Opinion
Civil Action 4:23-cv-3022-SAL-TER
10-23-2024
ARYEE HENDERSON, Plaintiff, v. SGT. FRIERSON, Defendant.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This is a civil action filed pro se by Aryee Henderson (“Plaintiff”/ “Henderson”) on June 26, 2023. Plaintiff filed an amended complaint on March 4, 2024. (ECF No. 61). Plaintiff is currently housed at the Lee Correctional Institution (LCI). Plaintiff seeks monetary damages based on alleged civil rights violations pursuant to 42 U.S.C. §1983. This matter is currently before the court on the Motion for Summary Judgment filed by Defendant. (ECF No.105). As the Plaintiff is proceeding pro se, the court issued an order on or about August 12, 2024, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately by September 12, 2024. Plaintiff filed a motion for an extension of time to file a response to the Motion for Summary Judgment. (ECF No. 114). Plaintiff's motion was granted and his time to respond was extended to October 15, 2024. Plaintiff failed to file a response.
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 Rule 73.02(B)(2)(d),DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the District Judge.
II. STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c). The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
Defendant argues in the Motion for Summary Judgment that Plaintiff failed to exhaust his administrative remedies. However, Defendant submitted the affidavit of Felecia McKie, SCDC Agency Inmate Grievance Coordinator/Branch Chief, Inmate Grievance Branch, Office of General Counsel who attests that “although inmate Ayree Henderson obtained a Final Agency Decision regarding his complaint(s), he failed to comply fully with the Inmate Grievance System Policy by not submitting a Step One Grievance according to deadlines.” Thus, as Plaintiff received a final decision on his Step One and Step Two Grievance forms which were attached to the memorandum, the court will address the merits. .
A. ALLEGATIONS
In the amended complaint, Plaintiff alleges a claim for excessive force against Defendat Frierson. Specifically, Plaintiff alleges that at approximately 9:55 on January 27, 2022, he was at “the flap stuffing tissue in the padlock so I can be able to watch television that's mounted on the wall in front of C.I. cell #31.” (ECF No. 61-1 at 9). Plaintiff asserts that the only way he could watch television was if the food flap was open. While at the food flap stuffing tissue in the padlock, Sgt. Frierson came to the cell door and told him to “get off the flap.” Id. Plaintiff alleges that he “immediately got of the flap” but while Sgt. Frierson was gone for approximately 5-10 minutes, he “returned back to the food flap and started restuffing the padlock with more tissue.” Id. After approximately three minutes of being at the food flap, Sgt. Frierson returned and “was able to sneak-up on me without warning and spray me with a long bursts of chemical munitions-pepper spray-to my face.” Id. at 9-10. Plaintiff argues that before spraying him, Sgt. Frierson did not give him a warning or directive to get off or be sprayed with chemical munitions. Plaintiff alleges that if Sgt. Frierson would have warned him, he would have complied. Plaintiff asserts that he was sprayed “directly in my mouth, nose, eyes, ears, hair, and neck,” which burned all night like it was on fire. Plaintiff alleges that he was blinded and could not see for hours and suffered from “loss of breath for at least an hour, humiliation, anxiety, restlessness. Lack of sleep from an extreme burning sensation in my mouth, ears, nose and on my neck and face, loss of appetite, homicidal ideations, psycahological and emotional distress and mental anguish.” (ECF No. 61-1 at 11). Plaintiff states that Nurse Allen came to see him “but she never gave me nothing for the pain or something to wipe the pepper spray off me. I was never taken out of the cell to decontaminate in the shower.” Id. Plaintiff argues that Defendant Frierson never utilized any de-escalation tactics or a camera before spraying him with pepper spray but sprayed him for the sole purpose to cause him harm and distress and knew he would not be disciplined or reprimanded for his actions. Id. at 12. Plaintiff states that after being sprayed that night with chemical munitions by Defendant Frierson, he was “immediately transferred that very next morning to CSU at Broad River.” Id. Plaintiff requests compensatory damages.
Any allegations against anyone other than Defendant Frierson will not be addressed as only Defendant Frierson is a named party in this action.
The date based on the evidence presented was January 20, 2022.
