Opinion
Civil Action 6:21-cv-2017-BHH-KFM
06-08-2022
Derrick Rivera, Plaintiff, v. PFC Loos, Ofc. Cox, and Marcus D. Rhodes, Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by defendants Ofc. Cox and Marcus D. Rhodes (doc. 46) and the motion for summary judgment pursuant to Rule 56 filed by all the defendants (doc. 56). The plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under § 1983 and submit findings and recommendations to the district court.
I. BACKGROUND AND FACTUAL ALLEGATIONS
On April 3, 2021, the plaintiff was a pretrial detainee at the J. Reuben Long Detention Center ("JRLDC") housed in the A-2 housing unit, where defendants PFC Loos and Ofc. Cox worked as housing unit officers (docs. 18 at 8; 56-1, Cox aff. ¶ 4; 56-2, Loos aff. ¶ 4; 76 at 1). At around 10:30 p.m., Ofc. Cox went to the plaintiff's cell door to provide the plaintiff with a toothbrush that he had requested (doc. 56-1, Cox aff. ¶ 5). Ofc. Cox stated in his affidavit that when he opened the plaintiff's cell door to give him the toothbrush, the plaintiff rammed the door with his body, which hit Ofc. Cox and knocked both him and the plaintiff to the ground (id. ¶ 6). The plaintiff then got up and ran past Ofc. Cox and across the housing unit, while Ofc. Cox got up, yelled "code red," which is the code for a non-medical inmate emergency, and pursued the plaintiff (id. ¶ 8).
At this time, PFC Loos was across the housing unit helping another inmate with GED writing skills (doc. 56-2, Loos aff. ¶ 5). PFC Loos provided in her affidavit that she heard a commotion and looked up to see the plaintiff pushing over Ofc. Cox onto the floor as he was exiting his cell and then running across the housing unit (id. ¶¶ 6-7). The plaintiff ran past PFC Loos and towards two other inmates, and PFC Loos also attempted to radio a code red (id. ¶ 7).
The plaintiff alleges that he then "engage[d] in a fight with another inmate" (doc. 18 at 5). The plaintiff contends that the fighting ceased, and he and the other inmate separated willfully (id. at 5-6). However, PFC Loos then tased him without any directives or warnings to get on the ground (id. at 6). The plaintiff submits that he was not threatening any other inmates or officers and was in an area by himself when he was tased (id.). Further, the plaintiff asserts that he did not resist officers when they handcuffed him (id.).
PFC Loos and Ofc. Cox, however, submit that after the plaintiff ran past PFC Loos, he began punching another inmate (docs. 56-1, Cox aff. ¶ 9; 56-2, Loos aff. ¶ 8). They allege that PFC Loos then tased the plaintiff one time in the back with her taser in probe mode while the plaintiff was still punching the other inmate (docs. 56-1 Cox aff. ¶¶ 9-11; 56-2, Loos aff. ¶ 9). Further, they submit that the plaintiff then stopped assaulting the other inmate, became incapacitated, and fell onto his back onto the floor (docs. 56-1 Cox aff. ¶ 11; 56-2, Loos aff. ¶ 9). Ofc. Cox moved to secure the plaintiff's arms by rolling him onto his stomach and handcuffing his hands behind his back, while PFC Loos backed up Ofc. Cox and stood by ready to deploy her taser again if necessary (docs. 56-1 Cox aff. ¶ 12; 56-2, Loos aff. ¶ 11). However, Ofc. Cox was able to secure the plaintiff in handcuffs without further issue, and PFC Loos did not use any other force beyond the single taser deployment (docs. 56-1 Cox aff. ¶ 12; 56-2, Loos aff. ¶¶ 11-12). The defendants have submitted videos depicting the incident, which were downloaded from the overhead cameras in the A-2 housing unit (doc. 56-3, Johnson aff. ¶ 3 & ex. 1). The defendants have also submitted PFC Loos' infraction report and incident report, incident reports from Ofc. Cox and other officers who responded to the code red, PFC Loos' taser download log, disciplinary documents related to the disciplinary charges against the plaintiff arising from this incident, and photographs of the plaintiff, the other inmate that the plaintiff assaulted, and Ofc. Cox (id. ¶ 3 & ex. 2).
