Opinion
1:21-cv-270
07-31-2023
MATTHEW T. MCNEVIN, Plaintiff v. LT. WIANT, et al., Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ECF NO. 36
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
This matter has been referred to the undersigned for a Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1).
It is respectfully recommended that the Motion for Summary Judgment [ECF No. 36] filed by Defendants Dietrich, Wiant, and Winger be granted. It is further recommended that Plaintiff's claims against the John Doe Defendants be dismissed pursuant to 28 U.S.C. § 1915(e)(2).
Pursuant to 28 U.S.C. § 1915(e)(2), a court “shall dismiss the case at any time if the court determines that... the action or appeal. .. fails to state a claim on which relief may be granted.” Id. (emphasis added). This screening obligation “is not excused even after defendants have filed a motion to dismiss” or motion for summary judgment. Banks v. County of Allegheny, 568 F.Supp.2d 579, 587-89 (W.D. Pa. 2008); Burton v. Verano, 2016 WL 4697361, at *2 (M.D. Pa. July 14, 2016) (invoking § 1915 at the summary judgment stage). In performing this mandatory screening function, a district court applies the same standard applied to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Banks, 568 F.Supp.2d at 588.
II. Report
A. Introduction
Plaintiff Matthew McNevin, an inmate in the custody of the Pennsylvania Department of Corrections (DOC) at its State Correctional Institution at Forest (SCI-Forest), initiated this pro se civil rights action on September 30, 2021. See ECF No. 1. In his Amended Complaint - the operative pleading in this action - McNevin alleged that several corrections officers employed by the DOC violated his Eighth Amendment rights by utilizing excessive force on March 17, 2020. ECF No. 19. He also asserted state tort claims for intentional infliction of emotional distress and negligence. Id. As Defendants, McNevin identified three corrections officers by name - Dietrich, Wiant, and Winger - and designated three additional corrections officers as John Doe Defendants 1, 2, and 3. Id. Invoking 42 U.S.C. § 1983 and state law, McNevin sought monetary damages and injunctive relief. Id.
On July 20, 2022, the undersigned issued a Report and Recommendation that Defendants' partial motion to dismiss be granted in part and denied in part. ECF No. 30. Specifically, the Court recommended that McNevin's state law claims be dismissed but that his Eighth Amendment claims proceed to discovery. Id. United States District Judge Susan Paradise Baxter adopted the Recommendation on August 11, 2022. See ECF No. 31.
Per the Court's case management order (CMO), discovery closed on November 23, 2022. ECF No. 34. The parties did not report any issues with discovery during that time. Although the CMO directed McNevin to file a pretrial statement on or before December 13, 2022, he failed to do so. Id.
On January 3, 2023, Defendants filed the instant motion for summary judgment, a supporting brief, a concise statement of material facts, and an appendix of exhibits. ECF Nos. 36-39. The Court directed McNevin to file a response on or before February 2, 2023. ECF No. 40. On McNevin's motion, the Court subsequently extended that deadline to March 31, 2023. ECF Nos. 43, 44. In the meantime, despite the discovery deadline having passed almost three months prior, McNevin filed several untimely requests for discovery materials. ECF Nos. 46-48. While noting the extremely belated nature of McNevin's discovery requests, Defendants agreed to supply the requested materials. See ECF Nos. 50-52. To allow meaningful time for McNevin to utilize those materials, the Court extended the deadline for his summary judgment response until April 21, 2023. ECF No. 54. The Court also reminded McNevin that his response “MUST include a Responsive Concise Statement of Material Facts” to avoid the application of Rule 56.C.1 of the Local Rules of Civil Procedure. ECF No. 54. Despite the extensions, McNevin failed to properly respond.
McNevin's lone responsive filing will be discussed more fully below in connection with the Court's application of Local Rule 56.C.1.