Defendant Frierson argues that Plaintiff fails to state a claim of an Eighth Amendment Violation by failing to meet the objective and subjective components of an Eighth Amendment claim. (ECF No. 105-1). Defendant submitted his affidavit attesting that he is a former employee of the SCDC for five years where he was employed as a sergeant at the LCI. On or about January 21, 2022, Frierson was conducting a security check of the North Restricted Housing Unit at LCI when he encountered Plaintiff Henderson jamming and sabotaging the lock on his cell door's food flap. Defendant Frierson attempted to control the situation by giving Inmate Henderson verbal directives to remove his hand from the flap and stop jamming paper or debris into the lock. Frierson went to retrieve the picking tool from the nearby office to attempt to unjam the sabotaged lock but when he returned, he observed Plaintiff continuing to sabotage the lock despite clear directives to stop. Unsecured cell doors or door flaps serve as a serious threat to officer safety for various reasons including the risk of hitting, grabbing, stabbing, or “dashing” that can occur through an unsecured opening. After Plaintiff failed to follow clear directives to stop sabotaging a vitally important safety mechanism on his cell door, Frierson administered a short burst of chemical munitions toward Plaintiff and gave additional directives to release the flap and cease his jamming of the lock. The interaction was unplanned and necessary for maintaining the safety and security of others within the unit. Frierson complied with all applicable policies and acted within the scope of his employment as an employee of the State of South Carolina as a correctional officer and sergeant. After the incident, Plaintiff was assessed by Nurse Allen who provided instructions on cell decontamination, including access to running water in his cell. Frierson attests that at no time was he deliberately indifferent to any serious need, medical or otherwise, or any substantial risk of serious harm to Plaintiff and did not see any SCDC employees or agents act deliberately indifferent to any need or any serious need or substantial risk of harm to Plaintiff.
Therefore, Defendant submits that Plaintiff has failed to meet the objective prong as Plaintiff has not shown that he suffered a serious injury from the alleged excessive force and has not alleged nor documented symptoms that rise to the level of a serious medical condition. Further, Plaintiff has not denied but admitted that he received medical attention for any alleged injuries in his amended complaint. Id. at 8-9. Additionally, Defendant argues that Plaintiff's amended complaint makes conclusory statements that Defendant used excessive force as he submits no evidence that the amount of chemical munitions utilized by Defendant was an excessive amount. Id. The incident report reveals that Plaintiff failed to follow directives so that chemical munitions were disbursed into the cell and Plaintiff “immediately removed himself from tampering with the lock pad.” (ECF No. 105-3 at 2). By Plaintiff's own admission, he was seen by the nurse immediately following the incident, he had a sink in his cell and was instructed to, and able to, decontaminate in his cell. Id. at 9.
As to the subjective prong, Defendant argues Plaintiff has failed to establish that he acted with a sufficiently culpable state of mind. Defendant gave a directive to Plaintiff to actively stop attempting to jam/sabotage his lock on his cell door food flap which Plaintiff refused to obey. Defendant used chemical munition after Plaintiff refused to comply with his directive and continued to attempt to sabotage the lock on his cell door. The action was unplanned, and the administering of chemical munitions was only implemented to preserve and maintain safety and security in the unit. Therefore, Defendant argues that there is no evidence that excessive force was used as he only used the force necessary to quell the situation.
Lastly, Defendant argues that he is non-medical personnel but that Plaintiff was seen by medical staff after the incident which Plaintiff admits in his amended complaint. Defendant argues that by being non-medical personnel, he was able to rely on the medical recommendations of the nurse. Id.
B. LAW WITH REGARD TO EXCESSIVE FORCE
Excessive force claims brought by convicted prisoners are governed by the Eighth Amendment's prohibition against cruel and unusual punishment. See Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015). Such claims “involve[ ] both an objective and a subjective component. The objective component measures the nature of the force employed, asking whether that force was sufficiently serious to establish a cause of action.” Dean, 984 F.3d at 302 (internal quotation marks omitted). For the subjective component, the plaintiff must establish that the defendant acted with “wantonness in the infliction of pain,” which “turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose ofcausing harm.” Id. at 302 (internal quotation marks omitted). This question asks whether an officer was “motivated by an immediate risk to physical safety or threat to prison order,” rather than an intent “to punish or retaliate against an inmate for his prior conduct.” Fraley v. Davis, No. 21-6641, 2022 WL 3210702, at *1 (4th Cir. Aug. 9, 2022) (quoting Dean v. Jones, 984 F.3d 295, 304 (4th Cir. 2021)). When reviewing an excessive force claim, the Court should consider 1) the need for the application of force, 2) the relationship between the need and the amount of force that was used, 3) the threat to the staff and inmates as reasonably perceived by the prison officials on the basis of the facts known to them, 4) the efforts made to temper the severity of a forceful response, and 5) the extent of the injuries suffered by the prisoner. Whitley v. Albers, 475 U.S. 312, 321 (1986); Hill v. Crum, 727 F.3d 312, 327 (4th Cir. 2013); see also Hudson v. McMillian, 503 U.S. 1, 7 (1992) (the core judicial inquiry is whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm); Mann v. Failey, 578 Fed.Appx. 267, 273 (4th Cir. July 17, 2014) (In order to prevail on an Eighth Amendment excessive force claim, Plaintiff must demonstrate that the “deprivation suffered or injury inflicted . . . was sufficiently serious,” and that the “prison official acted with a sufficiently culpable state of mind”), quoting Williams v. Benjamin, 77 F.3 756, 761 (4th Cir. 1996).
