Opinion
C. A. 9:22-cv-02458-SAL-MHC
09-15-2023
Quatavious Bernard Bivens, Plaintiff, v. Lt. Robinson, Sgt. Dinkins-Johnson, and Captain Albert Mack, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
Plaintiff Quatavious Bernard Bivens (“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 Lt. Robinson, Sgt. Dinkins-Johnson, and Captain Albert Mack (collectively, “Defendants”) have filed a Motion for Summary Judgment (“Motion”). ECF No. 83. 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 90. Defendants filed a Reply. ECF No. 91. Plaintiff filed a Sur-Reply. ECF No. 93. 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 granting 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 Lieber Correctional Institution (“LCI”). Specifically, he alleges use of excessive force, in violation of his Eighth Amendment rights. ECF No. 1. Both parties have submitted numerous documents to the Court, including affidavits, incident reports, medical records, and a video depicting the incident. ECF Nos. 83, 90. The following rendition of events comes from the video evidence submitted to the Court and relevant documents.
Attached to Plaintiff's Response in Opposition is the verification page for his previous Motion to Amend the Complaint, wherein he swore under penalty of perjury that the allegations in his proposed Amended Complaint were true. See ECF No. 90-3 at 2; ECF No. 26-2 at 4. This Court denied Plaintiff's Motion to Amend the Complaint, such that it is not the operative complaint in this action. See ECF No. 41. Nevertheless, in light of Plaintiff's verification, the Court considers the evidentiary value of the proposed Amended Complaint as an affidavit for purposes of responding to Defendants' Motion for Summary Judgment. See Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir. 2021) (“[A] verified complaint is the equivalent of an opposing affidavit for summary judgment purposes, when the allegations contained therein are based on personal knowledge”).
The facts are construed in the light most favorable to Plaintiff, as the non-moving party on Defendants' Motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To the extent that the video clearly depicts the events at issue, it will prevail over contrary versions of the events submitted by either side. “[W]hen a video ‘quite clearly contradicts the version of the story told by [the plaintiff] . . . so that no reasonable jury could believe it, a court should not adopt [the plaintiff's] version of the facts for purposes of ruling on a motion for summary judgment.'” Witt v. West Virginia State Police, Troop 2, 633 F.3d 272, 276 (4th Cir. 2011) (alterations in original) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)). However, this principle does not permit a court to “reject a plaintiff's account on summary judgment” if the “documentary evidence, such as a video,” merely “offers some support for a governmental officer's version of events.” Id. (emphasis in original).
Plaintiff was housed in LCI's Restricted Housing Unit (“RHU”) at the time of the incident. ECF No. 83-2 at 1; ECF No. 90 at 1; ECF No. 26-2 at 2. The RHU is the highest security level and most secure area of the prison, and it is used to house inmates who present a high security risk. ECF No. 83-2 at 1; ECF No. 83-4 at 1. Inmates are generally placed in the RHU because of disciplinary problems or assaultive or violent behavior. ECF No. 83-2 at 1; ECF No. 83-4 at 1.
On February 9, 2021, while in the RHU, Plaintiff was placed on Crisis Intervention because Plaintiff had previously attempted to overdose multiple times. ECF No. 83-2 at 1; ECF No. 90 at 1-2; ECF No. 26-2 at 2. On that date, Defendant Robinson averred that it was determined Plaintiff was not in the proper cell and he needed to be moved to another cell. ECF No. 83-2 at 1. Defendants Robinson and Dinkins-Johnson went to escort Plaintiff to a new cell. ECF No. 83-2 at 1; ECF No. 83-3 at 1.
When Defendants arrived, Plaintiff asked why he was being moved. ECF No. 83-2 at 1; ECF No. 83-3 at 1. According to Plaintiff, Defendant Robinson allegedly told Plaintiff to gather his things and that he was taking a “trip.” ECF No. 90 at 2. Plaintiff alleges that he was under the impression that he was being transferred because he was originally waiting for a transfer. ECF No. 90 at 2. According to Defendant Robinson, she informed Plaintiff that he was being moved to another cell on the other side of the Unit. ECF No. 83-2 at 1.
