Opinion
C. A. 9:20-cv-04119-JMC-MHC
06-03-2022
Lamont W. Cutner, Plaintiff, v. Sheik Johnson, South Carolina Department of Corrections, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Before the Court are two Motions to Dismiss, or in the alternative for Summary Judgment, filed separately by Defendants South Carolina Department of Corrections (“SCDC”) and Sheik Johnson (collectively “Defendants”). ECF Nos. 20, 21. Plaintiff Lamont W. Cutner (“Plaintiff”) filed Responses in Opposition (ECF Nos. 22, 23), and Defendant SCDC filed a Reply (ECF No. 24). The Motions are ripe for review.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.). Because Defendants' Motions are dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends granting the Motions in part and denying the Motions in part.
I. BACKGROUND
Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 and the South Carolina Tort Claims Act (SCTCA), alleging violations of his constitutional rights while he was incarcerated at Lieber Correctional Institution, a facility run by Defendant SCDC. ECF No. 1. Specifically, Plaintiff alleges an Eighth Amendment claim for excessive force and a SCTCA claim for gross negligence.
The facts are largely derived from an SCDC investigative report compiled by Agent Richard Darling, who investigated this incident. In his report, Agent Darling compiled SCDC incident reports and interviewed Plaintiff, Defendant Johnson, Lieutenant Alton Brown, Sergeant Dana Knowlin, and Nurse Tara Sullivan. ECF No. 21-2. Defendant Johnson was a correctional officer at Lieber Correctional Institution at the time of the incident, but he is no longer employed by Defendant SCDC.
Defendant Johnson was involved in another incident with a different inmate on the same date (October 18, 2018), with allegations that he struck that inmate in the head several times with his fist while the inmate was restrained in handcuffs. ECF No. 23-2; ECF No. 23-3. This incident resulted in Defendant Johnson's arrest on charges of Misconduct in Office and Assault and Battery in the third Degree. ECF No. 23-2; ECF No. 23-3. Agent Darling, who was the arresting officer, provided an affidavit indicating that Defendant Johnson admitted to this offense. ECF No. 23-2; ECF No. 23-3.
On October 18, 2018, Plaintiff was in an area where inmates are allowed to conduct telephone calls with their attorneys. ECF No. 21-2 at 1-2, 4. Plaintiff was escorted by Lieutenant Brown. ECF No. 21-2 at 1-2, 4. Plaintiff was in handcuffs and leg irons at the time. ECF No. 206 at 2.
At some point, Defendant Johnson entered the same room, and Plaintiff became agitated because he was upset with Defendant Johnson, as Defendant Johnson had been involved in the use of chemical munitions against Plaintiff a few days prior. ECF No. 21-2 at 1-2, 4. Plaintiff verbally confronted Defendant Johnson about the incident, asking Defendant Johnson whether he wanted to go “another round.” ECF No. 21-2 at 2, 4. According to Defendant Johnson, he initially ignored Plaintiff. ECF No. 21-2 at 3-4.
Words continued to be exchanged, and eventually Plaintiff stood up from his chair. According to Lieutenant Brown, once Plaintiff stood up, Lieutenant Brown told Defendant Johnson to leave the room. ECF No. 21-2 at 2, 7. Defendant Johnson did not leave. Instead, he verbally engaged with Plaintiff and told Plaintiff to sit down. ECF No. 21-2 at 2, 7. Plaintiff did not sit down. According to Defendant Johnson, Lieutenant Brown and Sergeant Knowlin stood between him and Plaintiff. ECF No. 21-2 at 4.
What happened next is unclear. Lieutenant Brown claimed he fell backward over his chair and did not see what happened next. ECF No. 21-2 at 7. According to Defendant Johnson, Plaintiff stood, made eye contact, and “walked closer.” ECF No. 21-2 at 4. Sergeant Knowlin stated that Plaintiff “made a step trying to charge at [Defendant] Johnson.” ECF No. 21-2 at 5. Plaintiff stated that Defendant Johnson pushed Lieutenant Brown and Sergeant Knowlin out of the way to get to him, which resulted in Lieutenant Brown falling over. ECF No. 21-2 at 8.
According to Sergeant Knowlin's and Defendant Johnson's incident reports, when Plaintiff refused to sit down in his chair, Defendant Johnson went and “placed” Plaintiff back into his chair. ECF No. 21-2 at 4-5. In a statement given to Agent Darling, Plaintiff stated that Defendant Johnson punched him in the head and face with a closed fist two times. ECF No. 21-1 at 8. In Agent Darling's report on the use of force incident, he recounts that Sergeant Knowlin stated in a phone interview that Defendant Johnson “did not hit [Plaintiff] at all.” ECF No. 21-2 at 3. Lieutenant Brown heard Plaintiff say that Defendant Johnson hit him in the head several times, but he did not actually witness Defendant Johnson hit Plaintiff because he had fallen backward over his chair. ECF No. 21-2 at 2, 7.
