Opinion
C/A No. 0:17-135-MGL-PJG
03-08-2019
Marshall Leon Watkins, Plaintiff, v. Kevin Cross, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Marshall Leon Watkins, a self-represented state prisoner, alleges claims against the named defendant pursuant to 42 U.S.C. § 1983. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Defendant Cross's motion for summary judgment. (ECF No. 181). Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Watkins of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendant's motion. (ECF No. 182.) Watkins responded in opposition to the defendant's motion. (ECF No. 188.) Having reviewed the parties' submissions and the applicable law, the court concludes that the defendant's motion should be granted.
The original defendants in this matter were dismissed pursuant to the court's order issued November 29, 2018. (ECF No. 167.)
BACKGROUND
The court granted Watkins leave to file a Third Amended Complaint to raise a claim pursuant to 42 U.S.C. § 1983 alleging excessive force in violation of the Eighth Amendment against Defendant Cross. (Order and R&R, ECF No. 150 at 10.) The following facts are either undisputed or are taken in the light most favorable to Watkins, to the extent they find support in the record. Watkins alleges that on or about May 20-21, 2016, while housed in the restricted housing unit ("RHU") of Perry Correctional Institution, Nurse Jones distributed incorrect medication to Watkins through the door flap. (3d Am. Compl., ECF No. 155 at 5; Med. Summ., ECF No. 112-10 at 22.) Watkins alleges that he swallowed the medication which then caused him to fall into a paralyzed sleep. (3d Am. Compl., ECF No. 155 at 4.) Watkins further alleges that Defendant Cross knew that Watkins had taken incorrect medication, but nonetheless used chemical munitions on Watkins while Watkins was asleep. (Id. at 4-5.) Watkins alleges that his skin was burned, and that he continues to have sinus and eyesight problems from the chemical munitions. (Id. at 6.) Watkins seeks monetary damages.
DISCUSSION
A. Summary Judgment Standard
Pursuant to Rule 56, summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), 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 Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Defendant Cross's Motion for Summary Judgment
1. Eighth Amendment Generally
The Eighth Amendment to the United States Constitution expressly prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. To proceed with his claim under the Eighth Amendment, Watkins must demonstrate: (1) objectively, the deprivation suffered or injury inflicted was "sufficiently serious," and (2) subjectively, the prison officials acted with a "sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994); Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). "These requirements spring from the text of the amendment itself; absent intentionality, a condition imposed on an inmate cannot properly be called 'punishment,' and absent severity, such punishment cannot be called 'cruel and unusual.' " Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citing Wilson v. Seiter, 501 U.S. 294, 298-300 (1991)). "What must be established with regard to each component 'varies according to the nature of the alleged constitutional violation.' " Williams, 77 F.3d at 761 (quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992)).
2. Eighth Amendment—Excessive Force
The "core judicial inquiry" in an excessive force claim under the Eighth Amendment is "not whether a certain quantum of injury was sustained, but rather 'whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.' " Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson, 503 U.S. at 7). "[N]ot . . . every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson, 503 U.S. at 9. However, the objective component is "contextual and responsive to 'contemporary standards of decency.' " Id. at 8 (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Accordingly, "the extent of injury suffered by an inmate is one factor that may suggest whether the use of force could plausibly have been thought necessary in a particular situation," and it may also provide an indication of the amount of force that was applied. Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 7). In an excessive force analysis, "[w]hen prison officials maliciously and sadistically use force to cause harm, . . . contemporary standards of decency always are violated . . . whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury." Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 9).
When analyzing the subjective element of excessive force claims, courts must determine if the defendant showed "wantonness in the infliction of pain." Whitley v. Albers, 475 U.S. 312, 322 (1986). To that end, they should consider factors such as (1) the necessity for the application of force; (2) the relationship between the need for force and the amount of force used; (3) the extent of the injury actually inflicted; (4) the extent of the threat to the safety of the staff and prisoners, as reasonably perceived by the responsible officials on the basis of the facts known to them; and (5) the efforts taken by the officials, if any, to temper the severity of the force applied. Id. at 321. Courts must give "wide-ranging deference" to the execution of policies and practices that in the judgment of the prison officials are necessary "to preserve internal order and discipline and to maintain institutional security." Id. at 321-22. The Supreme Court has recognized that prison officials work in an environment where there is an ever present potential for violence and unrest, and that courts should not substitute their judgment for that of the officials who must make a choice at the moment when the application of force is needed. Id. The deference owed to prison administrators extends to "prophylactic or preventive measures intended to reduce the incidence of . . . breaches of prison discipline." Id. at 322.
