Opinion
8:21-cv-03328-TLW-JDA
02-07-2023
DeVaughn Howell, a/k/a DeVaughn LeRon Howell, Plaintiff, v. Captain Jordan Williams, Sargent Dustin Cragg, Major Carol Holmes, Captain Debo, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on a motion for summary judgment filed by Defendants. [Doc. 51.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), the undersigned magistrate judge is authorized to review all pretrial matters in this case.
Plaintiff, proceeding pro se and in forma pauperis, brought this action on October 7, 2021, pursuant to 42 U.S.C. § 1983. [Doc. 1.] On April 28, 2022, Defendants filed their summary judgment motion. [Doc. 51.] The next day, the Court issued an Order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and of the possible consequences if he failed to adequately respond to the motion to dismiss. [Doc. 52.] On May 4, May 16, and May 20, 2022, the Clerk docketed responses from Plaintiff in opposition to the summary judgment motion as well as additional attachments. [Doc. 54; 56; 58.] Defendants' motion is now ripe for review.
A prisoner's pleading is consered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on October 7, 2021, the date that Plaintiff delivered the Complaint to the Lieber Correctional Institution mailroom for forwarding to this Court. [Doc. 1-1 at 1 (envelope stamped as received at the Lieber mailroom on October 7, 2021).]
Plaintiff titled Docket Entry 54 as “Response to Motion to take Deposition of person Confined in prison.” [Doc. 54 at 1.]
BACKGROUND
In ruling on a motion for summary judgment, this Court reviews the facts and reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007); see also Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013). Viewed in the light most favorable to Plaintiff, the summary judgment record reveals the following facts.
On September 9, 2021, Plaintiff was housed in the Edisto Unit of Lieber Correctional Institution (“Lieber”). [Docs. 51-2 at 2-3; 51-4 ¶ 4.] He d not like the Edisto Unit and referred to it as a “locked down unit,” in which prisoners were not allowed out for recreation and were allowed to shower only once per week. [Doc. 51-2 at 3.] On September 9, 2021, Plaintiff told a Lieber officer that he “was going to commit suice if [he d] not speak to anyone.” [. at 4; see Doc. 51-4 ¶ 5.]
Plaintiff was taken to the medical unit, where he met and talked with Ms. Birch with Defendant Captain Jordan Williams also present. [Doc. 51-2 at 4-6.] Plaintiff reported that he was “having a mental breakdown” and “a crisis moment.” [.] He told Birch that he d not want to return to Edisto and added, “I will kill myself when I get back to Edisto dorm. I mean it this time.” [. at 9-10; 51-4 ¶ 6.] Thereafter, Birch ordered that Plaintiff be taken for Crisis Observation (“CO”) and placed in a one-on-one supervision cell in the Restricted Housing Unit (“RHU”). [Doc. 51-4 ¶ 7.]
Williams began escorting Plaintiff to the RHU. [Doc. 51-2 at 11.] However, Plaintiff stopped on the way and tried to explain to Williams that he d not want to go. [. at 12.] When he felt that he was not being listened to, he got frustrated and “a little angry,” and he began yelling at Williams, balled up his fists, attempted to take off his shirt, and lunged at Williams. [.; Docs. 51-4 ¶ 8; 51-6 ¶¶ 6-7; 51-8; 51-9 ¶ 7.] Plaintiff is a large man and he had a history of “act[ing] out of control,” having “bucked a few times before on officers.” [Doc. 51-2 at 17.] Williams consered that Plaintiff presented “a very serious threat of harm” who had the potential to seriously injure Williams or his fellow staff if they could not control Plaintiff and he overpowered them. [Doc. 51-4 ¶ 15.] Williams called “Team A,” which responds to emergencies, such as “when inmates appear ready to fight and/or are refusing verbal commands to get in order.” [. ¶¶ 9-10; Docs. 51-2 at 16; 51-9 ¶¶ 5-6.]
Unlike with planned uses of force, such as cell extractions, Team A responses are not veotaped due to their sudden and emergent nature. [Doc. 51-4 ¶¶ 11-12.] However, if force is used during a Team A response, Lieber typically veotapes the post-use-of-force time frame. [. ¶ 12.]
Defendant Sergeant Dustin Cragg was the first to respond, and he pushed Plaintiff against a wall, handcuffed him, and took him to the ground. [Doc. 51-2 at 12-13, 28.] Defendant Major Carol Holmes also arrived on the scene, and she sprayed Plaintiff with a burst of chemical munitions while he was on his way to the ground (“the First Spray”). [. at 13-14.] At that point, Plaintiff ceased resisting, struggling, kicking, or cursing. [. at 7, 14, 15, 17.] He lay on his stomach on the floor with Cragg holding him down and pressing down on his back with a knee or other body part. [. at 7, 19, 28.] There were a total of five or six officers on the scene. [. at 19.] Nonetheless, Williams directed Holmes to spray Plaintiff again “in the nose,” and Holmes “got up close and personal and sprayed” chemical munitions up into his nose (“the Second Spray”). [. at 7, 14, 15, 19, 24-25, 27.] The total amount of munitions in the two sprays was eight grams. [Doc. 51-9 ¶ 12.] The Second Spray “hit [Plaintiff] hard.” [Doc. 51-2 at 15.] Afterwards, he could not breathe, mucous was coming out of his nose, and tears were coming out of his eyes. [.]
According to Cragg and Williams, they attempted to calm Plaintiff down but he refused to calm down or submit to restraints. [Docs. 51-4 ¶ 13; 51-8.]
