United States District Court, D. South Carolina
Jonathan M. Arnold, #320526, Plaintiff,
South Carolina Department of Corrections, Sgt, Smith, Lt. Cashwell, Larry Cartledge, Mrs. Florence Mauney, Mrs. Harris, Mrs. Grey, Mrs. Filmore, Mrs. Davis, Mrs. Donald and Mrs. Amy Enloe, Defendants
Jonathan M Arnold, also known as Jonathan Arnold, also known as Jonathan Michael Arnold, Plaintiff, Pro se, Pelzer, SC.
For Sgt Smith, Lt Cashwell, SCDC, Defendants: James E Parham, Jr, LEAD ATTORNEY, Irmo, SC.
SUPPLEMENTAL REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge.
This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C.§ 1983. Plaintiff, an inmate with the South Carolina Department of Corrections (SCDC), alleges violations of his constitutional rights by the named Defendants.
The Defendants filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on May 6, 2014. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on May 16, 2014, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to adequately respond, the Defendants' motion may be granted, thereby ending his case. Plaintiff thereafter filed memoranda in opposition to the Defendants' motion on July 2, 2014, July 24, 2014 and August 4, 2014.
On September 3, 2014, the undersigned issued a Report recommending that the Defendants' motion for summary judgment with respect to Plaintiff's excessive force claim arising out of his having been subjected to chemical munitions on January 22, 2013, asserted against the Defendants Cashwell and Smith in their individual capacities under § 1983, be denied. Further, to the extent Plaintiff had also asserted a state law claim arising out of this incident, which would be against the Defendant SCDC only, summary judgment with respect to that claim was also recommended to be denied at that time, without prejudice. Otherwise, it was recommended that the Defendant's motion for summary judgment be granted with respect to all other claims, and against all other named Defendants, with all of those remaining claims and Defendants being dismissed. See Court Docket No. 94.
The Defendants filed objections to the Report and Recommendation on September 17, 2014, stating therein that they had failed to address Plaintiff's excessive force claim involving having been sprayed with chemical munitions because they had " completely overlooked" that allegation. Defendants then proceeded to address that claim in their objections, and also attached evidentiary exhibits addressing this claim. The District Judge thereafter remanded this matter to the undersigned so that the positions advanced by the Defendants in their objection with respect to this claim could be considered.
In an order filed October 6, 2014, Plaintiff was granted twenty (20) days to file any additional material or arguments he might wish to provide relating to this issue and responding to Defendants' arguments. That period of time has now expired, with no additional arguments or evidence being received from the Plaintiff. Consideration of Plaintiff's chemical munitions excessive force claim is now before the Court for disposition.
Background and Evidence
This case originally was two separate lawsuits. Plaintiff first filed Arnold v. Smith, et. al., Civil Action No. 9: 13-1273 on May 10, 2013. He then filed Arnold v. Cartledge, et. al., Civil Action No. 9: 13-1912, on July 12, 2013. A review of these two lawsuits revealed that each matter raised substantially the same issues; therefore, by Order filed August 26, 2013, the cases were consolidated, retaining Civil Action No. 9:13-1273. See Order (Court Docket No. 29). In issuing this Supplement Report and Recommendation the undersigned incorporates the Background and Evidence section from the original Report and Recommendation issued on September 3, 2014.
With respect to the particular claim at issue here, Plaintiff has submitted an affidavit wherein he complains that he was gassed with " red fogger" (437.4 grams) in deliberate disregard of his chronic asthma and glaucoma. Plaintiff's exhibits also include an Incident Report from January 22, 2013, which states that on that date Plaintiff became disrespectful and threatening while receiving an insulin shot. The Defendant Cashwell informed Captain Williams of Plaintiff's conduct, and Williams instructed Cashwell to place Plaintiff in a control cell. The Incident Report further reflects that Cashwell, Williams (who is not a named Defendant), and Smith then went to Plaintiff's cell door and gave him a directive to come to the door to be restrained, but that Plaintiff refused and threw an unknown liquid substance at the officers, striking Cashwell. Cashwell then used chemical munitions and a force cell movement team was assembled and entered the cell. The Incident Report reflects that Plaintiff was restrained, following which he was seen by Nurse Green. The Incident Report further reflects that 437.4 grams of fogger was used during this incident. In a response to a grievance dated April 23, 2013 (apparently relating to this incident) wherein Plaintiff complained that Smith had used excessive force and sexually abused the Plaintiff, it is stated that:
It appears that your poor behavior resulted in a use of force against you. When you pulled away from the escorting Officers, a use of force was necessary to bring you into compliance. Reports also show that you were seen by medical after the incident and stated " I'm good, I'm straight" . Medical reports you had no injuries.
Finally, Plaintiff has also submitted numerous affidavits from fellow inmates, who attest that they have witnessed or overheard how Plaintiff is treated by the medical staff and security officers at the Perry Correctional Institution. These affiants in general make such statements as that it " seems as if they have developed a vendetta against [the Plaintiff] because of his prior disciplinary history", and that on one occasion (12/1/12) Plaintiff was subjected to chemical munitions and then handcuffed after complaining about a diet tray, following which he was placed ...