B. Factual background
1. Local Rule 56.C.l
Before summarizing the pertinent facts, the Court notes that Plaintiff has not properly respond to Defendants' concise statement of material facts as required by Local Rule 56.C. 1. This rule requires a party opposing a motion for summary judgment to file a concise statement of materials facts responding to each numbered paragraph of the movant's concise statement by admitting or denying each properly supported fact asserted in that paragraph and setting forth the basis for each denial with appropriate citation to the record. See LCvR 56.C.1. The non-moving party's responsive concise statement may also set forth, in separately numbered paragraphs, any other material facts upon which the party opposes the motion. Courts in the Western District of Pennsylvania require strict compliance with the provisions of Local Rule 56. See, e.g., Coleman v. Tice, 2018 WL 5724125, at *2 n. 3 (W.D. Pa. Oct. 10, 2018), adopted by 2018 WL 5722316 (W.D. Pa. Nov. 1, 2018); First Guard Ins. Co. v. Bloom Services, Inc., 2018 WL 949224, at *2-3 (W.D. Pa. Feb. 16, 2018); Hughes v. Allegheny County Airport Authority, 2017 WL 2880875, at *1 (W.D. Pa. July 6, 2017).
The only filing by McNevin that could conceivably be construed as a response to Defendants' summary judgment motion was docketed on March 10, 2023. In that filing, styled an “opposition of response,” McNevin supplies a series of “affirmative defenses of responses” in numbered paragraphs. See ECF No. 53. Although the format of the document suggests an attempt to draft a responsive statement of material facts, McNevin's numbered paragraphs do not appear to correspond to the substance of the numbered paragraphs of Defendants' concise statement. For example, while Defendants' concise statement consists of forty paragraphs of factual statements, McNevin's “response” includes only ten paragraphs. Id. In paragraphs one through seven, McNevin “admits” to various procedural dates and times (such as when he initiated the action, filed his amended complaint, and obtained permission to proceed in forma pauperis), none of which correspond to Defendants' concise statement. Compare ECF No. 38 ¶¶ 1-7 with ECF No. 53 ¶¶ 1-7. McNevin's final three paragraphs set forth conclusory arguments that summary judgment should be denied because, for instance, “there is genuine issue to all material facts regarding the claims at issue in this case, and Statement of Material Facts is in dispute and Appendix of Exhibits were not accurately provided to Plaintiff during discovery period.” Id. In addition to its non-responsive nature, McNevin's filing is inaccurate: the record plainly indicates that he never filed a motion to compel, did not request any discovery materials until almost three months after the discovery window had closed, and failed to supplement his summary judgment response after those materials were provided.
A non-moving party “faces severe consequences for not properly responding to a moving party's concise statement.” Hughes, 2017 WL 2880875, at *1. Any alleged material facts “set forth in the moving party's Concise Statement of Material Facts ... which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party.” LCvR 56.E. While courts provide some leniency to pro se litigants when applying procedural rules, the Court “‘is under no duty to provide personal instruction on courtroom procedure or to perform any legal chores for the [pro se litigant] that counsel would normally carry out.'” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (quoting Pliler v. Ford, 542 U.S. 225, 231 (2004)). Nor may pro se litigants ignore procedural rules that apply to parties assisted by counsel. McNeil v. United States, 508 U.S. 106, 113 (1993) (explaining that “we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel”).
Accordingly, to the extent that Plaintiff has failed to respond to any properly supported fact stated in Defendants' concise statement, that fact is deemed admitted. LCvR 56.E. However, the Court will consider any facts properly alleged in Plaintiff s pro se responses that specifically contradict Defendants' statement of facts, to the extent that they are supported by the record. Boyd v. Citizens Bank of Pa., Inc., 2014 WL 2154902, at *3 (W.D. Pa. May 22, 2014) (stating that “[t]o the extent Plaintiffs statement of ‘fact' specifically controverts Defendant's, the Court will consider these facts in determining whether summary judgment should be granted”).
