Opinion
Civil Action No. 5:16-cv-02649-RMG-KDW
02-26-2019
Bobby C. Jenkins, Plaintiff, v. Eric S. Hooper, Defendant.
Report and Recommendation
Plaintiff Bobby C. Jenkins ("Plaintiff"), proceeding pro se, brought this civil rights action under 42 U.S.C. § 1983, alleging violations of his constitutional rights. This matter is before the court on Defendant Eric S. Hooper's ("Defendant") Motion for Summary Judgment filed on October 17, 2018. ECF No. 48. As Plaintiff is proceeding pro se, the court entered a Roseboro order on October 19, 2018, advising Plaintiff of the importance of such motions and of the need for him to file adequate responses. ECF No. 52. After seeking and receiving two extensions of time, Plaintiff filed a response to the Defendant's Motion for Summary Judgment on January 8, 2019, ECF No. 65, and Defendant replied on January 15, 2019. ECF No. 66. This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) and (e), D.S.C. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Defendant's Motion for Summary Judgment, ECF No. 48, be granted.
I. Procedural Background
In addition to Defendant, Plaintiff originally sued Mr. Bittinger, Charles West, and Walter Martin. ECF No. 1. On October 17, 2016, the undersigned filed an R&R recommending that the District Court partially dismiss the case without prejudice as to Defendants Bittinger, West, and Martin. ECF No. 14 at 7. The undersigned also recommended that the Complaint be partially dismissed as to the policy violation claim against Defendant. Id.
On October 31, 2016, the District Court issued an Order adopting the R&R. ECF No. 20. The District Court dismissed all claims against Defendants Bittinger, West, and Martin, and dismissed the policy violation claim against Defendant Hooper. See ECF No. 20 at 6. The District Court then recommitted the matter to the undersigned for further consideration. Id. at 6. As a result, the sole remaining claim at issue here is the excessive force claim under § 1983 against Hooper, the sole remaining Defendant. See ECF No. 20 at 5-6.
On October 17, 2018, Defendant filed a Motion for Summary Judgment. ECF No. 48. Plaintiff filed his Response on January 8, 2019, ECF No. 65, and Defendant replied on January 15, 2019. ECF No. 66. This second R&R follows.
II. Factual Background
Plaintiff is an inmate currently housed at Ridgeland Correctional Institution. ECF No. 65 at 20-21. The events giving rise to Plaintiff's Complaint occurred at Evans Correctional Institution ("ECI"). ECF No. 1 at 2. Plaintiff maintains that on March 1, 2016, he returned from ECI's law library to his cell in the High Alpha dorm. ECF No. 65 at 1. Plaintiff maintains that as he returned to his cell, the inmates were still on lockdown except for a few "dorm workers." ECF No. 65 at 1.
An announcement for "chow" came over the PA system as Plaintiff went to his cell door and began talking with his cellmate. Id. at 1-2. Officer McCall, Defendant's colleague at ECI, then came and started unlocking cell doors so that the inmates could be taken to have their meals. Id. at 2. When Officer McCall reached his cell, Plaintiff asked to be allowed to use the restroom because he had just returned from the library. Id. Officer McCall left Plaintiff's cell door locked and stated that he would be back to let him go eat. Id.
By the time Plaintiff finished using the restroom, McCall had not returned to unlock his cell door. Id. at 3. Plaintiff states that some of his fellow Muslim inmates appeared at his door, and Plaintiff started talking with them. Id. Soon thereafter and based on a suspicion that there was an illegal cellphone in Plaintiff's cell, Officer McCall and Defendant appeared at his cell door and said "shakedown." Id; ECF No. 1 at 7. Plaintiff protested that he was being harassed because he was suspected of being involved in an assault of other gang members, and Plaintiff maintains that he had nothing to do with that assault. Id at 8. Plaintiff also asserts that he did not have contraband in his cell; however, after the incident, a cellphone was found in a toilet paper roll in Plaintiff's cell. Id; Brock Aff. ¶ 3; ECF No. 48-4 at 1.