Once Lieutenant Brown got back to his feet, he escorted Defendant Johnson out of the room and called medical staff to tend to Plaintiff. ECF No. 21-2 at 2, 7. Nurse Sullivan examined Plaintiff. ECF No. 21-2 at 6. Her initial evaluation at approximately 1:00 pm did not reveal any visible injury. ECF No. 21-2 at 6. However, when she checked Plaintiff at 5:30 pm later that day, she noted “some swelling on right side of head.” ECF No. 21-2 at 6. Her orders were to give Plaintiff an ice pack and Tylenol for pain, and she provided Neuro checks every fifteen minutes at Plaintiff's cell. ECF No. 21-2 at 6.
Plaintiff initially filed this action in the South Carolina Court of Common Pleas for Dorchester County. ECF No. 1. The action was removed to this Court by Defendants. ECF No. 1. Plaintiff seeks monetary damages from Defendants.
II. LEGAL STANDARD
Defendants move for summary judgment on Plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF Nos. 20, 21. Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
The discovery period for this case has closed. ECF No. 17. Because the Court considers evidence outside the pleadings, the Motions are treated as summary judgment motions. See Edelman v. Lynchburg Coll., 300 F.3d 400, 404 (4th Cir. 2002).
Under this standard, 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, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, 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 or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “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.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
III. DISCUSSION
Plaintiff brings his federal claim pursuant to 42 U.S.C. § 1983 and his state law claim under the SCTCA, SC Code Ann. § 15-78-10, et seq. For the reasons below, the undersigned recommends granting summary judgment to Defendant SCDC on Plaintiff's § 1983 claim, but not on Plaintiff's state law claim, and recommends granting summary judgment to Defendant Johnson on Plaintiff's state law claim, but not on Plaintiff's § 1983 claim.
A. Federal claim under § 1983
Plaintiff does not differentiate between Defendant SCDC or Defendant Johnson for purposes of his § 1983 excessive force claim, as he only refers to “Defendants” generally in his allegations. See ECF No. 1-3 at 7. Defendants assert that they are entitled to summary judgment on Plaintiff's § 1983 claims because, inter alia: (1) Plaintiff did not exhaust his administrative remedies before filing this action, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a); (2) they are entitled to Eleventh Amendment Immunity; (3) Defendant Johnson's actions did not violate Plaintiff's constitutional rights; and (4) Defendant Johnson is entitled to qualified immunity. The Court addresses each argument in turn.
1. Failure to exhaust under the PLRA
The PLRA requires an inmate to exhaust “such administrative remedies as are available” before bringing suit under § 1983 to challenge prison conditions. Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting 42 U.S.C. § 1997e(a)). “[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, 363 (4th Cir. 2017); see also Graham v. Gentry, 413 Fed.Appx. 660, 663 (4th Cir. 2011) (“The exhaustion requirement is mandatory, and courts lack the authority to waive that requirement.”). Section 1997e mandates “proper” exhaustion; thus, a “procedurally defective administrative grievance or appeal” does not satisfy the mandatory exhaustion requirement. Woodfordv. Ngo, 548 U.S. 81, 83-84 (2006).
The PLRA “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). “Failure to exhaust is an affirmative defense, and defendants have the burden of raising and proving the absence of exhaustion.” Baxley v. Jividen, 508 F.Supp.3d 28, 46 (S.D. W.Va. 2020) (citation and internal quotation marks omitted). “However, if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff.” Id. (citation and internal quotation marks omitted).
Defendants submitted the affidavit of Felecia McKie, who is the Chief of the Inmate Grievance Branch of SCDC, and SCDC's “Inmate Grievance System,” which contains the inmate grievance procedure. ECF No. 20-4. Defendants also submitted the grievances Plaintiff filed related to the incident at issue in this litigation. ECF No. 20-4 at 28-33.
As Chief of the Inmate Grievance Branch, McKie's duties include overseeing and monitoring the inmate grievance process at all SCDC facilities. ECF No. 20-4 at 1. In her affidavit, McKie detailed the grievance system and noted the steps an inmate must take to properly exhaust the administrative process. ECF No. 20-4 at 1-10. To summarize the process, generally, an inmate must first submit a Request to Staff Member Form (“RTSM”) or Automated Request to Staff Member (“ARTSM”) in an effort to resolve the grievance informally. ECF No. 20-4 at 3, 19-22. Thereafter, the inmate must file a Step 1 Grievance Form (10-5), setting forth the issue grieved. ECF No. 20-4 at 3, 19-22. Inmates may then appeal an SCDC decision as to the Step 1 Grievance by filing a Step 2 Grievance Form (10-5A). ECF No. 20-4 at 4-5, 19-22. SCDC's response to a Step 2 Grievance is considered the final agency decision on the issue. ECF No. 20-1 at 5; ECF No. 20-4 at 8, 21.
McKie reviewed Plaintiff's grievance history and attested that the following potentially relevant grievances were filed but never exhausted:
1. Grievance Number: LCI-0946-18, date filed: 10/19/18, action requested: [Plaintiff] alleges he was punched in the face during visitation on 10/18/18 by [Defendant] Johnson. The Step 1 Grievance was processed on 9/19/19 and the Warden denied the grievance as [Defendant] Johnson no longer worked with SCDC.
