Opinion
C. A. 4:20-2726-SAL-TER
01-20-2023
ARYEE HENDERSON, Plaintiff, v. OFFICER CLEVELAND, SGT. THOMAS, OFFICER CORLEY, OFFICER PARRISH, OFFICER DELK, OFFICER HENDERSON, SGT. COAXUM, LT. ANDERSON-DAVENPORT, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
This is a civil action filed pro se by Aryee Henderson (“Plaintiff”/ “Henderson”) on July 24, 2020. Plaintiff filed an amended complaint on August 17, 2020. (ECF No. 11). Plaintiff is currently housed at the Lee Correctional Institution (LCI). At all times relevant to the complaint, Plaintiff was housed at Broad River Correctional Institution (BRCI). 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 Defendants. (ECF No.154). As the Plaintiff is proceeding pro se, the court issued an order on or about March 22, 2022, 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. Plaintiff filed a response in opposition on June 23, 2022. (ECF No. 189). On December 7, 2022, this court granted Plaintiff's motion for an extension of time to file a supplemental response to the motion for summary judgment giving him an additional fifteen days. On December 9, 2022, and December 22, 2022, Plaintiff did not file a supplemental response but filed replies in opposition to Defendants' response to the court's order of November 3, 2022, with regard to the motion for spoliation sanctions (ECF No. 229) which motion was ruled on by the court on December 7, 2022. Plaintiff filed a supplemental response on January 6, 2023. (ECF No. 237).
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.
Defendants SCDC, Capistock, Romero, Doe, Ward, Belger, Mr. Williams, Lt. Williams, Stephen, Casares, and Davis have been terminated from this case.
Plaintiff filed a Motion for Spoliation Sanctions. (ECF No. 215). This court issued an order on November 3, 2022, directing Defendants to file a response to Plaintiff's motion for Spoilation Sanctions as to whether or not Defendants had possession, custody or control of the video footage requested by Plaintiff or if they had a duty to take reasonable steps to retain and preserve this evidence in the anticipation or conduct of litigation based on the facts and circumstances of the case. Defendants filed a responses on November 18, 2022, and the court issued an order on December 7, 2022, denying the Plaintiff's Motion for Spoliation Sanctions.
ELEVENTH AMENDMENT IMMUNITY
Defendants first argue that they are immune from suit pursuant to the Eleventh Amendment of the Constitution. Defendants argue that Plaintiff's claims against them, in their official capacity, fail as a matter of law, as they are 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, Defendants were SCDC employees. To the extent Plaintiff sues Defendants in their official capacities, they are not subject to suit for money damages under §1983, and Defendants' motion for summary judgment regarding claims brought against them in their official capacity for monetary damages should be granted.
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.
DISCUSSION
In the amended complaint, Plaintiff alleges causes of action arising out of two separate use-of-force incidents on June 20, 2019, and February 21, 2020, respectively, and medical indifference stemming from the February 21, 2020, incident. As relief, Plaintiff seeks medical treatment by a doctor or outside physician, to be assigned and housed in a therapeutic mental health unit, that all defendants be fired, compensatory damages, punitive damages, cost of the suit, and a jury trial. (ECF No. 11 at 16).
Excessive force-Applicable law
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 of causing 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).
INCIDENT OF JUNE 20, 2019
a. Exhaustion
Defendants submit that Plaintiff filed a Step One and Step Two Grievance form with relation to the incident of June 20, 2019. Accordingly, Defendants concede that Plaintiff exhausted the available administrative remedies regarding physical assault to have taken place on June 20, 2019.
