Opinion
CIVIL ACTION NO. 9:18-1514-TMC-BM
11-12-2019
Yashawnus Patterson, Plaintiff, v. Levern Cohen, Deangelo Ford, and Tatiana Woods, Defendants.
REPORT AND RECOMMENDATION
This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S. § 1983. Plaintiff, an inmate with the South Carolina Department of Corrections (SCDC) who at the time he filed this action was housed at the Perry Correctional Institution (PCI), alleges violations of his constitutional rights by the named Defendants while he was housed as an inmate at the Ridgeland Correctional Institution (RCI). Plaintiff filed an Amended Complaint on September 25, 2018. See Court Docket Nos. 34, 46, 52.
42 U.S.C. § 1983 "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McClellan, 443 U.S. 137, 144 n.3 (1979)). 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).
Plaintiff is currently being housed at the Tyger River Correctional Institution (TRCI). See Court Docket No. 112 (Change of Address Notice).
The Defendants filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. on April 19, 2019. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on April 22, 2019, advising Plaintiff of the importance of a dispostive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to file an adequate response, the Defendants' motion may be granted, thereby ending his case. After receiving an extension of time to respond, Plaintiff filed a response in opposition to the Defendant's motion on July 29, 2019. Defendants filed a reply memorandum on August 5, 2019, and Plaintiff filed a sur reply on August 29, 2019.
Defendants' motion is now before the Court for disposition.
This case was automatically 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 Rule 73.02(B)(2)(d) and (e), D.S.C. The Defendants have filed a motion for summary judgment. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.
Background and Evidence
Plaintiff alleges in his verified Amended Complaint that on June 9, 2015, while he was housed at the Ridgeland Correctional Institution, he was "forced" to move from the Georgetown Unit A Wing to the Beaufort Unit A Wing against his will by the Defendant Sgt. Tatiana Woods. Plaintiff alleges that the environment he was forced to move into "was extremely unsafe because [he] had prior altercations with some of the affiliates of the individuals who now threaten to do [him] physical harm". Plaintiff alleges that although he informed Woods that he needed protective custody, she "still forced me into this environment" by threatening him with chemical munitions.
In this Circuit, verified complaints by pro se prisoners are to be considered as affidavits and may, standing alone, defeat a motion for summary judgment when the allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
Plaintiff alleges that when he arrived at the Beaufort Unit A Wing he was met by Lt. James Williams, and that when he informed Williams of his situation, Williams "placed me in a cell by myself on deadlock to keep me separate from the angry mob of inmates". Plaintiff alleges that he remained on "deadlock" until June 12, 2015, when he spoke to the Defendant Lt. Deangelo Ford about his situation and security issues. Plaintiff alleges that Ford told him to convey those issues to the Warden (the Defendant Levern Cohen), who at that time was making rounds in the dorm, and that when the Warden thereafter approached his cell, Plaintiff "immediately informed him of my issues and again requested protective custody". However, Plaintiff alleges that Cohen denied him protective custody.
Plaintiff alleges that due to the danger he was in he began to feel nervous and "grabbed [a] razor and began to cut my left forearm". Plaintiff alleges that when another inmate saw what was going on, he alerted Lt. Ford, who then approached Plaintiff's cell door and told "Officer Wooten" to "pop the door". Plaintiff alleges that Ford then asked him to drop the razor, but that even though he complied Ford "gassed" him with chemical munitions. Plaintiff alleges that Ford then "grabbed [him] around [his] waist in a bear hug and pulled [him] to the middle of the rock and body slammed [him] in the middle of the rock on my face". Plaintiff further alleges that while he was "down on the rock" Ford grabbed his wrist and put his left arm behind his back and pushed his elbow forward, tearing his left rotator cuff.
Plaintiff alleges that he was subjected to excessive force by Ford, who committed an "assault and battery" against him and caused him personal injury. Plaintiff also alleges that the Defendants violated his constitutional rights by placing him in danger and not granting him protective custody. Plaintiff seeks monetary damages. See generally, Amended Complaint.
