Opinion
C/A No. 2:16-cv-03926-BHH-MGB
07-30-2018
Michael A. Breyan, #332098, Plaintiff, v. Captain Thomas Commander, A/W Kenneth Sharp, and Warden Cecelia Reynolds, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
The Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to Title 42, United States Code, Section 1983. This matter is before the Court upon Defendants' Motion for Summary Judgment. (Dkt. No. 50). For the reasons set forth herein, the undersigned recommends granting Defendants' motion.
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate for consideration.
Plaintiff filed the instant action on or about December 9, 2016. (See generally Dkt. No. 1.) On or about February 8, 2017, Plaintiff filed an Amended Complaint. (Dkt. No. 27.) On September 19, 2017, Defendants filed a Motion for Summary Judgment. (Dkt. No. 50.) By order filed September 19, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Plaintiff was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 51.) On or about November 7, 2017, Plaintiff filed a Response in Opposition to the Motion for Summary Judgment. (Dkt. No. 55.)
FACTUAL ALLEGATIONS
Plaintiff, who is currently incarcerated at Lieber Correctional Institution of the South Carolina Department of Corrections ("SCDC"), filed the instant action against Defendants for events that he alleges occurred in November of 2015 at Lee Correctional Institution (hereinafter "LCI"). (See generally Dkt. No. 27.) Plaintiff alleges that Defendant Commander came to his cell and asked to take the bunk out of Plaintiff's cell, but Plaintiff said, "No[,] not until I get my stuff you took out my cell." (Dkt. No. 27 at 4 of 14.) Plaintiff then asked if Defendant Commander was kin to a woman named "France Commander" at Turbeville Correctional Institution. (Dkt. No. 27 at 4-5 of 14.) According to Plaintiff, Defendant Commander then said, "Hold up I'm going to get my gun." (Dkt. No. 27 at 5 of 14.) Plaintiff alleges he "grabbed trays" and put them "on [his] chest to protect [his] chest" and put his "mattress to [the] door [to] . . . protect [him]self." (Dkt. No. 27 at 5-7 of 14.)
According to Plaintiff, Defendant Commander returned "with the gun" and "shot" a can into Plaintiff's cell. (Dkt. No. 27 at 5 of 14.) Plaintiff alleges that when he went to grab the can, a "flash of light and a lot of smoke came out." (Dkt. No. 27 at 5 of 14.) Plaintiff alleges he was pulled out of his cell and was unable to breathe. (Dkt. No. 27 at 5 of 14.) He appears to allege someone-presumably Defendant Commander-had him "standing naked which was public embarrassment" and a violation of SCDC policy. (Dkt. No. 27 at 5 of 14.) Plaintiff asserts "staff conducted" assault and battery with a deadly weapon with "intent to cause harm and evil intent." (Dkt. No. 27 at 5 of 14.) Plaintiff alleges Defendant Commander's "lack of professionalism falls on" Defendant Sharp and Defendant Reynolds as they are "over the institution," and what "officers do fall[s] on [them] and [they are] accountable." (Dkt. No. 27 at 5 of 14.) Plaintiff further alleges he suffered broken ribs, chest pains, and shortness of breath as a result of this incident, and that he requested x-rays but "never got it." (Dkt. No. 27 at 7 of 14.) Plaintiff appears to seek, inter alia, compensatory and punitive damages, as well as "release from prison." (Dkt. No. 27 at 5,7 of 14.)
As has been previously explained to Plaintiff, to the extent Plaintiff seeks release from custody, he must file a petition for a writ of habeas corpus. (See Dkt. No. 57.)
STANDARD OF REVIEW
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
DISCUSSION
As noted above, Defendants seek summary judgment in the instant action. (See generally Dkt. No. 50.) Plaintiff appears to allege a claim, pursuant to 42 U.S.C. § 1983, that Defendants violated his Eighth Amendment right to be free from "cruel and unusual punishments" by using excessive force against him; liberally read, he may also be attempting to assert a claim for deliberate indifference to a serious medical need. (See generally Dkt. No. 27.) The undersigned first addresses Plaintiff's claim for excessive force. A. Excessive Force
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). 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). In order to recover on an Eighth Amendment excessive force claim, a plaintiff must establish that the "prison official acted with a sufficiently culpable state of mind (subjective component); and [that] the deprivation suffered or injury inflicted on the inmate was sufficiently serious (objective component)." Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citing Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996)). Thus, courts must analyze both subjective and objective components.
