Mann v. Scott et al

Filing 71

ORDER RULING ON 65 REPORT AND RECOMMENDATION - The Court declines to adopt the R&R of the Magistrate Judge, denies Defendants' Motion for Summary Judgment 29 as to the excessive force claim, and grants Defendants' motion as to the conditions of confinement/First Amendment claim. The Court will appoint counsel by separate order. Signed by Honorable Richard M Gergel on 9/1/2015. (gmil)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Anthony L. Mann,
Plaintiff,
vs.
Sgt. M. Scott; Sgt. Kiesha Gibbs;
Lt. Frank Richardson; Nurse Elouise
Montgomery ,
Defendants.

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Civil Action No.: 0: 14-3474-RMG

ORDER

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This matter is before the Court on the Report and Recommendation ("R&R) of the
Magistrate Judge (Dkt. No. 65) recommending that this Court grant Defendants' motion for
summary judgment. (Dkt. No. 29). The Court denies the motion for summary judgment for the
reasons herein.
Background
In determining whether a genuine issue has been raised, sufficient to defeat a motion for
summary judgment, the Court must construe the information found in the record in a light most
favorable to the nonmoving party, in this case the defendant. HealthSouth Rehab. Hosp. v. Am.

Nat 'I Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996).
Plaintiff, Anthony Mann, filed this pro se action alleging violations of his constitutional
rights pursuant to 42 U.S.C. § 1983 (Dkt. No.1). Plaintiff alleges that on April 17, 2014, I prison
employees conducted a sweep of his and other inmates' cells in the Lee Correctional Institution.
Plaintiff alleges that after he and the other inmates discovered that certain of their possessions,

1 The record at times contains references to an incident on April 14,2014. However, it appears that this is an error
and that there is only one instance of alleged unconstitutional action by the prison employees at issue, which
occurred on April 17.

including items of personal hygiene and legal materials, were missing, they repeatedly requested
to have them returned. The prisoners also "immediately began requesting to see and speak with
Deputy Warden Willie Davis" (Dkt. No. 63 at 3). These requests were ignored. Mann alleges
that after some of the inmates kicked their doors and shouted for assistance, Defendant Scott
used excessive force when she sprayed Mann with chemical munitions, then turned off the water
to Mann's cell to prevent him from decontaminating. He further alleges that Defendants Gibbs
and Richardson refused to allow him to decontaminate and refused to give him dinner; and that
Defendant Nurse Montgomery denied him medical treatment following the pepper spray
incident. (Dkt. No. 65 at 1-2).
Plaintiff has submitted affidavits from four other inmates testifying that they saw the
pepper spray incident. (Dkt. Nos. 63-4, 63-5, 63-6, 63-7). They all attest to essentially the same
facts: that after a cell sweep a number of inmates were missing non-contraband materials, that
they attempted to get a response to their complaints, that Officer Scott sprayed part or all of the
contents ofa chemical munitions can into Mann's cell, and that Mann's water was cut off in his
cell until 10:30 am the next morning. The affiants further attested that Nurse Montgomery saw
Mann briefly but did not give him medical treatment, and that Mann and his cell were not
decontaminated. (ld.).
Plaintiff has averred that he "continuously wrote complaints in regards to the
unprofessional actions of Ofc. Scott" and complained to Deputy Warden Davis "of the
unprofessional actions of the Defendants and pushed to have them removed." He alleges that
Officer Scott responded by jeopardizing Plaintiff's safety by telling other prisoners that he was a
"snitch." (Dkt. No. 63 at 9). He further alleges that Officer Scott had him removed to a
Supermax cell, and told him that he would have "a real nasty cell with no lights in it" where he

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would be unable to file grievances and lawsuits. (Id at 10). He alleges that the cell in which he
was placed had no lights, exposed electrical wiring, food and feces splattered on the walls, and
mold on the floor, walls, and shower. The shower, according to the Response for Summary
Judgment, was turned off, depriving Plaintiff of a shower for two months. (Id).
In accordance with 28 U.S.C. §636(b) and Local Civil Rule 73.02(B)(2) DSC, this matter
was referred to a Magistrate Judge. Defendant filed a motion for summary judgment on January
27,2015. (Dkt. No. 29). The Magistrate Judge issued the R&R on July 28, 2015 recommending
that the complaint be dismissed for failure to exhaust administrative remedies. (Dkt. No. 65).
Plaintiff filed objections on August 13, 2015 (Dkt. No. 67) and Defendants filed objections on
August 14,2015 (Dkt. No. 68).

Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Matthews v. Weber, 423 U.S. 261,270-71 (1976). This Court is charged with making a

de novo determination of those portions of the R&R to which specific objection is made.
Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court may also
"receive further evidence or recommit the matter to the magistrate judge with instructions." Id.
As to portions ofthe R&R to which no specific objection is made, this Court "must 'only satisfy
itself that there is no clear error on the face of the record in order to accept the
recommendation.'" Id. (quoting Fed. R. Civ. P. 72 advisory committee note).
Summary judgment is appropriate if a party "shows that there is no genuine dispute as to
any material fact" and the movant is entitled to judgment as a matter oflaw. Fed. R. Civ. P.

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56(a). In other words, summary judgment should be granted "only when it is clear that there is
no dispute concerning either the facts of the controversy or the inferences to be drawn from those
facts." Pulliam Inv. Co. v. Cameo Props., 81OF.2d 1282, 1286 (4thCir. 1987). "When
determining whether the movant has met its burden, the court must assess the documentary
materials submitted by the parties in the light most favorable to the nonmoving party." Id. The
party seeking summary judgement shoulders the initial burden of demonstrating to the court that
there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has made this threshold demonstration, the non-moving party, to
survive the motion for summary judgment, may not rest on the allegations averred in his
pleadings. Id. at 324. Rather, the non-moving party must demonstrate that specific, material
facts exist that give rise to a genuine issue. Jd. Under this standard, "[c]onclusory or speculative
allegations do not suffice, nor does a 'mere scintilla of evidence'" in support of the nonmoving
party's case. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002).
A non-moving party's verified petition is deemed to be equivalent to an opposing
affidavit for summary judgment purposes. Williams v. Griffin, 952 F.2d 820,823 (4th Cir.
1991). Where resolution of a material issue of fact depends upon a credibility determination,
disposition of the matter by summary judgment is not appropriate. Davis v. Zahradnick, 600
F.2d 458, 460 (4th Cir. 1979).

Law/Analysis
A. Exhaustion
In their motion for summary judgment, Defendants argue that Plaintiff has not exhausted
his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"),
specifically 42 U.S.C. § 1997e. (Dkt. No. 29-1 at 6). According to Defendants, "[a] prisoner

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does not exhaust all available remedies simply by failing to follow the required steps so that
remedies that once were available to him no longer are. See Woodford {v. Ngo}, 548 U.S. 81,
126 [(2006)]. Rather, to be entitled to bring suit in federal court, a prisoner must have utilized all
available remedies 'in accordance with the applicable procedural rules,' so that prisoner officials
have been given an opportunity to address the claims administratively. Jd" (Dkt. No.6). The
parties here agree that there is a grievance procedure at LCI, which requires that prior to filing a
grievance, he or she must attempt an informal resolution of the matter by filing a Request to Staff
(RTS). E.g. Dkt. No. 1 ~ 18. The prisoner must then attach a copy of an "answered Request to
Staff form" in order to file a Step One Grievance, which is a prerequisite for filing a Step Two
Grievance.
There is also no dispute that Plaintiff filed a grievance on or around April 18, 2014
(Number Lee C.1. 0472-14) and several additional grievances. However, Defendants explain that
the grievances "have been either returned 'unprocessed' or are still pending ... Specifically,
Plaintiffs Step 1 Grievance, 0472-14, was returned 'unprocessed' because Plaintiff failed to
comply with the Inmate Grievance Procedures. Martinez Aff.