C. ANALYSIS WITH REGARD TO EXCESSIVE FORCE
Plaintiff's allegation that Defendant Frierson applied excessive force in the application of chemical munitions fails. The Fourth Circuit has previously held that the quantity of mace used should be commensurate with the gravity of the occasion so as not to violate the Constitution. Bailey v. Turner, 736 F.2d 963, 969 (4th Cir. 1984). In this case, Plaintiff admits that he was attempting to “stuff” the lock of his cell door food flap with debris and failed to follow a directive by Defendant Frierson to cease. Plaintiff further admits that he failed to obey that order and even continued to “stuff” the lock in an attempt to jam/sabotage the cell door food flap lock. Therefore, after Plaintiff refused to obey a directive and continued to sabotage the lock on his door cell, Defendant Frierson dispersed one burst of five grams of chemical munitions into the cell to quell the situation and prevent a security and safety issue. The Fourth Circuit has clearly held that “the use of mace on an unruly or ‘recalcitrant' prison inmate, though confined to his cell, is not plainly per se unconstitutional.” Bailey v. Turner, 736 F.2d 963, 970 (4th Cir. 1984). Instead, the court evaluates whether the use of chemical munitions was proper based on the Whitley factors. Watkins v. Cross, 2019 WL 1472887, at *4 (D.S.C), report and recommendation adopted, 2019 WL 1470248 (D.S.C.), affdsub nom. Watkins v. Jones, 771 Fed.Appx. 332 (4th Cir. 2019).
The unrefuted evidence in this case shows that Plaintiff was attempting to sabotage the lock on his cell door food flap, failed to follow a directive to cease his actions, continued to stuff paper into the lock after being told to stop, and a small amount of five grams of chemical munitions was administered. (ECF Nos. 105-3 at 2 and 105-5 at 4). Defendant Frierson attempted to resolve the situation without using chemical munitions and have Plaintiff follow prison rules, but Plaintiff refused to comply. Therefore Defendant Frierson administered one burst of five grams of chemical munitions which is a reasonable use of minimal force to compel compliance with officer's directives. Id. See Watkins v. Cross, No. 0:17-135-MGL-PJG, 2019 WL 1472887, at *4 (D.S.C. Mar. 8, 2019) (concluding that a relatively short burst of chemical munitions “weigh[ed] in favor of the efforts of [the officer] to temper the severity of the force applied and the commensurate relationship between the need for force and the amount used” and that “the single burst unequivocally indicate[d] that it was rendered to restore order and institutional security”), Report and Recommendation adopted by 2019 WL 1470248 (D.S.C. Apr. 3, 2019), affdsubnom. Watkins v. Jones, 771 Fed.Appx. 332 (4th Cir. 2019); Brown v. West, No. 4:14-cv-04732-TLW, 2015 WL 4162457, at **6, 8 (D.S.C. July 9, 2015) (concluding that a short burst of 15 grams of chemical munitions was not unreasonable). Plaintiff was then immediately seen by Nurse Allen from the medical staff and instructed on how to decontaminate inside the cell. (ECF No. 105-5 at 3). Here, there was a need for the administering of chemical munitions, Defendant attempted to temper the severity of the situation before dispersing chemical munitions, he only used the amount of force necessary, five grams of chemical munitions, to quell the situation, and Plaintiff was seen by medical staff. If Plaintiff had succeeded in jamming the food flap lock, it would have resulted in security concerns and safety to the officers as set out in Defendant Frierson's affidavit discussed above.
As previously stated, Plaintiff did not file a response to the motion for summary judgment. Based on the evidence before the court, the Defendant has established that efforts were made to temper the use of force and that the amount of force used was objectively reasonable as a matter of law. See Whitley, 475 U.S. at 320-21; Watkins, 2019 WL 1472887, at *3-5. The chemical munitions were administered in a good faith effort to maintain or restore discipline and security when Plaintiff failed to obey commands. Therefore, it is recommended that summary judgment be granted for Defendant Frierson as to this claim of excessive force during the incident of January 2022.