Plaintiff was then ordered to place his hands on the wall in order to be frisked. ECF No. 65 at 3. Plaintiff states that he complied with their orders despite arguing with Defendant. Id. According to Plaintiff, the officers wanted to handcuff him to assert their authority. Id. Plaintiff alleges he then took his hands off the wall and began to walk out of the cell because he refused to be handcuffed in the High Alpha dorm, which was a hostile environment, while other inmates were out in the unit unrestrained. Id. Plaintiff also refused to be handcuffed because he had enemies in the dorm who had assaulted two other Muslim inmates in front of Defendant. Id. at 4. Plaintiff states that he told Defendant that he "feared for his safety by being cuffed while all these inmates was out." Id.
Despite being told to turn around to be cuffed, Plaintiff repeated fears for his safety while the other inmates were out of their cells. Id. Plaintiff then reminded Defendant that his frisk search uncovered nothing, told Defendant to search his cell, and then proceeded to walk out of the cell. Id. Defendant grabbed Plaintiff in order to handcuff him, but Plaintiff again maintains that "[he] refused to be cuffed while on the wing while other violent inmates was out because two of my Muslim brothers was stabbed in front of an officer and some of those violent inmates was still in the unit. I have seen on several occasions sprayed inmate putting inmates lives in jeopardy cuffing them while other violent prisoners was out." Id. at 4-5.
Plaintiff indicates that as he was attempting to leave his cell, Defendant sprayed mace on the side of his face and some went into his eye. Id. at 5. At this point, Plaintiff "went into protective mode for [his] life." Id. Defendant then grabbed Plaintiff and they exchanged blows and "tussled." Id. Plaintiff states "[w]e got in a tussle[,] Counselor Hooper sprayed but missed me and I hit him with a closed fist only once . . . Counselor Hooper then sprayed more chemical munitions." ECF No. 48-6 at 44. Defendant then sprayed Plaintiff directly in his face and hit him with palm thrusts. Id. During their altercation, Defendant slipped on the mace and pulled Plaintiff down with him as he fell. Id. As Defendant fell, he hit his head and blacked out. Id. Although Defendant suffered serious and disabling injuries as a result, Plaintiff maintains that he never "hit or kicked correctional counselor Hooper in his mouth or head." ECF No. 65 at 5-6; see also Hooper Aff., ¶ 12-13; ECF No. 48-5 at 3. Plaintiff asserts that by the end of the incident, he was blinded by mace. Id at 6.
Captain Ford then came and pulled Plaintiff off the floor and escorted him to lock-up. Id. Plaintiff also maintains that Captain Ford refused to enable Plaintiff to wash his eyes. Id. Plaintiff also contends that in the wake of the incident he never received medical attention for his injuries. Id. at 7.
A. Standard for Pro Se Inmates
Under established local procedure in this judicial district, a careful review was made of the pro se Complaint filed in this case. The review was conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Anti-Terrorism and Effective Death Penalty Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
This court is required to construe pro se petitions liberally. Such pro se petitions are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se petition, the petitioner's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003). 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 claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
B. 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 a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing. . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly 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." Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
III. Analysis
a. Exhaustion under the Prison Litigation Reform Act ("PLRA")
In enacting the Prison Litigation Reform Act of 1996 ("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 42 U.S.C. § 1997e so that it now provides, "No action shall be brought with respect to prison conditions under § 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." 42 U.S.C. § 1997e(a). In considering the effect of the PLRA, the United States Supreme Court 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 Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (prisoners must "properly exhaust" their administrative remedies before coming into court by using all steps available and doing it the way the agency's policy requires); Porter v. Nussle, 534 U.S. 516, 532 (2002) (exhaustion applies to all kinds of "inmate suits about prison life . . . .").
The PLRA "seeks to 'affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.'" Woodford v. Ngo, 548 U.S. at 93. Thus, "it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 218 (2007). Several federal courts, including the United States Court of Appeals for the Fourth Circuit, have ruled that a prisoner is required to follow the rules established by the prison for its grievance process and to correct any problems with his or her compliance with the process before the prisoner can assert that the process is not available to him. See, e.g., Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) ( an inmate must attempt to cure problems with rejected grievance); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)) ("'to exhaust administrative remedies, a person must follow the rules governing filing and prosecution of a claim,' including the prison's rules for filing an appeal"); Graham v. Gentry, 413 F. App'x 660, 663 (4th Cir. 2011) ("in order to show that a grievance procedure was not 'available,' a prisoner must adduce facts showing that he was prevented, through no fault of his own, from availing himself of that procedure"). The lack of exhaustion of administrative remedies is generally considered an affirmative defense, and not a jurisdictional infirmity. Jones, 549 U.S. at 211-12.