Plaintiff was handcuffed and moved out of his cell. ECF No. 90 at 2; ECF No. 26-2 at 2. According to Defendants, at some point while Defendants Robinson and Dinkins-Johnson were interacting with Plaintiff during this transfer, Plaintiff asked if he was being sent to the Crisis Stabilization Unit, which is located at Broad River Correctional Institution. ECF No. 83-2 at 1; ECF No. 83-3 at 1. Defendant Robinson informed Plaintiff that he was not, but that he was being moved to another cell. ECF No. 83-2 at 1; ECF No. 83-3 at 1. Defendant Robinson further informed Plaintiff that she did not have the authority to transfer him to the Crisis Stabilization Unit. ECF No. 83-2 at 1-2; ECF No. 83-3 at 1. According to Defendants, Plaintiff stated at that point that the officers had tricked him and that he was told he was going to be transferred. ECF No. 83-2 at 1-2; ECF No. 83-3 at 1. Defendant Robinson testified that she told Plaintiff that she never stated he was going anywhere except to another cell. ECF No. 83-2 at 2.
Defendants Robinson and Dinkins-Johnson escorted Plaintiff to the new cell, but Plaintiff blocked the entrance to the cell and refused to allow them to close the door. ECF No. 83-2 at 2; ECF No. 83-3 at 1. Both Defendants averred that Plaintiff stated that they had lied to him. ECF No. 83-2 at 2; ECF No. 83-3 at 1. Defendant Robinson gave Plaintiff multiple direct orders, but he continued to refuse to enter the cell and blocked the door. ECF No. 83-2 at 2; ECF No. 83-3 at 1. Plaintiff was in restraints, including handcuffs and a retrieval chain. Defendant Robinson stated the retrieval chain was placed through the food flap while Plaintiff was still blocking the door. ECF No. 83-2 at 2.
According to Defendants, the retrieval chain is hooked to the handcuffs and is used when escorting an RHU inmate. ECF No. 83-2 at 2. When inmates in the RHU are placed into their cell, the retrieval chain is placed through the food flap on the door. ECF No. 83-2 at 2. This allows officers to retain control of the inmate once the cell door is closed and so the handcuffs can be removed. ECF No. 83-2 at 2.
Plaintiff maintains that, before he entered the cell, he asked to speak to a supervisor. ECF No. 90 at 2; ECF No. 26-2 at 2. Defendant Mack was notified, and he responded to the RHU to assist. ECF No. 83-2 at 2; ECF No. 83-3 at 1. Plaintiff alleges that when Defendant Mack arrived, Plaintiff explained that Defendants Robinson and Dinkins-Johnson “tricked him out of the cell” in order to move him to the new cell. ECF No. 90 at 2. Defendant Mack ordered Plaintiff to step inside the cell, but Plaintiff refused. ECF No. 83-3 at 2.
At this point, the video submitted to the Court captured the rest of the incident. ECF No. 83-6. Defendant Mack gave Plaintiff a direct order to step inside the cell. ECF No. 83-6 at:27. Plaintiff refused, and Defendant Mack turned to the camera and stated, “that's [the] first order,” to which Plaintiff replied, “second one [order] hell no and third one [order] hell no too.” ECF No. 83-6 at:28. Plaintiff then said, “spray me.” ECF No. 83-6 at:35.
Subsequently, Defendant Mack was able to use the retrieval chain to get Plaintiff into the cell and secure the cell door. ECF No. 83-6 at:40-1:00. However, once inside the cell, Plaintiff refused to turn around and place his hands in the food flap on the door so the handcuffs could be removed. ECF No. 83-6 at 1:00-1:10.
Defendants stated Plaintiff could not be left in the cell with the handcuffs and retrieval chain in place because the restraints could be used as a weapon. ECF No. 83-4 at 2.
Defendant Mack ordered Plaintiff multiple times to place his hands in the flap so the handcuffs could be removed, but Plaintiff said no. ECF No. 83-6 at 1:00-1:10. At that time, Defendant Mack ordered chemical munitions be used, and Defendant Mack put the retrieval chain through the door handle to have additional leverage and better control of Plaintiff. ECF No. 83-6 at 1:10-1:30; ECF No. 83-4 at 2. Defendant Mack ordered that the door be re-opened to spray Plaintiff (and to prevent Defendants from getting the spray all over them). ECF No. 83-6 at 1:101:30. Defendant Mack maintained control of the retrieval chain so that Plaintiff could not leave the cell, and Defendant Robinson sprayed Plaintiff. ECF No. 83-6 at 1:30-2:00; ECF No. 90 at 2; ECF No. 83-4 at 2. During this time, Plaintiff continuously refused to turn around and said, “spray me.” ECF No. 83-6 at 1:30-2:00. After the chemical munitions were used, the cell door was closed again. ECF No. 83-6 at 1:30-2:00.