b. Allegations
Plaintiff alleges that on June 20, 2019, he went unescorted to medical to have his blood pressure checked. (ECF No. 11 at 8-9). After being seen by medical personnel, Officers Cleveland and Capistock came to medical to escort Plaintiff back to his cell in the Wateree Unit. Id. Plaintiff alleges that the officers instructed him to turn around to be handcuffed to be escorted back to his cell, but Plaintiff admits that he refused to follow the directions given by the officers and told them “no.” Id. Plaintiff asserts that Officer Cleveland gave him another directive to turn around to be handcuffed, but he again refused to obey the command telling them “no.” Id. Plaintiff asserts that he refused to be handcuffed because it was not consistent with policy or custom. After he refused for the second time, Plaintiff alleges as follows:
It is noted that in Plaintiff's response to summary judgment he refers to officers Cleveland and Cabbagestalk as defendants in the June 20, 2019, incident. Defendants submitted a statement and affidavit from Officer Cabbagestalk. However, Officer Capistock was terminated from the action and Plaintiff did not file any motions to amend the complaint to name Officer Cabbagestalk as a defendant.
. . . both officers suddenly jumped me and slammed me on the ground. Officer Cleveland- who is approx. 6'3" tall and weighs approx. 330 lbs-landed on top of me. Officer was on top of me for approx. 3-5 minutes while struggling to bring my arms around my back to be handcuffed. After approx. 4 minutes me and Officer Cleveland struggling, officer
Capistock came and began twisting my left arm. After approx. one minute of struggling while Officer Capistock is aiding and assisting officer Cleveland, I then surrendered so I can be handcuffed to avoid any physical injuries to my arms. After both officers subdued me and placed me in handcuffs, they placed me in two arm locks almost dislocating my shoulders. They then began taking me to the cell and ramming my head to the wing doors and walls. . . .Id.
Plaintiff asserts that he and Officers Cleveland and Capistock struggled on the ground for about three to five minutes before Plaintiff surrendered to be placed in handcuffs. In the amended complaint, Plaintiff alleges that he was not seen by medical personnel. Plaintiff alleges he suffered “prolonged excruciating pain in my shoulders and arms. Migraine headaches. The pain in my shoulders and arms lasted for several weeks. The migraine headaches lasted for several weeks. I also experienced: acute anxiety, homicidal thoughts, humiliation, and mental anguish.” (ECF No. 11 at 16).
On July 3, 2019, Plaintiff filed a Step One Grievance form on the incident. (ECF No. 154-2 at 4-5). The grievance was forwarded to the SCDC Police Services for investigation of the allegations of use of force and assault on an inmate by an employee. Id. Defendants submitted a copy of the Investigative Report from Agent Laura Casares with SCDC Police Services. (ECF No. 154-3). Agent Casares interviewed Officer Cabbagestalk on August 13, 2019, and he provided a voluntary statement that he and Officer Cleveland were bringing Henderson back to the Wateree Unit at BRCI. Id. at 2. At the entry gate of the Wateree Unit, he advised inmate Henderson that he was going to be placed into handcuffs. Id. Inmate Henderson pulled away forcibly, at which time he and Officer Cleveland placed inmate Henderson on the ground and detained him. Id. Inmate Henderson was placed back into his cell without further incident. Id. at 2-3. On August 15, 2019, Agent Casares interviewed Officer Cleveland at BRCI, and he provided a voluntary statement that he was unable to recall the incident in question.
Agent Casares interviewed Plaintiff at BRCI where he completed a written statement, and Agent Casares attached it to the Investigation Report. (ECF 154-3 at 3).Plaintiff was being escorted back to the Wateree Unit from medical by the officers. Id. Upon arriving at the entry gate to Wateree, Plaintiff refused Cleveland's direction to be placed into handcuffs. Id. Both officers grabbed his arms, wrestling him to the ground. Id. They wrestled on the ground for approximately five minutes until Plaintiff was placed in handcuffs. Id. Once Plaintiff was placed into handcuffs, the officers placed him into an arm-lock restraint which he asserts caused him pain. Id. Plaintiff stated that he was denied a mental health counselor and did not see medical regarding this incident. Id.