Once the plaintiff was secured in handcuffs, other officers responding to the code red assisted Ofc. Cox in securing the inmates who had been out on recreation back in their cells (docs. 56-1, Cox aff. ¶ 13; 56-2, Loos aff. ¶ 14). PFC Loos noticed that the plaintiff was wheezing, and another responding officer called a code black, the code for a medical emergency (doc. 56-2, Loos aff. ¶ 15). Three nurses responded and assessed both the plaintiff and Ofc. Cox, who had also been injured (id. ¶ 17; 56-1, Cox aff. ¶ 14). The nurses determined that both should go to the medical office for further evaluation (docs. 56-1, Cox aff. ¶ 15; 56-2, Loos aff. ¶ 18). Ultimately, medical staff sent both the plaintiff and Ofc. Cox to a local hospital for additional evaluation and treatment, as both had sustained suspected head injuries (docs. 56-1, Cox aff. ¶ 16; 56-2, Loos aff. ¶¶ 21-22). At the hospital, Ofc. Cox was diagnosed with a concussion (docs. 56-1, Cox aff. ¶ 16; 56-2, Loos aff. ¶ 21). Moreover, the plaintiff underwent medical treatment for a closed head injury, small internal brain bleed, and concussion (docs. 18 at 6; 27-1 at 1-4; 56-2, Loos aff. ¶ 22). The plaintiff submits that he also had a seizure (docs. 18 at 6, 12; 27-1 at 1-4). The plaintiff's treatment ultimately revealed that he had a brain tumor, which was treated with surgery (docs. 27-1 at 1-4; 56-2, Loos aff. ¶ 22).
The plaintiff filed a complaint on July 6, 2021, alleging violations of his constitutional rights against eleven defendants (doc. 1). On August 10, 2021, the undersigned entered an order identifying the defects in the plaintiff's complaint as to nine of the defendants, including JRLDC Director Marcus Rhodes ("Dir. Rhodes"), and all of the plaintiff's claims except for his claim for excessive force against PFC Loos and Ofc. Cox (doc. 14 at 1-6). However, the undersigned gave the plaintiff an opportunity to correct the identified defects in his complaint by filing an amended complaint (id. at 5). The plaintiff then filed an amended complaint on August 23, 2021, alleging a claim for excessive force against PFC Loos, Ofc. Cox, and Dir. Rhodes (collectively "defendants") in their official and individual capacities and seeking monetary damages and injunctive relief (doc. 18). The undersigned then authorized service of process on these defendants (doc. 22).
On November 18, 2021, Ofc. Cox and Dir. Rhodes filed a motion to dismiss (doc. 46). By order filed on November 19, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately to Ofc. Cox and Dir. Rhodes' motion (doc. 48). Further, all three defendants filed a motion for summary judgment on December 28, 2021, realleging the same arguments as those in the motion to dismiss but including PFC Loos and submitting additional arguments with evidence in support (doc. 56). By order filed on December 29, 2021, pursuant to Roseboro, 528 F.2d 309, the plaintiff was again advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately to the defendants' motion (doc. 58). After receiving one extension of time, the plaintiff filed a response on January 21, 2022, which was docketed by the Clerk of Court as a response to the defendant's motion to dismiss (doc. 76). The response contains four separate documents; the first document purports to oppose the defendants' motion to dismiss, while the latter three documents purport to oppose the defendants' motion for summary judgment (see docs. 76; 76-1; 76-2; 76-3). The defendants filed a reply on January 28, 2022 (doc. 78). On February 25, 2022, the plaintiff filed a motion for extension of time to file a response to the defendants' motion for summary judgment (doc. 80), which the undersigned granted by text order on February 28, 2022 (doc. 81). Nevertheless, the plaintiff never filed an additional response to the defendants' motion for summary judgment. Accordingly, the motions are now ripe for review.