Although Plaintiff submitted no evidence or exhibits to support his claim with his Amended Complaint or in opposition to the Defendants' motion for summary judgment, he did attach several exhibits to his original Complaint, and in light of Plaintiff's pro se status, the undersigned has considered this evidence. These exhibits include a copy of an MRI report on his left shoulder taken on December 28, 2016 which found no evidence of fracture, marrow edema, or osteonecrosis, no soft tissue issues, intact joints and tendons, and no evidence of malalignment or joint effusion. There was evidence of a partial thickens articular tear at the footprint, with the impression being a "small anterior supraspinatus footprint tear". Plaintiff's exhibits also include a Physician's consultation note dated March 6, 2017. With respect to Plaintiff's complaints of shoulder pain, the doctor noted that the December 2016 MRI found "very small tear the at the SS at the footprint. No other pathology appreciated", while on examination the findings were essentially normal with no "impingement/instability/apprehension" noted. Plaintiff also attached copies of his prison medical records from the day of the incident. See generally, Plaintiff's Exhibits.
In support of summary judgment in the case, the Defendant Deangelo Ford has submitted an affidavit wherein he attests that he is a Lieutenant at RCI, and was working in the Beaufort Unit on June 12, 2015, when an inmate informed him that Plaintiff was cutting himself in his cell. Ford attests that he immediately went to Plaintiff's cell and witnessed Plaintiff holding a razor and having cut his arm. Ford attests that Plaintiff was given multiple directives to drop the razor, but that Plaintiff refused this directive and was attempting to cut his arm for a third time when a fellow correctional officer opened his cell door. Ford attests that he then administered a single ten gram burst of chemical munitions, following which Plaintiff attempted to run out of his cell. Ford attests that Plaintiff was then taken to the ground and handcuffed to secure him from running around the unit. Another SCDC correctional officer then escorted Plaintiff to medical for decontamination and to be placed on crisis intervention.
Ford attests that at no time did he use excessive force; and that any interactions he had with the Plaintiff were professional, appropriate, and in compliance with SCDC policy and procedures, all state regulations and laws, and all federal laws and regulations. Ford further attests that he had no knowledge that Plaintiff was in any danger, that he had no reason to believe that Plaintiff was at any risk of harm, and that he did not consciously disregard any potential risk of harm to the Plaintiff. Ford attests that at no time did his actions or the actions of any other RCI staff or employees deviate from the excepted standard of care or penological care, that at no time did he violate any policy regarding the Plaintiff nor did he see any other RCI staff or employee violate any policy, and that at no time did either he or any other RCI staff member or employee act deliberately indifferent to any serious need or any serious risk of harm to the Plaintiff. See generally, Ford Affidavit.
The Defendant Levern Cohen has also submitted an affidavit wherein he attests that he is the Warden at RCI. Cohen attests that at all times relevant to Plaintiff's claims he was acting within the rules, laws, and policies of the SCDC, and that any interactions he had with the Plaintiff were professional, appropriate, and in compliance with SCDC policy and procedures, state regulations and laws, and federal laws and regulations. Cohen attests that he had no knowledge that Plaintiff was in any danger, had no reason to believe that the Plaintiff was at any risk of harm, and that he did not consciously disregard any potential risk of harm to the Plaintiff. Cohen further attests that he was not present in the Beaufort Unit on June 12, 2015 when the incident involving the Plaintiff took place. Cohen attests that he was never grossly negligent in any of his acts towards the Plaintiff, nor did he see any acts of gross negligence on the part of any other SCDC employees with respect to the matters alleged by Plaintiff in his Complaint. Cohen attests that he did not violate any policy regarding the matters alleged by the Plaintiff, that at no time did he ever tell any other RCI staff or employees to violate any policy, and that at no time did his actions or the actions of any RCI staff or employees deviate from the acceptable standard of care or the acceptable standard of penological care. See generally, Cohen Affidavit.
