Ward v. Shaw et al
Filing
49
Memorandum Opinion and Order re 1 Complaint. Plaintiff's claims are hereby dismissed with prejudice. Signed by Magistrate Judge F. Keith Ball on 9/29/15 (Copy mailed to Plaintiff at address listed on docket sheet.) (YWJ)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ERIC WARD, # 111389
PLAINTIFF
VS.
CIVIL ACTION NO. 3:13cv1043-FKB
FRANK SHAW, SIMONE JONES, D. SMITH,
F. OVALLE, ALLEN TERHUNE, JANE DOE,
JOHN DOE, and COUNSELOR MOSS
DEFENDANTS
MEMORANDUM OPINION AND ORDER
The Court held an omnibus hearing1 in this matter, at which time it conferred with
Plaintiff and counsel for Defendants in this suit founded upon 42 U.S.C. § 1983. At that
hearing, the parties consented to have a United States Magistrate Judge conduct any and all
further proceedings in the case and order the entry of final judgment, and the District Judge
subsequently entered an order of reference. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. Ward is
proceeding in this matter in forma pauperis and pro se. For the reasons explained in this
Memorandum Opinion and Order, the Court finds that this matter should be dismissed.
I. Plaintiff’s Claims
Plaintiff is a convicted inmate who, at all times relevant to the claims in this action, was
housed at East Mississippi Correctional Facility (“EMCF”). Defendants are officers and
officials at EMCF at the time of the events forming the basis of the complaint, as follows: Frank
Shaw, Warden; Frank Ovalle, Chief of Security; D. Smith,2 officer; Allen Terhune, shift
1
See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
Officer Smith is now deceased. See Suggestion of Death [34]. At the omnibus hearing,
Plaintiff voluntarily dismissed his claims against Smith.
supervisor; and mental health Counselor Moss.3
Ward was given an opportunity to elaborate upon his claims at the omnibus hearing held
in this matter. In sum, based on the allegations in his complaint and his testimony at the
omnibus hearing, Ward alleges that while he was held in a cell at EMCF on October 10, 2012,
Officer Smith used excessive force on him. [1] at 3. Plaintiff asserts that Officer Smith ordered
him to turn over a razor to the officer, that Ward failed to produce a razor, and that Smith
subsequently sprayed him with pepper spray through the cell’s tray hole. Id.
According to his complaint, the altercation began when Ward was held in a temporary
cell while he was admitted to EMCF after being held in another MDOC facility. Id. Ward
alleges that, during the intake process, he became hungry and advised the intake officer that he
had not eaten since his return to EMCF. Id. Plaintiff testified at the omnibus hearing that he
spoke with Defendant Terhune about his hunger. According to his complaint, when he asked for
food, an unspecified officer checked with the kitchen and learned that it was closed. Id. Upon
hearing this news, Ward requested further assistance and threatened to cut himself with a razor if
officers did not provide him with food. Id. Ward alleges that Defendant Officer Smith arrived on
the scene and directed him to turn over the razor to officers. Id. Ward now asserts that he
actually did not have a razor, but that he had only made the threat to cut himself in order to
obtain food. Id. At the omnibus hearing, Ward testified that when Defendant Counselor Moss
arrived at the scene of the altercation, she inspected his arms and knew that he did not have a
3
Summons was returned as unexecuted as to Counselor Unknown Moss, F. Ovalle, Frank
Shaw, and Allen Terhune. [25]. Nevertheless, the Court will address Plaintiff’s claims against
these defendants. The Court previously dismissed Ward’s claims against Simone Jones as
frivolous in an Order [22]. Plaintiff voluntarily dismissed his claims against Krusheta Hadley.
See [21].
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razor. He also testified that officers who responded to the incident consulted with Defendant
Frank Shaw before they administered the pepper spray. After he failed to turn over a razor to
Officer Smith in response to Smith’s requests, Smith sprayed him with pepper spray through the
cell’s tray hole. [1] at 3. Ward testified at the omnibus hearing that Smith sprayed once for a
duration of five to ten seconds. Ward also testified at the omnibus hearing that even though
Defendant Moss knew that he was hungry, she did nothing to help him obtain food.
In addition, Ward alleges that Defendants denied him adequate medical treatment for his
eyes after the application of pepper spray. Id. at 4. Nevertheless, he states in his complaint that
after he complained to officers, they took him to the shower, they allowed him to shower for
fifteen minutes, and they later took him to the showers for a second time. Id. His complaint also
states that an officer placed a fan in front of the cell overnight, presumably to help clear pepper
spray fumes from the cell. Id.
At the omnibus hearing, Ward testified that he was allowed to shower within thirty-five
minutes of the incident. Ward also testified that he had also sued Ovalle because he denied
Ward’s requests for relief through the administrative remedy procedure regarding this incident.
II. Discussion
Having reviewed Plaintiff’s filings, and having considered Plaintiff’s testimony at the
omnibus hearing, the Court finds that Plaintiff’s claims against Defendants should be dismissed
for their failure to rise to the level of a constitutional violation.