2. Grievance Number: LCI-1160-18, date filed: 12/27/18. [Plaintiff] states that he did do his informal resolution, but claims he did not receive a response back. The grievance was processed denied as [Plaintiff] failed to file a RTSM or ARTSM.
3. Grievance Number: LCI-1007-18, date filed: 11/5/18. This was [Plaintiff's] grievance complaining that he had a torn grievance returned to him and claims that the mail room tried to tear it up. The grievance was returned as [Plaintiff] failed to include proof of RTSM or ARTSM but had the option to refile.ECF No. 20-4 at 10-11. McKie concluded that no other grievances relevant to the issues in this case were filed by Plaintiff, and he did not fully exhaust his administrative remedies. ECF No. 20-4 at 11. Consequently, Defendants have made a threshold showing that Plaintiff failed to exhaust his administrative remedies prior to initiating this action. See Baxley, 508 F.Supp.3d at 46 (noting “if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff').
In response, Plaintiff argues that he did, in fact, exhaust his administrative remedies. ECF No. 23 at 3. He focuses on the first grievance detailed by McKie above: Grievance Number LCI-0946-18. According to Plaintiff, the filing of this grievance meets the Step 1 Grievance time requirement of five days from the date of the incident. He notes that he set forth facts related to the alleged assault and asked that “[Defendant Johnson] be fired [sic] investigated.' ECF No. 204 at 28.
That grievance was processed and referred to the Division of Police Services on or about November 8, 2018, and Plaintiff argues that Defendant SCDC failed to acknowledge the grievance was “processed” until September 19, 2019. See ECF No. 20-4 at 28-29. Plaintiff points out that SCDC found the grievance to have been “resolved'-not “denied' as McKie averred-as the relief requested was the investigation and termination of Defendant Johnson, and Defendant Johnson had been investigated by Agent Darling and terminated by SCDC. See ECF No. 20-4 at 29; ECF No. 23-2; ECF No. 23-3. Thus, Plaintiff argues that his administrative remedies were exhausted because he received the relief he requested, and he maintains there was nothing from which he could appeal.
Whether Defendant Johnson was fired because of Plaintiff's grievance is not entirely clear from the record. Regardless, Agent Darling investigated the use of force employed by Defendant Johnson, and it is undisputed that Defendant Johnson was terminated by SCDC. Thus, the relief requested-as the SCDC grievance documents reflect-was “resolved' rather than “denied.' See ECF No. 20-4 at 29.
Several Circuits, including the Fourth Circuit, have held that an inmate who receives a favorable outcome during the administrative grievance process does not need to appeal further in order to exhaust his administrative remedies under the PLRA. See Toomer v. BCDC, 537 Fed.Appx. 204, 206 (4th Cir. 2013) (“After receiving a favorable outcome on the merits of his grievance at a lower step in the process, Toomer was not obligated to pursue an administrative appeal to Step III in order to exhaust his administrative remedies.”); see also Q.F. v. Daniel, 768 Fed.Appx. 935, 943 (11th Cir. 2019) (“Requiring inmates to file or appeal grievances after relief is granted does not comport with the underlying polices [sic] of the exhaustion requirement.”); Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010) (“An inmate has no obligation to appeal from a grant of relief, or a partial grant that satisfies him, in order to exhaust his administrative remedies.”); Rosa v. Littles, 336 Fed.Appx. 424, 429 (5th Cir. 2009) (“Because TDCJ could grant no further relief, no further relief was ‘available' to Rosa (for the reason that it had already been granted); and, accordingly, there was nothing further to exhaust.”); Thornton v. Snyder, 428 F.3d 690, 697 (7th Cir. 2005) (“In short, the defendants' notion that Thornton should have appealed to higher channels after receiving the relief he requested in his grievances is not only counter-intuitive, but it is not required by the PLRA.”).
Although the Supreme Court has not directly addressed the issue, it has recognized that the PLRA contains its own textual exception to the mandatory exhaustion requirement, noting the requirement hinges on the “availability” of administrative remedies-that is, an inmate “must exhaust available remedies, but need not exhaust unavailable ones.” Ross, 578 U.S. at 642. The Supreme Court set forth three scenarios where the administrative process, although officially on the books, might be considered “unavailable” for purposes of exhausting under the PLRA. Id. at 643-44. The Court held an administrative procedure is unavailable (1) when “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) when it is “so opaque that it becomes, practically speaking, incapable of use;” and (3), “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. Facts supporting the existence of any of these scenarios could remove an inmate's obligation to exhaust his administrative remedies. Id.
Here, Plaintiff ultimately received the relief he sought. Defendant Johnson was investigated by Agent Darling, and he was fired ultimately by Defendant SCDC. There was nothing more that the administrative grievance process could have provided Plaintiff. That is, appealing would have operated as a “simple dead end-with officers unable . . . to provide any relief” to Plaintiff. See Ross, 578 U.S. at 643 (emphasis added); see also Rosa, 336 Fed.Appx. at 428-29 (“Rosa obtained that relief at step-one, and TDCJ did not have the authority to take any other action in response to Rosa's step-two grievance, had one been filed.”).
