United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
a civil action filed pro se by Lavadre Butler
(“Plaintiff”/ “Butler”) on November
15, 2016, and an amended complaint on February 2, 2018 (ECF
No. 99). Plaintiff is currently housed at the Kirkland
Correctional Institution. This matter is currently before the
court on the motion for summary judgment filed on behalf of
Defendants Bessinger, Young, Washington, Esterline, Suarez,
Braddey, Shorter and Williams. (ECF #144). In the amended
complaint, (ECF #99), Plaintiff alleges a violation of his
constitutional rights by the use of excessive force and
medical indifference during his confinement at Broad River
Correctional Institution. As the Plaintiff is proceeding
pro se, the court issued an order on or about July
17, 2018, pursuant to Roseboro v. Garrison, 528 F.2d
309 (4th Cir. 1975), advising Plaintiff of the
motion for summary judgment procedure and the possible
consequences if he failed to respond adequately. After being
granted two extensions to file a response to the motion for
summary judgment, Petitioner failed to file a response. A
Report and Recommendation was issued on December 6, 2018,
recommending that the complaint be dismissed for failure to
comply with the PLRA's exhaustion requirement. Plaintiff
filed an objection to the Recommendation on January 7, 2019,
submitting additional supporting documents. The District
Judge entered an order on January 14, 2019, declining to
adopt the Report and remanding to the undersigned for further
proceedings. (ECF Nos. 169 and 172). The undersigned issued
an order giving the parties ten days to file any additional
responses to the outstanding motion for summary judgment. No
further responses were filed by the parties. Therefore, the
motion for summary judgment will be addressed on the
FOR SUMMARY JUDGMENT
federal court is charged with liberally construing the
complaints filed by pro se litigants, to allow them
to fully develop potentially meritorious cases. See Cruz
v. Beto, 405 U.S. 319 (1972); Haines v. Kerner,
404 U.S. 519 (1972). The court's function, however, is
not to decide issues of fact, but to decide whether there is
an issue of fact to be tried. The requirement of liberal
construction does not mean that the court can ignore a clear
failure in the pleadings to allege facts which set forth a
federal claim, Weller v. Dep't of Social Servs.,
901 F.2d 387 (4th Cir. 1990), nor can the court assume the
existence of a genuine issue of material fact where none
exists. If none can be shown, the motion should be granted.
moving party bears the burden of showing that summary
judgment is proper. Summary judgment is proper if there is no
genuine dispute of material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Summary judgment is proper if the non-moving party fails to
establish an essential element of any cause of action upon
which the non-moving party has the burden of proof.
Celotex, 477 U.S. 317. Once the moving party has
brought into question whether there is a genuine dispute for
trial on a material element of the non-moving party's
claims, the non-moving party bears the burden of coming
forward with specific facts which show a genuine dispute for
trial. Fed.R.Civ.P. 56(e); Matsushita Electrical
Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574
(1986). The non-moving party must come forward with enough
evidence, beyond a mere scintilla, upon which the fact finder
could reasonably find for it. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). The facts and
inferences to be drawn therefrom must be viewed in the light
most favorable to the non-moving party. Shealy v.
Winston, 929 F.2d 1009, 1011 (4th Cir. 1991).
However, the non-moving party may not rely on beliefs,
conjecture, speculation, or conclusory allegations to defeat
a motion for summary judgment. Barber v. Hosp. Corp. of
Am., 977 F.2d 874-75 (4th Cir. 1992). The
evidence relied on must meet “the substantive
evidentiary standard of proof that would apply at a trial on
the merits.” Mitchell v. Data General Corp.,
12 F.3d 1310, 1316 (4th Cir. 1993).
that a genuine dispute of material fact exists, a party may
not rest upon the mere allegations or denials of his
pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e)
permits a proper summary judgment motion to be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves). Rather, the party must
present evidence supporting his or her position through
“depositions, answers to interrogatories, and
admissions on file, together with . . . affidavits, if
any.” Id. at 322; see also Cray
Communications, Inc. v. Novatel Computer Systems, Inc.,
33 F.3d 390 (4th Cir. 1994); Orsi v.
Kickwood, 999 F.2d 86 (4th Cir. 1993); Local
Rules 7.04, 7.05, D.S.C.