Plaintiff testified that the cap of the chemical munitions sprayer actually touched his nose. [Doc. 51-2 at 27.]
Defendants offer a different version of events, in which Plaintiff continued to struggle and resist even when he was on the ground, Holmes d not spray Plaintiff until he was on the ground, and it was only a single spray of chemical munitions by Holmes that caused Plaintiff to stop struggling and allowed the officers to handcuff Plaintiff. [Docs. 51-4 ¶ 14-16; 51-6 ¶¶ 8-9; 51-8; 51-9 ¶¶ 7-11.] However, in analyzing Defendants' summary judgment motion, the Court must accept Plaintiff's testimony as true. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Hupp v. Cook, 931 F.3d 307, 315 n.3 (4th Cir. 2019).
Plaintiff was immediately taken to medical, where he rinsed his face and eyes several times in the eye-wash station and a nurse dabbed his face with a towel and applied an aloe-like soap to his face. [V 0:00-1:50; Docs. 51-2 at 21; 51-4 ¶ 19; 51-6 ¶¶ 10-11; 51-9 ¶ 14.] Plaintiff d not have any cuts or open wounds and was not bleeding, and the nurse cleared him to be transferred. [V 0:00-2:02; Doc. 51-6 ¶¶ 12, 14.]
While Plaintiff was at the eye-wash station, the officers were using a hand-held veo camera to record their interactions with Plaintiff. [Doc. 51-4 ¶ 20.] The veo recording is in the record, and citations to the veo are in the form [V x:xx-x:xx]. Williams represented in his affavit that the recording began when Plaintiff was at the eye-washing station and that Cragg, who is a man, was holding the camera. [Doc. 51-4 ¶ 20.] Plaintiff testified, however, that “there was a lady holding up a hand-held camera” when he was taken down to the floor and sprayed with chemical munitions. [Doc. 51-2 at 13.]
With Plaintiff's uniform contaminated with chemical munitions, the officers deced to take Plaintiff's uniform off and replace it with one for suical inmates who will be housed in the CO. [Doc. 51-4 ¶ 23.] Accordingly, Plaintiff was then taken to RHU where he was placed in the corner of a small room with the door partially open. [V 5:04-8:24; Doc. 51-2 at 7-8, 22.] With his hands still handcuffed behind his back, Plaintiff was facing the corner and the events were still being recorded with the camera. [V 5:04-8:24.] Defendant Captain Debo, who, like Williams is male, removed Plaintiff's shirt and then his pants and underwear, and then put the new uniform on him, so that Plaintiff was naked for only “a couple of seconds.” [V 5:04-8:24; Doc. 51-2 at 23, 25-26.] Because he was facing the wall, Plaintiff had only his bottom exposed to Debo and Williams and during the time Plaintiff was changing clothes, Debo and Williams stood between Plaintiff and the person holding the camera. [V 5:04-8:24.] At Debo's request, the camera was aimed above Plaintiff's waist. [V 5:23-8:24.]
The court also consered an argument by Hobgood that Dean “failed to establish a sufficiently serious use of force under the Eighth Amendment's objective component, primarily because officers sought to decontaminate Dean's eyes after the pepper spraying.” Dean, 984 F.3d at 303. The court held that because the officers' decontamination effort came after the use of force, it could bear on the issue of Dean's injuries, but it d “not affect the nature of the force itself,” which “is the focus of the objective component.” . The court stated that it “ha[d] no trouble concluding . . . that a reasonable jury could find that a sustained blast of pepper spray directly to the face constitutes something more than de minimis force.” .
Plaintiff's Complaint alleges that Defendants violated his Eighth and Fourteenth Amendment rights by using excessive force against him on September 9, 2021. [Doc. 1 at 9.] Plaintiff further alleges that his rights were violated when he was subsequently forced to strip naked in front of male and female officers and when he was placed in a cell right next to one in which an inmate had previously committed suice. [. at 8.] Plaintiff also asserts claims for defamation, medical negligence, emotional distress, mental anguish/mental torture, and pain and suffering. [. at 4.]