Although the cell door was closed, the food flap of the cell door was still open. According to Defendant Mack, Plaintiff threatened to spit, so Defendant Mack administered another burst of chemical munitions through the food flap. ECF No. 83-6 at 2:00-2:33. The flap was then closed to the extent possible with the retrieval chain in place. ECF No. 83-6 at 2:33-3:00.
Plaintiff's threat to spit cannot be heard on the video, but he does appear to clear his throat in anticipation to spit. See ECF No. 83-6 at 2:20.
Defendant Mack stated that they would wait five minutes and then administer additional chemical munitions if Plaintiff continued not to comply. ECF No. 83-6 at 3:00-3:10. After a few minutes, Plaintiff still refused to comply, and Defendant Mack administered another short burst of chemical munitions. ECF No. 83-6 at 6:20-7:00. After this burst, Defendant Mack was eventually able to get Plaintiff to comply. ECF No. 83-6 at 7:00-8:00.
Because Plaintiff complied and still had the restraints in place, he was taken to the medical department where he was allowed to wash his face and was seen by the nurse. ECF No. 83-6 at 8:00-17:13. Plaintiff's cell was cleaned while he was being seen by the nurse, and he was returned to his cell without further incident. ECF No. 83-4 at 3; ECF No. 83-3 at 3; ECF No. 83-2 at 3. Plaintiff requests monetary damages and that Defendants be charged with assault and battery. ECF No. 1 at 6.
Defendants averred that Plaintiff was not allowed to shower because he was still in an agitated state, and they would have needed to remove Plaintiff's restraints for him to shower. ECF No. 834 at 3; ECF No. 83-3 at 3; ECF No. 83-2 at 3. Defendants testified that this would have created a security concern, and they did not want to have to use chemical munitions or force if Plaintiff refused to come out of the shower. ECF No. 83-4 at 3; ECF No. 83-3 at 3; ECF No. 83-2 at 3.
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. 83. 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
Defendants maintain they are entitled to summary judgment because, inter alia: (1) Eleventh Amendment immunity bars claims against Defendants in their official capacities; (2) Plaintiff has not shown a constitutional violation; (3) they are entitled to qualified immunity; and (4) dismissal of Plaintiff's Complaint is appropriate under the Prison Litigation Reform Act. ECF No. 83-1. For the following reasons, Defendants are entitled to summary judgment.
Defendants also contend that Plaintiff's Complaint alleges matters that “do not fall within the scope of 42 U.S.C. § 1983.” See ECF No. 83-1 at 1. However, § 1983 is a statutory mechanism that allows a person to sue a state actor for a deprivation of a federally protected right, which includes any a deprivation of a person's rights guaranteed under the U.S. Constitution. Plaintiff alleges that Defendants used excessive force against him-in violation of his Eighth Amendment right guaranteeing he be free from cruel and unusual punishment-which falls within the scope of § 1983. See Campbell v. Florian, 972 F.3d 385, 392 n.5 (4th Cir. 2020) (noting, under § 1983, a plaintiff must establish three elements: (1) the deprivation of a right secured by the constitution or a federal statute; (2) by a person; (3) acting under color of state law), as amended (Aug. 28, 2020). Thus, any argument that Plaintiff has brought improper claims under § 1983 is without merit.
A. Eleventh Amendment Immunity
Under the Eleventh Amendment, federal courts are barred from hearing claims against a state or its agents, instrumentalities, and employees, unless the state has consented to the suit. Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“It has long been settled that [the Eleventh Amendment's] reference to ‘actions against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.”). Unless a state has consented to suit or Congress has waived a state's immunity pursuant to the Fourteenth Amendment, a state (and its agencies) may not be sued in federal or state court. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). Congress has not abrogated the states' sovereign immunity under § 1983, Quern v. Jordan, 440 U.S. 332, 343 (1979), and South Carolina has not consented to suit in federal district court. S.C. Code Ann. § 15-78-20(e).