~~

6-7. Plaintiff admits that in

order to file a proper Step 1 grievance, he needed to attempt an informal resolution of the matter
through RTS Forms ... Plaintiff chose not to re-file a grievance concerning the alleged incidents
addressed in the Complaint. Martinez Aff. ~ 8. (Dkt. No. 29-1 at 8)." CITE.
Plaintiff asserts, and Defendants do not dispute, that he filed many RTS' s and never
received a response that he could have attached to his grievance in order for the prison to process
it. He has submitted copies of six RTS's, which he directed to Deputy Warden Willie Davis,
General Counsel David Tatarsky, Ms. Hallman, and Ms. Rivers. In the RTS's, he also references
a number of prior RTS's. Adding to the confusion ofthe record, at least two of the RTS's are

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stamped "ISSUE ALREADY ADDRESSED," (Dkt. Nos. 63-30; 63":32) and at least two were
datestamped incorrectly by the prison (e.g. Dkt. No. 63-32, dated May 3, stamped received
March 14, and stating "On April 17, 2014, I was viciously assaulted ... ")
In one RTS dated in May, Plaintiff stated that "I also submitted a grievance on the issue
(Lee CI 0472-14) and it was returned from the DOl telling me I have to have a responded to
RTSM form to go with it. How can I do that ifno one will respond to my RTSM's?" It appears
that no one did respond to this question, as there is no response to the RTS in the record;
however, this RTS is also stamped "ISSUE ALREADY ADDRESSED." (Dkt. No. 63-32). In a
June RTS, Plaintiff wrote to the Institutional Grievance Counselor, Ms. Rivers, that "This is the
3rd RTSM I've written you in regards to the incident. If you will respond to this saying that I
brought this to your attention I will be out of your hair." At the bottom of the form, Ms. Rivers
wrote in the "disposition" section on July 2,2014: "I apologize - I thought I had answered all of
your requests ... I cannot use a RTS unless it is answered by appropriate staff - DW Davis or
Capt. (illegible] will have to answer a RTS concerning Ofc. Scott's alleged assault on you."
(Dkt. No. 63-33).
Upon review of the record, Defendants' assertion that Plaintiff "chose" not to file a
proper Step One Grievance is a clear misstatement of the facts, since Plaintiff could not have
"chose(n]" to file paperwork that he did not have, despite his vigorous and voluminous attempts
to elicit a proper response from the prison so that he could complete the administrative process.
There is no suggestion in Defendants' filing that they were not "given an opportunity to address
the claims administratively" as required by law; on the contrary, prison staff were presented with
tenacious and repetitious complaint forms. It is unclear what more Plaintiff could have done to

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pursue his claims, or whether additional paperwork would have been of any benefit to the
prisoner or the prison administration.
Prison officials may not take unfair advantage of the exhaustion requirement, and a
remedy becomes "unavailable" if prison employees do not respond to a properly filed grievance,
or if they otherwise act to prevent a prisoner from exhausting his administrative remedies. See
Moore v. Bennett, 517 F.3d 717, 725 (4th Cir. 2008). Thus, a court may excuse a prisoner's

failure to exhaust an administrative remedy if a prisoner "through no fault of his own, was
prevented from availing himself of' the remedy. ld. The burden of showing that administrative
remedies were unavailable lies with the plaintiff. See, e.g., Graham v. Gentry, 413 F. App'x
660,663 (4th Cir.2011) ("[I]n order to show that a grievance procedure was not 'available,' a
prisoner must adduce facts showing that he was prevented, through no fault of his own, from
availing himself of that procedure.") (citing Moore, 517 F.3d at 725). The "exhaustion of
administrative remedies under the PLRA is a question of law to be detennined by the judge."
Drippe v. Tobelinsld, 604 F.3d 778, 782 (3d Cir. 2010); see also Messa v. GOON!, 652 F.3d 305,

308 (2d Cir. 2011); Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010). District courts are
"obligated to ensure that any defects in exhaustion were not procured from the action or inaction
of prison officials" before dismissing a claim for failure to exhaust. Aquilar-A vellaveda v.
Terrell, 478 F.3d 1223, 1225 (lOth Cir. 2007). Where prison officials prevent, thwart, or hinder a

prisoner's efforts to avail himself of an administrative remedy, they render that remedy
"unavailable" and a court will excuse the prisoner's failure to exhaust. See Lyon v. Vande Krol,
305 F.3d 806, 808 (8th Cir. 2002) (en bane); Little v. Jones, 607 F.3d 1245, 1250 (lOth Cir.
2010).

