Opinion
C/A 9:22-cv-02494-JFA-MHC
09-26-2023
James Lynch, III, Plaintiff, v. Byron Bibbs, Monica Norman, Dion Gaines, and Annequeta Wideman, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff James Lynch, III, (“Plaintiff”), proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights while he was incarcerated within the South Carolina Department of Corrections (“SCDC”). ECF No. 1. Defendants Byron Bibbs, Monica Norman, Dion Gaines, and Annequeta Wideman (collectively, “Defendants”) have filed a Motion for Summary Judgment (“Motion”). ECF No. 67. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to Defendants' Motion, Plaintiff filed a Response in Opposition. ECF No 78. Defendants filed a Reply. ECF No. 79. Plaintiff filed a Sur-Reply. ECF No. 80. The matter is, therefore, ripe for review.
The Local Rules make no provision for Sur-Replies, and Plaintiff did not seek leave of the Court to file a Sur-Reply. See Stanfield v. Charleston Cnty. Court, No. 2:15-CV-0756-PMD-MGB, 2015 WL 4929186, at *4 n.2 (D.S.C. Aug. 18, 2015) (explaining that “neither the Federal Rules of Civil Procedure nor the Local Civil Rules permit the filing of a sur-reply without leave of the Court”). Nevertheless, the undersigned has considered the Sur-Reply in making this Report and Recommendation, as Plaintiff is pro se.
All pretrial proceedings in this case 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) and (e) (D.S.C.). Because the Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends denying the Motion.
I. BACKGROUND
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated while he was incarcerated at McCormick Correctional Institution (“MCI”). Specifically, in his Amended Complaint, he alleges use of excessive force in violation of his Eighth Amendment rights. ECF No. 34. Both parties have submitted numerous documents to the Court, including sworn statements, incident and investigative reports, medical records, and pictures related the incident. See ECF Nos. 67, 78, 81. The following rendition of events comes from the evidence submitted to the Court, taken in the light most favorable to the Plaintiff.
Plaintiff filed an “affidavit,” in which he “certified under the penalty of perjury that the [allegations in his complaint and the factual allegations in the Response] is true and correct.” See ECF No. 78-1. A pro se litigant's verified submission must be considered as an affidavit and may, standing alone, defeat a motion for summary judgment when the allegations contained therein are based on personal knowledge. See Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991); see also Valind v. Wright, No. 05-C-0702, 2007 WL 9734863, at *5-6 (E.D. Wis. Jan. 30, 2007) (finding Plaintiff's verified response should be considered an affidavit for summary judgment purposes and rejecting Defendant's arguments to the contrary).
For purposes of a summary judgment motion, 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).
According to an SCDC Incident Report, on July 23, 2021, Plaintiff took an SCDC corrections officer (“Victim”) hostage, placed a pair of scissors to her neck, put her in a choke hold, and raped her twice over a one-hour period. ECF No. 67-3 at 2. Afterwards, Victim contacted another SCDC corrections officer, who contacted Defendant Bibbs and directed him to find Plaintiff, secure him in the Restrictive Housing Unit (“RHU”), and collect his clothes as evidence. ECF No. 67-3 at 2. It is the retrieval of Plaintiff's clothes which serves as the basis for Plaintiff's excessive force claim.
The officer's name is redacted from the filings submitted to the Court.
According to Plaintiff, he was escorted to the RHU by Defendant Bibbs, and, once there, “Defendant Bibbs stripped Plaintiff of his clothing” and was placed in a room on B-wing in his underwear and a T-shirt. ECF No. 78 at 2. Plaintiff avers that he was placed in this room “without incident” and he was not harmed during this initial encounter. ECF No. 78 at 2.