In their Reply, Defendants argue that the Supreme Court's decision in Booth v. Churner, 532 U.S. 731 (2001) requires full exhaustion “regardless of whether the relief sought is available.” ECF No. 24 at 3. This argument, however, conflicts with the Supreme Court's discussion of Booth in Ross. Indeed, “in Booth's words: ‘[S]ome redress for a wrong is presupposed by the statute's requirement' of an ‘available' remedy; ‘where the relevant administrative procedure lacks authority to provide any relief,' the inmate has ‘nothing to exhaust.'” Ross, 578 U.S. at 643 (citation omitted). That is, the “modifier ‘available' requires the possibility of some relief,” and when “the facts on the ground demonstrate that no such potential exists, the inmate has no obligation to exhaust the remedy.” Id. (emphasis added) (quoting Booth, 532 U.S. at 738). Moreover, the Seventh Circuit rejected a similar argument put forth by Defendants, which the undersigned finds persuasive. See Thornton, 428 F.3d at 696-97 (noting, “[i]f anything, Booth supports [Plaintiff's] position,” and holding that “the defendants' notion that [Plaintiff] should have appealed to higher channels after receiving the relief he requested in his grievances is not only counter-intuitive, but it is not required by the PLRA”).
Under the circumstances, Defendants are not entitled to summary judgment on the ground of failure to exhaust.
2. Eleventh Amendment
The Eleventh Amendment nevertheless bars Plaintiff's lawsuit against Defendant SCDC and against Defendant Johnson in his official capacity.
Under the Eleventh Amendment, federal courts are barred from hearing claims against a state or its agents, instrumentalities, and employees, unless the state has consented to the suit. Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“It has long been settled that [the Eleventh Amendment's] reference to ‘actions against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.”). Unless a state has consented to suit or Congress has waived a state's immunity pursuant to the Fourteenth Amendment, a state (and its agencies) may not be sued in federal or state court. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). Congress has not abrogated the states' sovereign immunity under § 1983, Quern v. Jordan, 440 U.S. 332, 343 (1979), and South Carolina has not consented to suit in federal district court. S.C. Code Ann. § 15-78-20(e).
Here, Defendant SCDC is an agency and an alter ego of the state of South Carolina. See S.C. Code Ann. § 24-1-30. As a result, the Eleventh Amendment bars the action against Defendant SCDC. See Will, 491 U.S. at 66. Likewise, to the extent Plaintiff has also brought suit against Defendant Johnson in his official capacity, he is entitled to Eleventh Amendment immunity. See Simpson v. S.C. Dep't of Corr., No. 2:19-CV-2245-RMG, 2020 WL 582321, at *2 n.1 (D.S.C. Feb. 6, 2020) (noting SCDC employees are entitled to Eleventh Amendment immunity in suits brought against them in their official capacities).
Finally, for purposes of § 1983, Defendants are not considered “persons” amenable to suit. See Will, 491 U.S. at 71 (“Neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.”); see also Hafer v. Melo, 502 U.S. 21, 26-27 (1991). Accordingly, the undersigned recommends granting summary judgment to Defendant SCDC and Defendant Johnson in his official capacity on Plaintiff's § 1983 claims.
3. Excessive force claim against Defendant Johnson
Defendant Johnson is also being sued in his individual capacity under § 1983. See ECF No. 1-3 at 5. Specifically, Plaintiff alleges that Defendant Johnson used excessive force when the altercation at issue took place, which he maintains violated his constitutional rights. Because there is a genuine dispute of material fact over this claim, Defendant Johnson is not entitled to summary judgment.
To establish a constitutional excessive force claim, an inmate must establish both an objective and subjective component. Brooks v. Johnson, 924 F.3d 104, 112 (4th Cir. 2019). “The objective component asks whether the force applied was sufficiently serious to establish a cause of action.” Id. This is not a high bar: “as long as the force used is more than de minimis, the objective component is satisfied, regardless of the extent of the injury.” Dean v. Jones, 984 F.3d 295, 303 (4th Cir. 2021).
The subjective component is more demanding and asks a single question: “whether the officers acted with a ‘sufficiently culpable state of mind.'” Id. at 302 (citation omitted). That is, the subjective component is concerned with the underlying intent or motive of the officer that applied the force. Id. The core inquiry for the Court is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)).
This subjective standard is unlike the “objective reasonableness” test courts apply under the Fourth Amendment: “The question is not whether a reasonable officer could have used force to maintain discipline, but whether these particular officers did use force for that reason.” Brooks, 924 F.3d at 113 (emphasis in original).
