United States District Court, D. South Carolina, Orangeburg Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
matter is before the court on Plaintiff's pro se
complaint filed pursuant to 42 U.S.C. §1983 on October
30, 2015. ECF No. 1. On May 23, 2016, Defendant filed a
motion for summary judgment. ECF No. 48. A Roseboro
order was entered by the court and mailed to Plaintiff,
advising Plaintiff of the importance of a dispositive motion
and the need for Plaintiff to file an adequate response. ECF
No. 49. Plaintiff filed his response in opposition on June 2,
2016. ECF No. 54.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(d), DSC, this matter was referred to United
States Magistrate Judge Kaymani D. West for pre-trial
proceedings and a Report and Recommendation
(“Report”). On December 2, 2016, the Magistrate
Judge issued a Report recommending that Defendant's
motion for summary judgment be denied as to the excessive
force claim and qualified immunity defense, but granted as to
any claim against Defendant in his official capacity. ECF No.
69. The Magistrate Judge advised the Parties of the
procedures and requirements for filing objections to the
Report and the serious consequences if they failed to do so.
Defendant filed objections on December 16, 2016. ECF No. 71.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. See Mathews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. §
objects to the Magistrate Judge's determination that
summary judgment could not be granted due to questions of
fact as to the chain of events that led to Plaintiff being
sprayed with chemical munitions.
first argues that Plaintiff's version of the facts is
inconsistent between his complaint and his response to the
motion for summary judgment. It is true that some details are
different. However, the main issue in the case appears to be
whether Plaintiff was an active threat to correctional
officers or to the operation of the facility at the time he
was sprayed with chemical munitions. Plaintiff states he was
lying down on his bunk when Defendant sprayed the munitions
into his cell; Defendant argues that Plaintiff was a threat
to the order of the facility in actively refusing to obey
commands, and that he sprayed Plaintiff at that time to
restore order. This raises a genuine issue of material fact
that cannot be resolved on summary judgment.
Use of Force
Defendant next addresses the Report's finding that
“Plaintiff must pose a threat to Defendant or anyone
else in order to justify Defendant's use of force.”
ECF No. 71 at 1 (citing ECF No. 69 at 1). This court agrees
that chemical munitions can be used to restore operational
control over an inmate causing a disturbance, and does not
read the Report to preclude that possibility. See
Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996)
(“[M]ace can be constitutionally used in small
quantities to prevent riots and escapes or to control a
recalcitrant inmate.”). However, there is an issue of
fact in this case as to whether Plaintiff was resisting a
directive from the officer. Therefore, summary judgment is
Amount of Chemical Munitions
Defendant objects to the Report's finding that he failed
to provide evidence of the amount of chemical munitions used.
Defendant's Incident Report provides that he used a
“three second burst” of munitions. While
measurement in grams may provide more information, this point
is not dispositive for purposes of summary judgment.