Subsequently, Defendant Bibbs returned, along with Defendants Gaines, Wideman, and Norman. ECF No. 78 at 2. Plaintiff maintains that when Defendant Bibbs returned (along with the three other Defendants) no one asked Plaintiff for his underwear and T-shirt. ECF No. 78 at 9. Plaintiff was put in handcuffs, along with belly chains around his waist and leg irons on his ankles. ECF No. 78 at 2-3. Defendants escorted Plaintiff out of B-wing, with Defendant Bibbs holding Plaintiff's left arm. ECF No. 78 at 3. Plaintiff avers that once they were in the RHU lobby area, Defendant Bibbs threw Plaintiff into the wall. ECF No. 78 at 3. He further maintains that this was followed “by punches and kicks and stomped by [sic] all four Defendants simultaneously.” ECF No. 78 at 3. He avers that he fell to the floor, where all four Defendants continued to beat him. ECF No. 78 at 3. Plaintiff states that he was then “snatched up” and taken to Defendant Gaines's office, where the other three Defendants continued to assault him. ECF No. 78 at 3. He maintains that Defendant Bibbs struggled to place Plaintiff in a jumpsuit because Defendants kept trying to attack him. ECF No. 78 at 3. After the jumpsuit was put on, Plaintiff was escorted back to B-wing, and Plaintiff avers that Defendant Norman told him that “he was lucky to still be breathing” as Defendants placed him back in his cell. ECF No. 78 at 3.
Because of the alleged sexual assault of Victim, SCDC Police Services contacted South Carolina Law Enforcement Division (“SLED”) and requested crime scene assistance. ECF No. 674 at 5. On the day of the incident, SLED Special Agent Richard Cullop and Special Agent Tricia Stoner arrived on scene to investigate, and they interviewed Plaintiff as part of their investigation. See ECF No. 67-4. Relevant to Plaintiff's excessive force claim, Plaintiff told Agents Cullop and Stoner that Defendant Bibbs found Plaintiff and asked Plaintiff to follow him. ECF No. 67-4 at 3. Plaintiff further stated that, at some point, Defendants Wideman, Norman, Gaines, and Bibbs “slung [Plaintiff] against a wall and kicked him while taking off his clothing.” ECF No. 67-4 at 3. Agent Cullop noted that Plaintiff referenced a small abrasion to his right arm and a small cut to his right wrist. ECF No. 67-4 at 3. Agent Cullop further noted:
The interview mainly involved questions directed at the circumstances of the alleged sexual assault. Plaintiff admitted to having intercourse with Victim, but he alleged that it was consensual. ECF No. 67-4 at 3-4.
SCDC Police Services Agent Matt Harris advised [Agent] Cullop that when he arrived at MCI, [Plaintiff] was passively resisting the [Defendants'] attempt to remove his clothing, such as acting as dead weight. The visible injuries were consistent with having to forcibly remove the clothing from [Plaintiff].ECF No. 67-4 at 3. Because of Plaintiff's allegations of excessive force, Plaintiff's injuries were photographed. ECF No. 78 at 4. These photos were submitted to the Court and appear to show injuries of an abrasion to Plaintiff's right arm and a cut to his right wrist. ECF No. 67-5.
SCDC's Office of Investigations and Intelligence gathered voluntary statements from Defendants related to Plaintiff's excessive force claims. ECF No. 67-7. In Defendant Bibbs's statement, he noted that he escorted Plaintiff to lockup, “changed [Plaintiff] out into a yellow jumpsuit,” and placed him in a room in B-wing. ECF No. 67-7 at 7. Subsequently, Defendant Bibbs was informed that Plaintiff's underwear and shirt were needed. ECF No. 67-7 at 7. Defendant Bibbs, along with the other Defendants, went to B-wing, cuffed Plaintiff, and brought him to an office. Defendant Bibbs stated:
While cuffed, I removed [Plaintiff's] shirt (one hand was free) and then his boxers were removed. At that [time] nothing was said or done to [Plaintiff]. The clothing was then turned over to the investigator.ECF No. 67-7 at 7.
Defendant Gaines stated that when Defendants arrived at Plaintiff's cell, Plaintiff did not want to hand over his clothing. ECF No. 67-7 at 4. Defendant Gaines maintains that he assured Plaintiff that they just needed the clothing, and Plaintiff was subsequently cuffed and brought to a conference room. ECF No. 67-7 at 4. According to Defendant Gaines, Plaintiff's clothing “was cut off of' him. ECF No. 67-7 at 4-5. Defendant Gaines further noted Plaintiff “was trying to resist when it came to his underwear. [Defendant] Bibbs had to pull his drawers off, but no physical harm was needed.' ECF No. 67-7 at 5. He further stated that at “no time was there ever physical harm done to [Plaintiff] by any staff.' ECF No. 67-7 at 5.