Here, at all times relevant to Plaintiff's Complaint, it is undisputed that Defendants were employed by SCDC. Thus, Defendants, in their official capacities, are immune from suit for damages under the Eleventh Amendment. See Simpson v. S.C. Dep't of Corr., No. 2:19-CV-2245-RMG, 2020 WL 582321, at *2 n.1 (D.S.C. Feb. 6, 2020) (noting SCDC employees are entitled to Eleventh Amendment immunity in suits brought against them in their official capacities).
Additionally, for purposes of § 1983, Defendants are not considered “persons” amenable to suit. See Will, 491 U.S. at 71 (“Neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.”); see also Hafer v. Melo, 502 U.S. 21, 26-27 (1991).
Plaintiff correctly points out that state officials can be subject to suit in their official capacities for injunctive or other prospective relief. See ECF No. 90 at 6. Indeed, Eleventh Amendment immunity does not bar claims for prospective injunctive relief pursuant to Ex parte Young, 209 U.S. 123 (1908). Under Ex parte Young, “a federal court [is permitted] to issue prospective, injunctive relief against a state officer to prevent ongoing violations of federal law, on the rationale that such a suit is not a suit against the state for purposes of the Eleventh Amendment.” McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010).
Here, however, the injunctive relief Plaintiff seeks is not one contemplated by the exception in Ex parte Young. See Hutto v. S.C. Ret. Sys., 773 F.3d 536, 550 (4th Cir. 2014) (“The Ex parte Young exception to Eleventh Amendment immunity applies only where a party ‘defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional' has ‘some connection with the enforcement of the act.'” (citation omitted)). Rather, Plaintiff requests for Defendants to be charged with Assault and Battery. See ECF No. 1 at 6. Plaintiff is not entitled to this relief, and such a claim fails under § 1983. See Gilliam v. Sealey, 932 F.3d 216, 240 (4th Cir. 2019) (“[T]here is no independent constitutional right to investigation of a third party.”); Smith v. McCarthy, 349 Fed.Appx. 851, 859 (4th Cir. 2009) (stating Plaintiffs had no right to criminal investigation or criminal prosecution of another); Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1988) (stating that there is no constitutional right “as a member of the public at large and as a victim to have the defendants criminally prosecuted”); see also Stringer v. Doe, 503 Fed.Appx. 888, 890-91 (11th Cir. 2013) (finding no substantive due process right to an internal investigation by law enforcement). Consequently, the undersigned recommends granting summary judgment to Defendants in their official capacities.
To the extent Plaintiff's request for this injunctive relief can be interpreted as asserting state law claims for assault and battery against Defendants, the undersigned recommends declining exercising jurisdiction over any state law claims. See 28 U.S.C. § 1367(c)(3) (providing “district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction”); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (noting, “in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state-law claims”).
B. Excessive Force
Plaintiff argues Defendants used excessive force against him, in violation of his Eighth Amendment right guaranteeing he be free from cruel and unusual punishment. ECF No. 1 at 4. Specifically, Plaintiff argues the use of chemical munitions and the tying of the retrieval chain around the door handle violated his Eighth Amendment rights. See ECF No. 90 at 5-6; ECF No. 93 at 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 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)). “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.
Here, the video evidence submitted to the Court shows the force used by Defendants in trying to get Plaintiff to comply with their commands was not constitutionally excessive. Defendant Mack gave Plaintiff multiple orders to step inside the cell, but Plaintiff refused and taunted Defendants to “spray” him. ECF No. 83-6 at:27-1:00. Defendants did not use chemical munitions at that time; rather, they were able to push Plaintiff inside the cell and secure the cell door.
However, once inside the cell, Plaintiff refused orders to turn around and place his hands in the food flap on the door so his handcuffs could be removed. ECF No. 83-6 at 1:00-1:10. Defendants stated Plaintiff could not be left in the cell with the handcuffs and retrieval chain in place because the restraints could be used as a weapon. ECF No. 83-4 at 2.
Defendant Mack ordered that the cell door be opened so chemical munitions could be used, and Defendant Robinson sprayed Plaintiff. ECF No. 83-6 at 1:00-2:00; ECF No. 90 at 2; ECF No. 83-4 at 2. During this time, Plaintiff continuously refused to turn around and said, “spray me.” ECF No. 83-6 at 1:30-2:00. After the chemical munitions were used, the cell door was closed again. ECF No. 83-6 at 1:30-2:00.
