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Gilbert v. Word

United States District Court, D. South Carolina, Charleston Division

February 28, 2017




         Plaintiff brings claims under 42 U.S.C. § 1983 and the South Carolina Tort Claims Act, promulgated at S.C. Code Ann. § 15-78-10 through 15-78-220. He seeks both compensatory and punitive damages. Plaintiff is proceeding pro se.

         The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting Defendants' motion for summary judgment be granted in part and denied in part. Specifically, the Magistrate Judge recommends Defendants' motion be denied as to Plaintiff's June 8, 2012, excessive force claims against Defendants Wright and Sear and granted as to all other claims. The Magistrate Judge also suggests Plaintiff's Fed.R.Civ.P. 54(d) motion be denied. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report to which a specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

         The Magistrate Judge filed the Report on January 26, 2017, and Defendants filed their objections on February 20, 2017. The Court notes Plaintiff failed to file any objections to the Report. ''[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, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note). Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985). The Court is satisfied there is no clear error on the face of the record as it relates to Plaintiff's claims. Thus, it will adopt those portions of the Report unfavorable to Plaintiff without further discussion.

         First, Defendants object to the Magistrate Judge's discussion of Defendant Wright's second administration of pepper spray because, according to Defendants, ''these factual allegations . . . are not relevant to the actual recommendations of the Report.'' Objections 2 n.3. Although it is the first administration of pepper spray, and not the second one, at issue here, the Magistrate Judge evidently provided this information to give the Court a brief overview of the all of the relevant facts. Defendants are in no way harmed by the recitation. Consequently, the Court will overrule this objection.

         Second, ''Defendants object to the recommendation that Plaintiff properly and fully exhausted his administrative remedies prior to filing this action. Specifically, Defendants object to that portion of the Report that analyzes exhaustion of administrative remedies with regard to Defendant Sears.'' Id. at 5.

         The Court has reviewed Plaintiff's Grievance No. LCI 1254-12, the gravamen of which is: ''[o]n 6-8-2012 at about 12:25 a.m. Lt. Wright came to Mr. Gilbert's cell (247 B-wing of SMU) and maliciously sprayed 225 grams mace chemicals into Mr. Gilberts face, head, and back, without just cause, w[h]ile Mr. Gilbert was in handcuffs.'' ECF No. 36-4 at 11. The Court agrees with Defendants to the extent Plaintiff's grievance fails to state any allegations against Defendant Sears or describe any conduct attributable to him. As such, the Court concludes Plaintiff neglected to exhaust his administrative remedies as to Defendant Sears and thus will dismiss Defendant Sears from this action.

         Third, ''Defendants object to the provisions of the Report that recommend that Defendants' Motion for Summary Judgment should be denied as to Defendants Wright and Sears in their individual capacities.'' Objections 7 (emphasis omitted). ''Specifically, Defendants object to the Report's recommendation that Plaintiff has set forth sufficient evidence to constitute a genuine issue of material fact as to whether he was deprived of a right, privilege, or immunity secured by the Constitution of laws of the United States in relation to the allegations of excessive force against Defendants Wright and Sears.'' Id. (emphasis omitted). Because the Court has dismissed Defendant Sears from this action due to Plaintiff's failure to exhaust administrative remedies as to claims against him, the Court will address only the allegations with respect to Defendant Wright. At the summary judgment stage, a court must view the facts in the light most favorable to Plaintiff, the non-moving party. Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc) (stating, in an excessive force case, the inmate was to ''have the credibility of his evidence as forecast assumed, his version of all that is in dispute accepted, [and] all internal conflicts in it resolved favorably to him'' (citation omitted)).

         To state an Eighth Amendment claim, an inmate must demonstrate: (1) that objectively the deprivation suffered or harm inflicted ''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) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). With respect to the objective component, the inmate must demonstrate the ''nature'' or amount of force employed ''was nontrivial.'' Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (per curiam). With respect to the subjective component, the inmate must show ''wantonness in the infliction of pain.''' Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008) (quoting Whitley v. Albers, 475 U.S. 312, 322 (1986)).

         When determining whether the pain inflicted was unnecessary and wanton, the Court should consider ''whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'' Whitley, 475 U.S. at 320-21 (citation omitted). ''Such factors as the need for application of force, the relationship between the need and the amount of force that was used, and the extent of injury inflicted are relevant to that ultimate determination.'' Id., 475 U.S. at 321 (alteration in original omitted) (citation omitted). ''When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated . . . whether or not significant injury is evident.'' Hudson v. McMillian, 503 U.S. 1, 9 (1992) (internal citation omitted).

         The Magistrate Judge recommended Defendant Wright be denied summary judgment on Plaintiff's Eighth Amendment claims, concluding Defendant Wright's first use of pepper spray, administered after Plaintiff had complied with a verbal directive to present himself at the cell window to be handcuffed, could be considered the excessive use of force. Report at 21-22. The Court agrees with this suggestion.

         According to Plaintiffs complaint, after Defendant Wright opened the cell's food serving window, Defendant Wright ordered Plaintiffs cell mate and Plaintiff to stand against the cell wall, and the inmates complied. Comp. ¶ 11, Dkt. No. 1. Then, Defendant Wright said, ''I've been looking for a reason to get you two again, now that you've given me the chance, I will do this the right way. It's not going to be like the last time, you will get charged for this one!" Id. Defendant Wright does not directly deny he threatened Plaintiff and his cell mate, but avers: AI deny all of Plaintiffs' allegations that claim that I continued to harass them and threaten their lives." Defendant Wright's Aff. ¶ 6, Dkt. No. 36-7.

         Defendant Wright claims when he looked into the cell, he saw Plaintiff using a contraband cell phone, and radioed for assistance. Wright Aff. ¶ 5. Plaintiffs complaint fails to mention a cell phone, but in his deposition, he stated he was in bed, and his cell mate was using a cell phone. Pl.'s Dep. 77:6-7. After Defendant Sears and others responded to Defendant ...

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