Agent Casares found there was insufficient evidence to substantiate any of the allegations listed in the grievance. She based on her findings on statements made by the inmate and the correctional officers and had no camera video footage of the incident. Id. at 3. The warden denied the grievance based on the investigation by Police Services which Plaintiff received on January 15, 2020. (ECF No. 154-2 at 4-5). On April 15, 2020, the grievance coordinators received Plaintiff's Step Two grievance form which was denied on May 26, 2020. This action followed.
Defendants filed a motion for summary judgment asserting that Plaintiff cannot meet the elements of his claim for excessive force against Officer Cleveland. Specifically, Defendants argue that Plaintiff's medical records fail to show any injury to state a cognizable claim and that Plaintiff presents no evidence that Defendants acted with a “sufficiently culpable state of mind” to cause Plaintiff's alleged pain or injuries.
c. Excessive Force
In this case, Plaintiff admits that on June 20, 2019, he refused direct commands to turn around to be handcuffed, the officers forced him to the ground and a struggle ensued until he surrendered to be handcuffed to avoid any injury to his arms or shoulders. However, Plaintiff alleges that after he was handcuffed, Defendants placed him in two arm locks “almost dislocating” his shoulders and rammed his head into the wing doors and walls on the way to his cell. (ECF No. 11).
Based on the record before the court, there are issues of fact with regard to the use of excessive force on June 20, 2019. Plaintiff alleges that the Officers “rammed” his head into the walls and placed the arm lock on both arms causing him to suffer excruciating pain in his shoulders and migraines for several weeks. Defendants have not submitted sufficient evidence for summary judgment to be granted. Defendants have not addressed Plaintiff's allegation that the Officers “rammed” his head into the walls or wing doors or his allegations that the officers used two arm-locks after he was subdued and handcuffed. Plaintiff alleges that he was not allowed to be seen by medical so there are no medical records. Defendants submitted an affidavit from Officer Cleveland attesting that he does not recall the incident Plaintiff claims took place on June 20, 2019. (ECF No. 159-1). However, Cleveland attests that he did participate in an investigation in August 2019, when he gave a handwritten statement to Agent Casares of SCDC Police Services stating that he did not recall the incident. Id. Cleveland reviewed the amended complaint and attests that if he did use force against Plaintiff in the manner described, he was doing so within his discretion as a correctional officer and that he would have used the minimum force required to enforce compliance by Plaintiff. Id. No other affidavits were submitted in regard to these allegations in support of summary judgment. Therefore, there are genuine issues of material fact with regard to the allegations of excessive force by Officer Cleveland on June 20, 2019. Accordingly, it is recommended that summary judgment be denied as to this claim.
INCIDENT OF FEBRUARY 21, 2020
a. Exhaustion
Plaintiff alleges that on February 21, 2020, he was assaulted by officers while trying to obtain a pass to use the law library. Defendants raise the affirmative defense of exhaustion. Specifically, Defendants assert that Plaintiff failed to properly exhaust his administrative remedies regarding this incident and, therefore, the claims of excessive force should be dismissed.
The Prison Litigation Reform Act (“PLRA”) requires that a prisoner exhaust the available administrative remedies before filing a 1983 action concerning conditions of his confinement. 42 U.S.C. 1997e(a). In enacting the PLRA, Congress carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing a civil rights suit. The PLRA amended section 1997e so that it now provides, “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” (Id.). § 1997e(a). Accordingly, before Plaintiff may proceed with his claims in this court, he must first exhaust his administrative remedies available through the grievance process within the SCDC. The United States Supreme Court has held that “Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741 (2001); see Porter v. Nussle, 534 U.S. 516 (2002); Jones v. Smith, 266 F.3d 399 (6th Cir. 2001)(exhaustion required even though Plaintiff claimed futility); Larkin v. Galloway, 266 F.3d 718 (7th Cir. 2001)(exhaustion required even grievances plaintiff claimed he was afraid); see also Claybrooks v. Newsome, 2001 WL 1089548 (4th Cir., September 18, 2001)(unpublished opinion)(applying Booth v. Churner to affirm district court's denial of relief to Plaintiff). A failure to exhaust all levels of administrative review is not “proper exhaustion” and will bar actions filed by inmates under any federal law, including §1983. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2386 (2006).
