Moore v. Wright et al

Filing 36

MEMORANDUM OPINION regarding Motion to Dismiss, or in the Alternative, for Summary Judgment (D.I. 28 ). Signed by Judge Richard G. Andrews on 2/24/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
EARL D. MOORE, Ill,
Plaintiff,

v.

Civ. No. 14-991-RGA

LAMONT WRIGHT, et al.,
Defendants.

Earl D. Moore, Ill, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se
Plaintiff.
Ophelia Michelle Waters, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendants Lamont Wright and Stephen Brackett.

MEMORANDUM OPINION

'llY,

February
2017
WilmingtUM Delaware

Plaintiff Earl D. Moore, an inmate at the James T. Vaughn Correctional Center,
Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983. (D.I. 3). When he
commenced this action, Plaintiff was a pre-trial detainee housed at the Howard R.
Young Correctional Institution in Wilmington, Delaware. Plaintiff appears pro se and
has been granted leave to proceed in forma pauperis. Defendants Lamont Wright and
Stephen Brackett move to dismiss or, in the alternative, for summary judgment. 1 (D.I.
28). Briefing is complete.

PROCEDURALANDFACTUALBACKGROUND
The Complaint alleges that on July 3, 2014, Wright maced Plaintiff through a
door flap for the actions of another inmate. (D.I. 3). Plaintiff alleges that the next day,
Brackett saw Plaintiff falling flat on his stomach and unable to move. Brackett stepped
over Plaintiff's body and conducted a cell check, stepped back over Plaintiff, and left the
cell. (Id.).
According to the evidence submitted, on June 26, 2014, while a pre-trial detainee
at the HRYCI, Plaintiff and two other offenders refused to remove their blankets during
a headcount on the housing unit. (D.1. 29 at Ex. A p.4). Prison standard operating
procedures require the correctional officer to see "Living, Breath, Flesh." (Id.). Plaintiff
testified that he did not comply with the order, and he received a disciplinary write-up
after refusing to obey several direct commands to remove his blanket. (Id.; D.I. 29 at
Ex. H p.23). Plaintiff was removed from his cell by the Quick Response Team, taken to

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Defendant John Polk was dismissed from the case on June 3, 2015. (D.I. 18).

the disciplinary housing unit, and charged with disorderly or threatening behavior. (D.I.
29 at Ex. A p.1).
On July 3, 2014, while still housed in the disciplinary unit, Plaintiff and another
inmate were violently kicking their cell doors. (Id. at Ex. B). Plaintiff was kicking the
door because he wanted his legal papers that were in his property bag. (Id.). Plaintiff
admits that he kicked the door. (D .I. 29 at Ex. H p.41 ). A correctional officer went to
the cell and saw damage to one of the cell doors. (D.I. 29 at Ex. B). Plaintiff was
ordered to stop kicking the door. (Id.). Wright spoke to both inmates and told them
their behavior would not be tolerated. (Id.). According to the disciplinary report, as
Wright left to contact Lt. Emig, both inmates began kicking the doors again. (Id.). Emig
ordered Wright to spray both inmates with Vexor if the kicking commenced. (Id.).
Plaintiff testified that he was warned he would be maced if he kicked again. (D.I. 29 at
Ex. H p.45). According to the disciplinary report, when both inmates again kicked the
doors, Wright sprayed a two to three second burst of Vexor into each of their cells, and
Plaintiff stopped kicking the door. (D.I. 29 at Ex. B). Plaintiff testified that he did not
continue to kick the door and was maced "for nothing". (D.I. 29 at Ex. B; Ex. Hat p.
45). Plaintiff was charged with disorderly or threatening behavior. (D.I. 29 at Ex. B).
Medical records indicate that Plaintiff was seen on July 3, 2014 after he was sprayed
and had no complaints except burning due to the spray. (D.I. 30 at p.6).
Plaintiff testified that the next morning, July 4, 2014, Brackett told Plaintiff to get
out of bed and cuff up. (D.I. 29 at Ex. H p.85). Plaintiff testified that he tried to get out
of bed and fell on the floor. (Id.). Plaintiff was seen by medical staff the next day. (D.I.
30, p.19). He told medical staff that he had noticed pain in the afternoon and evening

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of July 3, 2014, and he was offered a sick call slip around 1 :00 p.m. on July 4, 2014.