The Defendant Tatiana Woods has submitted an affidavit wherein she attests that she was a Sergeant at RCI during the time period covered by Plaintiff's Complaint (she is currently a Lieutenant). Woods attests that Plaintiff was incarcerated within the Georgetown Unit in the RCI on June 9, 2015, a Unit primarily maintained by female correctional officers. Woods attests that on that day, Officer Jones reported that Plaintiff was masturbating in the shower while looking at Jones. Woods attests that at the time of Plaintiff's masturbation incident, SCDC protocol stated that an inmate was to be removed from that Unit and transferred to the Beaufort Unit. Woods attests that Jones prepared an Incident Report detailing this incident. See also Defendant's Exhibit 5 [Jones Incident Report]. Woods attests that she, along with the assistance of another SCDC officer, then escorted Plaintiff to the Beaufort Unit. Woods attests that she had no knowledge that Plaintiff was in any danger in that Unit, that she had no reason to believe Plaintiff was at any risk of harm, and that she did not consciously disregard any potential risk of harm to the Plaintiff. Woods further attests that, other than with respect to that incident on June 9, 2015, she had no further interactions with the Plaintiff, and was not present in the Beaufort Unit on June 12, 2015. Woods attests that all of her interactions with the Plaintiff were professional, appropriate, and in compliance with SCDC policy and procedures, as well as all state and federal laws and regulations, and that she did not violate any of Plaintiff's constitutional rights. See generally Woods Affidavit.
Defendants have also provided an affidavit from Janice Kenealy, who attests that she is the Supervisor of the Records Management Area within the Inmate Records Office at the SCDC, and that she has attached to her affidavit true and accurate copies of SCDC disciplinary records concerning the incidents of June 9, 2015 and June 12, 2015. These exhibits reflect that on June 9, 2015 Plaintiff was charged with exhibitionism and public masturbation, and that following a disciplinary hearing Plaintiff was convicted of that offense. On June 12, 2015, an Incident Report was filed by Ford stating that on that date Ford was advised by another inmate that Plaintiff was cutting himself. The Incident Report reflects that Ford and another officer (Sgt. Straub) approached Plaintiff's cell and that Plaintiff was given a directive to cease his actions. Plaintiff responded that he was going to continue cutting himself if "yall don't let me out this unit" and then started to advance towards his left arm, where he had already made one or two lacerations. The Incident Report reflects that Sgt. Straub then unsecured the cell door, and that Ford gave Plaintiff "a burst" from a chemical munition canister, following which Plaintiff was placed on the floor and restrained with no further incident. Plaintiff was then escorted to medical by "Cpl. Wooten". The Incident Report reflects that ten grams of chemical munitions were disbursed. See generally, Kenealy Affidavit, with attached Exhibits.
The Defendants have also submitted copies of Plaintiff's medical records for the relevant time period. Plaintiff's medical notes reflect that he was brought to medical by security on June 12, 2015 after cutting himself and being "sprayed by officer". It was noted that Plaintiff had a "superficial" laceration to his left forearm, and that his face, neck and eye were "reddened" due to being sprayed by chemicals. Plaintiff denied difficulty breathing, but complained of musculoskeletal discomfort due to his shoulder being "twisted" while being restrained in handcuffs. Plaintiff was provided with some Ibuprofen, his wound was cleaned and dressed, and he was given a temporary no work pass and told to restrict strenuous activities for seventy-two hours. These records also reflect that Plaintiff was taken to the mental health clinic for a crisis assessment following a self laceration injury to his left arm that required stero-strips. Plaintiff advised these medical personnel that he had cut himself with a razor, and that he had "cut before [but] only when necessary". Plaintiff complained that he had been having some issues with his "peers" regarding him "snitching", and related that he had requested protective custody but had not "officially received it" and had been sent to the Beaufort Unit, where he did "not feel safe". These medical notes reflect that Plaintiff appeared alert and oriented x 3, and that he was placed on crisis intervention status.
These are the same records (medical summaries) Plaintiff attached as exhibits to his Complaint.