Defendants submitted the affidavit of Felecia McKie (McKie), Chief, Inmate Grievance Branch within the office of General Counsel, SCDC. (ECF No. 154-6 at 15). McKie attests that Plaintiff did not exhaust his available administrative remedies regarding the alleged physical assault that occurred on February 21, 2020. Id. at 3. Plaintiff filed a Step One Grievance on February 26, 2020. Id. In Plaintiff's Step One Grievance BRCI-0123-20, Plaintiff alleged “that SCDC officers physically assaulted him during an incident on February 21, 2020.” Id. However, McKie attests that this Step One Grievance was processed and returned on March 3, 2020, for failure to submit an informal Request to Staff Member (RTSM) form for the grievances. Id. Plaintiff did not re-file his Step One Grievance form with an attached answered RTSM or kiosk reference number. Id. Therefore, McKie attests that he failed to exhaust his administrative remedies with respect to the February 21, 2020, incident. Id.
Plaintiff filed a response asserting that he complied with the grievance policy because his situation involved an incident “where numerous prison guards physically assaulted him repeatedly kicking, punching, and stomping me in the face, side, legs, and arms while Defendant Thomas sat on my stomach and choked me with his hands around my neck.” (ECF No. 189 at 1-2). Plaintiff alleges that “ Defendants Thomas, Cleveland, Coaxum, Corley, Parrish, Henderson and Delk were also guilty of a criminal act when they decided to physically assault a subdued Plaintiff after he was in handcuffs.” Id. Therefore, Plaintiff argues that when a criminal act of assault is involved, he is not required to attempt to resolve the matter informally before filing the Step One Grievance pursuant to the Grievance Policy.
Pursuant to SCDC Grievance Policy GA-01.12, in most cases, inmates must make an effort to informally resolve a grievance by submitting a Request to Staff Member (“RTSM”) form to the appropriate supervisor/staff member within eight days of the incident. If the RTSM does not resolve the issue, the inmate may file a Step One Grievance. If dissatisfied with the response to the Step One Grievance, the inmate may appeal with a Step Two Grievance. (ECF No. 154-7). However, Section 13.2 addresses matters involving allegations of criminal activity where informal resolution “may not be appropriate or possible.” (ECF No. 154-7 at 8). When there are allegations of criminal activity complaints, the inmate must file a Form 10-5, Step One within five working days of the alleged incident. Also, Section 15 of the SCDC Grievance Policy states as follows:
GRIEVANCES ALLEGING CRIMINAL ACTIVITY: Any grievance which alleges criminal activity will be referred immediately to the Chief/designee, Inmate Grievance Branch. The IGC will note on the grievance tracking CRT screen that the grievance has been forwarded to the Inmate Grievance Branch for possible investigation by the Division of Investigations and the date on which the grievance was forwarded. The Chief/designee, Inmate Grievance Branch, will consult with the Division of Investigations to determine if a criminal investigation would be appropriate. If deemed appropriate, the grievance will be forwarded to the Division of Investigations, to be handled in accordance with applicable SCDC policies/procedures. The grievance will be held in abeyance until the Division of Investigations completes their review/investigation.Id. at 11.
In Section 19 of the SCDC Grievance Policy, definitions are listed of certain terms. (ECF No. 154-7 at 15). “Criminal Activity” is defined as activity referring “to any illegal activity to include sexual misconduct, staff assaults, transfer of drugs/contraband, etc.” Id.