Corrections officers employ force in “good faith”-i.e., permissibly-when “they are motivated by an immediate risk to physical safety or threat to prison order.” Dean, 984 F.3d at 302 (cleaned up) (citation omitted). Conversely, officers cross the line into an impermissible motive when “they inflict pain not to protect safety or prison discipline but to punish or retaliate against an inmate for his prior conduct.” Id.; see also Brooks, 924 F.3d 113 (noting corrections officers cross the line “when they inflict pain not to induce compliance, but to punish an inmate for intransigence or to retaliate for insubordination”). An officer's use of force on an inmate who is “‘restrained and compliant and posing no physical threat' raises the specter of such an impermissible motive.” Dean, 984 F.3d at 302 (quoting Thompson v. Virginia, 878 F.3d 89, 102 (4th Cir. 2017)).
An officer's subjective motive may be proven through direct or circumstantial evidence. Id. at 308-09. The Supreme Court has set forth the following non-exclusive factors to assist courts in assessing whether an officer has acted with the requisite state of mind: “(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.'” Iko, 535 F.3d at 239 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). “If a reasonable jury could find, based on inferences drawn under the Whitley factors or other evidence, that correctional officers used force maliciously to punish or retaliate against an inmate, then summary judgment is not appropriate.” Dean, 984 F.3d at 302-03.
a. Objective Component
As an initial matter, Defendant Johnson concedes in his brief that there was “the need for an application of force.” ECF No. 21-1 at 11. Thus, there is no dispute over whether some force was used, but rather the nature of force employed. In that regard, the facts are in dispute.
According to Sergeant Knowlin's and Defendant Johnson's incident reports, when Plaintiff refused to sit down in his chair, Defendant Johnson “placed” Plaintiff back into his chair. ECF No. 21-2 at 4-5. The officers do not elaborate on how this was done. In Plaintiff's statement given to Agent Darling, he stated that Defendant Johnson punched him in the head and face with a closed fist two times. ECF No. 21-1 at 8. In Agent Darling's report on the use of force incident, he recounts that Sergeant Knowlin indicated that Defendant Johnson “did not hit [Plaintiff] at all.” ECF No. 21-2 at 3. Defendant Johnson likewise denied punching Plaintiff in the head. ECF No. 21-2 at 3. Lieutenant Brown heard Plaintiff say that Defendant Johnson hit him in the head several times, but he did not actually witness Defendant Johnson hit Plaintiff because he had fallen backward over his chair. ECF No. 21-2 at 2, 7.
Once Lieutenant Brown got back to his feet, he escorted Defendant Johnson out of the room and called medical staff to tend to Plaintiff. ECF No. 21-2 at 2, 7. Nurse Sullivan's incident report noted “some swelling on right side of head” when she checked Plaintiff at 5:30 pm later that day. ECF No. 21-2 at 6. Her orders were to give Plaintiff an ice pack and Tylenol for pain, and she provided Neuro checks every fifteen minutes at Plaintiff's cell. ECF No. 21-2 at 6.
As there is nothing of undisputed authenticity that shows Plaintiff's version of events is false, the Court cannot adopt Defendants' version of the facts for purposes of summary judgment.Which account to believe is not for this Court to decide. See McAirlaids, Inc., 756 F.3d at 310 (noting “credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge” (quotation marks and citation omitted)).
It is true that, “[w]hen 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.” Scott v. Harris, 550 U.S. 372, 380 (2007). But, the type of record evidence this applies to is that “of undisputed authenticity,” like a video, which “shows some material element of the plaintiff's account to be ‘blatantly and demonstrably false.'” Harris v. Pittman, 927 F.3d 266, 276 (4th Cir. 2019) (quoting Blaylock v. City of Philadelphia, 504 F.3d 405, 414 (3d Cir. 2007)). That is not the case here, as no video of the incident exists. See ECF No. 21-2 at 2; Poindexter v. Sandy, No. 21-6638, 2022 WL 1656126, at *3 (4th Cir. May 25, 2022) (“At the summary judgment stage, a district court may only disregard the nonmoving party's version of the facts if video evidence ‘blatantly contradict[s]' it.” (citation omitted)); see also Shiheedv. Harding, 802 Fed.Appx. 765, 768 (4th Cir. 2020) (upholding summary judgment for officers where video evidence clearly demonstrated that excessive force was not used in violation of the Eighth Amendment after analyzing Whitley factors).
Viewing Plaintiff's statements and Nurse Sullivan's incident report and orders in the light most favorable to Plaintiff, a reasonable jury could infer any force that may have been used on Plaintiff was more than de minimus. See Crockett v. Talley, No. 1:19CV893 (AJT/TCB), 2022 WL 837483, at *6 (E.D. Va. Mar. 21, 2022) (“Because ‘[t]he extent of injury may also provide some indication of the amount of force applied,' it is certainly a relevant factor for a juror to consider.” (quoting Wilkins v. Gaddy, 559 U.S. 34, 37 (2010))).