For his injuries, Plaintiff contends that both of his wrists were swollen after the incent and that he has experienced PTSD. [. at 11.] For his relief, Plaintiff seeks reimbursement for his medical costs an award of damages in the amount of $300,000. [.] Plaintiff asserts his claims against Defendants purportedly in their indivual capacities and official capacities. [. at 2-3.] However, on July 6, 2022, the Court dismissed Plaintiff's official-capacity claims. [Doc. 66; see Doc. 29.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a val claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under § 1983
This action is filed pursuant to 42 U.S.C. § 1983, which proves a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 “‘is not itself a source of substantive rights,' but merely proves ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, a civil action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
Section 1983 proves, in relevant part,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant “deprived [the plaintiff] of a right secured by the Constitution and laws of the United States” and (2) that the defendant “deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage.” Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
The under-color-of-state-law element, which is equivalent to the “state action” requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by
governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of indivual freedom by limiting the reach of federal law and avos imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, “the deed of an ostensibly private organization or indivual” may at times be treated “as if a State has caused it to be performed.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Specifically, “state action may be found if, though only if, there is such a ‘close nexus between the State and the challenged action' that seemingly private behavior ‘may be fairly treated as that of the State itself.'” . (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). State action requires both an alleged constitutional deprivation “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible” and that “the party charged with the deprivation [is] a person who may fairly be sa to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party's allegedly unconstitutional conduct is fairly attributable to the State requires the court to “begin[ ] by entifying ‘the specific conduct of which the plaintiff complains.'” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evence offered is such that a reasonable jury might return a verdict for the non-movant. . at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. . at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. . Under this standard, the existence of a mere scintilla of evence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. . at 248. “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.” . Further, Rule 56 proves in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Qualified Immunity
Qualified immunity protects government officials performing discretionary functions from civil damage suits as long as the conduct in question does not “violate clearly established rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, qualified immunity does not protect an official who violates a constitutional or statutory right of a plaintiff that was clearly established at the time of the alleged violation such that an objectively reasonable official in the official's position would have known of the right. . Further, qualified immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
“In determining whether an officer is entitled to summary judgment on the basis of qualified immunity, courts engage in a two-pronged inquiry.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015). The first concerns whether the facts, viewed in the light most favorable to the plaintiff, demonstrate that the officer's conduct violated a federal right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). The second “asks whether the right was clearly established at the time the violation occurred such that a reasonable person would have known that his conduct was unconstitutional.” Smith, 781 F.3d at 100. For purposes of this analysis, a right is “clearly established” if “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
District court judges are “permitted to exercise their sound discretion in decing which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). If a court deces in the negative the first prong it consers-i.e., the court deces the plaintiff has not alleged the deprivation of an actual constitutional right or the right was not clearly established at the time of the alleged violation-the court need not conser the other prong of the qualified immunity analysis. See . at 243-45; Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991) (holding the court “need not formally resolve” the constitutional question of “whether the [plaintiffs] were arrested without probable cause” to address the plaintiffs' § 1983 claim; the court stated that it “need only determine whether [the defendant]-a deputy sheriff performing within the normal course of his employment-acted with the objective reasonableness necessary to entitle him to qualified immunity”).
DISCUSSION
Defendants argue they are entitled to summary judgment on all of Plaintiff's claims. [Doc. 51-1.] In his deposition, Plaintiff explained the alleged conduct of each Defendant that were the basis of his claims. [Doc. 51-2 at 24-28.] The Court will address each of Plaintiff's claims.
Excessive Force Claim (Cragg, Williams, and Holmes)
The use of excessive force upon an inmate by correctional officers violates the Eighth Amendment's prohibition against cruel and unusual punishment. Hudson v. McMillian, 503 U.S. 1, 5 (1992). To state an excessive force claim, an inmate must show (1) that the correctional officers acted with a sufficiently culpable state of mind and (2) that the harm inflicted on the inmate was sufficiently serious. Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). The subjective component requires the inmate to demonstrate the officer applied force not “in a good faith effort to maintain or restore discipline,” but rather applied force “maliciously and sadistically for the very purpose of causing harm.” Hudson, 503 U.S. at 6-7 (internal quotation marks omitted).
Defendants boldly claim that “[c]ourts within the Fourth Circuit have repeatedly held that small amounts of chemical munitions cannot be deemed constitutionally excessive.” [Doc. 51-1 at 13 (emphasis added).] But three of the four cases Defendants cite simply held that the amount of force employed in the particular case, where there was a reason justifying employment of munitions, was within constitutional bounds. See Coleman v. Pate, No. 8:16-cv-0709-DCN-JDA, 2017 WL 9292266, at *7 (D.S.C. Jan. 31, 2017) (“The undisputed evence in the record establishes that Plaintiff's kicking the door and refusing to obey [the officer's] orders to stop kicking the door necessitated the use of chemical munitions.”), Report and Recommendation adopted in part by 2017 WL 1190877 (D.S.C. Mar. 31, 2017); Kemp v. Drago, No. 1:12-1481-JFA-SVH, 2013 WL 4874972, at *7 (D.S.C. Sept. 11, 2013) (“[T]he use of force appears justified as Plaintiff was ordered to stop being disruptive, but failed to comply.”); Robinson v. SCDC, No. 5:10-2593-HMH-KDW, 2012 WL 851042, at *7 (D.S.C. Mar. 13, 2012) (“Robinson concedes that he was involved in a verbal altercation with [an officer on one occasion and does] not dispute that he defied prison officials' orders to stop” other behaviors on two other days). In the fourth case, Plummer v. Goodwin, No. 8:07-2741-TLW-BHH, 2010 WL 419927 (D.S.C. Jan. 29, 2010), the court granted summary judgment based on the fact that the plaintiff had not created a genuine issue of material fact regarding whether any injury he suffered was caused by the chemical spray and because any injury was de minimis in any event. . at *6-7. That case was deced under the then-current rule, which is no longer val in this circuit, that a plaintiff was required to prove more than a de minimis injury to prevail on an excessive force claim. See . at *6 (citing Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir. 1994)); Ussery v. Mansfield, 786 F.3d 332, 336 (4th Cir. 2015) (noting that Norman was abrogated by Wilkins v. Gaddy). Defendants quote language from a footnote in Plummer, wherein the court noted that “the Fourth Circuit has held that the United States Constitution permits small quantities of pepper spray, or mace, to be used to control recalcitrant inmates” and the court stated that the amount at issue in Plummer-33.50 grams-“would be consered a relatively small quantity and not constitutionally relevant.” Plummer, 2010 WL 419927, at *7 n.4. The context of the language indicates that the court was commenting on whether the use of such a relatively small amount of spray would be unconstitutional when “used to control recalcitrant inmates,” not when used to retaliate maliciously. Even were the significance of this language ever in doubt, however, that doubt was put to rest in Brown. In that case, the court denied the officer's summary judgment motion in a case in which the officer sprayed the prisoner with 12 grams of mace when, according to the prisoner, he had been banging and kicking on his cell door but had stopped as the officer approached. Brown, 2015 WL 5781504, at *2-4. In so doing, the court explained that cases such as Robinson and Plummer “should not be read to suggest that, as a matter of law, there is a quantity of mace that can be sprayed into a prisoner's face without adequate justification.” . at *3.