"[T]he 'core judicial inquiry' regarding the subjective component of an excessive force claim is 'whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Parker v. Stevenson, 625 F. App'x 196, 198 (4th Cir. 2015) (quoting Iko, 535 F.3d at 239). The Fourth Circuit has identified the following four factors to consider when determining whether a prison official's actions were carried out "maliciously and sadistically" to cause harm:
(1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of any reasonably perceived threat that the application of force was intended to quell; and (4) any efforts made to temper the severity of a forceful response.Parker, 625 F. App'x at 198 (quoting Iko, 535 F.3d at 239); see also Whitley Albers, 475 U.S. 312, 321 (1986) (identifying the four factors as (1) "the need for the application of force"; (2) "the relationship between the need and the amount of force" used; (3) "the extent of the injury inflicted"; and (4) "the extent of the threat to the safety of staff and inmates[] as reasonably perceived by the responsible officials on the basis of the facts known to them").
To establish the objective component, the Plaintiff must show "that the alleged wrongdoing is objectively 'harmful enough' to establish a constitutional violation" in the context of "contemporary standards of decency." Hudson v. McMillian, 503 U.S. 1, 8 (1992) (quoting Wilson v. Seiter, 501 U.S. 294, 303 (1991)). When prison officials maliciously and sadistically use force to cause harm, there always exists a constitutional violation regardless of how significant a plaintiff's injury may be. Id. at 9; see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010).
Defendants filed several documents in support of their Motion for Summary Judgment, including the Affidavit of Defendant Commander. (See Dkt. No. 50-2.) Commander states in his Affidavit that on November 29, 2015, he was employed with SCDC at LCI, and Plaintiff was an inmate at LCI in the restricted housing unit ("RHU"), South Cell #147. (Commander Aff. ¶¶ 1-2.) According to Defendant Commander, the "RHU is a 'prison within a prison,' where a significant portion of the population is housed because they failed to follow the rules within the penal institution." (Commander Aff. ¶ 3.) Defendant Commander states that, at that time, "the RHU cells had two bunks in each cell," and an "SCDC maintenance crew was assigned the task of removing the second (or upper) bunk in each of the cells, which included the Plaintiff's cell, South #147." (Commander Aff. ¶ 4.) Commander further states:
5. The upper bunks were secured to iron rods that passed through the walls between adjacent RHU cells. Therefore, in order to remove the upper bunks from two adjacent cells, the inmate residing in one cell would be restrained and removed from the cell. Maintenance workers would enter the cell and use mechanical equipment to cut the upper bunk away from the iron rods that pass through the wall. The bunk would then be removed from the wall and the inmate returned to the RHU cell.(Commander Aff. ¶¶ 5-7.)
6. Following the removal of the first upper bunk, SCDC maintenance staff would then be required to enter the second cell and remove the bunk that had been detached from the adjacent cell. This is what maintenance was trying to do on November 29, 2015 when Plaintiff barricaded himself in his RHU cell, South #147.
7. Unfortunately, Plaintiff was able to pull the upper bunk from the wall after it had been detached from the upper bunk in the adjacent cell. Plaintiff then used the upper bunk as a shield in which to hide behind. Plaintiff placed his mattress against the food flap which prevented the correctional officers from gaining access to any portion of his cell.
According to Defendant Commander, "[a] security threat is created when an inmate blocks staff access to the food (or security) flap or door to a RHU cell," as such "barriers . . . prevent staff from monitoring the inmate's activities within the cell." (Commander Aff. ¶ 8.) Commander states that Plaintiff "repeatedly refused" commands by correctional officers "to remove the obstruction from his food flap and to approach the food flap with his hands behind him so that he may be restrained and removed from the cell." (Commander Aff. ¶ 9.) Because Plaintiff had "barricaded himself in his cell using the upper bunk that had been cut loose by maintenance workers" and "blocked access to the food flap," Warden Reynolds "approved the use of a 37mm launcher." (Commander Aff. ¶ 11.) Defendant Commander describes the 37mm launcher as follows:
Specifically, Commander notes the "inmate could be attempting to escape, to harm himself, to manufacture a weapon, or preparing to attack correctional staff or other inmates." (Commander Aff. ¶ 8.)
This device sends non-lethal munitions into the cell for the purpose of bouncing off the walls and ricocheting into Plaintiff's body, causing him discomfort and therefore encouraging him to come into compliance. The weapon is typically fired into the floor or a wall to best accomplish this purpose. The 37mm launcher is particularly effective when an inmate has barricaded himself in a cell in such a manner to render chemical munitions ineffective. Chemical munitions are most effective when applied directly to the face of the combatant, and are generally far less effective when no clear line of sight is available.(Commander Aff. ¶ 11.)