According to Defendant Mack, Plaintiff threatened to spit on Defendants through the food flap, so Defendant Mack administered another burst of chemical munitions through the food flap. ECF No. 83-6 at 2:00-2:33. The flap was then closed to the extent possible with the retrieval chain in place. ECF No. 83-6 at 2:33-3:00. Defendant Mack stated they would wait five minutes and then administer additional chemical munitions if Plaintiff remained noncompliant. ECF No. 83-6 at 3:00-3:10. After a few minutes, Plaintiff still refused to comply, and Defendant Mack administered another short burst of chemical munitions. ECF No. 83-6 at 6:20-7:00. After this burst, Defendant Mack was eventually able to get Plaintiff to comply. ECF No. 83-6 at 7:00-8:00. Plaintiff was then taken to medical, where he was able to rinse off and was seen by a nurse. ECF No. 83-6 at 8:00-17:13
After considering the Whitley factors and the facts in the light most favorable to Plaintiff, Plaintiff has failed to satisfy the subjective component. Defendant Mack verbally warned Plaintiff multiple times chemical munitions would be used if he did not comply, and, when it was determined chemical munitions were appropriate, Defendant Mack ultimately gave Plaintiff several minutes between chemical bursts to re-think his noncompliance. See Dean, 984 F.3d at 302 (noting courts consider “any efforts made to temper the severity of a forceful response”). Nevertheless, Plaintiff repeatedly refused to comply, and Defendants stated Plaintiff could not be left in the cell with the handcuffs and retrieval chain in place because the restraints could be used as a weapon. ECF No. 83-4 at 2. Thus, because Plaintiff would not heed verbal directives, there was a need for Defendants to use minimal force to retrieve the handcuffs. See Dean, 984 F.3d at 302 (noting officers employ force in good faith when their actions are motivated by an immediate risk to physical safety or by a threat to prison order). Once Plaintiff complied with Defendants' orders, he was promptly taken to medical.
The Court finds the use of chemical munitions satisfies the objective component. See Dean, 984 F.3d at 303 (“Under the correct standard, we have no difficulty concluding - as we have before -that a reasonable jury could find that a sustained blast of pepper spray directly to the face constitutes something more than de minimis force.”). Additionally, Plaintiff alleged that his pinky finger was hurt by Defendants when the food flap was closed on it during the incident. ECF No. 1 at 6.
Plaintiff admits in his Response that “he would not comply with directives to turn around to have handcuffs removed.” ECF No. 90 at 6.
Thus, the video evidence and the associated affidavits demonstrate that Defendants' actions were taken in a good faith effort to maintain or restore discipline, rather than maliciously or sadistically. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When 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.”); Harris v. Pittman, 927 F.3d 266, 276 (4th Cir. 2019) (noting summary judgment is proper under Scott when there is evidence, like a videotape, “of undisputed authenticity that shows some material element of the plaintiff's account to be ‘blatantly and demonstrably false.'” (citation omitted)). Plaintiff has not produced evidence that could lead a reasonable jury to conclude otherwise. See Scinto v. Stansberry, 841 F.3d 219, 227 (4th Cir. 2016) (“To survive summary judgment, there must be evidence on which the jury could reasonably find for the [nonmovant].” (citation and internal quotation marks omitted)). a potential threat”; it was “equally clear that [the officer's] use of force was minimal”; and, after the incident, the inmate “was offered prompt medical assistance”).
To the extent that Plaintiff argues Defendants violated the Eighth Amendment when the food flap was closed on his pinky finger during the incident, Plaintiff has not shown how this was unconstitutionally excessive. See Frost v. New York City Police Dep't, 980 F.3d 231, 256 (2d Cir. 2020) (“[A]lthough perhaps the struggle . . . could have been gentler, the video footage does not suggest that the officers' actions could reasonably be viewed as excessive.”). Indeed, according to Defendant Mack, Plaintiff threatened to spit on Defendants, and the flap was closed after chemical munitions were used to the extent possible with the retrieval chain in place. ECF No. 83-6 at 2:003:00. This does not suggest that the flap was closed on Plaintiff's finger maliciously or sadistically for the purpose of causing harm; rather, it would prevent Plaintiff from spitting on Defendants and prevent the chemical munitions from affecting Defendants. See Dean, 984 F.3d at 302 (noting Accordingly, the undersigned recommends granting summary judgment in favor of Defendants. See Shiheed v. Harding, 802 Fed.Appx. 765, 768 (4th Cir. 2020) (finding excessive force was not used in violation of the Eighth Amendment and affirming summary judgment for officer who used pepper spray on inmate where it was “clear from the video that [the inmate] was preventing [the officer] from closing the slot in his cell door and that leaving the slot open posed officers employ force in good faith when their actions are motivated by an immediate risk to physical safety or by a threat to prison order).
