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Butler v. Bessinger

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

January 30, 2019

LAVADRE BUTLER, Plaintiff,
v.
TREVOR BESSINGER, LISA YOUNG, GREGORY WASHINGTON, MR. ESTERLINE, MR. SUAREZ, MR. BRADDY, MR. SHORTER, MR. WILLIAMS, Defendants.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE

         This is 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 merits.[1]

         DISCUSSION

         STANDARD FOR SUMMARY JUDGMENT

         The 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. Fed.R.Civ.P. 56(c).

         The 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).

         To show 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.

         ANALYSIS

         Plaintiff 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 damages.

         When 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).

         With 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.

         The 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.

         Esterline 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.

         The 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 ...


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