Chestnut v. Singleton

Filing 48

ORDER ADOPTING 45 REPORT AND RECOMMENDATION re 19 Motion to Dismiss, Motion for Summary Judgment, filed by K Singleton. It is ordered that Defendant's motion for summary judgment is denied without prejudice to the right to refile at a later time. Signed by Honorable R Bryan Harwell on 8/20/2014. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Raymond Edward Chestnut,
Plaintiff,
v.
K. Singleton, Officer, Individual
capacity,
Defendant.

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Civil Action No.: 1:13-cv-2250-RBH

ORDER

Plaintiff Raymond Edward Chestnut (“Plaintiff”), a federal prisoner proceeding pro se, filed
this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388, 397 (1971) (“Bivens”) on August 20, 2013. See Compl., ECF No. 1. At the time of the
incident giving rise to the complaint, Plaintiff was incarcerated at the Federal Correctional
Institution in Bennetsville, South Carolina (“FCI-Bennetsville”).1

In response, Defendant K.

Singleton, Officer, Individual capacity (“Defendant”) filed a motion to dismiss, or in the alternative,
for summary judgment. See Mot., ECF No. 19. The matter is now before the Court after the
issuance of a Second Report and Recommendation (the “Second R & R”) of United States
Magistrate Judge Shiva V. Hodges.2 See Second R & R, ECF No. 45. In the Second R & R, the
Magistrate Judge recommends that the Court deny Defendant’s motion.3 See id. at 7.

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Plaintiff is currently incarcerated at USP-Lewisburg in Pennsylvania.
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate Judge for pretrial handling.
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The Magistrate Judge issued an initial R & R (the “First R & R”) on November 19, 2013. See R &
R, ECF No. 22. This Court, however, recommitted the matter back to the Magistrate Judge via
order on April 8, 2014. See Order, ECF No. 33. The Court noted that Plaintiff referred to video
evidence in the Documentation of Information Resolution Attempt attached to the Complaint. See
id. at 4. The Court explained that Defendant may be entitled to summary judgment if this video
evidence was consistent with that affidavit testimony she submitted in support of her motion. See
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FACTUAL BACKGROUND
In his complaint, Plaintiff alleged that on August 10, 2012, while he was being placed in
hand restraints, Defendant entered the recreation yard. ECF No. 1 at 3. Plaintiff alleged that he
asked Defendant why she didn’t “exercise and work out to lose some weight to be physically fit.”
Id. Plaintiff asserted that, in response, Defendant spat in his eye, causing his eye to be swollen and
blurry for 14 days. Id. Plaintiff further asserted that Defendant also spat on his head, chest, face
and arms. Id. Plaintiff then alleged that Defendant obtained a fire extinguisher and “attempted to
assault” Plaintiff by striking him and spraying him in the face. Id. at 3–4. Plaintiff alleges
Defendant’s actions constituted excessive force. See id. at 4. Plaintiff also sets forth a claim for
retaliation, as he argues that Defendant used excessive force against him in retaliation for his
exercise of his First Amendment rights. Id. at 4. Defendant takes issue with Plaintiff’s version of
the facts, and submitted an affidavit in support of her motion which avers that she did not spit on
Plaintiff (and that Plaintiff actually spit on her), and that she did not attempt to strike or spray
Plaintiff with a fire extinguisher. See Aff. of Kori Singleton, ECF No. 19-1 at ¶¶ 4–5, 7.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court is charged with making a de novo
ECF No. 66 at 4–5. Accordingly, the Court recommitted the matter back to the Magistrate Judge
and gave Defendant thirty days to file the video evidence, if it existed. See id. at 5. The Court also
gave Plaintiff an additional thirty days to submit any further evidence in response to Defendant’s
motion. See id. Defendant indicated in a subsequent filing that no video evidence of the incident
was available, but argued that even without providing any additional evidence, Defendant was still
entitled to summary judgment. See Def.’s Resp. to Motion to Appoint Counsel, ECF No. 40 at 2.
Plaintiff filed several motions subsequent to the Court’s April 8, 2014 Order, but did not submit any
additional evidence. See Mot. for Discovery, ECF No. 37; Mot. to Appoint Counsel, ECF No. 39;
Mot. for Polygraph Examination, ECF No. 41. The Second R & R was prepared in light of these
filings.
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determination of those portions of the R & R to which specific objection is made, and the Court
may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a
party makes only “general and conclusory objections that do not direct the [C]ourt to a specific
error in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the absence
of objections to the R & R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “‘satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
APPLICABLE STANDARDS
I.