2. Facts
The following factual summary is derived primarily from McNevin's amended complaint, Defendants' concise statement of material facts, and the exhibits attached thereto.
On March 17, 2020, McNevin used a piece of clothing to cover the security window of his cell door so that he could use the bathroom in privacy. ECF No. 19 ¶ 11. After McNevin disobeyed multiple orders to uncover his window, Defendant Winger discharged a burst of Oleoresin Capsicum (OC) spray into the cell. Id. ¶ 14; ECF No. 39-1 at 2. Winger, Dietrich, and several other corrections officers then entered McNevin's cell, placed him in handcuffs, and escorted him to the strip cage for decontamination. ECF No. 19 ¶¶ 16-18.]
Following decontamination, McNevin laid down on his stomach on the floor of the strip cage and refused to move. ECF No. 19 ¶ 25; ECF No. 38 ¶ 7. In his pleading, McNevin claims that he did not feel safe leaving the strip cage because “in the past Plaintiff was retaliated against in like situations.” Id. ¶ 19. A DOC hostage negotiator spoke with him for roughly an hour in an unsuccessful attempt to persuade him to leave the strip cage on his own. ECF No. 38 ¶ 8. When that effort failed, a non-defendant, Lieutenant Niznik, organized a Correctional Emergency Response Team (CERT) to perform an extraction. ECF No. 38 ¶¶ 8-9. The CERT leader gave McNevin three direct orders to place his hands in the cell door slot so that he could be cuffed, explicitly warning that non-compliance would result in the use of OC Spray. Id. ¶¶ 11-12. McNevin disregarded each order, remaining on the floor of the cell with his stomach down and his legs crossed. Id. at ¶¶ 11-12,25. One of the team members then discharged a burst of OC spray. Id. ¶ 13. Upon being sprayed, McNevin immediately stood up and allowed the CERT team to handcuff and escort him to medical. Id. ¶ 32. .
In his amended complaint, McNevin designates the members of the CERT team as John Does 1 through 3. Although the names of those officers are identified on the security footage and in various exhibits, McNevin has never moved to substitute and serve the appropriate individuals. Consequently, the Court relies on the statutory screening provision, 28 U.S.C. § 1915(e)(2), in recommending dismissal of McNevin's claims against those Defendants.
McNevin suggests that he didn't understand the orders “due to the fear and anxiety caused by the stress of the, situation.” ECF No. 19 ¶ 28. However, no reasonable juror viewing the video footage could conclude that Niznik's orders were unclear or ambiguous.
Following his medical assessment, one of the corrections officers ordered McNevin to get to his feet for the walk back to his cell. ECF No. 19 ¶ 33; ECF No. 38 ¶ 17. Instead of complying, McNevin “dropped his weight to the floor” to make himself more difficult to move. ECF No. 19 ¶ 34; ECF No. 38 ¶ 18. McNevin alleges that CERT members then “began twisting his wrists” even though he “yelled out that it hurts.” ECF No. 19 ¶¶ 35-38. He also contends that the CERT team placed him in leg shackles, picked him up, and intentionally rammed his head into the door frame of the medical triage unit, splitting open his head and causing him to bleed profusely. Id. ¶ 44. When McNevin told the CERT crew that his head was bleeding, Wiant allegedly responded that McNevin “did it to [him]self' and that it was ‘ [McNevin s] problem.” Id. ¶ 48. For their part, Defendants admit that they had to carry McNevin from the medical triage room by his arms and legs but claim that he “used [the] opportunity to intentionally swing his head across his body striking the doorjamb.” ECF No. 38 ¶¶ 18-21. They also deny twisting McNevin's wrists. Id. Whichever the case, McNevin was promptly taken to medical and received sutures for a cut on his head. Id. ¶ 21-22.
In addition to the parties' respective accounts, the record includes security footage of the incident. ECF No. 39-3. A careful review of that footage supports the following version of events:
0:00:00 - Video MVI-914 begins.