It does not appear from the amended complaint that Plaintiff is alleging a claim of medical indifference against Defendant Frierson. However, if Plaintiff is attempting to allege a claim of medical indifference as to Defendant Frierson, it fails. Defendant asserts and Plaintiff admits that he was seen by Nurse Allen following the incident. The evidence submitted reveals that Nurse Allen provided instructions on cell decontamination, including access to running water in his cell. (ECF Nos. 105-2 at 26, 105-3 at 2, and 105-5 at 3). To state a claim of denial of medical treatment against non-medical prison personnel, an inmate must show that such officials were personally involved with a denial of treatment, deliberately interfered with prison doctors' treatment, or tacitly authorized or were indifferent to the prison physicians' misconduct. Miltier v. Beorn, 896 F.2d 848 (4th Cir.1990). Prison personnel may rely on the opinion of the medical staff as to the proper course of treatment. Id. Under these principles, the Plaintiff has not alleged sufficient facts stating any claim actionable under §1983 regarding his medical treatment against Defendant Frierson who is non-medical personnel. Plaintiff has not alleged nor shown that Defendant Frierson denied or interfered in any way with his medical treatment from Nurse Allen after the incident. pleadings and Defendant's evidence clearly show that Plaintiff was seen and treated by Nurse Allen after the incident and instructed on decontamination with running water in his cell. (ECF No. 105-3, 105-4 at 3). While Plaintiff may have been denied the treatment of his choice, such a claim is not cognizable under §1983. See Slusser v. United States, 2022 WL 3572742, at *2 (D.S.C. Aug. 19, 2022)(citing Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988) (holding a prisoner is entitled to adequate medical care, not his choice oftreatment)). Viewed in the light most favorable to Plaintiff, the record creates no genuine issue of material fact to support his deliberate indifference claim against non-medical personnel as there is no evidence that Plaintiff was denied any necessary treatment by this Defendant. Accordingly, summary judgment should be granted with respect to this claim of medical indifference.
D. ELEVENTH AMENDMENT IMMUNITY
Defendant Frierson argues that he is immune from suit pursuant to the Eleventh Amendment of the constitution. Defendant argues that Plaintiff's claims against him, in his official capacity, fail as a matter of law, as he is not a “person” amendable to suit and are entitled to immunity.
When a defendant is sued in his or her official capacity, the suit is frequently intended as one against the state, the real party in interest. If review of the pleadings indicates that the state is, in fact, the party being sued, then a judgment awarding damages is precluded by the Eleventh Amendment of the United States Constitution. Although declaratory and/or injunctive relief may be granted, damages may not be awarded against the state. The Eleventh Amendment immunity granted to the states “applies only to States or governmental entities that are considered ‘arms of the State' for Eleventh Amendment purposes,” but the court found that state agencies, divisions, departments and officials are entitled to the Eleventh Amendment immunity. Will v. Michigan Department of State Police, 491 U.S. 58, 70 (1989). In reaching this conclusion, the court held that a suit against state officials acting in their official capacities is actually against the office itself, and therefore, against the state. State officials may only be sued in their individual capacities.
The United States Supreme Court has long held the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). A plaintiff “is not entitled to monetary damages under § 1983 against Defendants in their official capacities.” Moneyhan v. Keller, 563 Fed.Appx. 256, 258 (4th Cir. 2014) (citing Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (holding that Eleventh Amendment bars suits against non-consenting state, its agencies, and its officers acting in their official capacities)). However, suits for damages against state officials sued in their individual capacity are not barred by the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21, 30-31 (1991) (“[T]he Eleventh Amendment does not erect a barrier against suits to impose ‘individual and personal liability' on state officials under § 1983.”) (citation omitted).
Here, it is undisputed that at the time of the matters alleged in the complaint, Defendant was an SCDC employee. To the extent Plaintiff sues Defendant in his official capacity, he is not subject to suit under §1983, and it is recommended that Defendant's Motion for Summary Judgment regarding claims brought against Defendant Frierson in his official capacity for monetary damages be granted.6
E. PENDENT JURISDICTION
Assuming Plaintiff's §1983 claim is dismissed by this Court and Plaintiffs' complaint somehow can be conceived to state an additional claim for relief under any state common law theory, the undersigned concludes that such claim(s), if any, ought to be dismissed as well for want of jurisdiction. Specifically, this Court can decline to continue the action as to the pendent claims if “the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c).
IV.CONCLUSION
For the reasons discussed above, it is recommended that Defendant's Motion for summary Judgment (ECF No.105) be granted and the case dismissed.
The parties' attention is directed to the important information on the attached notice.