When medical did a follow-up with Plaintiff the following day (June 13, 2015), Plaintiff denied feeling like harming himself, and was noted to be alert with no signs of distress. When seen again the next day (June 14, 2015), Plaintiff complained about having nightmares and with difficulty sleeping, but there was no indication that he was suffering from any physical injuries. See generally, Exhibit (SCDC Health Services Medical Summary. See also Hiott Affidavit [attesting to authenticity of attached medical records].
The Defendants have also provided excerpts from Plaintiff's deposition. Plaintiff testified that on June 9, 2015 he told the Defendant Woods that "Beaufort Unit has it out for me". Plaintiff's Deposition, p. 59. Plaintiff also testified that he asked for protective custody on June 12, 2015, but when asked if he had specifically told Cohen or anyone else about the "letter incident", Plaintiff testified "no", although he did tell "him" (presumably Cohen) that the "people in the dorm were saying that I was a snitch . . . .". Id., p. 67. However, when asked what inmates at RCI had assaulted him, Plaintiff testified "they didn't. I never said I got assaulted by inmates there". Id., p. 131.
Plaintiff apparently claims that other inmates had gotten hold of a letter either written by him or to him which would have made other inmates think he was a "snitch".
Plaintiff has not submitted any additional evidence in support of his clams or in opposition to the Defendants' motion.
Discussion
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56, Fed.R.Civ.P. The moving party has the burden of proving that judgment on the pleadings is appropriate. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991). Once the moving party makes this showing, however, the opposing party must respond to the motion with specific facts showing there is a genuine issue for trial. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). 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 Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972), the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a Federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990).
Here, after careful review and consideration of the arguments and evidence presented, the undersigned finds for the reasons set forth hereinbelow that the Defendants are entitled to summary judgment in this case.
Defendants make the argument, inter alia, that Plaintiff's case should be dismissed because he failed to exhaust his administrative remedies prior to filing this lawsuit. In doing so, Defendants acknowledge that Plaintiff filed a Step 1 grievance, but argue that Plaintiff did not file his Step 2 grievance appeal (so as to exhaust his administrative remedies) until over a year after the denial of his Step 1 grievance, which was substantially out of time. See Defendants'Exhibit (Anderson Affidavit); see also Exhibit (Court Docket No. 96-8). However, Plaintiff argues that staff initially lost his Step 2 grievance appeal, that he was further hindered by other inmates stealing his property, and that when he requested another form he was initially told his grievance was still pending, all resulting in him not getting another Step 2 form until he got to the Perry Correctional institution. Therefore, out of an abundance of caution, the undersigned has addressed Plaintiff's claims herein the merits. See Stenhouse v. Hughes, No. 9:04-23150, 2006 WL 752876, at * 2 (D.S.C. March 21, 2006)["[E]xhaustion may be achieved in situations where prison officials fail to timely advance the inmate's grievance or otherwise prevent him from seeking his administrative remedies"].
Failure to Protect
In order to proceed on a failure to protect claim, the evidence must be sufficient to give rise to a genuine issue of fact as to whether any named Defendant was deliberately indifferent to a specific known risk of harm to the Plaintiff. See Pruitt v. Moore, No. 02-395, 2003 WL 23851094, at * 9 (D.S.C. Jul. 7, 2003)[Deliberate or callous indifference on the part of prison officials to a specific known risk of harm states an Eighth Amendment claim], cert. denied, 2004 WL 232748 (4th Cir. 2004); Levy v. State of Ill. Dept. of Corrections, No. 96-4705, 1997 WL 112833 (N.D.Ill. Mar. 11, 1997) ["A defendant acts with deliberate indifference . . . if he or she 'knows of and disregards' an excessive risk to inmate health or safety]. The Defendant against whom the claim is being asserted "must have both been aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and . . . [they] must have also drawn that inference". Farmer v. Brennan, 511 U.S. 825, 837 (1994). Plaintiff has failed to present or submit any evidence to the Court sufficient to give rise to a genuine issue of fact that any named Defendant was deliberately indifferent to a specific known risk of harm to him.