Officers employ force in good faith “not only when they confront immediate risks to physical safety, but also when they attempt to preserve internal order by compelling compliance with prison rules and procedures.” Brooks v. Johnson, 924 F.3d 104, 113 (4th Cir. 2019) (internal quotation marks omitted). In contrast, officers employ force “‘maliciously' and for the ‘very purpose of causing harm,' . . . when they inflict pain not to induce compliance, but to punish an inmate for intransigence or to retaliate for insubordination.” . Given the difficulty in obtaining direct evence of motive, in Whitley v. Albers, 475 U.S. 312 (1986), the Supreme Court set out factors from which such a malicious motive may be inferred. See Brooks, 924 F.3d at 116. The Fourth Circuit has entified those factors as:
(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 v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008) (noting that this list of factors is nonexclusive); see Brooks, 924 F.3d at 116.
In contrast to the subjective component, the objective component of an excessive force claim is not nearly as demanding to establish because “[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated . . . whether or not significant injury is event.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). Nevertheless,
not every malevolent touch by a prison guard gives rise to a federal cause of action. The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, proved that the use of force is not of a sort repugnant to the conscience of mankind. An inmate who complains of a push or shove that causes no discernible injury almost certainly fails to state a val excessive force claim.. at 37-38 (internal citations and quotation marks omitted).
Eight grams represented the total amount of chemical munitions used by Holmes against Plaintiff. [Doc. 51-9 ¶12 (Holmes's affavit stating that eight grams were used in Holmes's “attempt to maintain and restore order”).]
The Court now consers the allegations against Cragg, Holmes, and Williams.
The Initial Takedown
Plaintiff testified that, following Williams's call for Team A, Cragg “br[ought Plaintiff] to the wall,” handcuffed him, took him to the ground, and “put his knee on [Plaintiff's] back.” [Doc. 51-2 at 28.] Plaintiff offered no specific criticism in his deposition of either Cragg's decision to do any of these things or the manner in which he d them. [.] In fact, Plaintiff specifically testified that it felt to him when Cragg was handcuffing him that Cragg was doing so “regularly” and that the cuffs d not feel too tight. [.] Nonetheless, based on the fact that Plaintiff came to believe afterwards that his wrists were injured during the confrontation, Plaintiff concluded that Cragg “had to [have] do[ne] something wrong” in the manner that he handcuffed him. [. at 28-30.]
Defendants argue that there is no basis by which a jury, consering the Whitley factors, could find that Cragg acted with malice. [Doc. 51-1 at 10-11.] The Court agrees. As for the first and third factors, concerning the need for force and the threat presented, Plaintiff was angry and refusing to comply with the officers' instructions, and he had yelled at Williams and lunged at him. [Docs. 51-2 at 12; 51-4 ¶¶ 8, 13; 51-6 ¶¶ 6-7; 51-9 ¶ 7.] Especially given that Plaintiff is a large man with a history of “act[ing] out of control” [Doc. 51-2 at 17], there was a clear need for the use of force and a significant threat to Plaintiff and the officers if they d not quickly get Plaintiff under control and end the possibility of a damaging confrontation. Regarding the second Whitley factor, the relationship between the need and the amount of force applied, no jury could reasonably find that the force Cragg used in neutralizing the threat to all parties was indicative of malicious intent. Indeed, when Plaintiff was asked at his deposition what was improper about Cragg's response, Plaintiff cited only the fact that his wrists were swollen afterwards. [Doc. 51-2 at 28-30.] Even assuming that his wrists were injured during Cragg's use of force against him, the mere occurrence of the injury does not create an inference that the force was disproportionate to the need. See Wilkins, 559 U.S. at 37-38 (“The core judicial inquiry” under the Eighth Amendment is “not whether a certain quantum of injury was sustained . . . . Injury and force . . . are only imperfectly correlated, and it is the latter that ultimately counts.” (internal quotation marks omitted)). Given the clear need for force and the lack of any indication that Cragg used more force than was needed, Plaintiff has not forecasted evence on which a jury applying the Whitley factors could infer that Cragg acted out of an intent to retaliate against Plaintiff rather than out of a good-faith effort to gain control the situation and protect all parties from the possibility of a significant injury.
Defendants point out that Williams was Holmes's subordinate and, thus, they contend she would not have been required to follow an order from him. [Doc. 51-1 at 17.] From the fact that Holmes was not required to do what Williams asked, however, it does not follow that she d not choose to take the action that he requested. Whether Holmes heard Williams's request and chose to grant it is a question for a jury.
Accordingly, the Court recommends that summary judgment be granted as to Cragg on Plaintiff's excessive force claim.
The Second Spray
The Constitutional Violation
Plaintiff testified that Holmes and Williams used excessive force in spraying him with chemical munitions. [Doc. 51-2 at 27.] He made clear in his testimony that it was the Second Spray and not the First Spray that is the basis for his claim. [. at 19, 27-28.] He argues that by the time of the Second Spray, he had completely ceased resisting and he was handcuffed and being held on the ground. [Docs. 54 at 3; 56 at 2-3.] He maintains that, under those circumstances, Williams' request that Holmes subject him to the Second Spray and Holmes's decision to do so violated his Eighth Amendment rights. [Docs. 54 at 3; 56 at 2-3.]