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The problem here is twofold: First, SCDC's administrative process bars prisoners from
filing Step One grievances without an attached, responded-to RTS. (Aff. of David Martinez,
Inmate Grievance Administrator, Dkt. No. 29-16 at 1, citing GA-01.12). Second, it bars
prisoners from filing a grievance on the basis that a Step One grievance was left unprocessed.
GA-91.12, § 8.5.1-8.5.3 (disallowing grievances based on unprocessed grievances or based on
the disposition of another grievance). 2 The policy, in other words, predicates a prisoner's ability
to appropriately grieve and appeal an issue upon the prison's own action, which does not offer
him a meaningful opportunity to exhaust. An inmate who has not received a response to an RTS
may abide by the GA -01.12 requirements and wait patiently for the response that may never
come, thereby losing the opportunity to fully exhaust the final steps of his administrative
remedies as the PLRA requires. Or, he may ignore repeated directives from the prison that he
may not proceed to filing a Step One and Step Two grievance, file them despite having received
no response on his RTS, and fall afoul of the Supreme Court's more specific requirement that he
"follow the required steps" of the administrative procedure. Woodford, 548 U.S. at 126.
The Court finds that the prison's failure to respond to Plaintiffs RTS's made an
administrative remedy unavailable in this case, excusing his resulting failure to exhaust prior to
filing suit. The Motion for Summary Judgment is denied as to its administrative exhaustion
grounds and the Court proceeds to the merits of the case.

B. Excessive Force Claim
In a claim for excessive application of force, a prisoner must meet a heavy burden
to satisfY the subjective component-that prison officials applied force "maliciously and
2 Plaintiff has also submitted a memo addressed to him, dated September 8,2014, from IGe Karen Rivers, stating
that "As of this time, we cannot honor SMU Requests to Staff as inmates in SMU cannot keep copies of their
Request to Staff." (Dkt. No. 63-41). It is unclear what process she was referring to as "honoring" SMU RTS's, but
her statement also indicates that the grievance procedure as written was unavailable to Plaintiff.

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sadistically for the very purpose of causing harm" rather than "in a good faith effort to maintain
or restore discipline ... [S]uch factors as the need for the application of force, the relationship
between the need and the amount of force that was used, [and] the extent of injury inflicted, are
relevant to that ultimate determination. From such considerations inferences may be drawn as to
whether the use of force could plausibly have been thought necessary, or instead evinced such
wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing
willingness that it occur." Whitley v. Albers, 475 U.S. 312,320-21 (1986) (internal quotation
marks omitted).
Use of chemical munitions on prisoners mayor may not constitute excessive force, and
the Whitley factors depend on the circumstances surrounding the application of the chemical
munitions and any treatment and decontamination following. See Williams v. Benjamin, 77 F .3d
756, 762 (4th Cir. 1996) (use of pepper spray justifiable under first Whitley factor where Plaintiff
"refused to obey the command" to stop throwing water); cf Tedder

v. Johnson, 527 F. App'x

269,272-73 (4th Cir. 2013) (overturning grant of summary judgment where, among other things,
there was a dispute of fact as to whether Plaintiff was willing to comply with Defendant's
commands at the time mace was used). See Williams, 77 F.3d at 763 ("[I]t is a violation of the
Eighth Amendment for prison officials to use mace, tear gas or other chemical agents in
quantities greater than necessary or for the sole purpose of infliction of pain."); cf Iko v. Shreve,
535 FJd 225, 240 (4th Cir. 2008) (affirming denial of summary judgment where Defendant
"deployed several additional bursts of pepper spray even after [Plaintiff] attempted to comply
with orders"). Under the Fourth Whitley factor, the Court notes that a "limited application of
mace may be much more humane and effective than a flesh to flesh confrontation with an
inmate." Williams, 77 F .3d at 763 (internal quotations omitted). "[B]ecause a limited use of