According to SCDC regulations, an inmate has exhausted his administrative remedies when he has properly filed a Form 10-5 Step 1 grievance and a Form 10-5a Step 2 grievance. See South Carolina Dept. of Corrections, Inmate Grievance System, § 13, (May 12, 2014), http://www.doc.sc.gov/policy/GA-01-12.htm1550790025879.pdf (Last visited Feb. 22, 2019); see also Aff. of Sherman Anderson, ¶¶ 5-11; ECF No. 48-6. Before filing a Step 1 grievance, an inmate must first attempt to resolve his issue through an Informal Resolution by submitting a Request to Staff Member Form ("RTSM") within eight working days of the incident. Id. at section 13.2. The Step 1 grievance form requires an inmate to include a copy of the RTSM. Id.
Once the Step 1 grievance form is filed, the Warden will respond to the grievant in writing "indicating in detail the rationale for the decision rendered and any recommended remedies." See id. at section 13.5. If the inmate is not satisfied with the Warden's decision, he "may appeal to the Division Director of Operations for final resolution of the grievance." Id. at section 13.6. The appeal of the Step 1 grievance is completed on the SCDC Form 10-5a, Step 2. Id. at 13.7. Inmates must complete the Step 2 form "within five (5) calendar days of the receipt of the response. . . ." Id.; see also Wagner v. United States, 486 F. Supp. 2d 549, 558 (D.S.C. 2007) (holding SCDC inmates are required to file Step 1 Grievance forms and Step 2 Grievance forms prior to initiating civil actions).
Defendant contends that he is entitled to summary judgment on Plaintiff's claims because he has not exhausted his administrative remedies as required by the PLRA. ECF No. 48-1 at 3-8. Specifically, Defendant argues that among the 18 grievances Plaintiff filed between March 1, 2016 and July 7, 2016, Plaintiff filed no grievance in which he alleged that Defendant used excessive force. ECF No. 48-1 at 8. Defendant further argues that even if, when viewed in a light most favorable to Plaintiff, his Step One Grievance numbered ECI-0229-16 does sufficiently allege excessive force, Plaintiff did not file a Step 2 appeal to the denial of the ECI-0229-16 grievance. Id.
Plaintiff argues in response that that he submitted grievances related to the underlying facts alleged in his Complaint against Defendant. ECF No. 65 at 7. Plaintiff further asserts that he was denied the opportunity to file grievances at Step[s] 1, 2, and 3. ECF No. 65 at 7. In addition, Plaintiff contends that he submitted additional grievances on the excessive force claims. Id.
In support of his Motion for Summary Judgment, Defendant submitted the affidavit of Sherman Anderson, Chief, Inmate Grievance Branch, Office of the General Counsel for SCDC. Anderson Aff. ¶ 2, ECF No. 48-6 at 1, ¶ 2. Anderson references and includes the SCDC grievance policy in his affidavit. Anderson Aff. ¶¶ 4-11; ECF No. 48-6 at 1-2. The SCDC grievance procedure establishes the initial grievance filing and appeals process if a grievance is not handled to an inmate's satisfaction. Id. Anderson attests that he has reviewed the record of Plaintiff's grievances submitted from March 1, 2016 through July 1, 2016, and he lists a total of 18 grievances filed during that period. Id. at ¶¶ 13-30, ECF No. 48-6 at 2-5.