A review of the relevant law will aid in the discussion of Ward’s claims. For a prisoner
to state an Eighth Amendment excessive force claim as a result of a guard's attempt to restore
institutional order, "a prisoner (or pretrial detainee engaged in disrupting institutional security),
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must show that force was applied not ‘in a good faith effort to maintain or restore discipline,’ but
rather that the force complained of was administered ‘maliciously and sadistically to cause
harm.’” Rankin v. Klevenhagen, 5 F.3d 103, 107 (5th Cir. 1993)(quoting Hudson v. McMillian,
112 S.Ct. 995, 998 (1992)). In determining whether force is applied in a “good faith effort to
maintain or restore discipline” and not “maliciously and sadistically” to cause harm, the Court
must consider several factors: “(1) the extent of the injury suffered; (2) the need for the
application of force; (3) the relationship between the need and the amount of force used; (4) the
threat reasonably perceived by the responsible officials; and (5) any efforts made to temper the
severity of the forceful response.” Id. at 107, n.6. The Court has found that the "degree of force
exerted and the extent of physical injury inflicted that together amount to a constitutional
deprivation must, of course, be determined by the facts of a given case." Id. (quoting
Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981)).
Considering Plaintiff's testimony at the omnibus hearing, the Court finds that the force (in
the form of pepper spray) was applied in a “good faith effort to maintain or restore discipline”
and not not “maliciously and sadistically” to cause harm. Moreover, at the omnibus hearing,
Ward dismissed his claims against Officer Smith, the officer who administered the pepper spray.
From his own testimony, it appears that Smith administered pepper spray to Plaintiff only after
he refused to comply with an order to turn over a razor with which he had threatened to cut
himself. Although Ward now alleges that his threat of a razor was a fabrication to get the
attention of officers, Officer Smith reasonably took Ward’s allegation at face value. Moreover,
Ward does not allege that officers used any other form of force against him, and he testified that
officers timely responded to his requests for attention after the administration of pepper spray by
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taking him twice to the showers so that he could rinse the spray. The facts of this case, as
presented by Plaintiff, simply do not support a finding that a constitutional violation occurred.
Plaintiff's testimony also shows that he received immediate medical attention. He admits
that after the incident he was taken to the showers to rinse. While he may quibble with the
quality of care he received, he admits that he had access to showers not once, but twice within a
few minutes of the incident. Further, although his treatment may not have been the best that
money can buy, this course of treatment did not demonstrate deliberate indifference to his
medical needs. Mayweather v. Foti, 958 F.2d 91 (5th Cir. 1992). Accordingly, Plaintiff's claim
of denial of medical attention fails to rise to the level of a constitutional violation and is hereby
dismissed.
The Court now turns to Plaintiff's claims against Ovalle. According to his complaint and
omnibus hearing testimony, Ward admitted that Ovalle was not personally involved in the
incident, and that he had sued him because he was in a position of authority over Smith.
"Supervisory officials may be held liable only if: (i) they affirmatively participate in acts that
cause constitutional deprivation; or (ii) implement unconstitutional policies that causally result in
plaintiff's injury." Mouille v. City of Live Oak, 977 F.2d 924, 929 (5th Cir. 1992). Plaintiff fails
to allege that Ovalle implemented unconstitutional policies that causally resulted in his injury,
and based on Ward’s testimony, it is clear that Ovalle had no direct involvement in the incident,
or in his subsequent care. Thus, Plaintiff has failed to allege direct involvement by Ovalle in the
alleged deprivations on which this action is based. Jolly v. Klein, 923 F.Supp. 931, 943 (S.D.
Tex. 1996)( "the plaintiff must allege facts reflecting the defendants' participation in the alleged
wrong, specifying the personal involvement of each defendant." ). Supervisory officials "cannot
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be held liable for the actions of subordinates under any theory of vicarious liability." Id.
Ward’s other claims against Ovalle arise from Ovalle’s role in the administrative
remedies process. According to Ward’s testimony at the omnibus hearing, he was dissatisfied
that Ovalle did not rule in his favor on his grievance related to the October 10, 2012, incident.
This claim, based solely on the Ovalle’s handling of a grievance in the administrative remedies
process, does not rise to the level of a constitutional violation. See Smith v. Anderson, 2013 WL
1182995, *4 (S.D. Miss. Feb. 13, 2013). (“Plaintiff’s claim that Ronald King failed to adequately
investigate his grievance and grant him relief during the second step of the ARP fails to state a
claim upon which relief may be granted.”); see also Dehghani v. Vogelgesang, 226 F. App’x
494, 495 (5th Cir. 2007)(holding that plaintiff’s allegation that warden failed to adequately
investigate his grievance did not amount to a constitutional violation). Accordingly, Plaintiff's
claims against Ovalle are hereby dismissed.
III. Conclusion
Thus, for the reasons explained above, the Court finds that Plaintiff's claims against all
Defendants fail to rise to the level of a constitutional violation. Accordingly, all of Ward’s
claims against all Defendants are dismissed with prejudice. A separate judgment will be entered
in accordance with Rule 58 of the Federal Rules of Civil Procedure.
SO ORDERED, this the 29th day of September, 2015.
/s/ F. Keith Ball
UNITED STATES MAGISTRATE JUDGE
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