The Supreme Court has held that a plaintiff can make out a prima facie case of deliberate indifference by showing "that a substantial risk of [serious harm] was long standing, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus 'must have known' about it". Farmer, 511 U. S. at 842. However, this "deliberate indifference" standard is a "very high standard - a showing of mere negligence will not meet it". Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999); see also A.P. ex rel. Bazerman v. Feaver, No. 04-15645, 2008 WL 3870697 at *12 (11th Cir. Aug. 21, 2008)["[D]eliberate indifference requires a much higher standard of fault than mere or even gross negligence . . . ."]; Danser v. Stanberry, 777 F.3d 340, 346-347 (4th Cir. 2014)[Plaintiff must "establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury" and "that the prison official allegedly violating [P]laintiff's constitutional rights had a sufficiently culpable state of mind"] (internal citation omitted) [vacating district court's order denying summary judgment and remanding with instructions to enter summary judgment]. Plaintiff has presented no evidence to show that any Defendant was aware of any well documented or long standing substantial risk of serious harm to the Plaintiff by virtue of him being placed in the Beaufort Unit at RCI. The Defendants all specifically attest that they had no reason to believe that Plaintiff was at any risk of harm, nor did they consciously disregard any potential risk of harm to the Plaintiff. All Plaintiff states in his verified Complaint (assumed to be true for purposes of summary judgment) is that he felt the environment in the Beaufort Unit would be "extremely unsafe" to him and that he told Woods that he wanted to be placed into protective custody, but that she refused to do so. He further alleges that when he spoke to Ford about his situation and security issues, that Ford told him to take it up with Warden Cohen, but that went when he spoke to Cohen and again requested protective custody, Cohen denied his request. Plaintiff has provided no specifics about any prior altercations he had with any other prisoners in the Beaufort Unit, any evidence to show that any threats had been made against him by any other inmates or what those threats may have entailed, or any other evidence to show that he was in fact in any serious danger of physical harm by being place in the Beaufort Unit. The evidence further shows that Plaintiff testified at his deposition that he had not specifically told Cohen or anyone else about the particular incident that he believed would have been the genisis for him being in danger from other inmates (see n. 6), and further specifically testified that no inmates at RCI had ever assaulted him and that he had never claimed that he had been assaulted by inmates at RCI. Plaintiff's Deposition, pp. 67, 131.
Plaintiff's mere conclusory allegations in his Complaint that he felt "unsafe" in the Beaufort Unit and that he had asked to be placed into protective custody, without any evidence to support a finding that he was in fact in danger and that the Defendants had reason to know of this danger, do not establish a constitutional claim for failure to protect, as in order for any named Defendant to be liable for a violation of Plaintiff's constitutional rights, Plaintiff must have evidence sufficient to give rise to a genuine issue of fact that a named Defendant was deliberately indifferent to a specific known risk of harm to the Plaintiff. See Pruitt, 2003 WL 23851094, at * 9 [Only deliberate or callous indifference on the part of prison officials to a specific known risk of harm states an Eighth Amendment claim], cert. denied, 2004 WL 232748 (4th Cir. 2004); Levy, 1997 WL 112833 ["A defendant acts with deliberate indifference . . . if he or she 'knows of and disregards' an excessive risk to inmate health or safety]. As noted, pursuant to this standard, the official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference". Farmer, 511 U.S. at 837. There simply is no such evidence in this case. Cf. Wilkins v. Upton, 639 Fed. Appx. 941, 944 (4th Cir. Mar. 2, 2016) ["A prison official's subjective actual knowledge can be proven through circumstantial evidence showing, for example, that the risk of [assault] was long standing, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the Defendant-official being sued had been exposed to information concerning the risk and thus must have known about it".] (quoting Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015)); see also House v. New Castle County, 824 F.Supp. 477, 485 (D.Md. 1993) [Plaintiff's conclusory allegations insufficient to maintain claim].