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mace constitutes a relatively 'mild' response compared to other forms of force, the initial
application of mace indicates a 'tempered' response by the prison of~cials." ld. (emphasis
added).
Courts have found that the question of whether a prisoner was sufficiently
decontaminated following the use of pepper spray or mace is "a significant factor in upholding
the use of mace." Williams, 77 F.3d at 756 (citing Sofo v. Dickey, 744 F.2d 1260, 1266 (7th Cir.
1984)); see also Mann v. Faley, 578 F. App'x 267, 273 (4th Cir. 2014) ("We have previously
held that the denial of decontamination can give rise to an Eighth Amendment claim.")
Here, Plaintiff alleges that the water was shut off in his cell at the time of the pepper
spray incident, and that he was therefore not able to decontaminate f9110wing his exposure at all.
Defendant Nurse Montgomery has attested that Plaintiff "post the use of gas" on April 17, 2014,
and was of the opinion that he was "not in any distress." (Dkt. No. 28-15). However, neither she
nor the other defendants dispute Plaintiffs claim that he did not have access to water, that Nurse
Montgomery did not give him water, and that the water was turned off in his cell until 10:30 am
the following day. In addition, there is no information in the record to indicate how much time
passed between the pepper spraying and Defendant Montgomery's exam.
In sum, it appears at this point uncontested that Defendant Scott used chemical munitions
on Plaintiff, who was not able to decontaminate after the incident. He disputes Defendants'
testimony and argument that he was not in sufficient pain to necessitate decontamination or other
attention later, and submits affidavits of four other inmates swearing to his version of events.
The Court therefore is constrained to find an issue of material fact remaining on the issue of
excessive force. Summary Judgment is therefore denied as to this claim.

C. Conditions of ConfinementfFirst Amendment Retaliation Claim

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Plaintiff alleges that in retaliation for his grievances, and/or in anticipation of legal
action, Officer Scott had him removed to a Supermax cell, and told him that he would have "a
real nasty cell with no lights in it" where he would be unable to file grievances and lawsuits.
(Dkt. No. 63 at 10). He alleges that the cell in which he was placed had no lights, exposed
electrical wiring, food and feces splattered on the walls, and mold on the floor, walls, and
shower, which did not work, depriving him of a shower for two months. (ld.). This allegation
appears to state a claim both for the physical conditions of the cell in which he was placed, and
the alleged retaliatory motivation of Officer Scott in placing him there.
"The Constitution does not mandate comfortable prisons;" however, "the treatment a
prisoner receives in prison and the conditions under which he is confined are subject to scrutiny
under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825,832, (internal quotations and
citations omitted). To state a claim that conditions of confinement vIolate constitutional
requirements, a plaintiff must show both (1) a serious deprivation of a basic human need; and (2)
deliberate indifference to prison conditions on the part of prison officials. De' lonta v. Angelone,
330 F.3d 630,634 (4th Cir.2003). To show a serious deprivation ofa basic human need, a
plaintiff must prove that officials failed to provide him with humane conditions of confinement,
such as "adequate food, clothing, shelter, and medical care, and [taking] reasonable measures to
guarantee the safety of the inmates." Farmer, 511 U.S. at 832. To withstand summary
judgment on a challenge to prison conditions, Plaintiff must produce evidence of a serious or
significant physical or emotional injury resulting from the challenged conditions, or a substantial
risk of such injury. Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993). Plaintiff has
alleged no such injury and the Court therefore grants summary judgment as to any conditions of
confinement claim related to his time in Supermax.

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To the extent that Plaintiff asserts a First Amendment retaliation claim, Defendants have
submitted evidence that Plaintiff was found guilty by a disciplinary hearing officer for
misconduct (Dkt. No. 29-1 at 17). Defendants have also submitted multiple incident reports and
the results of a second disciplinary hearing showing that Plaintiff threatened Defendant Scott and
that his transfer to Supermax was a result of his misconduct. Plaintiff has submitted no evidence
that would go to show that Defendants were motivated by retaliatory purposes in transferring
him to the Supermax cell. Claims based on a retaliation theory of inmate discipline require some
showing beyond the discipline itself, since "[e]very act of discipline by prison officials is by
definition 'retaliatory' in the sense that it responds to prisoner misconduct." Moore v. Bennet,
777 F. Supp.2d 969,983 (E.D.N.C. March 23, 2011) (quoting Cochran v. Morris, 73 F.3d 1310,
1317 (4th Cir. 1996). Here, the Court can discern no genuine issue of material fact and therefore
grants summary judgment to Defendants as to the First Amendment claim.

Conclusion
For the reasons set forth above, the Court declines to adopt the R&R of the Magistrate
Judge, DENIES Defendants' Motion for Summary Judgment (Dkt. No. 29) as to the excessive
force claim, and GRANTS Defendants' motion as to the conditions of confinementlFirst
Amendment claim. The Court will appoint counsel by separate order.
AND IT IS SO ORDERED.

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United States District Court Judge

f
, 2015

September
Charleston, South Carolina

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