(Id.). He was next seen on July 10, 2014. (Id. at pp.6 & 14). He complained of back
pain on July 17, 2014, and was given medication to treat the pain. {Id.).
On July 9, 2014, Plaintiff was found guilty of disorderly or threatening behavior
and sanctioned to isolated confinement for 45 days. (Id. at Ex. C). Plaintiff appealed,
and the decision was reviewed and affirmed. (Id. at Ex. D).

STANDARDS OF LAW
"The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). The moving party has the initial burden of proving
the absence of a genuinely disputed material fact relative to the claims in question.

Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). Material facts are those "that could
affect the outcome" of the proceeding, and "a dispute about a material fact is 'genuine'
if the evidence is sufficient to permit a reasonable jury to return a verdict for the
nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The burden on the moving
party may be discharged by pointing out to the district court that there is an absence of
evidence supporting the non-moving party's case. Celotex, 477 U.S. at 323. The
burden then shifts to the non-movant to demonstrate the existence of a genuine issue
for trial. Matsushita E/ec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986);

Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989). A
non-moving party asserting that a fact is genuinely disputed must support such an
assertion by: "(A) citing to particular parts of materials in the record, including

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depositions, documents, electronically stored information, affidavits or declarations,
stipulations ... , admissions, interrogatory answers, or other materials; or (8) showing
that the materials cited [by the opposing party] do not establish the absence ... of a
genuine dispute .... " Fed. R. Civ. P. 56(c)(1 ). When determining whether a genuine
issue of material fact exists, the Court must view the evidence in the light most
favorable to the non-moving party and draw all reasonable inferences in that party's
favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476 F.3d 180, 184
(3d Cir. 2007). A dispute is "genuine" only if the evidence is such that a reasonable jury
could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-49. If the
non-moving party fails to make a sufficient showing on an essential element of its case
with respect to which it has the burden of proof, the moving party is entitled to judgment
as a matter of law. See Celotex Corp., 477 U.S. at 322.
Once Defendants filed their motion and Plaintiff had not timely responded, the
Court issued an order for Plaintiff to file an answering brief. (D.I. 32). Plaintiff's
opposition to Defendants' motion to dismiss, or in the alternative, for summary
judgment consists of the sole statement, "Plaintiff hereby move[s] this Honorable Court
to uphold the complaint pursuant [to] Fed. Rules Civ. Proc. Rule 15(a), 28 U.S.C.A."
(D.I. 35). Attached to that sentence is Plaintiff's proposed order, which states
Defendants used unjustified force, their conduct was unprofessional and inappropriate,
and that Plaintiff wants the Court to see the lack of "a [conscience]" by the officer who
stepped over his body without calling medical staff. (Id.).

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DISCUSSION

At the outset, the Court notes that Plaintiff offered no evidence to support his
claims. "At summary judgment, a plaintiff cannot rely on unsupported allegations, but
must go beyond pleadings and provide some evidence that would show that there
exists a genuine issue for trial." Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d
Cir. 2000). Because Plaintiff has not come forward with any evidence to support his
claims, the Court will grant the motion for summary judgment. 2
Excessive Force. Plaintiff's pretrial excessive force claim is governed by the

Due Process Clause of the Fourteenth Amendment, which "protects a pretrial detainee
from the use of excessive force that amounts to punishment." Kingsley v. Hendrickson,
_U.S._, 135 S. Ct. 2466, 2473 (2015) (quoting Graham v. Connor, 490 U.S. 386, 395
n.10 (1989)). To demonstrate a due process violation, a detainee must prove "that the
force purposely or knowingly used against him was objectively unreasonable,'' meaning
"that the actions [were] not 'rationally related to a legitimate nonpunitive governmental
purpose."' Id. (quoting Bell v. Wolfish, 441 U.S. 520, 561 (1979)). The Court may
consider, among other things: "[1] the relationship between the need for the use of
force and the amount of force used; [2] the extent of the plaintiff's injury; [3] any effort
made by the officer to temper or to limit the amount of force; [4] the severity of the
security problem at issue; [5] the threat reasonably perceived by the officer; and [6]
whether the plaintiff was actively resisting." Id.

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Plaintiff proceeds pro se. Therefore, the Court will address his claims and
review the evidence presented by Defendant.