Defendant Wideman stated that she and the other Defendants went to the RHU to gather Plaintiff's clothing because SLED had requested it. ECF No. 67-7 at 2. She stated that Plaintiff was placed in cuffs and escorted to an office to remove his clothing. ECF No. 67-7 at 2-3. She stated that she “did not have any physical contact with [Plaintiff] and [she] did not witness any other employee have any physical contact with [Plaintiff] other than the escort of [Plaintiff] to the office.' ECF No. 67-7 at 3. She further stated that “there was not any force or excess force used on [Plaintiff].' ECF No. 67-7 at 3.
Defendant Annequeta Wideman's name on the voluntary statement is signed “Annequeta Thomas.' ECF No. 67-7 at 2.
Defendant Norman's statement echoed Defendant Wideman's, nothing that Plaintiff was “escorted to the office and was stripped of his clothes one by one,” and that “no physical assault or verbal assault was made to [Plaintiff].” ECF No. 67-7 at 6.
On July 27, 2021, Plaintiff was seen by SCDC medical personnel. ECF No. 67-6. SCDC medical personnel noted abrasions on Plaintiff's mid back, scalp, and lower left buttock. ECF No. 67-6 at 3. It was noted that Plaintiff hand tenderness in left shoulder. ECF No. 67-6 at 3. It was further noted that Plaintiff had tenderness in both knees, but no effusion or bruising. ECF No. 676 at 3.
Plaintiff seeks monetary damages from Defendants for the alleged violation of his Eighth Amendment rights. See ECF No. 34 at 8-9.
II. LEGAL STANDARD
Defendants move for summary judgment on Plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 67. 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 argues Defendants violated his Eighth Amendment rights when they were escorting him from the RHU to another room to retrieve his clothes as evidence. ECF No. 34. Specifically, Plaintiff alleges that Defendants used excessive force when Defendant Bibbs maliciously threw Plaintiff into a wall, and when Defendant Bibbs and the other three Defendants simultaneously punched, kicked, and stomped on Plaintiff as he fell to the floor. ECF No. 78 at 15. Defendants generally argue they are entitled to summary judgment because Plaintiff has not shown an Eighth Amendment violation. See ECF No. 67-1.
To establish a constitutional excessive force claim, an inmate must establish both an objective and subjective component. Brooks v. Johnson, 924 F.3d 104, 112 (4th Cir. 2019). “The objective component asks whether the force applied was sufficiently serious to establish a cause of action.” Id. This is not a high bar: “as long as the force used is more than de minimis, the objective component is satisfied, regardless of the extent of the injury.” Dean v. Jones, 984 F.3d 295, 303 (4th Cir. 2021).
The subjective component is more demanding and asks a single question: “whether the officers acted with a ‘sufficiently culpable state of mind.'” Id. at 302 (citation omitted). That is, the subjective component is concerned with the underlying intent or motive of the officer that applied the force. Id. The core inquiry for the Court is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)).
This subjective standard is unlike the “objective reasonableness” test courts apply under the Fourth Amendment: “The question is not whether a reasonable officer could have used force to maintain discipline, but whether these particular officers did use force for that reason.” Brooks, 924 F.3d at 113 (emphasis in original).
Corrections officers employ force in “good faith”-i.e., permissibly-when “they are motivated by an immediate risk to physical safety or threat to prison order.” Dean, 984 F.3d at 302 (cleaned up) (citation omitted). Conversely, officers cross the line into an impermissible motive when “they inflict pain not to protect safety or prison discipline but to punish or retaliate against an inmate for his prior conduct.” Id.; see also Brooks, 924 F.3d at 113 (noting corrections officers cross the line “when they inflict pain not to induce compliance, but to punish an inmate for intransigence or to retaliate for insubordination”). An officer's 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 (quoting Thompson v. Virginia, 878 F.3d 89, 102 (4th Cir. 2017)).
An officer's subjective motive may be proven through direct or circumstantial evidence. Id. at 308-09. The Supreme Court has set forth the following non-exclusive factors to assist courts in assessing whether an officer has acted with the requisite state of mind: “(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, 535 F.3d at 239 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). These factors are commonly referred to as the Whitley factors. See id. at 239-40. “If a reasonable jury could find, based on inferences drawn under the Whitley factors or other evidence, that correctional officers used force maliciously to punish or retaliate against an inmate, then summary judgment is not appropriate.” Dean, 984 F.3d at 302-03.