Plaintiff's argument that he was in fact in danger and that the Defendants should have known he was in danger merely because he complained of feeling unsafe or that he could be in danger from other inmates in the Unit and therefor his constitutional rights were violated is simply unavailing. Cf. Fuller v. County of Charleston, 444 F.Supp.2d 494, 498 (D.S.C. 2006) [Finding that the "fact that plaintiff was put in contact with other inmates, some of whom were incarcerated for violent crimes, is not evidence of any actual knowledge on the part of the prison officials that plaintiff was in danger", and that "[o]ccasional, isolated attacks by one prisoner on another may not constitute cruel and unusual punishment, absent some evidence that the prison officials actually were aware of the risk of harm"]; Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008); see also Grayson, 195 F.3d at 695. Therefore, Plaintiff's failure to protect claim is without merit, and should be dismissed.
Excessive Force Claim
When reviewing an excessive force claim, the Court should consider 1) the need for the application of force, 2) the relationship between the need and the amount of force that was used, 3) the threat to the staff and inmates as reasonably perceived by the prison officials on the basis of the facts known to them, 4) the efforts made to temper the severity of a forceful response, and 5) the extent of the injuries suffered by the prisoner. Whitley v. Albers, 475 U.S. 312, 321 (1986); Hill v. Crum, 727 F.3d 312, 327 (4th Cir. 2013); see Majette v. GEO Group, Inc., No. 07-591, 2010 WL 3743364, at * 6 (E.D.Va. Sept 22, 2010); see also Hudson v. McMillian, 503 U.S. 1, 7 (1992) [the core judicial inquiry is whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm]; Mann v. Failey, 578 Fed.Appx. 267, 273 (4th Cir. July 17, 2014) [In order to prevail on an Eighth Amendment excessive force claim, Plaintiff must show both that the deprivation suffered or injury inflicted was sufficiently serious, and that the prison official acted with a sufficiently culpable state of mind], citing Williams v. Benjamin, 77 F.3 756, 761 (4th Cir. 1996).
Here, Plaintiff himself admits that he was in possession of a razor and cutting himself leading up to the incident where physical force was used against him. Moreover, the Defendants have submitted substantial evidence to show that Plaintiff refused to drop the razor and in fact was beginning the process of cutting himself again when Ford administered a short burst of chemical munitions (10 grams) before physically restraining the Plaintiff to place him in hand cuffs. This evidence shows that Ford (the only Defendant named with respect to this cause of action) was justified in using force under the circumstances based on a threat to staff and to the Plaintiff himself as reasonably perceived by him. Hudson, 503 U.S. at 7 [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]. While Plaintiff states in his Complaint that he was compliant, and that Ford "gassed" him and then (using excessive force) forced him to the floor, in doing so tearing his left rotator cuff, all without any justification, in light of the fact that Plaintiff admits he was in possession of a razor cutting himself leading up to this incident, his mere claim in his Complaint that he was calm and compliant when the officers came to his cell door is simply not sufficient, by itself, to create a genuine issue of fact that the amount of force used in this case was constitutionally excessive under the circumstances. see, e.g., Riley v. Honeywell Technology Solutions, Inc., 323 Fed.Appx. 276, 278, n. 2 (4th Cir. 2009)[Holding that Plaintiff's "self-serving contentions" that he was subjected to unconstitutional treatment "were properly discounted by the district court as having no viable evidentiary support"]; see also Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987) ["Even though pro se litigants are held to less stringent pleading standards than attorneys the court is not required to 'accept as true legal conclusions or unwarranted factual inferences.'"]; House, 824 F.Supp. at 485 [Plaintiff's conclusory allegations insufficient to maintain claim].
As Ford is the only Defendant that was involved in the alleged use of excessive force, Cohen and Woods are entitled to dismissal as party Defendants even if this claim is otherwise allowed to proceed. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1999) ["Liability . . . must be based on the personal involvement of the Defendant"], cert. denied, 522 U.S. 1154 (1999); see also Horton v. Marovich, 925 F.Supp. 540 (N.D.Ill. 1996) ["Thus, a plaintiff suing a government official in his individual capacity and therefore seeking to hold the official personally liable must show that the official personally caused or played a role in causing the depravation of a federal right"].
