonableness of the force used,” including (1) the relationship between the need for the use of force and the amount of force used; (2) the extent of the plaintiff's injury; (3) any effort made by the officer to temper or to limit the amount of force; (4) the severity of the security problem at issue; (5) the threat reasonably perceived by the officer; and (6) whether the plaintiff was actively resisting. Id. at 397.
Upon review of the record evidence, the undersigned concludes that the amount of force used was reasonable when weighed against the need for force in this case. The Detention Center has a legitimate need to maintain security and order, and the evidence shows that Plaintiff had damaged several pieces of Detention Center property and possessed multiple items which could have been used as weapons against officers or other inmates. The force used appears to be only the force necessary to stop Plaintiff from actively damaging Detention Center property and to secure him. Further, both officers attempted to speak to Plaintiff and deescalate the situation to no avail - Plaintiff repeatedly refused to give up the broom, despite attempts by Ofc. Byers to retrieve it. It was only when Plaintiff began to try to damage a shower door after having damaged a water cooler and destroyed a television that Sgt. Glover elected to use force against Plaintiff. Further, Sgt. Glover had evaluated the methods of force available to her and determined that her taser posed the least amount of risk. Finally, Plaintiff suffered a relatively minor injury - two small marks which required only band-aids for treatment. ECF No. 64-3, Byers Aff. at ¶ 15; ECF No. 64-4, Glover Decl. at ¶ 17; ECF No. 64-2 at 19.
Upon consideration of the Kingsley factors and the evidence before the Court, the undersigned concludes that the force used against Plaintiff was objectively reasonable, and Defendants are entitled to summary judgment on Plaintiff's excessive force claim. See Rivera v. Loos, 6:21-cv-2017-BHH-KFM, 2022 WL 2835751, at *7 (D.S.C. June 8, 2022) (finding single use of taser was “objectively reasonable under the circumstances and therefore constitutionally permissible”), report and recommendation adopted, 2022 WL 2835212 (D.S.C. July 20, 2022); Carelock v. Johnson, No. 5:20-1635-JD-KDW, 2021 WL 4691678, at *10 (D.S.C. July 7, 2021) (finding use of taser on pre-trial detainee “was not objectively unreasonable given the facts,” where plaintiff “repeatedly refused to follow directions and orders from Defendants” and tried “to physically prevent Defendants from handcuffing him or removing his jumpsuit”), report and recommendation adopted sub nom. Roshune Lemarr Carelock, Plaintiff, v. Jeff Johnson, et al.; 2021 WL 4350567 (D.S.C. Sept. 24, 2021); Waters v. Stewart, No.: 4:15-cv-04143-RBH, 2019 WL 1146685, at *7 (D.S.C. Mar. 13, 2019) (applying Kingsley and finding use of taser on pre-trial detainee was “objectively reasonable” where plaintiff “actively resisted officers' efforts to remove him from the car-though he was handcuffed, he was kicking his feet”), aff'd, 776 Fed.Appx. 134 (4th Cir. 2019); Williams v. Ward, No. 6:18-cv-1138-TMC, 2018 WL 6695718, at *2 (D.S.C. Dec. 20, 2018) (finding “no genuine issue of material fact regarding whether [d]efendant's use of the taser was objectively reasonable” where plaintiff refused multiple orders to lie down and allow himself to be handcuffed); see also Warren v. PFC Houston Sauer, L509, No. 4:19-cv-02722-DCN, 2021 WL 1310758, at *6 (D.S.C. Apr. 8, 2021) (dismissing Fourth Amendment excessive force claim where officers used physical force against arrestee who had assaulted officer and was resisting being taking into custody because the “use of force was objectively reasonable as a matter of law”); Herriott v. Parrish, o. 6:19-750-DCN-KFM, 2020 WL 5948257, at *3 (D.S.C. May 26, 2020) (recommending dismissal of Eighth Amendment excessive force claim where inmate was “aggressively resist[ing] being restrained with handcuffs” and corrections officers took inmate to floor to place cuffs on him), report and recommendation adopted, 2020 WL 3969872 (D.S.C. July 14, 2020), aff'd, 857 Fed.Appx. 762 (4th Cir. 2021).
E. Qualified Immunity
Defendants argue that they are entitled to qualified immunity on Plaintiff's claims. The undersigned agrees.
“Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal citation and quotation marks omitted). “When properly applied, [qualified immunity] protects all but the plainly incompetent or those who knowingly violate the law.” Taylor v. Barkes, 575 U.S. 822, 825 (2015) (per curiam) (alteration in original, internal quotation marks omitted). The Supreme Court “repeatedly [has] stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). When considering the defense of qualified immunity, a court should consider “only the facts that were knowable to the defendant officers.” White v. Pauly, 580 U.S. 73, 77 (2017) (per curiam). Courts have the discretion to decide which prong of the qualified immunity analysis to address first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that which prong to address first is within the sound discretion of courts in light of each case's circumstances).
Plaintiff has not established a violation of any constitutional right, which entitles the Defendants to qualified immunity. Furthermore, as the cases cited above show, there is no clearly established law that would have put Defendants on notice that any of the actions they took in this case would violate any constitutional right. Accordingly, Defendants are entitled to qualified immunity, and Plaintiff's claims against them should be dismissed.
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motion for Summary Judgment, ECF Nos. 64 (LeDay I) and 23 (LeDay II), be GRANTED.
IT IS SO RECOMMENDED.
The parties are directed to the attached Notice for their rights to file objections to this 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 835 Charleston, South Carolina 29402
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).