0:00:15 - Lt. Niznik explains that a CERT team has been assembled because McNevin refuses to leave the strip cage.
0:03:37 - Lt. Niznik approaches the strip cage and explains to McNevin that he will give him three direct orders to come to the door to be handcuffed. McNevin can be observed lying on the floor of the cell on his stomach.
0:03:50 - Niznik gives McNevin the first direct order to come to the door to be handcuffed. McNevin makes an unintelligible verbal response but does not move.
0:04:19 - Niznik gives McNevin the second direct order to come to the door to be handcuffed. McNevin makes an unintelligible verbal response but does not move.
0:04:40 - Niznik gives McNevin a final direct order to come to the door to be handcuffed and informs him that OC spray will be deployed if he does not comply. McNevin makes an unintelligible verbal response but does not move.
0:05:29 - An officer deploys OC spray for approximately 8 seconds.
0:05:47 - Niznik gives McNevin another order to come to the door to be handcuffed. McNevin immediately complies.
0:06:17 - McNevin places his hands through the door slot and is handcuffed.
0:06:43 - CERT team members enter the cell and escort McNevin to medical triage.
0:07:15 - McNevin arrives at medical triage and states that he was sprayed for no reason. Niznik responds that McNevin was sprayed because he disobeyed multiple direct orders.
0:07:41 - McNevin begins receiving treatment from a nurse. Over the next several minutes, the nurse flushes his eyes with saline and directs him to breathe normally.
0:12:24 - McNevin is sitting on the examination table in the medical triage room. An officer directs McNevin to stand up. McNevin refuses, stating “you're going to hurt me.”
0:13:00 -Officers grip McNevin by the upper arms to attempt to stand him up. McNevin begins shouting that the officers are hurting him. None of the officers appear to be applying significant force.
0:13:07 - McNevin screams and drops from the examination table to the ground. He remains on the ground in a sitting position. Although McNevin continues to complain that officers are hurting him, the video depicts minimal or no contact between officers and McNevin.
0:13:27 - In order to shackle his ankles, officers flip McNevin over so that he is lying in a prone position on his stomach. The officers do not appear to use any unnecessary or significant force.
0:14:00 - Officers again attempt to lift McNevin to his feet by his arms after he refuses to stand up but are unable to do so.
0:14:48 - McNevin complains that the officers are twisting his wrists. The video does not corroborate his complaint. None of the officers appears to manipulate his arms or wrists in a twisting manner.
0:15:25- Additional officers arrive at the scene.
0:15:49 - McNevin is lifted by his arms and legs and carried head-first through the door of the medical triage room. He passes through the door at the 15:52 mark and immediately yells that he hit his head on the door frame. Because his head and upper body are obscured from the camera by the bodies of the officers, the video does not capture the moment when he strikes his head. However, nothing in the movements or body language of the officers indicates any attempt to intentionally strike McNevin's head against the door frame.
0:16:48 - An officer explains to the camera that McNevin intentionally swung his head towards the door frame while passing through the door. For the next several minutes, McNevin argues with the correctional officers while they attempt to calm him down.
0:20:50 - A nurse arrives to treat McNevin's head.
0:22:44 - McNevin gets to his feet and is escorted back to medical triage without incident.
0:47:54 - McNevin receives additional treatment for his injury.
0:59:59 - Video MVI-914 ends.EOF No. 38-3. McNevin later received sutures and a tetanus shot for a small abrasion on his head. ECF No. 38¶22.
C. Standard of Review
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, 477 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, 477 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 to 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).
D. Analysis
McNevin asserts that each of the Defendants violated his Eighth Amendment right to be free of cruel and unusual punishment by either utilizing excessive force or by failing to protect him from the use of excessive force by others. More specifically, McNevin claims that members of the CERT team maliciously deployed OC spray and intentionally tried to injure him by twisting his wrists and ramming his head into a door frame.