II. APPLICABLE LAW AND ANALYSIS
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
B. Exhaustion
The defendants first argue that they are entitled to summary judgment because the plaintiff failed to exhaust his administrative remedies (doc. 56 at 7-9). The Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended at 42 U.S.C. § 1997e(a) (1996)), mandates, among other things, that prisoners exhaust their administrative remedies prior to filing civil actions concerning prison conditions under § 1983 or any other federal law. See Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court"). "[T]he PLRA's exhaustion requirement is mandatory," Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), abrogated on other grounds by Custis v. Davis, 851 F.3d 358 (4th Cir. 2017), and "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
The PLRA requires "proper exhaustion" of available administrative remedies prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006). As the Supreme Court of the United States has noted, "[a]ggrieved parties may prefer not to exhaust administrative remedies for a variety of reasons," whether it be concerns about efficiency or "bad faith." Id. at 89-90. This is especially true in a prison context. Id. at 90 n.1. Nevertheless, "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91.
However, "an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it." Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Thus, an administrative remedy is considered unavailable when: (1) "it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates"; (2) it is "so opaque that it becomes, practically speaking, incapable of use"; or (3) "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Ross v. Blake, 578 U.S. 632, 643-44 (2016).
Major Joey Johnson ("Major Johnson") was the deputy director of the JRLDC during the events in question and oversaw the inmate grievance system (doc. 56-3, Johnson aff. ¶ 2). Major Johnson provided in his affidavit that the JRLDC has an inmate grievance process that contains a three-step review and appeal process, which is outlined in the JRLDC inmate handbook (id. ¶ 5 & ex. 3). The inmate handbook provides that an inmate may file a grievance form at a kiosk within 72 hours of the incident (id. at ex. 3). After the inmate receives a response from a supervisor with a decision regarding his grievance and if he is not satisfied with the response, the inmate may appeal the response to the deputy director within 48 hours (id.). If the inmate is again not satisfied with the deputy director's response, the inmate then has 48 hours to file an appeal to the director (id.). The response from the director is considered final (id.). The inmate handbook also provides that "matters involving court decisions; state and federal laws, standards and regulations; classification decisions; or disciplinary sanctions are not considered grievable items" (id.).
The plaintiff acknowledges that he never filed a grievance regarding the incident in question (doc. 18 at 14). Further, Major Johnson provided in his affidavit that he reviewed the inmate grievance system and found no evidence of the plaintiff filing any grievances regarding an incident of excessive force on or around April 3, 2021, or any use of force involving Ofc. Cox or PFC Loos (doc. 56-3, Johnson aff. ¶ 9). However, the plaintiff appears to argue that the grievance process was unavailable to him (docs. 18 at 14-16; 76 at 14-19). Specifically, the plaintiff relies on the portion of the inmate handbook stating that "matters involving court decisions; state and federal laws, standards and regulations; classification decisions; or disciplinary sanctions are not considered grievable items" to argue that the grievance process did not cover his claim (docs. 18 at 16; 76 at 16). However, the undersigned notes that this provision of the grievance policy does not prevent an inmate from filing a grievance based on a staff member's use of force. Moreover, an inmate's misunderstanding of the grievance process does not excuse a failure to exhaust. See Allen v. Lutz, C/A No. 9:18-2542-HMH-BM, 2019 WL 117314, at *3 (D.S.C. Jan. 7, 2019) ("[I]gnorance of the grievance process or the exhaustion requirement does not excuse his failure to exhaust administrative remedies.") (citing Adams v. Sw. Va. Reg'l Jail, C/A No. 7:12-cv-00462, 2014 WL 3828392, at *3 (W.D. Va. Aug. 4, 2014) ("[A]ny contention that plaintiff's failure-to-exhaust should be excused merely on the basis of his ignorance about the process fails."))).