The United States Court of Appeals for the Fourth Circuit has addressed the use of chemical munitions in a prison setting. See Williams v. Benjamin, 77 F.3d 756 (4th Cir. 1996); Bailey v. Turner, 736 F.2d 963, 969 (4th Cir. 1984). In Bailey, the Fourth Circuit held that as long as the quantity of mace used is commensurate with the gravity of the occasion, its use does not violate the Constitution. Specifically, the Bailey Court held that prison officials may use mace to compel the obedience of a recalcitrant prisoner. Bailey, 736 F.2d at 969-70. The Bailey Court found that the Eighth Amendment afforded prison officials the discretion to use mace on inmates to compel them to abide by prison rules, even if they did not pose an immediate physical threat. Id. Whether the use of chemical munitions on an inmate constitutes excessive force depends upon "the totality of the circumstances, the provocation, the amount of gas used, and the purposes for which the gas was used." Id. at 969. Furthermore, the Fourth Circuit has stated that "[a] limited application of mace may be much more humane and effective than a flesh to flesh confrontation with an inmate" and "because a limited use of mace constitutes a relatively mild response compared to other forms of force, the initial application of mace indicates a tempered response by the prison officials." Williams, 77 F.3d at 763 (internal quotations marks and citation omitted).
As described above, Watkins alleges that Defendant Cross used excessive force when he deployed chemical munitions into Watkins's cell while Watkins was asleep. In support of his motion for summary judgment, Defendant Cross has provided affidavit testimony from multiple individuals, Watkins's medical records, and a videotape of the incident.
There appears to be a dispute of fact regarding whether Watkins took erroneously distributed medication and what side effects, if any, he suffered as a result. However, taking this dispute in the light most favorable to Watkins, the court assumes that Watkins's version of events—that he ingested the medication which caused him to fall asleep—is true. (Watkins Aff.¶ 4, ECF No. 176-1 at 1.) Even so, Cross provides unrefuted affidavit testimony in which he avers that he was informed by medical personnel that Watkins needed to be removed from his cell so that he could be medically evaluated because Watkins had possibly taken another inmate's medication. (Cross Aff. ¶¶ 4-5, ECF No. 112-4 at 1-2.) He also avers, as does the Warden of Perry Correctional Institution, that for security reasons, inmates housed in RHU—the highest security level and most secure area of the prison—must be placed in restraints before exiting their cell or before the cell door is opened, as RHU inmates present a higher security risk as evidenced by their disciplinary convictions or assaultive behavior. (Id. ¶ 5, ECF No. 112-4 at 2; Lewis Aff. ¶¶ 3, 6, ECF No. 112-6 at 1, 2.) Cross testifies, and the videotape evidence shows, that Watkins was instructed repeatedly—entreated, in fact—over the course of several minutes to come to the cell door to be placed in restraints, and was informed that if he did not do so an extraction team would be assembled and chemical munitions would be deployed. (Cross Aff. ¶ 5, ECF No. 112-4 at 2; May 21, 2016 Videotape Segments 120230, 120643, & 121734.) Cross also testifies that he observed Watkins's eyes to be open and moving. (Cross Aff. ¶ 5, ECF No. 112-4 at 2.) When Watkins still did not comply with Cross's directives, Cross assembled an extraction team and again directed Watkins to come to the door to be restrained and that his failure to comply would result in chemical munitions being used. (Id. ¶ 6.) Warden Lewis testifies that, in this scenario, correctional officers could not simply enter Watkins's cell because of prior instances in which inmates had pretended to be unresponsive, lured officers into their cell, and assaulted the officers with concealed weapons. (Lewis Aff. ¶ 7, ECF No. 112-6 at 2.) Accordingly, Lewis testifies, "the proper procedure is for the officers to instruct the inmate to come to the cell door to be placed in restraints and to inform the inmate that chemical munitions will be used if the inmate fails to do so. If the inmate is still not responsive after the use of chemical munitions, officers will enter the cell and restrain the inmate so he can be assessed." (Id., ECF No. 112-6 at 2-3.) Cross avers that when Watkins did not comply with Cross's final directive, Cross administered a short burst of chemical munitions into Watkins's cell, and that Watkins then came to cell door and was placed in restraints. (Id. ¶¶ 6-8, ECF No. 112-4 at 2-3.) Watkins was then taken to rinse off the chemical munitions and was seen and assessed by medical personnel, who found him to be stable. (Id. ¶ 8, ECF No. 112-4 at 3.) Cross argues that his use of force was reasonable given the circumstances presented and the security risk presented by Watkins. (Def's. Mem. Supp. Summ. J., ECF No. 181-1 at 1-11.)
