Opinion
1:21-cv-121
06-02-2022
JAMIEL JOHNSON, Plaintiff v. CORRECTIONAL OFFICER B.B. CLARKE, Defendant
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that Defendant's Motion for Summary Judgment [ECF No. 36] be GRANTED and that Plaintiff's Cross-Motions for Summary Judgment [ECF Nos. 49, 52] be DENIED.
II. Report
A. Background
Plaintiff Jamiel Johnson initiated this action on April 13, 2021, based on an alleged excessive force incident that occurred during his incarceration at SCI-Albion. ECF No. 1. In his complaint, docketed on May 5, 2021, Johnson alleges that corrections officer Brendan Clarke violated his constitutional rights as secured by the Eighth Amendment to the United States Constitution by spraying him with oleoresin capsicum spray (“OC spray” or “pepper spray”) during an altercation outside of his cell in February 2019. ECF No. 5. Johnson seeks relief pursuant to 42 U.S.C. § 1983.
The Court has jurisdiction over Plaintiffs claims pursuant to 28 U.S.C. § 1331. This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
Johnson articulated the basis for his allegations during his deposition, testifying that his claim arose on February 9, 2019, when he noticed that his breakfast meal tray was missing juice. ECF No. 38-1 at 4. Johnson complained to Clarke about the missing juice to no avail. Id. Johnson then threatened Clarke that he “was going to get him” because “he denied my juice.” Id. at 9. According to Johnson, Clarke replied that Johnson “wouldn't eat” if he didn't stop “bugging him about [the] juice.” Id.
The following morning, when Clarke was collecting trays from lunch, Johnson reached through the meal slot in his cell door and threw his tray at Clarke, striking him in the chest. Id. at 5. Johnson explained that the meal slot is a “double secure aperture” consisting of a sliding . drawer with a locked latch on both the back and the top. Id. at 7. According to Johnson, both portions of the aperture were unlocked, allowing him to “push[] the top over so [it] opened up like a mailbox and [throw] my tray out at him.” Id. Johnson admits that he “assaulted” Clarke in retaliation for Clarke's refusal to rectify the missing juice. ECF No. 38-1 at 4.
Clarke explained that the top aperture was not locked that morning because the lid fastener was defective. ECF No. 38-2 ¶ 12.
According to Johnson, after being struck by the tray, Clarke “screamed,” called him a “mother fucker,” and “just snapped.” ECF No. 38-1 at 7. Johnson then “put his arms out the slot and started trying to swing at him, punch him and stuff, and urinate on him and all that.” Id. at 7-8. He further elaborated:
This allegation is somewhat refuted by the video recording of the incident. Clarke appears to remain calm and poised throughout the event, even after being struck by the tray. See ECF No. 38-3. 2 '
I just put my arms out the slot and started trying to swing at him, punch him and stuff, and urinate on him and all that. But he didn't come close enough for me, so I was just swinging at the air and spitting out the door slot. And I attempted to urinate in my hand so that I could throw it on him also. And that is when he just started giving me direct orders to put my hands back in my food and handcuff aperture and back up in my cell. And that is when I said to him, fuck you and your orders. And I continued to swing my hands at him.Id. at 7-8, 15. Clarke then warned Johnson to “remove your hands from the aperture or I am going to spray you.” Id. at 12. Johnson admits that he “continued to swing at him and spit at him,” prompting Clarke to dispense pepper spray through the aperture. Id. at 8, 15.
After the first spray, Johnson took “about... two more swings” before he “began choking and just continued choking from the [pepper] spray.” Id. at 16. He did not, however, immediately step back from the aperture; instead, he remained “at the front of the cell,” by the door. Id. at 14. Because Johnson did not back up as instructed, Clarke sprayed him a second time. Id. Johnson then began stumbling towards the back of his cell to avoid the spray. Id.
To this point, Clarke's sworn declaration largely corroborates Johnson's version of events. Clarke agrees that, while trying to collect Johnson's tray, Johnson reached through the food aperture and threw the tray at him. ECF No. 38-2 ¶ 3. Clarke states that Johnson then disregarded an order to withdraw from the aperture, threatening to throw “shit and piss” at Clarke. Id. According to Clarke, he then issued a short burst of pepper spray through the aperture. Id. ¶ 6. When Johnson again refused to move away from the door, Clarke issued a second burst of pepper spray. Id. ¶ 9.
