Taylor v. Lang et al

Filing 71

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 52 Report and Recommendations, granting 27 Motion for Summary Judgment, filed by Levern Cohen, Michael Lang, M E Montouth, Major Eichelberger, S Lowery, denyi ng 35 Motion for Extension of Time to File Response/Reply, Motion for Miscellaneous Relief, Motion for Protective Order, filed by Dion Orlando Taylor, denying 40 Motion for Declaratory Judgment filed by Dion Orlando Taylor, denying 51 Motion for Declaratory Judgment, Motion for Extension of Time, Motion for Preliminary Injunction, filed by Dion Orlando Taylor. Signed by Honorable Henry M Herlong, Jr on 12/9/2011. (jpet, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION

Dion Orlando Taylor,

)
)
Plaintiff,
)
)
vs.
)
)
Sgt. Michael Lang; Major Eichelberger;
)
Warden Levern Cohen; Lt. S. Lowery;
)
M. E. Montouth, Grievance Coordinator;
)
all in their individual and official capacities, )
)
Defendants. )

C.A. No. 0:10-2327-HMH-PJG

OPINION & ORDER

This matter is before the court with the Report and Recommendation of United States
Magistrate Judge Paige J. Gossett, made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02 of the District of South Carolina.1 Dion Orlando Taylor (“Taylor”), a state
prisoner proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983, alleging numerous
violations to his constitutional rights. Defendants moved for summary judgment, and Magistrate
Judge Gossett recommends granting Defendants’ motion. Taylor filed objections to the Report
and Recommendation. For the reasons explained below, the court adopts the Report and
Recommendation and grants summary judgment in favor of Defendants.

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The recommendation has no presumptive weight, and the responsibility for making a final
determination remains with the United States District Court. See 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 and Recommendation to which specific objection is made. The court
may accept, reject, or modify, in whole or in part, the recommendation made by the
magistrate judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
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I. FACTUAL AND PROCEDURAL BACKGROUND
Taylor’s claims arise following an altercation with Defendant Sgt. Michael Lang
(“Lang”), a corrections officer at Ridgeland Correctional Institution. On the evening of June 11,
2010, Lang was monitoring inmates while they lined up to receive their medication from the
prison nurse. (Compl. 3; Def. Mot. Summ. J. Ex. 3 (Lang Aff. ¶ 5).) Taylor alleges that when
he reached the front of the line, he “express[ed his] displeasure” with the nurse’s
“unprofessionalism” because she had previously given him the wrong medication. (Compl. 3.)
Lang instructed Taylor that disrespect to prison officials was not tolerated, and a verbal
altercation ensued between Taylor and Lang. (Def. Mot. Summ. J. Ex. 3 (Lang Aff. ¶ 7).) Lang
thereafter directed Taylor to accompany him to a holding cell in an adjacent building so he could
further discuss the incident with Taylor. (Id. Ex. 3 (Lang Aff. ¶ 9).) According to Taylor, while
proceeding to the holding cell, Lang commanded him to “stop, turn around [and] come back”
toward Lang. (Compl. 3.) Taylor alleges that once he turned around, Lang sprayed him with
chemical munitions, handcuffed him, and placed him in the holding cell for up to an hour
without a shower. (Id.) Taylor complains that after he was allowed to shower, he was returned
to the holding cell where he remained for three days without a mattress, blanket, or hygiene
items. (Id.)
Lang alleges that Taylor exhibited loud and aggressive behavior throughout the incident.
(Def. Mot. Summ. J. Ex. 3 (Lang Aff. ¶ 9).) Lang further avers that while walking to the
holding cell, Taylor “stopped, clinched his fists, and turned towards” Lang. (Id. Ex. 3 (Lang
Aff. ¶ 12).) Lang maintains that he felt threatened by Taylor’s behavior and therefore
discharged a “short burst” of chemical munitions towards Taylor’s face. (Id. Ex. 3 (Lang Aff.
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¶¶ 13-14).) He then handcuffed Taylor and placed him in the holding cell. (Id. Ex. 3 (Lang Aff.
¶ 15).)
Taylor commenced the instant § 1983 action on September 7, 2010, alleging numerous
violations to his constitutional rights. Defendants moved for summary judgment on each of
Taylor’s claims, contending that Taylor’s constitutional rights were not violated, and therefore,
Defendants were entitled to qualified immunity. Magistrate Judge Gossett agreed and
recommended granting Defendants’ motion for summary judgment. Lang filed objections to the
Report and Recommendation on November 16, 2011.2
II. DISCUSSION OF THE LAW
A. Summary Judgment Standard
Summary judgment is appropriate only “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). In deciding whether a genuine issue of material fact exists, the evidence of the
non-moving party is to be believed and all justifiable inferences must be drawn in his favor. See