To the extent Plaintiff argues that Defendants violated the Eighth Amendment because Defendant Mack put the retrieval chain through the door handle, Plaintiff has failed to show how this amounts to cruel and unusual punishment. Defendant Mack put the retrieval chain through the door handle to have additional leverage and better control Plaintiff, who was non-compliant. Although unclear, Plaintiff may be alleging that Defendants violated SCDC's policies in using the retrieval chain in this manner, which, in turn, violated the Constitution. See ECF No. 90 at 3-5; ECF No. 93 at 1-2. However, violations of policies and procedures alone, even if they occurred, do not rise to the level of a constitutional violation. See Johnson v. S.C. Dep't of Corr., No. 3:06-2062-CMC-JRM, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007) (“[T]the failure of prison officials to follow their own policies or procedures, standing alone, does not amount to a constitutional violation.”); Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C. 1992) (noting § 1983 “does not provide any relief against prison rules violations assuming, arguendo, that such a violation occurred”). Therefore, to the extent Plaintiff may be asserting a claim on this basis, Defendants are entitled to summary judgment.
C. Qualified Immunity
Defendants are entitled to qualified immunity from Plaintiff's § 1983 claims. The doctrine of qualified immunity offers some protection to a government employee being sued in his or her individual capacity, as is the case with Defendants. The Supreme Court has held that “[g]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Renn by and Through Renn v. Garrison, 100 F.3d 344, 349 (4th Cir. 1996).
“The threshold inquiry a court must undertake in a qualified immunity analysis is whether a plaintiff's allegations, if true, establish a clear constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). If a violation of a constitutional right in fact exists, qualified immunity nonetheless shields a prison official from liability, unless the violation was of a “clearly established right of which a reasonable person would have known.” Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (citation and internal quotation marks omitted).
As set forth above, Plaintiff has failed to establish a genuine issue of material fact on any of his allegations of constitutional violations. Because Defendants did not violate Plaintiff's constitutional rights, they are also shielded from liability by qualified immunity.
D. Dismissal pursuant to the PLRA
Finally, Defendants argue dismissal is appropriate under the PLRA. ECF No. 83-1 at 1516. Specifically, Defendants argue that Plaintiff's action should be dismissed as “frivolous” pursuant to 28 U.S.C. § 1915(e)(2), such that the dismissal should count as a strike against him under the PLRA's three-strike rule. See generally Neitzke v. Williams, 490 U.S. 319, 325-27 (1989) (noting a complaint is frivolous if it “lacks an arguable basis either in law or in fact” and holding federal courts have the power to dismiss a claim based on “an indisputably meritless legal theory” or claims “whose factual contentions are clearly baseless”). The Court disagrees.
Although the undersigned recommends granting Defendants' Motion, Plaintiff's claims are not frivolous. See McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (“Examples of frivolous claims include those whose factual allegations are ‘so nutty,' ‘delusional,' or ‘wholly fanciful' as to be simply ‘unbelievable.'”), abrogated on other grounds by Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 207 L.Ed.2d 132 (2020). Indeed, Plaintiff's constitutional claims are rooted in legal theories appropriate for a § 1983 action, and many of the factual allegations are corroborated by Defendants' evidence. Cf. Lee v. Clinton, 209 F.3d 1025, 1025 (7th Cir. 2000) (affirming district court's dismissal of Plaintiff's frivolous complaint, where Plaintiff “filed two insane complaints charging the United States and China with a conspiracy to ‘bio-chemically and bio-technologically infect and invade' various people including [Plaintiff] with a mind reading and mental torture device that [Plaintiff] calls ‘Mind Accessing and Torturing via Remote Energy Transferring (MATRET)'”); see also Neitzke, 490 U.S. at 327 (noting an example of an “indisputably meritless legal theory” is a claim “of infringement of a legal interest which clearly does not exist”). As Plaintiff's claims have an arguable basis in law and fact, this dismissal should not count as a strike.
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motion, ECF No. 83, be GRANTED.
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).