The plaintiff also alleges that the grievance section of the inmate handbook states that "an allegation of abuse, neglect or mistreatment by any staff member or another inmate is a non-grievable item" and that "[a] detention center policy action taken by a staff member that you believe affects you directly or personally or deprives you of a guaranteed right and/or service" is non-grievable (doc. 76 at 14-15). However, these quotations are absent from the inmate handbook submitted by the defendants (doc. 56-3, Johnson aff. ex. 3), and the plaintiff provides no evidence to support that the grievance policy precludes such claims.
Major Johnson testified in his affidavit that the excerpt explaining the grievance process that is attached as an exhibit to his affidavit is a true and accurate copy of the relevant portion of the JRLDC inmate handbook as kept in the ordinary course of business by the JRLDC (doc. 56-3, Johnson aff. ¶ 5).
Further, the plaintiff argues that he asked "administration through request on the kiosk" to see the video footage of the incident, and he asked "the highest official for use of force policies," but he was told both times to consult a lawyer (docs. 18 at 16; 76 at 15). However, assuming for purposes of this motion that the JRLDC did respond in this manner, such responses did not prevent the plaintiff from filing a grievance and do not rise to the level of the process operating as a simple dead end-with officers unable or consistently unwilling to provide any relief to him; the process being so opaque that it was, practically speaking, incapable of use; or officials thwarting him from taking advantage of the grievance process through machination, misrepresentation, or intimidation. See Ross, 578 U.S. at 643-44.
The plaintiff also appears to argue that he was unable to file a timely grievance because of his medical condition, which caused memory loss (doc. 76 at 17-18). To the extent that the plaintiff is arguing that equitable tolling should apply, such argument is unavailing because he never filed a grievance but instead chose to file this action in federal court. Moreover, the plaintiff has failed to make any showing that the administrative process was unavailable to him. See e.g., Adams, 2014 WL 3828392, at *1-3 (finding that a plaintiff failed to show that the administrative process was unavailable to him even when he had a traumatic brain injury, experienced confusion and short-term and long-term memory loss, and alleged that jail staff never took the time to explain the computer kiosk or grievance process "as they should" because there was no evidence that "any jail employee did anything to frustrate or prevent him from using the grievance procedure").
For the foregoing reasons, the undersigned finds that the plaintiff has failed to exhaust his administrative remedies or show that he was prevented, through no fault of his own, from availing himself of the grievance process. Accordingly, the undersigned recommends that the plaintiff's claims be dismissed for failure to exhaust. However, out of an abundance of caution, the undersigned will address the plaintiff's claims herein.
C. Eleventh Amendment Immunity
The defendants further argue that the plaintiff's claims against them in their official capacities are barred by Eleventh Amendment immunity (doc. 56 at 12-14). At the time of the incident in question, the defendants were employees of the Horry County Sheriff's Office. The Eleventh Amendment prohibits federal courts from entertaining an action against a state. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (citations omitted). Further, Eleventh Amendment immunity "extends to 'arm[s] of the State,' including state agencies and state officers acting in their official capacity," Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir.1996) (alteration in original) (internal citations omitted), because "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office . . . [and] is no different from a suit against the State itself." Will v. Mich. Department of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted). Therefore, Eleventh Amendment immunity protects state agencies and state officials sued in their official capacity from liability for monetary damages under 42 U.S.C. § 1983.