Defendant Johnson argues that Plaintiff has not presented evidence showing that he was injured by Defendant Johnson. However, as noted above, there is evidence that Plaintiff was injured; specifically, being taken to medical after the incident and Nurse Sullivan's incident report. See Dean, 984 F.3d at 301 (noting a district court must review the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his favor). Moreover, the objective component is satisfied-regardless of the extent of the injury-if the force used is more than de minimus. See id. at 303 (noting that “[a]lthough we once considered the severity of an inmate's injuries under the objective component, the Supreme Court has clarified that what matters is the severity of the force employed” (emphasis in original) (citing Wilkins, 559 U.S. at 39)). Thus, Defendant Johnson's focus on the injury, rather than the force used, is misplaced. See Wilkins, 559 U.S. at 38 (“Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately counts.”). Even setting aside the factual dispute over whether Defendant Johnson hit Plaintiff in the head, however, Defendant Johnson's “placing” Plaintiff back in his chair-however that may have been done-does not categorically exclude a finding by a reasonable jury that the force used to do so was more than de minimus. See Dean, 984 F.3d at 302 (noting the objective component “is not a high bar”).
b. Subjective Component
When viewing the above evidence in the light most favorable to Plaintiff, there is also a question of material fact as to the subjective nature of Defendant Johnson's actions; specifically, whether Defendant Johnson used force in a “good faith effort” or “maliciously” to cause harm. Looking at the first three Whitley factors-the need for the force; the relationship between the need and the amount of force used; and the extent of any reasonably perceived threat-the undersigned concludes that a reasonable jury could infer from the facts that Defendant Johnson used force against Plaintiff maliciously to punish him for insubordination.
As to the first two factors, Defendant Johnson argues that the initial aggression of Plaintiff and his “subsequent disobedience to Defendant Johnson's verbal directives provided the need for an application of force.” ECF No. 21-1 at 11. However, the need for force to place Plaintiff in his chair because he refused a verbal directive to sit back down is not so obvious or self-evident that a reasonable jury could not infer malicious motive. Indeed, the record indicates that Plaintiff did not become agitated and stand up until Defendant Johnson entered the room, as the two men were involved in another use of force incident involving the deployment of chemical munitions against Plaintiff a few days prior. Lieutenant Brown, a superior officer, told Defendant Johnson to leave the room. Defendant Johnson did not leave. Instead, he engaged verbally, then physically, with Plaintiff. Viewing the evidence in a light most favorable to Plaintiff, a reasonable jury could infer Defendant Johnson's motives to stay in the room-despite a superior officer telling him to leave- and subsequently use force against Plaintiff was excessive, rather than in good faith. See Boone v. Stallings, 583 Fed.Appx. 174, 177 (4th Cir. 2014) (holding “a jury could conclude that the officers' response to [Plaintiff's] conduct was excessive and retaliatory rather than made in a good faith effort to maintain discipline”).
As to the third Whitley factor regarding a reasonably perceived threat, a reasonable jury could perceive this factor to weigh against Defendant Johnson. To the extent Plaintiff posed a threat to Defendant Johnson, Lieutenant Brown instructed Defendant Johnson to leave the room, which he chose not to do. Moreover, Lieutenant Brown and Sergeant Knowlin were between Plaintiff and Defendant Johnson, and Plaintiff was in handcuffs and leg irons at the time. See ECF No. 21-2 at 4; ECF No. 20-6 at 2. According to Defendant Johnson, Plaintiff stood, made eye contact, and “walked closer.” ECF No. 21-2 at 4. Sergeant Knowlin stated that Plaintiff “made a step trying to charge at [Defendant] Johnson.” ECF No. 21-2 at 5. Neither officer mentions Lieutenant Brown falling over, or how Defendant Johnson and Plaintiff-who were separated by two officers-came to be in physical contact with each other. On the other hand, Plaintiff stated that Defendant Johnson pushed Lieutenant Brown and Sergeant Knowlin out of the way to get to him, which resulted in Lieutenant Brown falling over. ECF No. 21-2 at 8.
Viewing these facts and the inferences therefrom in the light most favorable to Plaintiff, a reasonable jury crediting Plaintiff's version of events could infer Defendant Johnson's motives were not in good faith. See Dean, 984 F.3d at 302 (noting “the use of force on an inmate who is restrained and compliant and posing no physical threat' raises the specter of such an impermissible motive” (citation and internal quotations omitted)).
As to the fourth Whitley factor-any efforts made to temper the severity of a forceful response-Defendant Johnson argues that he made such an effort by first giving verbal directives to Plaintiff, which were ignored. ECF No. 21-1 at 11. However, giving verbal directives before the use of force does not eliminate the material questions of fact present in this case, especially when considering the other three Whitley factors. See Brooks, 924 F.3d at 117 (“[W]e have . . . held that ‘verbal attempts' to reason with and calm an unruly detainee before resort[ing] to force do not preclude an inference that force was applied maliciously, in order to punish this continued intransigence.” (emphasis in original)).
In short, there is a factual dispute here as to what occurred leading up to and during the incident. In viewing the record before the Court, the inferences to be drawn from applying the Whitley factors to the facts of this case are “not so plain that they may be resolved as a matter of law” on summary judgment. Brooks, 924 F.3d at 117. That is, a reasonable jury crediting Plaintiff's version of events could infer from the Whitley factors that Defendant Johnson's use of force was not in good faith, but rather for purposes of punishment for insubordination. See Dean, 984 F.3d at 302-03 (“If a reasonable jury could find, based on inferences drawn under the Whitley factors or other evidence, that correctional officers used force maliciously to punish or retaliate against an inmate, then summary judgment is not appropriate.”). For these reasons, the undersigned recommends denying Defendant Johnson's Motion on the § 1983 claim against him in his individual capacity.