alleges that while housed at the Broad River Correctional
Institution (BRCI), his constitutional rights were violated
by the use of excessive force and being indifferent to his
medical needs. Plaintiff requests compensatory and punitive
reviewing an excessive force claim, the Court should consider
1) the need for the application of force, 2) the relationship
between the need and the amount of force that was used, 3)
the threat to the staff and inmates as reasonably perceived
by the prison officials on the basis of the facts known to
them, 4) the efforts made to temper the severity of a
forceful response, and 5) the extent of the injuries suffered
by the prisoner. Whitley v. Albers, 475 U.S. 312,
321 (1986); Hill v. Crum, 727 F.3d 312, 327 (4th
Cir. 2013); see also Hudson v. McMillian, 503 U.S.
1, 7 (1992) (the core judicial inquiry is whether force was
applied in a good faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm);
Mann v. Failey, 578 Fed.Appx. 267, 273 (4th Cir.
July 17, 2014) (In order to prevail on an Eighth Amendment
excessive force claim, Plaintiff must demonstrate that the
“deprivation suffered or injury inflicted . . . was
sufficiently serious, ” and that the “prison
official acted with a sufficiently culpable state of
mind”), quoting Williams v. Benjamin, 77 F.3
756, 761 (4th Cir. 1996).
respect to Plaintiff's allegations of excessive force
during cell extraction, he alleges that he “[w]as cut
on the hand with a hooked knife causing blood loss”;
“punched in the face while blinded by chemical
munitions”; “sprayed with an excessive amount of
chemical munitions”; and had his “head picked up
and slammed several times” while on the floor.
Defendants have submitted the affidavits of Travis Esterline
and Trevor Bessinger along with documentary evidence,
including video evidence, asserting that at the time force
was used, it was necessary for Plaintiff to be removed from
his cell due to threats of suicide and hurting others if they
attempted to go into the cell. Further, Defendants'
evidence reveals that the Plaintiff had barricaded himself in
his cell covering the window and stuffing a coat into the
food flap so that no one could see inside the cell which
Plaintiff does not deny.
attests that he was employed with the SCDC as a Correctional
Officer at the Broad River Correctional Institution and
currently holds the rank of Sergeant. (ECF No. 144-5). In
November 2014, Esterline was assigned to work in the special
management unit (SMU) to supervise corrections officers and
assist in the units as needed. Id. On November 14,
2014, Esterline was in SMU performing cell checks when he
heard Butler state “I am suicidal and I'm
homicidal. I feel like killing myself and if anybody opens my
flap, I'm going to hurt them.” Id. At the
time Butler made the statement, the window to his cell was
covered and he refused to come out of his cell which are both
violations of SCDC policy. Id. Esterline reported
Butler's threats to himself and others to his supervisor,
Lieutenant Lisa Young. Id. Based on Butler's
threats and the fact he had his windows covered, a forced
cell movement team was organized where Esterline was to
assist in removing Butler from his cell. Id. When
the forced cell movement team arrived at Butler's cell,
he had barricaded himself inside and refused to come out
after being ordered to do so multiple times. Id.
Esterline utilized a cut down tool with a hook on the end to
assist in getting into Butler's barricaded cell.
Id. Esterline placed the cut down tool in the food
flap in an effort to cut the sheet that was tied to his bed.
Id. At some point while trying to cut the sheet,
Esterline felt like he had hooked the sheet and was going to
proceed with cutting it but felt Butler pull against the
sheet and the pole in an attempt to prevent them from getting
into his cell. Id. Butler was ordered to remove his
hands from the sheet. Id. Esterline attests that he
is not sure if Butler was cut by the tool when he was
attempting to cut the sheet to gain access to the cell.