Defendant argues that the only grievance that could, even under a "strained reading," be read to relate to the March 1, 2016 incident and Defendant's alleged use of excessive force is the Step One Grievance -ECI-0229-16 mentioned above. ECF No. 48-1 at 44. That Step 1 grievance is related to the March 1, 2016 incident, and Plaintiff describes acts that could conceivably amount to excessive force. ECF No. 48-6 at 44. The only acts attributable to Defendant in that grievance are that Defendant sprayed mace during the incident and that he "hit [Plaintiff] with a palm thrust . . . ." ECF No. 48-6 at 44. Plaintiff also admits to "hit[ting] [Defendant] with a closed fist only once." after Defendant sprayed chemical munitions and missed. ECF No. 48-6 at 44. Even if those acts arguably amounted to excessive force, the record indicates that Plaintiff failed to exhaust his remedies with respect to this claim because he did not file a Step 2 grievance. See ECF No. 48-6 at 45. In fact, in the space on the grievance form in which Plaintiff was given a choice whether to appeal the Warden's decision related to the Step 1 grievance, Plaintiff checked the box and indicated that "[he] accept[ed] the Warden's decision and consider[ed] the matter closed." ECF No. 48-6 at 45.
Therefore, based on the undersigned's review of the evidence before the court, Plaintiff did not exhaust his administrative remedies. Because Plaintiff failed to exhaust his available administrative remedies before filing this action, the undersigned recommends that Defendant's Motion for Summary Judgment be granted. See Pozo, 286 F.3d at 1024 (holding that an inmate's failure to "properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983."); see also Blevins v. Loranth, No. 09-788-TLW-BM, 2010 WL 670099, at *3 (D.S.C. Feb. 22, 2010), ("Plaintiff needed to file and exhaust his administrative claim [] at FCI Williamsburg prior to proceeding with this lawsuit."); Kirk v. Kirkland, No. 0:06-1036 MBS-BM, 2006 WL 3759801 at *2 (D.S.C. Dec. 18, 2006) (finding that "before Plaintiff may proceed with his claim in this Court, he must first have exhausted any administrative remedies that were available at the Detention Center.").
b. Plaintiff's Excessive Force Claim under § 1983
Defendant argues that he is entitled to summary judgment on the excessive force claim because Plaintiff cannot establish that he acted with a sufficiently culpable state of mind. ECF No. 48-1 at 8-10. Defendant further contends that even when viewed in a light most favorable to Plaintiff, the evidence does not permit an inference that "Defendant wantonly inflicted pain on Plaintiff." ECF No. 48-1 at 10. Plaintiff responds that Defendant assaulted him "for no other reason than he did not like me." ECF No. 65 at 10.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege "(1) that [he] has been deprived of a right, privilege or immunity secured by the Constitution or laws of the United States," and "(2) that the conduct complained of was committed by a person acting under color of state law." Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983). The Eighth Amendment prohibition of cruel and unusual punishment "protects inmates from inhumane treatment and conditions while imprisoned." Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996).
To establish a constitutional excessive force claim, the inmate must prove that the "prison official acted with a sufficiently culpable state of mind (subjective component) and [that] the deprivation suffered or injury inflicted on the inmate was sufficiently serious (objective component)." Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citing Williams, 77 F.3d at 761). Thus, courts must analyze both subjective and objective components. For the subjective component, Plaintiff must prove that Defendant assaulted and restrained him "maliciously and sadistically for the very purpose of causing harm" rather than in a good-faith effort to maintain or restore discipline. Whitley v. Albers, 475 U.S. 312, 320-21 (1986).
The Fourth Circuit has instructed that district courts use the following test to analyze the subjective component of the excessive force for Plaintiff's cause of action:
(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 at 239. To establish the objective component, Plaintiff must show "that the alleged wrongdoing is objectively 'harmful enough' to establish a constitutional violation" in the context of "contemporary standards of decency." Hudson v. McMillian, 503 U.S. 1, 8 (1992) (quoting Wilson v. Seiter, 501 U.S. 294, 303 (1991)). When prison officials maliciously and sadistically use force to cause harm, there always exists a constitutional violation regardless of how significant a plaintiff's injury may be. Id.; see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010).
Under the first factor, "the need for the application of force," the undersigned finds that Plaintiff admits that he disobeyed a direct order when he refused to be handcuffed. ECF No. 1 at 9. He also admits to attempting to leave his cell once he decided that he was not going to be handcuffed. Id. In addition, Plaintiff admits to hitting Defendant. ECF No. 65 at 5; ECF No. 48-6 at 44. Based on Plaintiff's admissions, the undersigned finds there was sufficient need for the application of force.