4. Qualified Immunity
Defendant Johnson contends that he is entitled to qualified immunity on Plaintiff's excessive force claims. The doctrine of qualified immunity offers some protection to a government employee being sued in his individual capacity. The Supreme Court has held that “[g]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Renn by and Through Renn v. Garrison, 100 F.3d 344, 349 (4th Cir. 1996).
“The threshold inquiry a court must undertake in a qualified immunity analysis is whether a plaintiff's allegations, if true, establish a clear constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). If a violation of a constitutional right in fact exists, qualified immunity nonetheless shields a prison official from liability, unless the violation was of a “clearly established right of which a reasonable person would have known.” Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (citation and internal quotation marks omitted).
It is clearly established that a corrections officer's use of force in bad faith-that is, to punish an inmate for misconduct or intransigence-violates an inmate's Eighth Amendment rights. See Dean, 984 F.3d at 310 (“First, it was clearly established in 2015 - and for many years before that - that inmates have a right to be free from pain inflicted maliciously and in order to cause harm, rather than in a good-faith effort to protect officer safety or prison order. And our case law long has made clear that correctional officers cross this line when they use force to punish an inmate for prior misconduct or intransigence.” (internal citations omitted)); Brooks, 924 F.3d at 119 (“At the time of the events in question, it was clearly established that a corrections officer's use of force in bad faith-not to preserve order or induce compliance, but to punish through the wanton infliction of pain-violates an inmate's Eighth Amendment right.” (internal quotation marks omitted)).
As an initial matter, there is a genuine dispute of material fact as to whether Defendant Johnson violated Plaintiff's constitutional rights. If the material facts were undisputed, this Court would apply clearly established law to determine whether Defendant Johnson is entitled to qualified immunity. However, “while the purely legal question of whether the constitutional right at issue was clearly established ‘is always capable of decision at the summary judgment stage,' a genuine question of material fact regarding ‘[w]hether the conduct allegedly violative of the right actually occurred . . . must be reserved for trial.'” Willingham v. Crooke, 412 F.3d 553, 559 (4th Cir. 2005) (quoting Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992)). Thus, Defendant's argument that he is entitled to qualified immunity because he did not violate Plaintiff's constitutional rights is foreclosed at this stage, as that question is ultimately within the province of a jury.
Even if this Court were to assume a constitutional violation did take place for purposes of its qualified immunity analysis, the “unusual” nature of Eighth Amendment excessive force cases still forecloses qualified immunity at this stage. Specifically, the Fourth Circuit has noted that qualified immunity in excessive force cases is “unusual” in that it is a constitutional violation that has “wrongful intent” as an element. Brooks, 924 F.3d at 118-19; see also id. at 119 n.6 (recognizing the “special problem” that is raised when the objective qualified immunity standard is applied to Eighth Amendment violations that require a showing of wrongful intent and noting “the same issue arises with respect to Eighth Amendment excessive force claims, which likewise require wrongful intent”). “The case law, in other words, is ‘intent-specific,' which means that liability turns not on the particular factual circumstances under which the officer acted-which may change from case to case as the precedent develops-but on whether the officer acts with a culpable state of mind.” Dean, 984 F.3d at 310 (internal citation omitted). Thus, a corrections officer who acts with that culpable state of mind reasonably should know that he is violating the law. See Brooks, 924 F.3d at 118-19; see also Thompson, 878 F.3d at 106 (“For claims where intent is an element, an official's state of mind is a reference point by which she can reasonably assess conformity to the law[.]”).
As discussed above, there is a genuine dispute of material fact as to whether Defendant Johnson's use of force was in good faith or to punish Plaintiff for insubordination. In viewing the facts in Plaintiff's favor, the evidence is sufficient to support an inference that Plaintiff's clearly established Eighth Amendment rights were violated. See Dean, 984 F.3d at 310 (“So assuming -as we do, for purposes of this alternative argument - that the officers here acted with a wrongful and punitive motive, then they violated clearly established Eighth Amendment law.”); Brooks, 924 F.3d at 120 (“In short, we find that Johnston was on ‘fair notice' of Brooks's right not to be subjected to excessive force in the form of the wanton infliction of pain, intended to punish rather than to induce compliance.”). Thus, Defendant Johnson's argument that he is entitled to qualified immunity cannot be determined at this stage. See Willingham v. Crooke, 412 F.3d at 560 (holding in instances where “a dispute of material fact precludes a conclusive ruling on qualified immunity at the summary judgment stage, the district court should submit factual questions to the jury and reserve for itself the legal question of whether the defendant is entitled to qualified immunity on the facts found by the jury”). Accordingly, the undersigned recommends denying Defendant Johnson's Motion on the basis of qualified immunity.