Additionally, Plaintiff alleges that he was also filing an “Emergency Grievance” which is defined as “any complaint which, if handled according to the regular time limits required by the inmate grievance system, would subject an inmate to substantial risk of personal injury or to other serious and irreparable harm.” (ECF No. 154-7 at 15). If Plaintiff was attempting to file an Emergency Grievance, the SCDC Grievance Policy states that Emergency Grievances will be considered on a case by case basis by the Branch Chief of the Inmate Grievance Branch. Section 14 of the Grievance policy states that if an issue addressed in a grievance is determined to be an emergency, it will be immediately forwarded to the Warden to conduct whatever investigation is deemed necessary. (ECF No. 154-7 at 11). If it is not deemed to be an emergency, the Inmate Grievance Coordinator will note in his/her response that the grievance was not deemed to be an emergency, and the grievance will be processed in accordance with the procedures applicable to non-emergency grievances. Id. An emergency grievance refers to any complaint which, “if handled according to the regular time limits required by the inmate grievance system, would subject an inmate to substantial risk of personal injury or other serious and irreparable harm. ” (Id. at 15). The Defendants do not address Plaintiff's argument that he filed an emergency grievance and the procedures for an emergency grievance pursuant to policy. Examining the Step One Grievance form Plaintiff submitted with his amended complaint, he identified that he was attempting to file the Step One Grievance as an Emergency Grievance. There is no indication that the grievance was handled as a potential Emergency Grievance. As Defendants have not addressed Plaintiff's argument with regard to Emergency Grievances, it is recommended that summary judgment be denied.
If it is determined that a criminal investigation is not required, the grievance will be processed in accordance with the procedures applicable to non-criminal activity grievances. Id.
Here, Plaintiff filed a Step One grievance dated February 24, 2020, and received February 26, 2020, addressing the February 21, 2020, attack in which he alleges he was physically assaulted by numerous officers before and after being handcuffed. (ECF No. 11 at 21). The grievance was returned because he did not complete an appropriate informal resolution and did not attach an answered RTSM to the grievance. However, as set forth above, SCDC's grievance policy states that if allegations of criminal activity are alleged, “the grievant will complete Form 10-5, Step 1.” (ECF No. 154-7 at 8). The policy states that informal resolution may not be appropriate or possible when the matter involves allegations of criminal activities. Id. See Wilson v. S.C. Dep't of Corr., No. CV 1:17-3032-RMG, 2018 WL 5121996, at *2 (D.S.C. Oct. 22, 2018) (finding that “an RTSM is not required for allegations of criminal conduct.”); Brown v. S.C. Dep't of Corr., No. 2:19-CV-00572-JD, 2021 WL 2201203, at *3 (D.S.C. June 1, 2021) (Informal resolution is not required, however, when “the matter involves allegations of criminal activity.”).
Here, it is undisputed that Plaintiff failed to exhaust by filing a Step One and Step Two Grievance because the Step One grievance form was returned to Plaintiff for failing to attach an RTSM even though he alleged criminal activity of assault by officers. The issue becomes whether the administrative remedies were available to Plaintiff. “[A]n administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008).
As set forth above, in support of their motion for summary judgment, Defendants submitted the affidavit of Felecia Mckie, Chief of the Inmate Grievance Branch for the SCDC, asserting that Plaintiff failed to exhaust his administrative remedies when he did not submit an informal Request to Staff Member with his Step One Grievance form. (ECF No. 154-6 at 3). While Defendants noted that Plaintiff filed a Step One Grievance that was returned, Defendants did not address Plaintiff's argument that because he was alleging criminal activity he was not required to initially attempt to resolve grievances informally by submitting a Request to Staff Member form based on Sections 13.2 and Section 15 of the SCDC Grievance Policy. (ECF No. 154-7 at 8).