As an initial matter, in viewing the facts in a light most favorable to Plaintiff, the Court notes that there appear to be two separate incidents of force at issue. The first incident, in the RHU lobby area, is where Plaintiff avers Defendant Bibbs threw Plaintiff into the wall, and then all four Defendants simultaneously punched, kicked, and stomped on Plaintiff as he fell to the floor. ECF No. 78 at 3, 15. The second incident is when Plaintiff subsequently was taken into an office for the purpose of removing his clothes for evidence. As to both incidents, there are genuine disputes of material fact, such that Defendants are not entitled to summary judgment. The Court addresses each incident in turn.
1. First incident
Defendants generally maintain that Plaintiff was never physically harmed and that they did not use any force on Plaintiff. See ECF No. 67-7. They argue that photographs of the Plaintiff's body “contradict his excessive force assertions of being thrown against the wall, kicked, and punched by SCDC correctional officers.” ECF No. 67-1 at 6. They argue that the SCDC medical personnel's notations of abrasions on Plaintiff's body are “so minor as to not be visible in Plaintiff's photographs and which are consistent with (a) Plaintiff resisting officers who were securing his clothes as evidence and/or (b) his physical and sexual assault of a female officer earlier that day.” ECF No. 67-1 at 6. They argue there is “no credible or probative evidence to support Plaintiff's claim of excessive force.” ECF No. 67-1 at 6.
In essence, Defendants maintain that the first incident did not occur, and that any injuries were from the removal of Plaintiff's clothes during the second incident and/or the alleged physical assault of Victim. Plaintiff's affidavit and the statements to SLED Special Agents Cullop and Stoner during their interview of him contradict Defendants' contention. See ECF No. 78 at 2-3, 15; ECF No. 67-4 at 3. Thus, there is a genuine dispute of material fact over whether the first incident even occurred.
The factual dispute over whether the first incident occurred necessarily affects the analysis of the subjective and objective components required to demonstrate an Eighth Amendment violation. As to the subjective component, a reasonable jury crediting Plaintiff's version of events could infer from the Whitley factors that Defendants used force against Plaintiff in retaliation for the alleged rape of their SCDC colleague. See Dean, 984 F.3d at 302-03 (“If a reasonable jury could find, based on inferences drawn under the Whitley factors or other evidence, that correctional officers used force maliciously to punish or retaliate against an inmate, then summary judgment is not appropriate.”); Brooks, 924 F.3d at 113 (noting “corrections officers cross the line into an impermissible motive-using force ‘maliciously' and for the ‘very purpose of causing harm'-when they inflict pain not to induce compliance, but to punish an inmate for intransigence or to retaliate for insubordination” (internal citation omitted)).
Defendants were aware of the alleged sexual assault, as Defendant Wideman stated that she, along with the other Defendants, stayed “on RHU after [Plaintiff] was placed in his cell and talk[ed] about the situation . . . that took place between [Victim] and [Plaintiff].” ECF No. 67-7 at 3.
As to the objective component, viewing Plaintiff's statements, the medical records, and the photographs in the light most favorable to Plaintiff, a reasonable jury could infer any force that may have been used on Plaintiff was more than de minimus. See Crockett v. Talley, No. 1:19CV893 (AJT/TCB), 2022 WL 837483, at *6 (E.D. Va. Mar. 21, 2022) (“Because ‘[t]he extent of injury may also provide some indication of the amount of force applied,' it is certainly a relevant factor for a juror to consider.” (quoting Wilkins v. Gaddy, 559 U.S. 34, 37 (2010))). Defendants' argument that Plaintiff's injuries were “minor” or that they were the result of Plaintiff's alleged sexual assault of Victim improperly asks this Court to weigh and draw inferences from the evidence. Furthermore, the “minor” nature of Plaintiff's injuries does not categorically exclude a finding by a reasonable jury that the force used was more than de minimus. See Dean, 984 F.3d at 302 (noting the objective component “is not a high bar”).