After more repeated refusals to "remove the obstruction from the food door and allow staff to place his hands in restraints," Defendant Commander then instructed other officers "to use a ram shield to unblock Plaintiff's food flap in the door of Plaintiff's RHU cell," and the obstruction to the food flap was removed. (Commander Aff. ¶¶ 12-14.) Commander states that he "then gave Plaintiff several directives to move from behind his barricade and come to the food flap with his hands extended so that he could be secured," but Plaintiff continued to refuse. (Commander Aff. ¶ 15.) Commander then "fired a single shot of non-lethal munitions from the 37mm launcher into the floor" of Plaintiff's cell and "repeated verbal directives for Plaintiff to move from behind his barricade and come to the doorway so that he may be secured." (Commander Aff. ¶ 16.) Plaintiff refused, so after a minimum of three minutes, "[a] second projectile from the 37mm device was discharged into the floor of Plaintiff's RHU cell." (Commander Aff. ¶¶ 16-18.) Plaintiff was again given verbal instructions but refused to comply. (Commander Aff. ¶ 19.)
According to Defendant Commander, after the third projectile was discharged, Plaintiff complied with directives; he "came from behind his barricade and approached his cell door with his hands out." (Commander Aff. ¶¶ 20-21.) Commander states that Plaintiff was then restrained in handcuffs and "removed from his RHU cell without the necessity of a forced cell extraction." (Commander Aff. ¶ 21.) Commander further states that "[n]o chemical munitions were used during this extraction." (Commander Aff. ¶ 21.) Commander indicates that Plaintiff was "escorted to medical" and "evaluated by Nurse Montgomery who did not find any injuries." (Commander Aff. ¶ 24.) Plaintiff's medical record states, as to the date November 29, 2015:
I/M to medical stating he was gassed for refusing to come out of his room. He states his chest is hurting. Skin is warm and dry. No resp. distress is noted. 02 Sat. is 94%. Skin color is adequate. I/M is able to talk in a audible voice. BP 120/090. No coughing is noted at this time. Skin is intact with no burns or irritation . . . seen on body. I/M returned to RHU per security.(Dkt. No. 50-4.)
The undersigned recommends granting summary judgment to Defendants as to Plaintiff's excessive force claim. Defendants have presented evidence that the use of force passes constitutional muster, and Plaintiff has presented no evidence otherwise. Here, there was a clear need for the application of force. Defendants presented evidence that Plaintiff blocked the flap on his door, thereby creating a security risk, such that corrections officials could not see inside the cell, and Plaintiff refused multiple directives to remove the obstruction. Plaintiff himself admits that he placed a mattress against the cell door and refused officers' requests to come in his cell to remove the bunk. Defendants also presented evidence that they made efforts to temper the severity of a forceful response. First, they issued repeated verbal directives to Plaintiff, but Plaintiff did not comply with those verbal directives. In addition, Defendants presented evidence that they were able to gain compliance by using a 37mm launcher, and that this method is a "far safer use of force than a forced cell extraction," which "poses a high risk of significant injury to both staff and inmates and is considered one of the highest uses of force in a correctional setting." (Commander Aff. ¶ 22.) Defendants also presented evidence that, after each firing of the 37mm launcher, an additional verbal directive was given to Plaintiff before it was fired again, but Plaintiff declined to comply until after the third launch; once he complied, no additional force was used. The amount of force used appears to be the minimum amount needed to gain compliance with officers' instructions and to abate the security risk.