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Viewing the record in light of these factors, the Court finds that Plaintiff cannot
prevail on his claim against Wright. Plaintiff and another inmate were kicking their cell
doors and correctional officers had seen that the kicking was damaging at least one of
the cell doors. Both inmates were warned to stop kicking but, according to Defendants,
the kicking continued. Plaintiff admits that he kicked his door, but testified that he did
not continue to kick the door. Plaintiff testified that one could hear the continued
kicking, and the incident report indicates that correctional officers heard the kicking
resume. It was not until the kicking resumed, and after the inmates had been warned,
however, that Wright sprayed one short burst of Vexor into both cells. While there is a
factual dispute about whether Plaintiff resumed kicking, it appears that there is no
allegation that (assuming Plaintiff's version is correct, that is, that he did not resume
kicking, which must be assumed in the summary judgment context) Wright knew that
only the other inmate had resumed kicking. "Like if you don't know who is doing
something, you shouldn't throw no mace nowhere." (D.I. 29 at Exh. H, p.81). Thus,
there is no dispute that Wright sprayed the Vexor believing that Plaintiff had resumed
kicking.
The evidence of record indicates that Plaintiff was medically examined after the
incident and had no complaints other than burning from the spraying. Although it is not
required that Plaintiff show he suffered more than a de minimis injury to maintain his
excessive force claim, it is one factor the Court considers. See Kingsley, 135 S. Ct. at

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2473. Here, the injuries of which Plaintiff complained immediately following the incident
were nothing more than the normal aftereffects associated with the use of Vexor. 3
The touchstone of a due process claim is whether the application of force was
punitive. See Kingsley, 135 S. Ct. at 2473. Given the continued kicking, it cannot be
said that the use of a short burst of mace was objectively unreasonable despite
Plaintiff's protestations that he was not the inmate who failed to obey orders to stop
kicking. The correctional officers heard the continued kicking and Wright took
reasonable measures to ensure compliance with the correctional officers' direct orders
and to prevent destruction of prison property. No reasonable jury could find that
Wright's actions were punitive particularly in light of the fact that Plaintiff and the other
inmate were warned of the consequences should they continue to kick the door.
Accordingly, the Court will grant Defendants' motion for summary judgment.
Medical Needs. As a pretrial detainee, the Due Process Clause of the

Fourteenth Amendment affords Plaintiff a vehicle for his medical needs claim. Bell v.
Wolfish, 441 U.S. at 535 n.16. When evaluating whether a claim for inadequate

medical care by a pre-trial detainee is sufficient under the Fourteenth Amendment, the
Third Circuit has found no reason to apply a different standard than that set forth in
Estelle v. Gamble, 429 U.S. 97 (1976). See Natale v. Camden Cnty. Carree. Facility,

318 F.3d 575, 581 (3d Cir. 2003). To evaluate a medical needs claim, the Court
determines if there is evidence of a serious medical need and acts or omissions by
prison officials indicating deliberate indifference to those needs. Id. at 582.

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The Third Circuit has found that use of pepper-spray to subdue an
uncooperative inmate, after verbal attempts fail, does not rise to the level of excessive
force. Passmore v. lane/lo, 528 F. App'x 144, 148 (3d Cir. 2013).

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A "failure to provide adequate care ... [that] was deliberate, and motivated by
non-medical factors" is actionable under the Eighth Amendment, but "inadequate care
[that] was a result of an error in medical judgment" is not. Durmer v. O'Carroll, 991 F.2d
64, 69 (1993). The Third Circuit has "found 'deliberate indifference' in a variety of
circumstances, including where the prison official (1) knows of a prisoner's need for
medical treatment but intentionally refuses to provide it; (2) delays necessary medical
treatment based on a non-medical reason; or (3) prevents a prisoner from receiving
needed or recommended medical treatment." Rouse v. Plantier, 182 F .3d 192, 197 (3d
Cir. 1999).
The evidence of record indicates that on the morning of the July 4, 2014, when
Brackett told Plaintiff to get out of bed and cuff up, Plaintiff tried to get out of bed and
fell on the floor. That afternoon, Plaintiff submitted a sick call slip and was seen by
medical staff the next day and received treatment. Plaintiff was seen within a short time
of seeking medical attention The evidence of record does not support a finding of
deliberate indifference to Plaintiff's medical needs and, therefore, the Court will grant
Defendants' motion for summary judgment.
CONCLUSION
For the above reasons, the Court will grant Defendants' motion to dismiss and, in
the alternative, for summary judgment. (D.I 28).
An appropriate order will be entered.

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