Indeed, the objective component is satisfied-regardless of the extent of the injury-if the force used is more than de minimus. See Dean, 984 F.3d at 303 (noting that “[a]lthough we once considered the severity of an inmate's injuries under the objective component, the Supreme Court has clarified that what matters is the severity of the force employed” (emphasis in original) (citing Wilkins, 559 U.S. at 39)). Thus, Defendants' suggestion to focus on the injuries, rather than the force used, is misplaced. See Wilkins, 559 U.S. at 38 (“Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately counts.”).
As there is nothing of undisputed authenticity that shows Plaintiff's version of events is false, the Court cannot adopt Defendants' version of the facts for purposes of summary judgment. Which account to believe is not for this Court to decide. See McAirlaids, Inc. v. Kimberly-Clark Corp., 756 F.3d 307, 310 (4th Cir. 2014) (noting “credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge” (quotation marks and citation omitted)). Accordingly, summary judgment is not appropriate.
It is true that, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). But, the type of record evidence this applies to is that “of undisputed authenticity,” like a video, which “shows some material element of the plaintiff's account to be ‘blatantly and demonstrably false.'” Harris v. Pittman, 927 F.3d 266, 276 (4th Cir. 2019) (quoting Blaylock v. City of Philadelphia, 504 F.3d 405, 414 (3d Cir. 2007)). That is not the case here, as no video of the incident exists. See ECF Nos. 52, 54; see also ECF No. 78 at 11-12; Poindexter v. Sandy, No. 21-6638, 2022 WL 1656126, at *3 (4th Cir. May 25, 2022) (“At the summary judgment stage, a district court may only disregard the nonmoving party's version of the facts if video evidence ‘blatantly contradict[s]' it.” (citation omitted)); Shiheed v. Harding, 802 Fed.Appx. 765, 768 (4th Cir. 2020) (upholding summary judgment for officers where video evidence clearly demonstrated that excessive force was not used in violation of the Eighth Amendment after analyzing Whitley factors).
2. Second incident
As to the second incident, where Plaintiff's clothes were removed, Defendants argue that Plaintiff has failed to demonstrate Defendants acted “maliciously and sadistically for the very purpose of causing harm.” ECF No. 67-1 at 5. They argue the evidence shows that Plaintiff resisted efforts to obtain his clothing for evidence in the sexual assault investigation, and further maintain there is “no evidence that the force used was in any way excessive or disproportionate to law enforcement needs.” ECF No. 67-1 at 5-6. Defendants further argue that the extent of injury inflicted on Plaintiff, “as demonstrated by photographs and medical records, was virtually nonexistent.” ECF No. 67-1 at 6.
As with the first incident, there are material disputes of fact as to what occurred. After the first incident in the RHU lobby area, Plaintiff maintains that he was “snatched up” and taken to Defendant Gaines's office, where the other three Defendants continued to assault him. ECF No. 78 at 3. He maintains that Defendant Bibbs struggled to place Plaintiff in a jumpsuit because Defendants kept trying to attack him. ECF No. 78 at 3. This is in direct contrast to Defendants' version of events, where they maintain that Plaintiff was passively resisting Defendants' attempts to remove his clothing and, thus, Defendants had to forcibly remove the clothing. See ECF No. 67-1 at 5-6. This factual dispute cannot be resolved at this juncture by the Court.
Defendants frame the facts in this manner in their brief. However, their voluntary statements submitted to the Court are not so uniform. For example, it is unclear how Plaintiff's clothes were removed and to what extent force was involved in that removal. Defendant Bibbs stated that he “removed [Plaintiff's] shirt (one hand was free) and then his boxers were removed. At that [time] nothing was said or done to [Plaintiff]. The clothing was then turned over to the investigator.” ECF No. 67-7 at 7. Nothing in Defendant Bibbs's statement indicates the degree of force used. Defendant Wideman and Norman both stated that no force was used on Plaintiff. ECF No. 67-7 at 3, 6. However, Defendant Gaines stated that Plaintiff's clothing “was cut off of” him. ECF No. 67-7 at 4-5. Furthermore, Defendants Bibbs, Wideman, and Norman's statements do not indicate that Plaintiff was resisting in any manner. ECF No. 67-7 at 3,6, 7. However, Defendant Gaines's statement and the statement of SCDC Police Services Agent Matt Harris (recorded in Agent Cullop's report) indicate that Plaintiff was resisting. ECF No. 67-4 at 3; ECF No. 67-7 at 5. Thus, even setting aside Plaintiff's version of events, the circumstances surrounding the removal of Plaintiff clothes are not clear.