As noted, Plaintiff testified that one of the officers responding when Team A was called was “a lady holding up a hand-held camera.” [Doc. 51-2 at 13.] Plaintiff testified, “I really think there was a woman still at the door watching me as [I was] getting naked. Holding a hand-held camera. Veotaping everything that's going on.” [. at 8.] On the other hand, Williams represented in his affavit that “[t]he officer who was holding the handheld camera was Cragg, and he is a man” and that at no point was there a female present in the room. [Doc. 51-4 ¶¶ 21, 24.]
On the other hand, Defendants argue that a jury applying the Whitley factors to the forecasted evence could not reasonably find that Holmes or Williams acted for retaliatory reasons. [Doc. 51-1 at 11-15.] They argue that Holmes perceived a threat of injury to Plaintiff and the officers, that Plaintiff was continuing to resist, and that the small amount of chemical munitions she used was commensurate with the need for force and d not cause Plaintiff “any injury other than the typical issues associated with being sprayed with chemical munitions.” [.] Defendants additionally maintain that Williams cannot be held liable under a theory of bystander liability. [. at 17-18.] Finally, Defendants maintain that, even assuming Plaintiff forecasted evence of a constitutional violation, Defendants are entitled to qualified immunity because a reasonable officer would not have recognized that use of the small amount of chemical munitions employed would be excessive given that the officers faced an angry, suical inmate who was refusing lawful commands. [. at 14-17.]
In Bell v. Wolfish, 441 U.S. 520 (1979), the court held that, in consering the constitutionality of a search, a court should conser the following factors: the scope of the challenged intrusion, the manner in which the intrusion was conducted, the justification for the intrusion, and the place where it was conducted. See Bell, 441 U.S. at 559.
Defendants' arguments notwithstanding, the Court agrees with Plaintiff that Holmes and Williams are not entitled to summary judgment regarding the Second Spray. The Fourth Circuit's recent case of Dean v. Jones, 984 F.3d 295 (4th Cir. 2021), is instructive. In that case, as relevant here, the facts, viewed in the light most favorable to the non-movant, showed that a correctional officer (“Hobgood”) was escorting a prisoner (“Dean”) back to his cell after Dean had been given a haircut. . at 299. During the walk, Dean head-butted Hobgood, causing him to fall. . A second officer (“Gipson”) promptly subdued Dean, and “Dean ended up lying on his back with his arms handcuffed beneath him, while [Gipson], on top of him, pressed his knees into Dean's chest.” . At that point, Dean was no longer resisting. . Nonetheless, “Hobgood got to his feet and administered one long burst of pepper spray to Dean's face, lasting over 3 seconds” and “partially blinding him.” . (alterations and internal quotation marks omitted).
Plaintiff's claims for emotional distress and mental anguish/mental torture appear to be based in part on his allegation that he was forced to stay in a cell near where an inmate had previously committed suice. [Doc. 1 at 8.]
Reviewing Hobgood's entitlement to summary judgment on Dean's Eighth Amendment claim against Hobgood for excessive force, the court consered Hobgood's argument that Dean could not “satisfy the subjective component, because any reasonable jury would have to find that Hobgood used force only to protect officer safety in the wake of Dean's head-butt, and not ‘maliciously' to punish Dean.” . at 303. The court held, however, that a reasonable jury crediting Dean‘s account could conclude, based on the Whitley factors, that Hobgood had acted with malice in spraying Dean. . at 304-06. The court explained:
In Plaintiff's second response opposing summary judgment, Plaintiff argues that he is entitled to discovery of veo evence both of Defendants' taking him down and spraying him with chemical munitions and of Defendants' time in his cell in the RHU. [Doc. 56 at 5-6.] “The Court may defer consering a motion for summary judgment ‘[i]f a nonmovant shows by affavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.'” Keith v. Cartledge, No. 1:13-1131-RMG, 2014 WL 3867838, at *1 (D.S.C. Aug. 6, 2014) (citing Fed.R.Civ.P. 56(d)). “To be successful on a Rule 56(d) request, a party must prove specific reasons why discovery was necessary and entify information that he believes would be adduced at discovery.” . Summary judgment should be denied or deferred when “the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250 n.5 (discussing precursor to Rule 56(d)). On the other hand, “if the nonmoving party has not been diligent in pursuing discovery or if additional discovery will not create a genuine issue of material fact, a Rule 56(d) motion is properly denied.” Keith, 2014 WL 3867838, at *1. Here, the Court has credited Plaintiff's account of the relevant events in analyzing Defendants' entitlement to summary judgment. Accordingly, Plaintiff has not shown that the evence he claims entitlement to obtain in discovery would create a genuine issue of material fact. Thus, the undersigned recommends that the Court address the merits of the summary judgment motion.
[I]t is ‘well-established . . . that officers may not use gratuitous force against a prisoner who has already been subdued . . . [or] incapacitated.” Thompson[ v. Virginia, 878 F.3d 102, 104 (4th Cir. 2017)] (alterations in original) (internal quotation marks omitted). And when officers do use force-including pepper spray-against a formerly recalcitrant inmate after he has been subdued, then a reasonable jury may infer that the force was applied not for protective reasons but instead to retaliate or punish.” See Iko, 535 F.3d at 239-40 (holding that deployment of pepper spray after inmate is lying on the floor
restrained may give rise to inference that force was not employed protectively); see also Brooks, 924 F.3d at 116 (holding that improper motive could be inferred in part from fact that inmate was subjected to taser shocks while “handcuffed and surrounded by officers”).. at 304-05 (first alteration in original). The court further explained that the fact that Hobgood's use of pepper spray “came ‘almost immediately after' Dean's head-butt” was not dispositive despite the court's recognition that “the decision to use force often involves ‘split-second judgments' made under tense and difficult circumstances, and that ‘due deference' is owed to correctional officers' efforts to protect their own and others' safety.” . at 305. The court emphasized that the fact that force may have been justified a moment before it was employed-just after Dean head-butted Hobgood-was not sufficient to warrant summary judgment against Dean because the court had previously “made clear that the justification for using protective force expires at the very moment a threat is neutralized.” .; see also Brooks, 924 F.3d at 114 (explaining that “even where an initial use of force does not by itself raise questions about a corrections officer's intent under Whitley, the continued application of force may give rise to an inference that force was used for malicious or punitive purposes”).