Id. During the attempts to gain entry into
Butler's cell, approximately three bursts of chemical
munitions were used during the course of the cell extraction
to bring Butler into compliance with the directions without
continued physical confrontation. Id. The bursts of
chemical munitions appeared to have minimal effect due to the
plastic wrap shield and cloth around Butler's face.
Id. At some point, the cell door became ajar and
Esterline observed Officer Bessinger attempt to grab
Butler's leg but Butler pulled away and kicked Officer
Bessinger in his helmet, breaking his visor. Id.
Once the cell was eventually breached, Butler was lying on
the floor on his stomach. Id. Esterline took over as
camera man as the chemical munitions had affected the prior
camera man who had to leave. Id. When the cell
movement team was able to gain entry into the cell, Esterline
observed the members of the team attempting to put restraints
on Butler. Id. Before an inmate in SMU is removed
from his cell, the inmate must be placed in restraints,
including handcuffs and leg irons. Id. Additionally,
the inmate's hands will be fastened to a belly chain.
Id. Both the handcuffs and the leg irons are
double-locking restraints, meaning that there is a mechanism
that keeps the restraints locked but prevents them from
continuing to tighten. Id. Whenever these restraints
are applied to an inmate, the correctional officer fastening
them makes sure that they are properly applied and double
locked. Id. On this date, the belly chain was not
able to be attached to Butler's handcuffs, so he had free
movement of his shoulders. Id. When being removed
from his cell, Butler attempted to elbow Officer Bessinger at
the top of the stairs. Id. Once they began moving
down the stairs, Butler and Officer Bessinger fell down the
stairs and knocked Sergeant John Williams down as well.
Id. Williams hit the floor of SMU with Butler and
Officer Bessinger landing on top of him. Id. It
appeared Butler was “acting unconscious” and had
to be carried off the unit on a stretcher. Id. Once
he was moved off the unit, Butler was seen by medical.
Id. At no time during the extraction from his cell
or when he was going down the stairs did Esterline observe
any of the officers involved in the cell movement
intentionally harm Inmate Butler. Id.
Defendants submitted the affidavit of Trevor Bessinger who
attests that at the time of the allegations, he was employed
with the SCDC as a correctional officer at Broad River
Correctional Institution. (ECF No. 144-9). On November 14,
2014, Bessinger along with Lieutenant Lisa Young,
Correctional Officer Michael Braddey, Correctional Officer
Daryll Shorter, Sergeant Keith Suarez, and Sergeant John
Williams were members of a force cell movement team.
Id. Sergeant Travis Easterline assisted on that day.
Id. Butler was to be transferred from cell 249 of
the SMU to holding cell “B” because of
Butler's threats to harm himself and others. Id.
When the team arrived at Butler's cell, his cell window
was covered and he had stuffed a coat in the food flap.
Id. Butler was ordered to come out of his cell, but
he refused to do so and the door could not be opened because
Butler tied his sheets from his bed to his cell door
barricading himself in his cell. Id. At some point
while trying to gain access to Butler's cell, the door
opened and Bessinger attempted to grab Butler's leg.
Id. However, Butler pulled away and kicked Bessinger
in the helmet, breaking his visor. Id. Due to these
actions, Butler was charged with “Striking an SCDC
Employee” and was convicted of that charge.
Id. Once Butler's cell was finally breached, he
was on the floor lying on his stomach. Id. Bessinger
did not observe any of the officers involved in the force
cell movement intentionally harm Inmate Butler while inside
his cell. Id. Bessinger restrained the upper part of
his body and attempted to assist with the belly chains.
Id. Butler's belly chains were not able to be
connected to his handcuffs, so he was able to freely move his
shoulders. Id. The officers stood Butler up and
escorted him out of his cell. Id. At the top of the
stairs, Butler attempted to elbow Bessinger, but missed.
Id. As Butler was being escorted down the stairs, he
pushed Bessinger's arm forward and then elbowed him
causing both to lose their balance and trip down the steps.
Id. Officer Williams was in front of Bessinger and