Rather, Plaintiff must have evidence to prove his claim, or at least sufficient to raise a genuine issue of fact that the amount of force used by Ford was unjustified under the circumstances and was in bad faith or malicious. Whitley, 475 U.S. at 321 [Conduct only actionable where evidence shows it was taken "in bad faith and for no legitimate purpose"]; see also Williams, 77 F.3d 761 [because prison officials are entitled to use appropriate force to quell prison disturbances, and because these officials oftentimes must act under pressure without the luxury of a second chance, in order for a prisoner to prevail on an Eighth Amendment claim he must demonstrate that officials applied force maliciously and sadistically for the very purpose of causing harm]; Boone v. Stallings, 583 Fed.Appx. 174, 175 (4th Cir. Sept. 11, 2014) ["Prisoner must meet a heavy burden to satisfy the subjective component - that prison officials applied force maliciously and sadistically for the very purpose of causing harm rather than in a good faith effort to maintain or restore discipline"] (internal quotes omitted); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)["not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights"]. Plaintiff has failed to submit any such evidence. Cf. Mann, 578 F.Appx. 273-274 [Allowing Plaintiff's claim to proceed where there was "ample evidence from which a fact finder could find that [defendants] acted maliciously, sadistically, and in violation of the Eighth Amendment"]; see also Paul v. Davis, 424 U.S. 693, 701 (1976) [not every claim which may set forth a cause of action under a state tort law is sufficient to set forth a claim for a violation of a constitutional right].
In reaching this conclusion, it is instructive to note that Plaintiff does not contest the amount of chemical munitions used on him was minimal (only ten grams). See Plummer v. Goodwin, No. 07-2741, 2010 WL 419927 at * 7 n. 4 (D.S.C. Jan. 29, 2010)[finding that 33.50 grams of chemical munitions used on Plaintiff was "a relatively small quantity and not constitutionally relevant."]; Townsend v. Anthony, No. 03-2528, 2006 WL 2076920 at * 9 (D.S.C. July 24, 2006)[finding 20 grams to be a small amount]; see also Grissom v. Roberts, No. 09-3128, 2009 WL 2601260 at * 6 (D.Kan. Aug. 24, 2009)[Finding that under the circumstances, which included Plaintiff refusing to obey orders, Plaintiff had failed to show that the use of physical force including pepper spray was repugnant to the conscience of mankind]; cf. Whitmore v. Walker, No. 04-837, 2009 WL 900034 at * 9 (S.D.Ill. Mar. 27, 2009) ["[E]ighth Amendment does not require prison guards to engage in physical struggle with an inmate before using chemical mace. Indeed, part of the rationale for using mace is to allow the guards to avoid engaging in physical altercations with an inmate."]. Moreover, the undersigned is further constrained to note that the medical evidence submitted in this case does not support Plaintiff's claim in his Complaint that he was subjected to a constitutionally excessive use of force by Ford. See Strickler v. Waters, 989 F.2d 1375, 1380-1381 n. 9 (4th Cir. 1993) [the mere incantation of physical or mental injury is inadequate to survive a motion for summary judgment]; see also Baber, 977 F.2d at 874-875 [Noting that in order to survive a summary judgment motion, the party opposing the motion must respond to the motion with specific facts showing there is a genuine issue for trial]; cf. Sylvia Dev. Corp. v. Calvert County, MD., 48 F.3d 810,818 (4th Cir. 1995)[explaining that while the party opposing summary judgment is entitled to the benefit of inferences that can be drawn from the evidence, "[p]ermissible inferences must still be within the range or reasonable probability" and that ["[w]hether an inference is reasonable cannot be decided in a vacuum; it must be considered in light of the competing inferences to the contrary" (internal quotation marks omitted)]
In an SCDC physician note dated March 6, 2017 (attached as an exhibit to Plaintiff's original Complaint), where Plaintiff was seen for an evaluation of his shoulder, it was noted that Plaintiff was complaining of "pain since use of force 2015". See Court Docket No. 1-1, p. 2. However, additional medical records submitted as part of a motion to compel reflect that on May 27, 2016 Plaintiff reported (while complaining of left shoulder pain ) that he had been "in an altercation in 2015 where his shoulder was injured and then he was on a bus that slammed on brakes and caused him to hurt the shoulder again". Subsequently, on June 23, 2016, Plaintiff told medical he was in pain because he had been "assaulted by inmates back in October and was in a (sic) accident in state vehicle in April and he is still hurting". See Exhibit (Court Docket No. 77-2, p. 42). No mention is made in these medical records of an assault or injuries caused by Ford. Then, on August 9, 2016, Plaintiff complained of left shoulder pain as a result of being in "an altercation with officers in June of 2015 and . . . in an altercation with other [inmates] 10/5/15". Id., at 77-2, p. 4. Even if the June 2015 reference is to the incident with Ford, these records indicate that Plaintiff has himself over time attributed his left shoulder pain to various causes. Moreover, the contemporaneous medical records do not reflect that Plaintiff suffered any significant injuries as a result of this incident. See Court Docket No. 96-7, pp. 31-34.