Accordingly, based on the record before the court, summary judgment should be denied with regard to this exhaustion issue.
b. Excessive force February 21, 2020
In the amended complaint, Plaintiff alleges officers subjected him to excessive force on February, 21, 2020. Plaintiff asserts that he asked Lt. Anderson-Davenport for a pass to the law library but she began yelling at him and, when he yelled back, she called the first response team. (ECF No. 11 at 14). Plaintiff alleges that the officer began approaching him in the salley-port area and when Plaintiff told Officer Parrish to step back from him, Sgt. Thomas sprayed him in the face area with chemical munitions without justification. Id. Once sprayed, Plaintiff alleges that Officers Thomas, Corley, and Parrish jumped on him and wrestled him down until First Response Officers, Delk, Cleveland, Coaxum, and Henderson, arrived on the scene. Id. Plaintiff alleges that he had already been subdued on the ground by Sgt. Thomas and not resisting when the First Response team arrived. Id. At that point, Sgt. Thomas began to choke him, Officer Delk placed one set of cuffs around his right wrist which was too tight. Id. Officer Henderson placed another set of handcuffs on his left wrist which were also too tight. Id. Once cuffed and lying on the ground, the First Response officers began punching, kicking and stomping Plaintiff in the head, face, side, legs and arms while Sgt. Thomas was sitting on his stomach choking him. Id. After five minutes of beating Plaintiff, the officers stood him up and started ramming his head to the walls and punching him in the body on his upper torso. Id. Williams watched them beat him and made no attempt to stop this. Id. After two minutes of being beat, Delk and Henderson took one set of handcuffs off and placed both of his arms behind his back and secured the other set of handcuffs to both wrists before placing him in two arm locks and taking him to medical. Id. After being seen in medical, Cleveland, Delk and Henderson escorted him to RHU where Lt. Williams, Levels, and Romero were waiting and he was placed in a holding cell. Once thrown into the holding cell, Romero, Delk, and Doe began beating him again while he was in handcuffs. Id. The beating lasted approximately 3- 5 minutes and Lt. Williams and Lt. Levels watched the whole incident without intervening. Id. After beating him, Delk and Romero ripped the clothes off of his back and legs. Id. Plaintiff alleges that he was never treated by medical after the initial visit to decontaminate and be checked after the chemical munitions. Plaintiff alleges that he received pain pills from the nurse at his cell that night but that each time he requested to see medical, medical personnel stated that they had already seen him and his requests to go to an outside hospital were denied by medical.
Applying the law as set forth above with regard to excessive force, a reasonable jury could find that a sustained blast of chemical munitions directly to the face constitutes something more than de minimis force. Dean, 984 F.3d at 303 (citing Greene v. Feaster, 733 Fed.Appx. 80, 81-82 (4th Cir. 2018) (per curiam) (holding that use of pepper spray for “two to three seconds” is sufficient to make out excessive force claim). Additionally, as to the subjective component, the question is whether the officers used force in a “good faith effort” to subdue Plaintiff or maliciously to punish Plaintiff.
Here, Plaintiff alleges that once he was in handcuffs, he was beaten and that after he was placed in the holding cell and still in handcuffs, he was beaten again by the officers. The Defendants have furnished the incident reports completed by Officers Corley, Thomas, Anderson-Davenport, and Parrish asserting the use of chemical munitions was justified. However, Defendants have not submitted any affidavits in support of summary judgment pertaining to Plaintiff's allegations of being beaten while subdued and in handcuffs. The officers assert in the incident reports that chemical munitions were necessary while Plaintiff argues it was not necessary. Further, Plaintiff alleges that he was beaten while fully subdued and nonresistant, beaten while lying on the ground handcuffed, beaten while standing up fully subdued and in handcuffs and while handcuffed in the holding cell.
Plaintiff asserts that the prison video/recordings would support his allegations. However, in response to Plaintiff's discovery requests, Defendants responded that “The Department of Corrections has no archives for the dates, times and locations requested. SCDC aims for a thirty-day retention window, after which the data is overwritten and no longer exists.” (ECF No. 215-1 at 8-12 of 83).
Defendants have not addressed Plaintiff's allegations of excessive force while subdued and while in handcuffs from the incident on February 21, 2020, other than to submit copies of the incident reports pertaining to the use of chemical munitions. Therefore, there are material facts at issue. Thus, viewing the record facts in the light most favorable to the Plaintiff, it is recommended that Defendants' motion for summary judgment with regard to excessive force on February 21, 2020, as to Defendants Thomas, Corely, Parrish, Delk, Henderson, Coaxum, Cleveland, and Anderson-Davenport be denied.