As with the first incident, the factual dispute as to the circumstances surrounding the removal of Plaintiff's clothes affects the analysis of the subjective and objective components required to demonstrate an Eighth Amendment violation. Indeed, when viewing the evidence in the light most favorable to Plaintiff, there is a question of fact as to the subjective nature of Defendants' actions. According to Plaintiff, he was initially escorted to the RHU by Defendant Bibbs, and, once there, “Defendant Bibbs stripped Plaintiff of his clothing” and was placed in a room on B-wing in his underwear and a T-shirt. ECF No. 78 at 2. Plaintiff avers that he was placed in this room “without incident” and he was not harmed during this initial encounter-in other words, he was compliant. ECF No. 78 at 2. Defendant Bibbs's statement echoes Plaintiff's compliance, as he noted that he escorted Plaintiff to lockup, “changed [Plaintiff] out into a yellow jumpsuit,” and placed him in a room in B-wing. ECF No. 67-7 at 7.
Subsequently, Defendant Bibbs was informed that Plaintiff's underwear and shirt were needed and, thus, he returned to B-wing. ECF No. 67-7 at 7. Plaintiff maintains that when Defendant Bibbs returned (along with the three other Defendants) no one asked Plaintiff for his clothing. ECF No. 78 at 9. However, Defendant Gaines maintains that when Defendants arrived at Plaintiff's cell, Plaintiff did not want to hand over his clothing and Defendant Gaines had to assure Plaintiff that they just needed the clothing. ECF No. 67-7 at 4.
Though a seemingly minor discrepancy, Plaintiff argues that there was no justifiable reason for him to be removed from his cell, because he could have easily given Defendants his clothes via the flap door of the cell if they had asked. ECF No. 78 at 9-10. Indeed, it appears Defendant Bibbs was successful with the first outfit change. ECF No. 67-7 at 7. Assuming that is correct, it is unclear why Plaintiff was subsequently removed from his cell to another room.
Plaintiff suggests that he was moved because Defendants “couldn't beat [him] inside the cell under the eye of cameras and inmate witnesses.” ECF No. 78 at 9. Defendants offer no reason or justification for the move in either the evidence submitted to the Court or in their Reply. See ECF No. 79. Thus, a reasonable jury could question Defendants' motives in moving Plaintiff and infer Defendants' actions were not in good faith when considering the Whitley factors.
In short, there is a factual dispute as to what occurred leading up to and during the second incident. In viewing the record before the Court, the inferences to be drawn from the facts of this case, taken in the light most favorable to Plaintiff, are “not so plain that they may be resolved as a matter of law” on summary judgment. Brooks, 924 F.3d at 117. That is, a reasonable jury crediting Plaintiff's version of events could infer from the Whitley factors that, despite Plaintiff's prior compliance with Defendant Bibbs, Defendants took Plaintiff out of his cell in full restraints under the pretense of retrieving his clothes for the purpose of using force against him in retaliation for the alleged rape of their SCDC colleague. See Dean, 984 F.3d at 302 (noting “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” (citation and internal quotations omitted)).
As to the objective component, viewing Plaintiff's statements, the medical records, and the photographs in the light most favorable to Plaintiff, a reasonable jury could infer any force that may have been used on Plaintiff was more than de minimus. Defendants' argument that Plaintiff's injuries were “virtually nonexistent” or that they were the result of Plaintiff's alleged sexual assault of Victim improperly asks this Court to weigh and draw inferences from the evidence. See McAirlaids, Inc., 756 F.3d at 310 (noting “credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge” (quotation marks and citation omitted)). Furthermore, as already noted above, the “minor” nature of Plaintiff s injuries does not categorically exclude a finding by a reasonable jury that the force used was more than de minimus. See Dean, 984 F.3d at 302 (noting the objective component “is not a high bar”).
Ultimately, in light of the material facts in dispute, the Court cannot adopt Defendants' version of the facts for purposes of summary judgment. Accordingly, summary judgment is not proper.
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motion, ECF No. 67, be DENIED.
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).