The parties dispute what happened next. Johnson testified that: “[e]ach time I started to regain my breath, [Clarke] reopened my cell food and handcuff aperture and administrated more OC spray into my cell.” ECF No. 38-1 at 16. He maintains that Clarke “administered the OC spray four times.” Id. at 16-17. Clarke acknowledges that he opened the aperture door once more following the second burst of pepper spray, but states that he did so simply to “be sure it was clear and to see if it could be locked” and that he did not spray Johnson again “because he had backed away” at that point. ECF No.38-2¶14. The disagreement over the number of times that Johnson was sprayed - two or four - represents the only notable divergence between the parties' respective accounts of the incident.
The record also contains security footage of the incident. ECF No. 38-3. A careful review of that footage supports the following version of events:
10:51:27 - Video starts.
10:51:50 - Johnson throws his tray at Clarke, striking him in the chest.
10:51:59 - Clarke removes the cap from his pepper spray.
10:52:03 - Clarke opens the aperture quickly. He checks the aperture but does not appear to administer pepper spray.
10:52:11 - Clarke opens the aperture and appears to deploy pepper spray.
10:52:21 - Clarke opens the aperture and appears to deploy pepper spray.
10:52:43 - Clarke opens the aperture and appears to deploy pepper spray.
10:53:08 - Clarke uses his radio to call for assistance.
10:55:55 - Officers wearing gas masks arrive at Johnson's cell.
11:06:09 - Officers open Johnson's cell door and remove him in handcuffs without incident.ECF No. 38-3. Because the cell door is closed, Johnson's actions before and after being sprayed cannot be observed. Clarke appears to remain calm and controlled throughout the incident. Id.
After escorting Johnson from his cell, officers took him immediately to medical to be treated for exposure to pepper spray. Notes from his medical file reflect that he was treated by Registered Nurse Kathleen Hill no later than 11:23 A.M. ECF No. 38-4. Johnson was alert, oriented, with good color and unlabored respiration. Id. His pulse oxygen was 100% and his lungs were clear. Id. The medical staff flushed his eyes with saline and treated a small, superficial abrasion on his left knee. Id.
Several months later, Johnson reported to medical and complained that his skin was still irritated from the pepper spray. Id. The medical staff provided Johnson with a prescription for Lubriderm ointment to treat the irritation. Id. Johnson testified at deposition that the lotion was effective and that he has no lingering injuries. ECF No. 38-1 at 21.
B. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) requires the court to enter 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). Under this standard “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, Ml U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, Ml U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether a genuine issue of material fact remains for trial, the court must view the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving party. Moore v. Tartier, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden of identifying evidence that demonstrates the absence of a genuine issue of material fact, the nonmoving party must go beyond his pleadings with affidavits, depositions, answers to interrogatories or other record evidence to demonstrate specific material facts that give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Further, under Rule 56, a defendant may seek summary judgment by pointing to the absence of a genuine fact issue on one or more essential claim elements. The Rule mandates . summary judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When Rule 56 shifts the burden of production to the nonmoving party, “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992)..
C. Analysis
Johnson's lone claim is that Clarke violated his right to be free of cruel and unusual punishment by utilizing excessive force during the incident on February 10, 2019. In an excessive force claim, 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.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). There are several factors that a court examines in determining whether a correctional officer has used excessive force in violation of the Eighth Amendment, including: “(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 injury inflicted'; (4) ‘the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them'; and (5) ‘any efforts made to temper the severity of a forceful response.'” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley v. Albers, 475 U.S. 312 (1986)).
Where the events at issue have been captured on videotape, the court must consider the, videotaped evidence in determining whether there is any genuine dispute as to material facts. See Scott v. Harris, 550 U.S. 372, 380-81 (2007). The court must view the facts in the light depicted by the videotape. See id. (relying on a videotape in assessing summary judgment evidence and admonishing that the lower court “should have viewed the facts in the light depicted by the videotape.”). If a review of the videotape “refutes an inmate's claims that excessive force was used against him, and the video evidence does not permit an inference that prison officials acted maliciously and sadistically, summary judgment is entirely appropriate.” Smalls v. Sassaman, 2019 WL 4194211, at *8 (M.D. Pa. Sep. 4, 2019) (citing Tindell v. Beard, 351 Fed.Appx. 591 (3d Cir. 2009)). See also McCullon v. Saylor, 20134 WL 1192778, at *14 (M.D. Pa. Mar. 4, 2013) (“[I]n assessing ... claims in a case where an encounter is captured on videotape we are mindful of the fact that when ‘videotape refutes [an inmate's] assertion that . defendant[s] used excessive force,' or when the ‘video shows that [an inmate] did not suffer any physical distress' ... we should conclude ‘viewing the evidence in the light most favorable to [the inmate that], no reasonable finder of fact could view the video of the incident and determine that [defendants] acted maliciously and sadistically,' and may enter summary judgment on the excessive force claim.”) (quoting Tindell, 351 Fed.Appx. at 596).