The court also concluded that the fourth Whitley factor-efforts to temper the severity of a forceful response-d not favor Hobgood despite the other officers' efforts to decontaminate Dean after application of the spray. Dean, 984 F.3d at 304 n.4. As is relevant here, the court reasoned that “[w]hether other officers sought to decontaminate Dean's eyes after the pepper-spraying has no bearing on whether Hobgood tempered his response, and it is Hobgood's state of mind that is at issue.” . (emphasis in original).
The same principles that governed in Dean dictate in the present case that Plaintiff has created a genuine dispute of material fact as to whether Holmes and Williams acted with malice in regard to the Second Spray. Plaintiff forecasted evence that, by the time of the Second Spray, he had completely stopped resisting, his hands were handcuffed behind his back, he was lying on his stomach, Cragg was on top of him holding him down, and several other officers were on the scene. [Doc. 51-2 at 7, 13-15, 17, 19, 27, 28.] Based on that evence, a jury applying the Whitley factors could reasonably infer that Holmes and Williams were attempting to retaliate against Plaintiff because of his recalcitrance rather than making a good-faith effort to get him to follow instructions. See Dean, 984 F.3d at 304-06; Boone v. Stallings, 583 Fed.Appx. 174, 176 (4th Cir. 2014) (“[I]f a jury were to believe [the prisoner's] allegation that he was on the ground, already restrained in handcuffs when [the officer] deployed the pepper spray, the jury could conclude that [the prisoner] was subjected to unconstitutionally excessive force.”).
Specifically, concerning the first and third Whitley factors, because Plaintiff was fully restrained and had ceased resisting, the jury could reasonably find that there was no further need for application of force and no continuing threat to the safety of staff and inmates. See Brooks, 924 F.3d at 116 (concluding that a reasonable jury could conclude that the third Whitley factor favored the prisoner when the prisoner “was handcuffed and surrounded by officers, and presented ‘no immediate physical safety risk'”). Defendants argue that the second Whitley factor-the relationship between the need for force and the amount of force used-weighs in their favor because the total amount of munitions Holmes used was relatively small. [Doc. 51-1 at 13-14.] But Defendants fail to appreciate that, with Plaintiff fully restrained and no longer resisting, a jury could find that any spray of chemical munitions, particularly those sprayed directly into Plaintiff's nose, was motivated by a desire by Holmes and Williams to retaliate against Plaintiff for his yelling at, disobeying, and lunging at Williams. See Dean, 984 F.3d at 304-06; see also Brooks, 924 F.3d. at 115-16 (explaining that a reasonable jury could view the prisoner's recent provocations against the officers as lending support to the inference that the force employed against the prisoner was retaliatory rather than to restore order and obtain compliance). Indeed, the facts are arguably stronger for Plaintiff regarding the first three Whitley factors than they were for Dean in that Dean had actually head-butted Hobgood so hard that he knocked him to the floor, Dean, 984 F.3d at 299, whereas here, Plaintiff had not actually struck anyone.
Regarding the fourth Whitley factor, concerning “efforts made to temper the severity of a forceful response,” the forecasted evence differs as to Williams and Holmes. As for Williams, he stated in his affavit that he and Cragg had “attempted to calm [Plaintiff] down and tried to attempt conflict resolution” before Cragg took Plaintiff to the ground and Holmes sprayed him with chemical munitions. [Doc. 51-4 ¶¶ 13-16.] Additionally, after the Second Spray, several officers, including Williams, escorted Plaintiff to medical and allowed him some time to decontaminate his face, and the officers also changed his uniform. [V 0:00-1:50, 5:04-8:24; Docs. 51-4 ¶¶ 19, 23; 51-6 ¶¶ 10-11; 51-9 ¶ 14.] However, they d not allow him to take a shower to get remainder of the chemicals off his body. [Doc. 51-2 at 15.] These are all facts that a jury could conser as to Williams concerning the fourth Whitley factor, but they are not so favorable to Williams that a jury would be precluded from finding that Williams acted out of a desire to retaliate when he directed Holmes to administer a second spray right into Plaintiff's nose. Cf. Brooks, 924 F.3d at 117 (concluding that it would be proper for a jury to conser that officers took seven and a half minutes attempting to reason with the prisoner before employing force but that “the ultimate inferences to be drawn from this Whitley factor” were “not so plain that they [could] be resolved as a matter of law at” the summary judgment stage); Brown v. Eagleton, No. 4:14-cv-0357-BHH, 2015 WL 5781504, at *2-4 (D.S.C. Sept. 30, 2015) (denying defendants' summary judgment motion even though the prisoner was seen by a nurse soon after being sprayed with chemical munitions).