MEDICAL INDIFFERENCE
a. Exhaustion as to Claims of Medical Indifference
Plaintiff further asserts a claim for medical indifference on the part of the officers stemming from the incident of February 21, 2020. In the motion for summary judgment, Defendants raised the affirmative defense of failure to exhaust administrative remedies with regard to medical indifference. Defendants submitted the affidavit of Felecia McKie attesting that Plaintiff submitted a Step One Grievance BRCI-025-20 requesting outside medical care for pain allegedly stemming from injuries sustained during the February 21, 2020. (ECF No. 154-6 at 3). The Step One grievance form was returned to Plaintiff for failure to attach an answer to an informal Request to Staff Member form and was instructed to attach the RTSM form to cure the defect. Id. Plaintiff did not re-file his Step One grievance form with an attached answered RTSM or kiosk reference number with regard to medical care. Id.
In his response to summary judgment, Plaintiff argues that he “informally resolved the denial of medical treatment issue when he first verbally informed Ms. Labrador with mental health.” (ECF No. 189 at 3). Additionally, Plaintiff argues this was raised as an Emergency Grievance so that he was not required to file a RTSM to exhaust. A review of the submitted SCDC Inmate Grievance System Policy does not, as a general matter, exempt emergency grievances from the requirement of a RTSM. Section 13.2 of the Policy states that “in certain cases, informal resolution may not be appropriate or possible (e.g., when the matter involves allegations of criminal activity).” Thus, there is no language in the SCDC grievance policy before this court to support Plaintiff's contention.
Accordingly, Plaintiff has failed to exhaust his administrative remedies and summary judgment should be granted in reference to this exhaustion issue. See e.g, Robinson v. Carpenter, No. CV 5:18-2175-BHH, 2019 WL 4393988, at *2 (D.S.C. Sept. 13, 2019).
Even if it this issue was found to be exhausted due to unavailable administrative remedies or excused for non-exhaustion, the claim would fail. Plaintiff admits in the Grievance form and in the amended complaint that he was taken to medical after being sprayed with chemical munitions and was seen by a nurse who helped him wash off the chemical munitions. Plaintiff also admits to seeing medical/mental health on the day of the incident, mental health for several days in a row after the incident, and receiving pain medication from a nurse the night of the incident even though he may not have received the treatment of his choice, outside care.
Any claims of medical indifference on the part of the officers fail. 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 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 non-medical personnel. The Plaintiff's pleadings, grievance forms, and medical records clearly show that Plaintiff was seen and treated by Nurse Collins immediately after the incident and allowed to wash off the chemical munitions. Based on allegations and the medical records, Plaintiff was seen later that day by mental health personnel and medical personnel and given pain medication. While Plaintiff may have been denied the treatment of his choice, to go to the hospital, 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 of treatment)). Additionally, the medical records reveal that Plaintiff was seen several times by mental health the week following the February 21, 2020, incident. (ECF No. 159). 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 these Defendants. Accordingly, summary judgment should be granted with respect to this claim of medical indifference.
CONCLUSION
Accordingly, it is recommended that Defendants' motion for summary judgment (ECF No. 154) be granted in part and denied in part. It is recommended that the motion be denied with respect to the claims of excessive force on June 19, 2019. Further, it is recommended that the motion for summary judgment as to Defendants Thomas, Corley, Parrish, Delk, Henderson, Coaxum, Cleveland, and Anderson-Davenport be granted as to the claim of medical indifference but denied as to the claim of excessive force on February 21, 2020.
Based on this court's finding of issues of material fact recommending denial of Defendants' motion for summary judgment as to the June 19, 2020, and February 21, 2020, claims of excessive force, this court will not address the Defendants' argument for qualified immunity, punitive damages, and state law claims.
The parties' attention is directed to the important notice on the next page.