On the facts before this Court, the undersigned recommends granting summary judgment to Defendants as to Plaintiff's excessive force claim. See e.g., Clarke v. Washington, Civ. A. No. 1:14-cv-1313-LMB-JFA, 2015 WL 2238010, at *4 (E.D. Va. May 12, 2015), aff'd, 622 F. App'x 257 (4th Cir. 2015) (granting summary judgment to defendants where officers fired mace launcher because inmates "had ignored verbal warnings to cease fighting, as well as an emergency buzzer," and the officers "took several preliminary steps to attempt to minimize their use of force before its application, including repeated verbal warnings and repeated use of the emergency buzzer"); Fennell v. Williams, Civ. A. No. 1:09-cv-02429-RBH, 2011 WL 251454, at *3 (D.S.C. Jan. 25, 2011) ("The Plaintiff's admitted failure to follow Officer Ricard's direct orders repeatedly created a reasonable perception that Plaintiff posed a t[h]reat to the safety of the staff and institution."); Sharp v. Longe, Civ. A. No. 1:09-2402-JFA-SVH, 2011 WL 489938, at *4 (D.S.C. Jan. 7, 2011), adopted at 2011 WL 489936 (D.S.C. Feb. 7, 2011) (granting summary judgment where the plaintiff "admits that he continued to beat on his cell door after Longe issued a directive to stop"; "the amount of force used was not unreasonable, as Longe administered a one to two second burst" of spray; and Longe "took no further disciplinary action, and Plaintiff was allowed to wash off with water from his toilet"). B. Deliberate Indifference to Plaintiff's Serious Medical Needs
To the extent Plaintiff contends Defendants Sharp and Reynolds are subject to § 1983 liability because they are "over the institution," (Dkt. No. 27 at 5 of 14), the undersigned disagrees. The mere fact that Defendants Sharp and Reynolds were supervisors does not, standing alone, subject them to liability for actions of other employees. See Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir. 1984) ("The plaintiff, of course, assumes a heavy burden of proof in supervisory liability cases. He not only must demonstrate that the prisoners face a pervasive and unreasonable risk of harm from some specified source, but he must show that the supervisor's corrective inaction amounts to deliberate indifference or tacit authorization of the offensive [practices]." (citations and internal quotation marks omitted)); Vinnedge v. Gibbs, 550 F.2d 926, 927-29 (4th Cir. 1977); see also Ouzts v. Cummins, 825 F.2d 1276, 1277 (8th Cir. 1987) ("[A] warden's general responsibility for supervising the operations of a prison is insufficient to establish personal involvement.").
As noted above, in liberally reading Plaintiff's Amended Complaint, it is possible that Plaintiff attempts to bring a claim for deliberate indifference to his serious medical needs. (See generally Dkt. No. 27.) In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held that "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." Estelle, 429 U.S. at 104 (internal citations omitted). To prevail on an Eighth Amendment deliberate indifference claim, "a prisoner must prove two elements: (1) that objectively the deprivation of a basic human need was sufficiently serious, and (2) that subjectively the prison officials acted with a sufficiently culpable state of mind." Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998) (internal quotation marks and citations omitted). The first element "is satisfied by a serious medical condition," while the second element "is satisfied by showing deliberate indifference by prison officials." Id. It is well-settled that mere negligence does not constitute deliberate indifference. Estelle, 429 U.S. at 105-06; Grayson v. Peed, 195 F.3d 692, 695-96 (4th Cir. 1999); Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (holding that "[d]isagreements between an inmate and a physician over the inmate's proper medical care" are not sufficient to raise an Eighth Amendment claim pursuant to § 1983).
The undersigned recommends granting summary judgment to Defendants as to Plaintiff's claim for deliberate indifference. In his Response in Opposition to the Defendants' Motion for Summary Judgment, Plaintiff asserts he had broken ribs, and, although his handwriting is difficult to read, he appears to contend he had blood coming out of his rectum from internal injuries and required "open table surgery . . . to [his] right lung." (Dkt. No. 55 at 1 of 3.) Here, however, no reasonable jury could conclude Defendants were deliberately indifferent to Plaintiff's serious medical needs. In a § 1983 action, "liability is personal, based upon each defendant's own constitutional violations." Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001); see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own actions, has violated the Constitution.").
Defendant Commander presented evidence that, after force was used upon Plaintiff, Plaintiff was taken to medical and evaluated by Nurse Montgomery; Plaintiff has not presented any evidence to the contrary. Given that Plaintiff was taken to medical, and evaluated by medical staff, immediately after the use of force, the undersigned concludes no reasonable jury could find Defendants Commander, Sharp, or Reynolds were deliberately indifferent to Plaintiff's serious medical needs. See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) ("[W]e conclude that, absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official like Gooler will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference."); see also Estelle, 429 U.S. at 104-05 (noting that deliberate indifference can be "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed."); Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) ("An official is deliberately indifferent to an inmate's serious medical needs only when he or she subjectively 'knows of and disregards an excessive risk to inmate health or safety.'" (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994))); Davis v. Carter, 452 F.3d 686, 697-98 (7th Cir. 2006) (affirming grant of summary judgment to Officer Carter on claim of deliberate indifference where the officer received a phone call from Mrs. Davis indicating that Mr. Davis "had not yet received methadone treatment and was in excruciating pain"; although the officer told Mrs. Davis that "Cook County don't work that fast. It don't work that fast for me, and I work here. Maybe he'll get something tomorrow," the officer "then appropriately transferred Mrs. Davis's call to a person responsible for Davis's medical care"). The undersigned therefore recommends granting summary judgment to Defendants as to Plaintiff's claim for deliberate indifference to his serious medical needs.
CONCLUSION
Wherefore, it is RECOMMENDED that Defendants' Motion for Summary Judgment (Dkt. No. 50) be GRANTED.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE July 30, 2018
Charleston, South Carolina
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
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).