The undersigned finds that the second Iko factor— "the relationship between the need and the amount of force that was used"—also weighs in favor of Defendant. Here, Plaintiff's refusal to be handcuffed and his attempt to leave his cell necessitated Defendant's application of force as described above with respect to the first Iko factor. ECF No. 5. Defendant attempted to use the mace before needing to engage in physical contact with Plaintiff that Plaintiff, by his own admission, initiated. This first use of mace "hit the side of [Plaintiff's] face and a little of [his] eye." ECF No. 65 at 5. After this initial spray of mace, Plaintiff states that he went into "protective mode." ECF No. 65 at 5. In his Step One Grievance, Plaintiff states that Defendant sprayed mace but missed Plaintiff, and in response Plaintiff states that he "hit [Defendant] with a closed fist only once." ECF No. 48-6 at 44. At that point, according to Plaintiff, "[Defendant] grabbed me and we started fighting," and "we threw blows at each other and tussled." Id. In response, "[Defendant] then sprayed me directly in my face are[a]." Id. In a further attempt to subdue Plaintiff, "[Defendant] did a palm thrust," and at this point "[Plaintiff] got strength from nowhere and hit [Defendant.]" Id. Therefore, given these events and Plaintiff's admitted recalcitrance, the second Iko factor also weighs in Defendant's favor.
The third Iko factor — "the extent of any reasonably perceived threat that the application of force was intended to quell" — also weighs in favor of Defendant. Not only did Plaintiff "snatch[ ] away" and refuse to be handcuffed, but he also attempted to leave the cell. ECF No. 1 at 9; ECF No. 65 at 4. In response to Plaintiff's disobedience, Defendant maced Plaintiff, and Plaintiff reacted by hitting Defendant. ECF No. 65 at 4-5. Given Plaintiff's disobedient response to Defendant's order and his violent reaction to Defendant's attempt to subdue him, the undersigned recommends that Defendant reasonably reacted to Plaintiff's threats. Cf Iko, 535 F.3d at 240 (finding that the third factor weighed in favor of the plaintiffs and ultimately concluding that the officers violated the plaintiff's Eighth Amendment rights because "Iko never reacted violently or otherwise became confrontational.").
The undersigned finds that the fourth Iko factor— "any efforts made to temper the severity of a forceful response" — also weighs in favor of Defendant. The undersigned notes that Defendant used force only after giving Plaintiff an opportunity to comply with Defendant's order to Plaintiff to allow himself to be handcuffed and in response to Plaintiff's violent reaction. As for efforts made to treat Plaintiff in the wake of the application of mace, Plaintiff claims that "Captain Ford refused to take me to medical along with Eric S. Hooper to get my eyes flushed out. I was escorted to lock up to a part which was closed down put me in a cell with no running water stripped out with no medical treatment." ECF No. 65 at 6. But Defendant has pointed to medical records indicating that personnel from the Mental Health Clinic saw Plaintiff at his cell door at 4:13pm, about an hour after the incident. ECF No. 48-1 at 3; ECF No. 48-3 at 10-11; ECF No. 48-5 at 4. According to the record, Plaintiff "report[ed] no injuries . . . ." ECF No. 48-3 at 11. The record also reflects that Plaintiff was taken to medical and examined at 6:56pm on the same day. ECF No. 48-3 at 10. Plaintiff was observed "ambulating without difficulty . . . [and] . . . breathing without difficulty." ECF No. 48-3 at 10. Plaintiff also "denie[d] any other problems or concerns [and was] advised to wash [his] eyes with water and to notify medical with any worsening problems." Id.
Based on the above Iko analysis, the undersigned recommends the district court find as a matter of law that Defendant used force in a good-faith effort to maintain or restore discipline and not for the very purpose of causing harm. See Whitley, 475 U.S. at 320-21. The undersigned is tasked with construing the facts in the light most favorable to Plaintiff, and in this instance, Plaintiff admits that he refused an order to be handcuffed, "snatched" away from Defendant and attempted to leave his cell, and after being maced, Plaintiff admits that he hit Defendant with a "closed fist." ECF No. 48-6 at 44. Therefore, the undersigned finds there is no genuine issue of material fact as to whether Defendant's actions were excessive under the Eighth Amendment. See e.g., Starr v. Rivera, No. 2:10-1236-RBH, 2011 U.S. Dist. LEXIS 96781, 2011 WL 3841013, at *15 (D.S.C. May 20, 2011), report and recommendation adopted, No. 2:10-CV-01236-RBH, 2011 U.S. Dist. LEXIS 96531, 2011 WL 3841006 (D.S.C. Aug. 26, 2011) (granting defendants summary judgment after inmate "persisted in his disobedience even after he was warned he would be sprayed with mace [and] allege[d] the defendants should not have deployed the mace or the pepper ball launcher because he was confined in his cell, inmates cannot be allowed to be disruptive and violate direct orders of the correctional officers"). Based on the undisputed facts in this case, the undersigned recommends Defendant's Motion for Summary Judgment be granted on Plaintiff's excessive force claim.