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The magistrate judge issued her Report and Recommendation on October 11, 2011, and
properly advised Taylor of his right to file specific written objections to the Report within
fourteen days. On October 28, 2011, Taylor moved to enlarge the period for filing
objections. This court granted Taylor’s motion on November 1, 2011, affording him fifteen
additional days to file objections. The period for Lang to file objections to the Report and
Recommendation therefore expired on November 16, 2011. Having received no objections,
this court entered an order adopting the magistrate judge’s Report and Recommendation and
granting summary judgment in favor of Defendants on November 22, 2011. The clerk of
court subsequently received objections from Taylor on November 23, 2011. Taylor dated
the objections November 16, 2011, but they were not postmarked until November 21, 2011.
Prison officials failed to indicate when Taylor’s objections were received for forwarding.
Because Taylor’s objections are subject to the timing rule enunciated in Houston v. Lack,
487 U.S. 266 (1988), the court construed them as timely and vacated its previously imposed
order adopting the Report and Recommendation.
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be
counted.” Id. at 248.
A litigant “cannot create a genuine issue of material fact through mere speculation or the
building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).
“Where the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, disposition by summary judgment is appropriate.” Monahan v. County of
Chesterfield, 95 F.3d 1263, 1265 (4th Cir. 1996).
B. Objections
Objections to the Report and Recommendation must be specific. Failure to file specific
objections constitutes a waiver of a party’s right to further judicial review, including appellate
review, if the recommendation is accepted by the district judge. See United States v. Schronce,
727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the Report and
Recommendation of the magistrate judge, this court is not required to give any explanation for
adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Upon review, the court finds that many of Taylor’s objections are non-specific, unrelated
to the dispositive portions of the magistrate judge’s Report and Recommendation, or merely
restate his claims. The court, however, was able to glean three specific objections, and it
addresses each in turn.

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1. Excessive Force
Taylor first objects to the magistrate judge’s conclusion that Defendants are entitled to
summary judgment on his excessive force claim, arguing that genuine disputes of material fact
preclude entry of summary judgment. (Objections 1-10.) Whether there is an Eighth
Amendment violation in the context of a prison disturbance turns on “whether force was applied
in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause
harm.” Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010). The predominate focus is not on the
extent of the injury but rather the nature of and justification for the inflicted force. Id. at 1179.
In determining whether a prison official’s actions were carried out “maliciously and
sadistically,” the court is guided by the following factors: (1) “the need for the application of
force”; (2) “the relationship between the need and the amount of force” used; (3) “the extent of
injury inflicted”; and (4) “the extent of the threat to the safety of staff and inmates as reasonably
perceived by the responsible officials on the basis of the facts known to them.” Whitley v.
Albers, 475 U.S. 312, 321 (1986).
The Fourth Circuit has recognized that the “limited application of mace may be much
more humane and effective than a flesh to flesh confrontation with an inmate.” Williams v.
Benjamin, 77 F.3d 756, 763 (4th Cir. 1996) (internal quotation marks omitted). Consequently, a
prison official’s use of chemical munitions on an inmate to prevent disorder generally does not
infringe the Eighth Amendment’s prohibition against cruel and unusual punishment as long as
the quantity of chemical munitions is commensurate with the gravity of the occasion. Bailey v.
Turner, 736 F.2d 963, 968 (4th Cir. 1984). Whether the use of chemical munitions on an inmate