Watkins does not refute the defendant's arguments or evidence regarding the above testimony from Cross and the Warden. Rather, he argues only that because Defendant Cross knew that Watkins had taken incorrect medication, Cross should not have used chemical munitions on Watkins when Watkins was asleep. (Watkins's Resp. Opp'n Summ. J., ECF No. 188 at 1.) However, Watkins does not address the sworn testimony presented by the Warden and Defendant Cross regarding the proper security precautions and procedures for removing an RHU inmate from his cell. Thus, the undisputed evidence in the record shows that Watkins's housing status presented a high security risk that necessitated the defendant's reasonable use of chemical munitions when faced with an allegedly unresponsive inmate. Bailey, 736 F.2d at 969-70; see Cox v. Davis, C/A No. 4:13-125-MGL, 2014 WL 1338781 (D.S.C. Apr. 3, 2014) (finding no constitutional violation when a defendant correctional officer deployed chemical munitions into the cell of a high security inmate to determine if the inmate was "faking" or if there was a serious medical emergency); cf. Iko, 535 F.3d at 239-40 (finding the use of chemical munitions on a "docile" prisoner may constitute excessive force). Accordingly, no reasonable jury could find that Defendant Cross's deployment of chemical munitions was not necessary in light of the substantial security risk presented by Watkins and Watkins's refusal to obey multiple directives given by corrections officers, or that Defendant Cross's perception of the security risk posed by Watkins due to his housing status in RHU was unreasonable. See Whitley, 475 U.S. at 321-22.
In examining the second factor under Whitley, the court observes that, while the amount of chemical munitions deployed is not available in the record presented, the videotape evidence shows that Cross deployed a burst of chemical munitions through the food flap in the door of Watkins cell while Watkins was lying on his bed at the back of the cell. (May 21, 2016 Videotape Segment 121734.) As stated above, the use of chemical munitions by prison officials does not violate a prisoner's constitutional rights when used appropriately. See Williams, 77 F.3d at 763. The relatively short burst discharged during this incident weighs in favor of the efforts of Defendant Cross to temper the severity of the force applied and the commensurate relationship between the need for force and the amount used. See Whitley, 475 U.S. at 321; see, e.g., Robinson v. S.C. Dep't of Corr., C/A No. 5:10-2593-HMH-KDW, 2012 WL 851042, at *7 (D.S.C. Mar. 23, 2012) (adopting Report and Recommendation finding "two short bursts of chemical munitions" totaling 31 grams to be a small amount that was not unconstitutionally excessive); Plummer v. Goodwin, C/A No. 8:07-2741-TLW-BHH, 2010 WL 419927, at *7 n.4 (D.S.C. Jan. 29, 2010) (adopting Report and Recommendation finding the use of 33.5 grams of chemical munitions to be "not constitutionally relevant"). Rather, the single burst unequivocally indicates that it was rendered to restore order and institutional security rather than maliciously or sadistically to cause harm. Id. at 322. No reasonable jury could find otherwise.
Examining the extent of injury actually inflicted, the court observes that the unrefuted evidence shows that Watkins was allowed to shower to decontaminate himself immediately following the use of force incident and then was taken directly be evaluated by a nurse, who noted that Watkins's lungs were clear and equal bilaterally, that his mucus membranes were moist and pink, and that he was stable. (See Med. Summ., ECF No. 112-10 at 22.) Subsequent medical records reveal complaints from Watkins regarding issues with his eyes—noting that Watkins reported that he had used milk to rinse his eyes out—and that Watkins was advised to rinse his eyes only with water and was prescribed artificial tears. (Id., ECF No. 112-10 at 21-22.) Additionally, Watkins complained about dry skin and dark circles under his eyes, for which he was prescribed a cream and warm compresses. (Id., ECF No. 112-10 at 19-20.) Although Watkins appears to assert that his skin and sinus issues were proximately caused by the deployment of chemical munitions and that the chemical munitions damaged his eyesight (3d Am. Compl., ECF No. 155 at 6), review of Watkins's medical records reveal that he suffered from and complained regularly of dry skin and allergies prior to this incident; moreover, the record does not contain any evidence that Watkins ever complained of vision problems.
Accordingly, applying both the Whitley and Bailey factors, the court concludes that no reasonable jury could find that Defendant Cross's use of force was not a good faith effort to restore and maintain prison discipline when faced with high security prisoner but rather was used maliciously and sadistically to cause physical harm. See Wilkins, 559 U.S. at 37; see also Whitley, 475 U.S. at 321-22; Bailey, 736 F.2d at 969-70; Williams, 77 F.3d at 763.
RECOMMENDATION
For the foregoing reasons, the court recommends that the defendant's motion for summary judgment be granted. (ECF No. 181.) In light of this recommendation, Watkins's motions for a hearing and to review the videotape should be terminated as moot. (ECF Nos. 188 & 192.) March 8, 2019
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
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
901 Richland Street
Columbia, South Carolina 29201
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).