The plaintiff argues that his claims against the defendants in their official capacities are not barred by the Eleventh Amendment because, pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), "local governments and their agencies are not protected by the Eleventh [Amendment] immunity" (doc. 78 at 12). Moreover, the plaintiff cites to Abusaid v. Hillsborough County Board of County Commissioners, 405 F.3d 1298 (11th Cir. 2005), where the Eleventh Circuit held that a Florida county sheriff was not entitled to Eleventh Amendment immunity when enforcing a county ordinance. However, it is well settled, both in South Carolina and federal law, that a Sheriff in South Carolina is an arm of the State and not a county employee and therefore is entitled to Eleventh Amendment Immunity in his or her official capacity from suit in federal court. See Cromer, 88 F.3d at 1332. This status has been extended to directors and detention officers working as employees of a sheriff's office as well. See Lydia v. Henderson, C/A No. 1:11-0023-MBS, 2012 WL 384837, at *4 (D.S.C. Feb. 3, 2012); LaCasse v. Horry Cnty, S.C., C/A No. 4:06-2529, 2007 WL 2580027, at *7 (D.S.C. Sept. 5, 3007). Accordingly, the defendants are entitled to Eleventh Amendment immunity on the plaintiff's claims for monetary relief against them in their official capacities.
D. Excessive Force
The plaintiff argues that PFC Loos used excessive force against him in violation of his Eighth and Fourteenth Amendment rights when she purportedly tased him without providing any directives or warnings and while he was by himself and not threatening anyone (doc. 18 at 6; 76-1 at 2-3). However, PFC Loos and Ofc. Cox submit that she deployed her taser after the plaintiff pushed over Ofc. Cox, ran out of his cell, and began assaulting another inmate (docs. 56-1, Cox. aff. ¶¶ 4-9; 56-2, Loos aff. ¶¶ 4-9). The videos submitted by the defendants clearly contradict the plaintiff's version of the events and depict him actively punching another inmate when he was tased (doc. 56-3, Johnson aff. exhibit 1). Consequently, the undersigned will consider whether PFC Loos' single deployment of her taser was excessive under the circumstances. See Scott v. Harris, 550 U.S. 372, 380 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment."); Pronin v. Johnson, 628 Fed.Appx. 160, 161 (4th Cir. 2015) ("[A] party cannot withstand summary judgment by relying solely on his own self-serving allegations unsupported by any corroborating evidence.") (citation omitted).
As set out above, the plaintiff brought this claim pursuant to § 1983, which "'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. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 "creates a private right of action to vindicate violations of 'rights, privileges, or immunities secured by the Constitution and laws' of the United States." Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
As the plaintiff was a pretrial detainee at the time of the events at issue, the Due Process Clause of the Fourteenth Amendment governs this claim. Kingsley v. Hendrickson, 576 U.S. 389, 400-01 (2015). "[T]he appropriate standard for a pretrial detainee's excessive force claim is solely an objective one," and "a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable," regardless of the officer's state of mind. Id. at 397; see Dilworth v. Adams, 841 F.3d 246, 255 (4th Cir. 2016). "[O]bjective reasonableness turns on the facts and circumstances of each particular case," and a "court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight." Kingsley, 135 U.S. at 397. A court may consider the following non-exclusive list of factors in determining whether the force was objectively reasonable or not:
The defendants argue that the plaintiff's claim for excessive force based on the Eighth Amendment fails, as he was a pretrial detainee at the time of the use of force (doc. 56 at 12-13). The plaintiff, however, argues that his Eighth Amendment claim should not be dismissed because “courts determining detainees['] rights under the [Fourteenth Amendment] have often adopted the [Eighth A]mendment standards in detainee cases that raise issues that are governed by the [Eighth A]mendment when raised by inmates” (doc. 76 at 11). Nevertheless, even when considering the fact that some courts have analyzed the Fourteenth Amendment in light of Eighth Amendment standards, the plaintiff does not have a claim under the Eighth Amendment because he was not a convicted prisoner at the relevant time of his complaint. See Kingsley, 576 U.S. at 400-01; Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977) (“[T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment.”).
[1] the relationship between the need for the use of force and the amount of force used; [2] the extent of the plaintiff's injury; [3] any effort made by the officer to temper or to limit the amount of force; [4] the severity of the security problem at issue; [5] the threat reasonably perceived by the officer; and [6] whether the plaintiff was actively resisting.Id. (citation omitted). "Because the standard is an objective one, the court is not concerned with the officers' motivation or intent. Moreover, it is appropriate to determine whether the force used was objectively reasonable in full context, as a segmented view of the events misses the forest for the trees." Duff v. Potter, 665 Fed.Appx. 242, 244 (4th Cir. 2016) (internal citation and quotation marks omitted).