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constitutes excessive force depends upon “the totality of the circumstances, the provocation, the
amount of gas used, and the purposes for which the gas was used.” Id. at 969.
Viewing the facts in a light most favorable to Taylor, the court concludes that he is
unable to demonstrate that Lang’s application of force constitutes cruel and unusual punishment.
Lang administered only a “short burst of chemical munitions” toward Taylor’s face. (Def. Mot.
Summ. J. Ex. 3 (Lang Aff. ¶ 14).) Although Taylor disputes using profane language or
approaching Lang with clinched fists, he concedes that he engaged in verbal altercations with
both the prison nurse and Lang. (Compl. 3.) Lang averred that he administered the chemical
munitions because he felt threatened by Taylor’s provocative conduct. (Def. Mot. Summ. J. Ex.
3 (Lang Aff. ¶ 13).) Given Taylor’s unruly behavior and the fact that he was unrestrained while
Lang escorted him to the holding cell, the court agrees with the magistrate judge’s determination
that no reasonable juror could find Lang’s perception that Taylor was a threat to be unjustified.
(Report & Recommendation 7-8.) It is well established that measures undertaken by prison
officials to prevent disorder are “accorded wide-ranging deference,” Whitley, 475 U.S. at 321,
and consequently, courts must refrain from “critiqu[ing] in hindsight decisions necessarily made
in haste, under pressure, and frequently without the luxury of second chance.” Id. at 320.
Viewing the record in a light most favorable to Taylor, the court concludes that he is unable to
show that Lang’s use of force was unconstitutionally excessive.
2. Defendant Montouth
Taylor next objects to the magistrate judge’s conclusion that Defendant M. E. Montouth
(“Montouth”) was entitled to summary judgment on Taylor’s claim that his grievances were
returned unprocessed. (Objections 13-16.) As the magistrate judge explained, state prisoners
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have no constitutional right to engage in a prison’s established grievance proceedings. Adams v.
Rice, 40 F.3d 72, 75 (4th Cir. 1994). Furthermore, to the extent Taylor is alleging a claim that
he was denied access to the courts, his voluminous filings in numerous cases before this court
make this contention implausible. Consequently, Defendants are entitled to summary judgment
on this claim.
3. Defendant Cohen
Taylor finally contends that Defendant Warden Levern Cohen (“Cohen”) is not entitled
to summary judgment on his claim that Cohen was “grossly negligent” in supervising
correctional officers at Ridgeland Correctional Institution. (Compl. 5; Objections 11-12.) The
magistrate judge did not directly address this claim. Nevertheless, the court concludes that it is
meritless. A claim basing liability on the doctrine of respondeat superior is not cognizable under
§ 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-94 (1978). Instead, defendants are
liable under § 1983 only when they are personally involved in the deprivation of the plaintiff’s
rights. Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977). Consequently, a supervisor may
be held liable under § 1983 for the conduct of a subordinate if the plaintiff shows:
(1) the supervisor had actual or constructive knowledge that his subordinate was
engaged in conduct that posed a pervasive and unreasonable risk of constitutional
injury to citizens like the plaintiff; (2) that the supervisor’s response to that
knowledge was so inadequate as to show deliberate indifference to or a tacit
authorization of the alleged offensive practices; and (3) that there was an
affirmative causal link between the supervisor’s inaction and the particular
constitutional injury suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal quotation marks omitted). To satisfy
the first Shaw element, Taylor must demonstrate that the subordinate’s “conduct is widespread,
or at least has been used on several different occasions and that the conduct engaged in by the
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subordinate poses an unreasonable risk of harm of constitutional injury.” Id. Taylor has made
no showing. He merely notes that he was sprayed with chemical munitions in an unrelated
incident on September 10, 2010. (Objections 12.) Taylor, moreover, fails to allege any previous
circumstance in which Lang has used chemical munitions on an inmate. Furthermore, the
September 10, 2010 incident he relies upon in an attempt to establish Cohen’s knowledge of
subordinates’ pervasive unconstitutional conduct occurred over three months after the
altercation with Lang. Based on the foregoing, Taylor has failed to show that Cohen was
personally involved in any alleged constitutional violation, and therefore, the court grants
Defendants summary judgment on this claim.
After a thorough review of the Report and Recommendation and the record in this case,
the court adopts Magistrate Judge Gossett’s Report and Recommendation and incorporates it
herein.
It is therefore
ORDERED that Defendants’ motion for summary judgment, docket number 27, is
granted. It is further
ORDERED that Taylor’s pending motions, docket numbers 35, 40, and 51, are denied.
IT IS SO ORDERED.

s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
December 9, 2011

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NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified that he has the right to appeal this order within thirty (30)
days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate
Procedure.

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