Concededly, it is not required that Plaintiff show he suffered more than a de minimis injury to maintain an excessive force claim. See Wilkins v. Gaddy, 130 S.Ct. 1175, 1179-1180 (2010)[Noting that the notion that significant injury is a threshold requirement for stating an excessive force claim was rejected in Hudson, 503 U.S. at 7]. Even so, the extent of any injury suffered by an inmate is still one of the five factors to be considered under Whitley in evaluating an excessive force claim, and the "absence of [a] serious injury" remains relevant in an Eighth Amendment inquiry. Wilkins, 130 S.Ct. at 1179-1180 [holding that the extent of injury may provide some indication of the amount of force applied, and stating that "[a]n inmate who complains of a 'push or shove' that causes no discernible injury almost certainly fails to state a valid excessive force claim"], citing to Hudson, 503 U.S. at 9 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)); see also Ellerbe v. Roach, No. 08-3118, 2010 WL 3361703, at * 3 (E.D.N.C. Aug 24, 2010); Mann, 578 Fed.Appx. 272 [Noting that "a lack of injury is not dispositive, so long as there is sufficient evidence of maliciously - applied force"] (emphasis added). In this case, Plaintiff's actual medical records have been provided as exhibits, and they fail to establish that Plaintiff suffered any significant injury as a result of his encounter with Ford.
Therefore, the Defendant Ford is entitled to summary judgment on Plaintiff's excessive force claim arising out of the incident of June 12, 2015. Stanley v. Hejirika, 134 F.3d 625, 634 (4th Cir. 1998) ["[A] court may allow an inmate's claim to go to the jury only if it concludes that the evidence, viewed in the light most favorable to the claimant, will support a reliable inference of wantonness in the infliction of pain"] (internal quotation marks omitted); Wilson v. Broddy, No. 14-2531, 2015 WL 11143429, at * 7 (D.S.C. Mar. 30, 2015), aff'd, 621 Fed.Appx. 246 (4th Cir. Nov. 5, 2015); Baber, 977 F.2d at 874-875 [Plaintiff must respond to motion for summary judgment with specific facts showing a genuine issue for trial].
Based on the allegations in his Complaint, Plaintiff may conceivably have a state law claim he could assert arising from this incident, or some further administrative remedy he can pursue. However, the evidence before this Court is not sufficient to create a genuine issue of fact as to whether constitutionally excessive force was used under the circumstances in this case. See Paul, 424 U.S. at 701 [not every claim which may set forth a cause of action under state tort law is sufficient to set forth a claim for a violation of a constitutional right]; DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 200-203 (1989) [§ 1983 does not impose liability for violations of duties of care arising under state law]; Baker, 443 U.S. at 146 [§ 1983 claim does not lie for violation of state law duty of care].
Conclusion
Based on the foregoing, it is recommended that the Defendants' motion for summary judgment be granted, and that this case be dismissed.
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge November 12, 2019
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).