Regarding the fourth Whitley factor as it relates to Holmes, the actions of the other officers have no bearing on whether Holmes tempered the severity of her force response.See Dean, 984 F.3d at 304 n.4. However, a jury could conser that Holmes tempered the severity of the Second Spray by using no more than eight grams of chemical munitions [Doc. 51-9 ¶ 12, which is a relatively small amount, see, e.g., Townsend v. Anthony, No. 0:03-2528, 2006 WL 2076920, at *9 (D.S.C. July 24, 2006) (describing 20 grams as “a small amount”). See Lake v. Gardener, No. 0:17-655-DCC-PJG, 2018 WL 7820958, at *3 (D.S.C. Aug. 21, 2018) (reasoning that the fact that officer used only 24 grams of spray could be consered by a jury to be an effort by the officer to temper the severity of the forceful response), Report and Recommendation adopted by 2019 WL 580975 (D.S.C. Feb. 13, 2019). Nonetheless, given that a reasonable jury could find that Plaintiff was already restrained and compliant prior to application of the Second Spray, and thus that no additional spray was needed, Holmes's use of a relatively small amount of spray would not preclude a finding that she acted with malicious intent. Cf. Brown, 2015 WL 5781504, at *3 (holding that the fact that an officer used only 12 grams of chemical munitions would not foreclose a reasonable jury from finding that the officer acted with malicious intent).
Defendants also suggest that even if Plaintiff forecasted evence sufficient to create a fact issue as to both officers' malicious intent, he d not forecast evence that Williams, who d not spray the munitions, violated his rights. [Doc. 51-1 at 17.] The Court disagrees.
“Constitutional torts . . . require a demonstration of both but-for and proximate causation.” Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012). To establish liability under 42 U.S.C. § 1983, a plaintiff is required to show that the defendant “acted personally” to cause the constitutional violation. Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (internal quotation marks omitted). An officer may be held liable for the conduct of his fellow officer when “he intentionally participated in conduct constituting a violation of [the plaintiff's] rights even if he d so ‘in a manner that might be sa to be “indirect”-such as ordering or helping others to do the unlawful acts, rather than doing them him[self].'” Smith v. Jacko, No. 2:16-655-BHH, 2019 WL 4162376, at *7 (D.S.C. Sept. 3, 2019) (denying a motion for directed verdict as to an officer for an unlawful search when, although the officer d not enter the home, his actions “were integral to a continuous chain of events that resulted in law enforcement's forceful, warrantless entry into [the plaintiff's] home”) (quoting Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001)); see also Hodge v. City of N. Charleston, No. 2:20-cv-02560-DCN-MGB, 2021 WL 960508, at *3 (D.S.C. Mar. 15, 2021) (“Officials who have ‘played key roles' in an alleged violation, such as by ‘authoriz[ing]' or ‘seeking and recommending approval' of the actions at issue may be subject to liability under § 1983.”).
Here, Defendants do not directly argue that Williams d not “act[] personally” to cause Holmes to administer the Second Spray. However, they do contend, in the context of an argument that Williams cannot be liable under a bystander-liability theory, that Holmes d not hear any request from Williams to spray Plaintiff a second time. [Doc. 51-1 at 17; see Doc. 51-9 ¶ 13.] To the extent that this amounts to an argument that Plaintiff has failed to forecast evence creating a genuine dispute of material fact as to whether Williams's request was a but-for cause of the Second Spray, the Court concludes that Plaintiff has forecasted sufficient evence. Defendants' argument notwithstanding, a reasonable jury could credit Plaintiff's testimony that Williams asked Holmes to administer a second spray directly into Plaintiff's nose, and from the fact that Holmes d just that-even touching Plaintiff's nose with the sprayer [Doc. 51-2 at 27]-the jury could conclude that she heard Williams's request and reacted to it. A jury could also reasonably find that it is more likely than not that Holmes would not have administered the Second Spray to Plaintiff when he was restrained and fully compliant had Williams not requested that she do so. Thus, Plaintiff has forecasted sufficient evence that Williams was a but-for cause of the Second Spray.
Qualified Immunity
Defendants finally argue that even if Plaintiff has forecasted evence creating a jury issue regarding whether they violated his Eighth Amendment rights, they still are entitled to summary judgment on the basis of qualified immunity. [Doc. 51-1 at 15-17.] Specifically, they maintain that the unconstitutionality of their actions was not clearly established on the date of the incent because there was no caselaw that would have put them on notice that the quantity of chemical munitions Holmes used-eight grams-was excessive. [. at 16-17.] However, as noted, the quantity of chemical munitions employed is not the basis of Plaintiff's claim that the force employed was excessive. Additionally, any reasonable officer on September 9, 2021, would have known “that inmates have a right to be free from pain inflicted maliciously and in order to cause harm, rather than in a good-faith effort to protect officer safety or prison order.” Dean, 984 F.3d at 310. Furthermore, the Fourth Circuit has explained that it held as early as 1996 that “[i]t is generally recognized that it is a violation of the Eighth Amendment for prison officials to use mace, tear gas or other chemical agents in quantities greater than necessary or for the sole purpose of infliction of pain.” Iko, 535 F.3d at 240 (quoting Williams, 77 F.3d at 763) (emphasis omitted). Finally, to the extent that Defendants suggest that a reasonable officer might have believed in 2021 that the Eighth Amendment allowed her to spray chemical munitions up a prisoner's nose for retaliatory purposes, so long as the amount of munitions was relatively small, they are incorrect. See Brown, 2015 WL 5781504, at *3 (rejecting the proposition that “as a matter of law, there is a quantity of mace that can be sprayed into a prisoner's face without adequate justification” consistent with the Eighth Amendment and denying qualified immunity when the amount of chemical munitions the officer sprayed was 12 grams). Accordingly, the Court concludes that neither Holmes nor Williams is entitled to summary judgment on the basis of qualified immunity concerning the Second Spray.