c. The Eleventh Amendment and whether Defendant is a "Person" for Section 1983 Purposes
Defendant argues that the Eleventh Amendment bars Plaintiff's § 1983 claims against Defendant in his official capacity. ECF No. 48-1 at 10-13. Defendant also argues that he is an arm of the state and as such is not a "person" for section 1983 purposes. Id. at 13. Plaintiff does not respond to either of these arguments. As an employee of South Carolina Department of Corrections, an officer such as Defendant is considered an "arm of the state." See Bell v. Dobey, 2009 WL 1010482, at *4 (D.S.C. April 14, 2009) ("Eleventh Amendment immunity applies to the States and 'arms of the states,' including state agencies, divisions, departments and officials, for purposes of Section 1983 litigation.")
The Supreme Court and the Fourth Circuit have held that suits against state officials acting in their official capacities is a suit against the State. See Hafer v. Melo, 502 U.S. 21, 27 (1991); Weller v. Dept't of Soc. Servs. For Baltimore, 901 F.2d 387, 398 (4th Cir. 1990). The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The United States Supreme Court has long held that 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). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed.,242 F.3d 219, 222 (4th Cir. 2001). Because Defendant was an agent or employee of the State of South Carolina when acting in his official capacities, he is not a "person" within the meaning of 42 U.S.C. § 1983. See Will v. Michigan Dept of State Police, 491 U.S. 58, 71 (1989) ("[N]either a state nor its officials acting in their official capacities are 'persons' under § 1983."). A state cannot, without its consent, be sued in a District Court of the United States by one of its own citizens upon the claim that the case is one that arises under the Constitution and laws of the United States. Edelman, 415 U.S. at 663. The State of South Carolina has not consented to be sued in this case. S.C. Code Ann. § 15-78-20(e). As an arm of the State, Defendant, in his official capacity, is immune from suit under the Eleventh Amendment. Accordingly, the undersigned recommends that Plaintiff's claims against Defendant in his official capacity be dismissed.
d. Qualified Immunity
Defendant asserts that he is entitled to qualified immunity on Plaintiff's claims. ECF No. 48-1 at 14-15. The Supreme Court in Harlow v. Fitzgerald established the standard that the court is to follow in determining whether a defendant is protected by this immunity. Harlow, 457 U.S. 800, 818 (1982). That decision held that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id.
When evaluating a qualified immunity defense, the court must determine (1) whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendant's conduct violated a constitutional right, and (2) whether that right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 230-33 (2009). The two prongs of the qualified immunity analysis may be addressed in whatever order is appropriate given the circumstances of the case. Id. at 236. In determining whether the right violated was clearly established, the court defines the right "in light of the specific context of the case, not as a broad general proposition." Parrish v. Cleveland, 372 F.3d 294, 301-03 (4th Cir. 2004). "If the right was not clearly established in the specific context of the case—that is, if it was not clear to a reasonable officer that the conduct in which he allegedly engaged was unlawful in the situation he confronted—then the law affords immunity from suit." Id. (citations and internal quotation omitted).
The record before the court shows that Defendant performed the discretionary functions of his respective official duties in an objectively reasonable fashion. Viewed in the light most favorable to Plaintiff, Defendant did not transgress Plaintiff's constitutional rights. Thus, the undersigned recommends Defendant be granted qualified immunity.
IV. Conclusion
Based upon the foregoing, the undersigned recommends that Defendant's Motion for Summary Judgment, ECF No. 48, be GRANTED and the Complaint be DISMISSED.
IT IS SO RECOMMENDED. February 26, 2019
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge