United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
KEVIN F. McDONALD, Magistrate Judge.
This matter is before the court on the defendant's motion for summary judgment (doc. 16). The plaintiff, a state prisoner who is proceeding pro se, seeks relief pursuant to Title 42, United States Code, Section 1983.
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d) DSC, this magistrate judge is authorized to review all pretrial matters in cases filed under Title 42, United States Code, Section 1983, and submit findings and recommendations to the district court.
On May 21, 2014, the defendant filed a motion for summary judgment (doc. 16). By order filed that same date, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the summary judgment dismissal procedure and the possible consequences if he failed to adequately respond to the motion. The plaintiff filed his response in opposition to the motion for summary judgment on June 27, 2014 (doc. 19)
The plaintiff is currently incarcerated in the Special Management Unit ("SMU") at Lee Correctional Institution ("LCI"), a South Carolina Department of Corrections ("SCDC") facility, where he is serving a life sentence for murder. The plaintiff alleges that on January 29, 2013, he complained to defendant Officer Larry Thompson about not receiving the correct breakfast tray and asked him "to get the [lieutenant]" (doc. 1, comp. 3-4; doc. 19-1, pl. aff). Unsatisfied with Officer Thompson's answer that he was "not going to get anybody, take it or leave it, " the plaintiff stuck his arm through the cell food flap and would not remove it as directed by correctional officers (doc. 19-1, pl. aff.; doc. 16-5, Buterbaugh aff.). As open flaps are a security risk to officers and staff, Officer Thompson deployed chemical munitions to gain compliance (doc. 19-1, pl. aff.; doc. 16-3, step one grievance; doc. 16-5, Buterbaugh aff.).
In his affidavit, Lt. Buterbaugh indicates the plaintiff was ordered to remove his arm on several occasions. When he refused to move his arm, Officer Thompson administered chemical munitions toward the plaintiff's face. The plaintiff still refused to move his arm from the food flap, and additional chemical munitions were sprayed (doc. 16-5, Buterbaugh aff.). The plaintiff took evasive action by covering his nose and mouth with the shell of a deodorant bottle when chemical munitions were used, which rendered them less effective. During the time the chemical munitions were being deployed, Officer Thompson's gas canister malfunctioned. He switched canisters with Lt. Buterbaugh and gave the plaintiff several more orders to remove his arm. The plaintiff refused, and Officer Thompson administered additional chemical munitions towards the plaintiff's face ( id. ).
The plaintiff was eventually subdued by Deputy Warden Davis, Lt. Buterbaugh, and Officer Thompson, and the food flap was secured. The plaintiff was charged (doc. 16-5, Buterbaugh aff.). The plaintiff was seen by medical that day, and it was noted that he had no signs of distress, his eyes were clear, and his breathing was even and nonlabored ( id.; doc. 16-7, med.). Two days later, on January 31, 2013, the plaintiff complained that his ear was bothering him due to being gassed, and he was instructed to flush his ear out with water (doc. 16-7, med. records). The plaintiff was seen in medical the next day, on February 1, 2013, complaining that his ear was irritated. The plaintiff stated that he had been rinsing his ear with cool water, and it had gotten better. No redness or irritation was noted in either ear ( id. ).
In his complaint, the plaintiff claims that, as a result of the defendant's actions, he suffered from "terrible burning sensations... in the ear" for approximately five days. He requests a declaration that his constitutional rights were violated, compensatory damages of $100 a day, nominal damages, punitive damages, and costs.
According to the affidavit of Ann Hallman, the Branch Chief of the Inmate Grievance Branch of the SCDC, the plaintiff submitted step one and step two grievances regarding the incident (doc. 16-2, Hallman aff.). Specifically, the plaintiff signed his step one grievance on February 13, 2013, and it was received by the institutional grievance counselor ("IGC") on February 15, 2013. The IGC responded to the grievance on that same date, stating that a copy of the grievance had been forwarded to the Inmate Grievance Branch for possible review by the Division of Investigations ("DOI"). The response also stated that the time frames in GA-01.12 Inmate Grievance System for responses to grievances are not applied to grievances sent to the DOI, and the time frame for response begins once the grievance returns from DOI (doc. 16-3, step one grievance). The Warden responded on August 29, 2013, stating that the grievance was returned from DOI to be processed through the grievance system. As Officer Thompson was no longer with SCDC, Lt. Buterbaugh had been interviewed and documents had been reviewed. The Warden found that the plaintiff had refused to comply with a directive given by Officer Thompson, and chemical munitions were necessary to protect the institution. Accordingly, the grievance was denied ( id. ). The plaintiff signed a step two grievance on August 30, 2013, and it was received by the IGC on September 4, 2013 (doc. 16-4, step two grievance). Ms. Hallman stated in her affidavit, which was signed on May 21, 2014, that the SCDC had not yet issued a response to the plaintiff's step two grievance (doc. 16-2, Hallman aff.).
APPLICABLE LAW AND ANALYSIS
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. "Only ...