For all of these reasons, the Court recommends that Defendants' summary judgment motion be denied on Plaintiff's excessive force claim as against both Holmes and Williams.
Right-to-Privacy Claim (Debo)
Plaintiff testified that Debo violated his rights by taking off his uniform while a woman was watching. [Doc. 51-2 at 7-8, 25-26.] The Court concludes that even assuming that the officer holding the camera was female, Plaintiff's claim cannot survive summary judgment.
“[P]risoners have only a very limited right of bodily privacy from guards of the opposite sex.” Davis v. Villers, No. 5:12cv48, 2012 WL 7017863, at *7 (N.D. W.Va. Oct. 9, 2012), Report and Recommendation adopted by 2013 WL 459747 (N.D. W.Va. Feb. 7, 2013); Diver v. Thompson, 5:17-CT-3067-FL, 2020 WL 1490695, at *4 (E.D. N.C. Mar. 24, 2020) (“The Fourth Circuit has recognized a limited Fourth Amendment right to bodily privacy for inmates.”). “[T]he involuntary exposure of one's genitals to a member of the opposite sex, unless reasonably necessary, may be a constitutional violation.” Davis, 2012 WL 7017863, at *7; see Strickler v. Waters, 989 F.2d 1375, 1387 (4th Cir. 1993) (“[W]hen not reasonably necessary, exposure of a prisoner's genitals to members of the opposite sex violates his constitutional rights.”); Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981) (explaining that “involuntary exposure” of a prisoner's genitals to members of the opposite sex “may be especially demeaning and humiliating” and should not take place unless it is “reasonably necessary”). However, a search is reasonable under the Fourth Amendment “if the need for the search outweighs the invasion of personal rights that the search entails.” Diver, 2020 WL 1490695, at *4.
Plaintiff does not dispute that he needed a uniform change because his uniform had become contaminated with chemical munitions. Additionally, the veo demonstrates that the camera was pointed above Plaintiff's waist, that Plaintiff was facing a corner of the room, that the uniform change was done in a professional manner, and that Debo and Williams were generally standing between Plaintiff and the person holding the camera. [V 5:04-8:24.] Plaintiff has forecasted no evence that his genitals were visible to any of the officers. As for his backse, he concedes that it was bare for only a couple of seconds [Doc. 51-2 at 26], and it is not apparent that it was visible to anyone other than Debo and Williams. The Court therefore concludes as a matter of law that even to the extent that Plaintiff's backse was visible for a moment or two to a female officer, the brief exposure was reasonably necessary, and unintentional, and thus d not violate Plaintiff's constitutional rights. See Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988); Sattler v. Foster, No. 01-35733, 37 Fed.Appx. 311, 312 (9th Cir. 2002) (“Occasional viewing of male prisoners by female correctional officers does not violate the Fourth Amendment right to privacy or the Eighth Amendment prohibition against cruel and unusual punishment.”); see also Thomas v. Shields, 981 F.2d 1252, at *1 (4th Cir. 1992) (unpublished table decision) (holding that a prisoner's “right to privacy was not violated by the occasional, inadvertent encounter with female guards”); Skundor v. Coleman, No. Civ. A. 5:02-0205, 2003 WL 22088342, at *10 (S.D. W.Va. Jul. 31, 2003) (holding visual body cavity searches permissible under the Fourth Amendment when the searches were reasonable and not motivated by punitive intent).
Thus, the Court recommends that summary judgment be granted as to Debo.
Plaintiff's Additional Claims
Plaintiff appears to make additional claims in his Complaint and his deposition about defamation, medical negligence, emotional distress, and mental anguish/mental torture.[Doc. 1 at 4.] None of these claims rise to the level of a constitutional violation. See Siegert v. Gilley, 500 U.S. 226, 233 (1991) (“Defamation, by itself, is a tort actionable under the laws of most states, but not a constitutional deprivation.”); Pink v. Lester, 52 F.3d 73, 75-78 (4th Cir. 1995) (explaining that a claim for negligence is not cognizable under § 1983); Pittman v. McMasters, No. 6:21-cv-01056-HMH-KFM, 2021 WL 1894660, at *1 (D.S.C. Apr. 15, 2021) (“[T]here is no federal constitutional right to be free from emotional distress, mental anguish, or psychological stress.”), Report and Recommendation adopted by 2021 WL 1890620 (D.S.C. May 11, 2021).
To the extent Plaintiff is bringing state law claims, such claims would be subject to the South Carolina Tort Claims Act, SC Code § 15-78-10, et seq. (“SCTCA”). Under the SCTCA, an employee of a governmental entity who commits a tort while acting within the scope of his official duty is generally not liable, and the plaintiff must sue the governmental entity itself. See S.C. Code § 15-78-70(a). Here, Plaintiff has not specifically named the government entity as a defendant, and the Court dismissed Plaintiff's official-capacity claims against the named Defendants in ruling on a prior motion in this case [Doc. 66; see Doc. 29].
Accordingly, the Court recommends that Defendants' summary judgment motion be granted as to Plaintiff's state-law claims.
RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that Defendants' summary judgment motion [Doc. 51] be GRANTED IN PART and DENIED IN PART. The Court recommends that the motion be DENIED as to Plaintiff's excessive force claim as against Holmes and Williams but that the motion otherwise be GRANTED.
IT IS SO RECOMMENDED.