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). In Whitley v. Albers, the United States Supreme Court articulated several factors for courts to consider in determining whether a correctional officer has used excessive force in violation of the Eighth Amendment, including: “(1) ‘the need for the application offeree'; (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 a video recording, the court must consider the video recorded evidence in determining whether any genuine dispute material fact remains for trial. See Scott v. Harris, 550 U.S. 372, 380-81 (2007). The court must view the facts in the light depicted by the video recording. 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 video recording “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 McNevin's case, there are two distinct applications of force at issue. The first concerns Defendants' use of OC spray to compel McNevin to obey orders. The second occurred when officers carried McNevin from the medical triage room after he refused to walk under his own power. Each will be analyzed separately.
1. OC spray
There is no question that the deployment of OC spray represents a use of force. 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. Prior to the first deployment of OC spray, McNevin admits that he covered his cell window with a sheet in violation of prison rules and then disobeyed several direct orders to remove it. Prior to the second deployment, McNevin disobeyed three direct orders to move to the strip cage door and place his hands through the slot so that he could be handcuffed. For the safety of both the officers and the inmate, as well as the need to restore order and discipline, each of these situations provided adequate justification for the use of OC spray. See, e.g., Martin v. Wetzel, 2021 WL 2926005, at *9 (W.D. Pa. July 12, 2021) (finding the use of OC spray necessary where the plaintiff “had covered the windows of his cell with a sheet” and “refused six orders ... to come to the cell's door, uncover it, and cuff up.”); Jones v. Wetzel, 2017 WL 4284416, at *7-9 (W.D. Pa. Sept. 27, 2017) (granting summary judgment on excessive force claim where officer used OC spray when inmate covered his cell window and refused multiple orders to uncover it). This factor supports 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). Notably, courts have widely upheld the reasonableness of using OC spray “to effectuate removing a prisoner from his cell when the inmate has refused multiple orders to come to the door to submit to handcuffing. Martin, 2021 WL 2926005, at *10. See also Easley v. Tritt, 2021 WL 978815, at *15 (M.D. Pa. Mar. 16, 2021) (use of OC spray necessary to gain compliance when inmate ignored several orders to come to his cell's door and submit for handcuffing); Jones, 2017 WL 4284416, at *7-10 (officer's use of OC spray was reasonable when inmate would not return items from his cell, covered his cell window, and refused multiple orders to uncover it). This is particularly true where, as in the instant case, the prison's medical department cleared the inmate for OC spray prior to the use of force. Martin, 2021 WL 2926005, at *10 (“Before using force, Nurse Johnson told officers that the Medical Department had cleared Martin for OC spray, supporting its reasonableness.”). Consequently, this factor also 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, McNevin received prompt medical treatment following each 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 favor the plaintiff. As McNevin notes in his amended complaint, he was securely confined within a cell during each incident, posing a minimal risk to anyone who remained out of reach. Nevertheless, two considerations tilt this factor in favor of summary judgment. First, there is no question that McNevin eventually needed to be restrained and secured for the purpose of restoring order and discipline. See Johnson v. Clarke, 2022 WL 2835706, at *4 (W.D. Pa. June 2, 2022) (“[E]ven if Clarke could have initially moved away from Johnson's cell to avoid his attacks, Johnson eventually needed to be restrained and secured”). Nothing in the record suggests that he would have ceased his disobedient and disruptive 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, even if there is no immediate security threat, where an inmate repeatedly refuses to follow a corrections officer's direct commands. 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 McNevin's disruptive behavior and refusal to follow orders, Defendants' response was objectively reasonable under the circumstances.
Finally, the Court considers whether Defendants made any efforts to temper the severity of the forceful response. Given the extremely brief and targeted use of pepper spray in this instance, it is unclear how the response could have been tempered. Defendants gave McNevin several verbal warnings prior to each use of OC spray, providing him with ample opportunity to obey orders and avoid being sprayed, and provided prompt medical treatment after each discharge. This factor, like each of the others, supports summary judgment.