B. State law claims under the SCTCA
Plaintiff brings a gross negligence claim against Defendants under the SCTCA. Defendants argue they are entitled to summary judgment for two reasons. First, Defendant Johnson argues he is not a proper party for any state law claim. ECF No. 21-1 at 14. Second, Defendant SCDC argues that Plaintiff failed to exhaust his administrative remedies. Defendant Johnson is entitled to summary judgment on this claim, but Defendant SCDC is not.
1. Defendant Johnson
The SCTCA acts as a partial waiver of South Carolina's sovereign immunity. See S.C. Code Ann. § 15-78-20. The SCTCA governs all tort claims against state governmental entities and is the exclusive civil remedy available in an action against a state governmental entity or its employees, with a few exceptions not relevant here. See id.; Huggins v. Metts, 640 S.E.2d 465, 466 (S.C. Ct. App. 2006). Relevant here, when “a plaintiff claims an employee of a state agency acted negligently in the performance of his job, the [SCTCA] requires a plaintiff to sue the agency for which an employee works, rather than suing the employee directly.” Faile v. S.C. Dep t of Juv. Just., 566 S.E.2d 536, 539 n.1 (S.C. 2002) (citing S.C. Code Ann. § 15-78-70(c)).
Here, to the extent Plaintiff may have alleged a gross negligence claim arising under the SCTCA against Defendant Johnson, that claim is barred. Rather, Defendant SCDC is the proper party. See id. Thus, the undersigned recommends dismissing the SCTCA claim alleged against Defendant Johnson. See Faulkner v. York Cty. Sch. Dist., No. 0:21-CV-02090-JMC, 2022 WL 673684, at *5 (D.S.C. Mar. 7, 2022) (dismissing, inter alia, gross negligence claim against a state employee where the state employer was the proper party for that claim pursuant to S.C. Code Ann. § 15-78-70(c)).
2. Defendant SCDC
Finally, Defendant SCDC seeks summary judgment as to Plaintiff's SCTCA gross negligence claim on the basis that his failure to exhaust administrative remedies through the grievance process bars his claims under state law. ECF No. 20-1 at 7-9. For this proposition, Defendant SCDC relies on case law that neither deals with the SCTCA nor supports the notion that exhaustion of administrative remedies is required before a claimant can bring suit under the SCTCA. See ECF No. 20-1 at 7-8.
The relevant case law is abundantly clear: “[u]nlike § 1983 actions, administrative exhaustion is not a prerequisite to SCTCA claims.” Buff v. S.C. Dep't of Corr., No. 5-13-CV-01901-TLW-KD, 2014 WL 3867996, at *4 (D.S.C. Aug. 6, 2014). Unlike the PLRA, the SCTCA does not include any provision requiring exhaustion of administrative remedies prior to filing suit. See S.C. Code Ann. §§ 15-78-10 to -220.
To the extent Defendant SCDC may be arguing that the South Carolina Administrative Procedures Act (“SCAPA”) imposes these exhaustion requirements, it does not. See S.C. Code Ann. §§ 1-23-310 to -400. The SCTCA expressly states that any claim filed under the SCTCA is not subject to the SCAPA exhaustion provision. S.C. Code Ann. § 15-78-80(f) (“The handling and disposition of claims filed under this chapter are not subject to the provisions of Article 3, Chapter 23 of Title 1.”); Wilson v. Hampton Cty., No. C. A. 9:05-1777PMD, 2005 WL 2877725, at *4 (D.S.C. Oct. 31, 2005) (“[T]he court not only finds that the exhaustion requirement of the PLRA does not apply to Wilson's suit, but also that the exhaustion requirement in the [SCAPA], as further outlined in Al-Shabazz, does not apply to her suit.”).
Accordingly, Defendant SCDC is not entitled to summary judgment on Plaintiff's SCTCA claim for failure to exhaust. See Battle v. S.C. Dep't of Corr., No. 9:19-CV-1739-TMC, 2021 WL 4167509, at *15 (D.S.C. Sept. 14, 2021) (agreeing that, “unlike the PLRA, state law does not impose exhaustion requirements to [Plaintiff's] claims under SCTCA”). The undersigned therefore recommends denying Defendant SCDC's Motion on this basis.
Defendant SCDC only raises exhaustion of administrative remedies as a procedural basis for summary judgment on Plaintiff's gross negligence claim. See ECF No. 20-1 at 7-9. The only substantive argument presented by Defendant SCDC is a single conclusory statement in their Reply to Plaintiff's Response, stating that Plaintiff “has provided no evidence of gross negligence as to his claims against [it].” ECF No. 24 at 5. Such a conclusory argument is insufficient to satisfy Defendant's initial burden under Celotex. See Celotex, 477 U.S. at 323 (noting “a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact” (emphasis added)).
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motions be GRANTED in part and DENIED in part. Defendant SCDC's Motion, ECF No. 20, should be GRANTED as to the § 1983 claim, but DENIED as to the SCTCA claim. Defendant Johnson's Motion, ECF No. 21, should be GRANTED as to the SCTCA claim, but DENIED as to the § 1983 claim.
The parties are directed to the attached Notice for their rights to file objections to this recommendation.
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).