Here, PFC Loos witnessed the plaintiff push over Ofc. Cox, run out of his cell, and then begin actively assaulting another inmate. During this time, other inmates were out of their cells in the housing unit on recreation. In response, PFC Loos deployed her taser once, which stopped the assault. Ultimately, the plaintiff sustained head injuries from falling due to being tased, as set out above. However, the undersigned finds that PFC Loos' use of force was objectively reasonable under the circumstances. There existed a need for force, as the plaintiff was actively assaulting another inmate. Further, PFC Loos only tased the plaintiff once. Moreover, the plaintiff posed a security threat, as he had assaulted Ofc. Cox and was presently assaulting another inmate. While PFC Loos' motivation or intent is irrelevant to this analysis, the undersigned agrees with PFC Loos' assessment of the situation, as described in her affidavit:
I elected to use my Taser because based upon my training and assessment of the situation, the other force options available to me, pepper spray or physical force (to include, soft empty hand control and/or hard empty hand control/strikes), would have been less effective in stopping Plaintiff's assault on the other inmate as well as potentially placing me in greater danger given the large size differential between Plai[nt]iff and myself.(Doc. 56-2, Loos aff. ¶ 10). Therefore, viewing this incident from the perspective of a reasonable officer on the scene, the undersigned finds that PFC Loos' use of force was objectively reasonable under the circumstances and therefore constitutionally permissible.
The plaintiff also argues that he was tased because Ofc. Cox violated JRLDC policy by opening his cell without another officer present (docs. 18 at 4-5; 76-1 at 1, 3). However, the plaintiff has not produced any evidence that such policy exists. Further, in his affidavit, Ofc. Cox stated as follows:
I am aware that Plaintiff claims that I was not following JRLDC policy when I opened his cell door because Plaintiff claims that two officers must be present when a cell door is opened. There is no such policy at JRLDC, only a post order that the A-2 housing unit be manned by two officers. At the time of this incident, both myself and my partner, fellow housing officer PFC Loos, were present in A-2.(Doc. 56-1, Cox. aff. ¶ 7). Nevertheless, even if Ofc. Cox violated policy by opening the plaintiff's cell without another officer, such allegations are insufficient to state a claim under § 1983. See Pearson v. Turner, C/A No. 9:12-1747-TMC, 2013 WL 1104163, at *2 (D.S.C. Mar. 18, 2013) ("[A]lleged violations of SCDC inmate policies do not constitute due process violations actionable under § 1983.") (citing Keelerv. Pea, 782 F.Supp. 42, 44 (D.S.C.1992) (holding violations of prison policies which fail to reach the level of a constitutional violation are not actionable under § 1983))). Accordingly, the undersigned recommends that the district court find that the plaintiff's excessive force claim fails on the merits.
E. Respondeat Superior
The plaintiff additionally argues that Dir. Rhodes was personally involved in PFC Loos' use of force on him because Ofc. Cox opened his cell door without another officer present in violation of JRLDC policy; similar violations had been ongoing for months as of the date of the incident (April 3, 2021); there is live video surveillance of the A-2 housing unit and Dir. Rhodes would have seen this type of violation had he reviewed the video surveillance; and Dir. Rhodes failed to enforce the policy (docs. 18 at 7; 76 at 3-10; 76-1 at 3). The plaintiff also contends that Dir. Rhodes was personally involved because PFC Loos and Ofc. Cox violated policy by not activating their body cameras prior to the need for use of force (doc. 76 at 5-6). The plaintiff concludes that Dir. Rhodes' personal involvement is "evident" because he was responsible for managing day-to-day operations at the JRLDC (Id. at 6). However, as discussed in the undersigned's order filed on August 10, 2021, the plaintiff has not alleged that Dir. Rhodes was present when PFC Loos used force on him and his allegations do not reflect that Dir. Rhodes was in any way personally involved in the incident in question. Nevertheless, the undersigned will consider the plaintiff's allegations in the context of the doctrine of respondeat superior.