In summary, the Court concludes that there is overwhelming evidence to support a finding in Defendants' favor as to each of the Whitley factors. Even viewing the evidence of record, including the video recording, in the light most favorable to McNevin, no reasonable jury could conclude that Defendants' use of OC spray amounted to excessive force. Defendants' motion for summary judgment should be granted as to this claim.
2. Physical force
In addition to the use of OC spray, McNevin claims that officers utilized excessive force when they lifted and carried him from the medical triage room after he refused to stand and walk under his own power. His most egregious accusations include that Defendants unnecessarily twisted his wrists and intentionally rammed his head into a door frame.
Before addressing the Whitley factors, the Court notes that the videotape of the incident decisively refutes McNevin's allegation that Defendants applied force in an intentionally malicious or sadistic manner. See Jones, 2017 WL 4284416, at *10 (granting summary judgment where videotape evidence “clearly undermine[d] any potential determination that [there] was a malicious or sadistic use of force.”). While the camera does not capture the moment where McNevin's head strikes the door frame, the bodies of the officers carrying him are clearly visible. Nothing in their movements or body language supports an inference of malicious or intentional misconduct. None of the officers appears irritated, upset, or aggressive. There are no abrupt movements or changes in direction to suggest an attempt to injure McNevin. To the contrary, the video shows Defendants lifting him from the ground in a fluid motion, orienting him towards the center of the open doorway, and carrying him through in a smooth and precise manner. Whatever caused McNevin's head to strike the doorframe, no reasonable jury viewing the video footage could conclude that it happened due to malicious or sadistic misconduct. Rather, the officers appear to always show restraint and professionalism despite McNevin's recalcitrance.
McNevin's contention that Defendants intentionally twisted his wrists fares no better. The security footage simply does not corroborate his complaint that officers inappropriately twisted or manipulated his arms or wrists. Indeed, many of McNevin's most strenuous verbal objections occur when officers are not touching him at all.
Absent evidence of intentional aggression, the lone remaining issue is whether Defendants violated the constitution by handcuffing McNevin, restricting his movements, and carrying him when he refused to stand and walk. These activities clearly satisfy the Whitley factors. McNevin's adamant refusal to leave the medical triage room under his own power forced officers to carry him. Martin, 2021 WL 2926005, at *9 (inmate's refusal to walk from his cell to the medical department “required officers to carry him by his upper arms and legs”). The application of force was appropriate under the circumstances given the disruption to institutional operations posed by his refusal to return to his cell. See Johnson, 2022 WL 2835706, at *4 (use of reasonable force was necessary to restrain and secure a non-compliant inmate and restore order and discipline). The officers made several efforts to avoid the use of force, such as ordering McNevin to leave the triage room under his own power and warning him that they would carry him if he continued to refuse. Martin, 2021 WL 2926005, at *11 (officers' use of force was reasonable where they repeatedly provided the inmate with opportunities to voluntarily submit to handcuffing). While McNevin did suffer a minor head laceration during the incident, that factor alone is insufficient to overcome the ample evidence supporting the reasonableness of the application of force. Summary judgment is warranted.
This conclusion is also fatal to McNevin's failure to protect and failure to intervene claims. As several courts have noted, “[i]f there is no excessive force, there is no corresponding duty to intervene.” Grubbs v. Marconi, 237 F.Supp.3d 181, 189 (D. Del. 2017). See also Nifas v. Coleman, 528 Fed.Appx. 132, 135-36 (3d Cir. 2013) (“Because we find that no constitutional violation occurred with respect to excessive force, Nifas also cannot succeed on his failure to intervene claims.”)
III. Conclusion
For the reasons stated herein, it is respectfully recommended that Defendants' motion for summary judgment [ECF No. 36] be GRANTED. It is further recommended that Plaintiff s claims against the unserved John Doe Defendants be dismissed pursuant to 28 U.S.C. § 1915(e)(2).
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).