In this instance, Clarke undeniably used force against Johnson. Consequently, the Court must consider each of the Whitley factors to determine whether that force “was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7.
Regarding the first factor, there is no question that some application of force was necessary. Johnson admits that he initiated the incident by “assaulting” Clarke with his food tray, disregarded a direct order to back away from the door, and continued trying to punch, spit, and throw urine on Clarke until the second application of pepper spray. For the safety of both the officer and the inmate, as well as the need to restore order and discipline, some form of forceful intervention was clearly required. This factor weighs in favor of summary judgment.
The second factor to consider is the relationship between the need for force and the amount of force used. The reasonableness of a particular use of force must be assessed “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396-97 (1989). Drawing all inferences in Johnson's favor, a review of the video evidence reveals, at most, that Clarke issued three or four brief bursts of pepper spray within a span of thirty to forty seconds. Given the violent, aggressive, and unhygienic nature of Johnson's attempted attack, coupled with the fact that Clarke was the only correctional officer on the scene, Clarke's brief use of pepper spray represented the minimal intervention required to attempt to reassert control and discipline. This factor weighs in favor of summary judgment.
The third Whitley factor considers the extent of the injury inflicted. While the lack of significant injury weighs against an excessive force claim, it is not dispositive. Aruanno v. Maurice, 2019 WL 5597653, at *2 (3d Cir. Oct. 30, 2019); Wilkins v. Gaddy, 559 U.S. 34, 38) (2010) (“An inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.”).
Here, Johnson received prompt medical treatment following the incident and sustained no serious or lasting injuries from his brief exposure to pepper spray. See, e.g., Gibson v. Flemming, 837 Fed.Appx. 860, 862 (3d Cir. 2018) (“temporary discomfort” from OC spray did not support a constitutional violation). This factor decidedly favors summary judgment.
The fourth factor the Court must consider is the extent of the threat and the safety of staff and inmates, as reasonably perceived by the responsible officials based on the facts known to them. Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009). At first glance, this factor appears to be in equipoise. While there is no dispute that Johnson was actively engaged in a violent (and unsanitary) assault on Clarke, it is also apparent Johnson was confined to his cell and posed a minimal risk to anyone who remained out of reach. Nevertheless, two considerations tilt this factor in favor of summary judgment. First, even if Clarke could have initially moved away from Johnson's cell to avoid his attacks, Johnson eventually needed to be restrained and secured for the purpose of restoring order and discipline. Nothing in the record suggests that Johnson would have ceased his assaultive behavior without the deployment of pepper spray. Secondly, the Court of Appeals for the Third Circuit has found the controlled use of pepper spray appropriate where an inmate repeatedly refuses to follow a corrections officer's direct commands, even if there is no immediate security threat. See Passmore v. lanello, 528 Fed.Appx. 144 148 (3d Cir. 2013) (use of pepper spray was reasonable under the circumstances when inmate repeatedly refused officers' orders to present himself for a mandatory shower). Given Johnson's refusal to follow orders and continued aggressive behavior, Clarke's response was similarly reasonable under the circumstances.
Finally, the Court considers whether Clarke made any efforts to temper the severity of the forceful response. In light of the extremely brief and targeted use of pepper spray in this instance, it is unclear how Clarke's response could have been tempered. The Court also notes that Clarke gave a verbal warning before deploying pepper spray, giving Johnson the chance to avoid any use of force at all by simply complying with orders. Johnson, by his own admission, intentionally disregarded that order and continued his assaultive behavior. This factor, like each of the others, weighs in favor of summary judgment.
In summary, the Court concludes that there is ample evidence to support a finding in Clarke's favor as to each of the Whitley factors. Even viewing the evidence of record, including the video recording, in the light most favorable to Johnson, no reasonable jury could conclude that Clarke utilized excessive force on February 10, 2019. As such, Clarke's motion for summary judgment should be granted and Johnson's cross-motion for summary judgment should be denied.
III. Conclusion
For the reasons set forth herein, it is respectfully recommended that Defendant's Motion for Summary Judgment [ECF No. 36] be GRANTED and that Plaintiffs Cross-Motions for Summary Judgment [ECF Nos. 49, 52] be DENIED.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).