The doctrine of respondeat superior is generally inapplicable to § 1983 claims. See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) ("Section 1983 will not support a claim based on a respondeat superior theory of liability.") (citing Monell, 436 U.S. at 694); Vinnedge v. Gibbs, 550 F.2d 926, 928-29 (4th Cir. 1977) (doctrine of respondeat superior has no application under § 1983). In order to proceed on a supervisory liability theory, the plaintiff must show: (1) the supervisor had actual or constructive knowledge that a subordinate was engaged in conduct that posed "a pervasive and unreasonable risk" of constitutional injury to people like the plaintiff; (2) the supervisor's response was so inadequate as to constitute deliberate indifference or tacit authorization of the subordinate's conduct; and (3) there is an "affirmative causal link" between the supervisor's inaction and the plaintiff's constitutional injury. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). In Randall v. Prince George's County, the Fourth Circuit concluded that, "[u]nder the first prong of Shaw, the conduct engaged in by the supervisor's subordinates must be 'pervasive,' meaning that the 'conduct is widespread, or at least has been used on several different occasions.'" 302 F.3d 188, 206 (4th Cir. 2002) (quoting Shaw, 13 F.3d at 799). Furthermore, in establishing deliberate indifference under Shaw's second prong, a plaintiff "[o]rdinarily ... cannot satisfy his burden of proof by pointing to a single incident or isolated incidents ... for a supervisor cannot be expected ... to guard against the deliberate criminal acts of his properly trained employees when he has no basis upon which to anticipate the misconduct." Id. (quoting Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984)).
As discussed above, the plaintiff has failed to show that Ofc. Cox or PFC Loos used excessive force or violated any policy when Ofc. Cox opened the plaintiff's cell door without another officer present. Additionally, the plaintiff has failed to show that PFC Loos or Ofc. Cox violated any policy by not activating their body cameras under the circumstances. Moreover, there is no evidence that Ofc. Cox and PFC Loos' actions posed a pervasive and unreasonable risk of constitutional injury to inmates like the plaintiff. As such, the plaintiff has failed to show the first element of a respondeat superior claim - that Dir. Rhodes had actual or constructive knowledge that a subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to people like the plaintiff. Accordingly, the plaintiff's claim against Dir. Rhodes should likewise be dismissed.
F. Qualified Immunity
The defendants also argue that they are entitled to qualified immunity (doc. 64-1 at 16-17). Qualified immunity protects government officials performing discretionary functions from civil damage suits as long as the conduct in question does not "violate clearly established rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, qualified immunity is lost if an official violates a constitutional or statutory right of a plaintiff that was clearly established at the time of the alleged violation such that an objectively reasonable official in the official's position would have known of the right. Id.
To determine whether qualified immunity applies, a district court must determine whether a plaintiff has alleged the deprivation of an actual constitutional right at all and whether the particular right was clearly established at the time of the alleged violation. See Tolan v. Cotton, 572 U.S. 650, 655-56 (2014) (per curiam); Wilson v. Layne, 526 U.S. 603, 609 (1999). "The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009). As established above, the undisputed evidence shows that there was no violation of clearly established rights in this incident. Thus, the defendants are entitled to qualified immunity.
III. CONCLUSION AND RECOMMENDATION
Wherefore, based on the foregoing, the undersigned recommends that the district court grant the defendants' motion for summary judgment (doc. 56). Should the district court adopt this recommendation, Ofc. Cox and Dir. Rhodes' motion to dismiss (doc. 46) will be rendered moot.
IT IS SO RECOMMENDED.
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
250 East North Street, Suite 2300
Greenville, South Carolina 29601
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).