Motion to Dismiss
Rule 12(b)(6) of the Federal Rule of Civil Procedure (“FRCP”) governs motions to dismiss

for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The
purpose of such a motion is to test the sufficiency of a plaintiff’s complaint. See Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012). Rule 8(a)(2) of the FRCP provides that a pleading
must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). While this standard “does not require ‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions,’ or ‘a formulaic recitation of the elements of a cause of
action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Likewise, “a complaint [will not] suffice if it tenders ‘naked

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assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557). Rather, to survive a Rule 12(b)(6) motion to dismiss, the “[f]actual allegations
must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555; see
also Walters, 684 F.3d at 439 (“[W]hile a plaintiff does not need to demonstrate in a complaint that
the right to relief is ‘probable,’ the complaint must advance the plaintiff’s claim ‘across the line
from conceivable to plausible.’” (quoting Twombly, 550 U.S. at 570)). Finally, when ruling on a
motion to dismiss, the Court “must accept as true all of the factual allegations contained in the
complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
II.

Summary Judgment
Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). The moving party has the burden of proving that summary judgment is
appropriate. Once the moving party makes the showing, however, the opposing party must respond
to the motion with “specific facts showing there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
When no genuine issue of any material fact exists, summary judgment is appropriate.
Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from
the evidence must be viewed in the light most favorable to the non-moving party. Id. However,
“the mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine issue
of material fact.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)).
In this case, the moving party “bears the initial burden of pointing to the absence of a
genuine issue of material fact.” Temkin v. Frederick Cnty. Comm’rs, 845 F.2d 716, 718 (4th Cir.

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1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If the moving party carries this
burden, “the burden then shifts to the non-moving party to come forward with fact sufficient to
create a triable issue of fact.” Id. at 718–19 (citing Anderson, 477 U.S. at 247–48).
Moreover, “once the moving party has met its burden, the nonmoving party must come
forward with some evidence beyond the mere allegations contained in the pleadings to show there is
a genuine issue for trial.” Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874–75 (4th Cir. 1992). The
nonmoving party may not rely on beliefs, conjecture, speculation, of conclusory allegations to
defeat a motion for summary judgment. See id.; Doyle v. Sentry, Inc., 877 F. Supp. 1002, 1005
(E.D. Va. 1995). Rather, the nonmoving party is required to submit evidence of specific facts by
way of affidavits, depositions, interrogatories, or admissions to demonstrate the existence of a
genuine and material factual issue for trial. See Fed. R. Civ. P. 56(c), (e); Baber, 977 F.2d at 875
(citing Celotex, 477 U.S. at 324)). Moreover, the nonmovant’s proof must meet “the substantive
evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data Gen.
Corp., 12 F.3d 1310, 1316 (4th Cir. 1993); DeLeon v. St. Joseph Hosp., Inc., 871 F.2d 1229, 1223
n.7 (4th Cir. 1989).
DISCUSSION
In the Second R & R, the Magistrate Judge recommends the Court deny Defendant’s
motion. See ECF No. 45 at 7. The Magistrate Judge found that it was not clear on the present
record whether Defendant’s alleged spitting in Plaintiff’s eye and striking/spraying Plaintiff with a
fire extinguisher constituted impermissible use of force. See id. at 6. Thus, the Magistrate Judge
recommends the Court deny Defendant’s motion under Fed. R. Civ. P. 12(b)(6). See id. at 6–7. She
also recommends the Court find that there are genuine issues of fact regarding whether Defendant
spit on Plaintiff and whether she attempted to strike or spray him with a fire extinguisher. See id. at

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7. Therefore, she recommends the Court deny Defendant’s motion under Rule 56 as well. See id.
However, the Magistrate Judge noted that the Second R & R expressed no opinion on the merits of
Plaintiff’s claim. See id. at n.3.
Defendant timely filed objections to the R & R. In his objections, Defendant first notes that
Plaintiff never properly responded to the motion. See ECF No. 47 at 3–4. Defendant notes that
Plaintiff has had ample time to respond to the motion, but instead has embarked on a pattern of
delay by filing non-responsive motions. See id. at 4. Defendant then asserts that Plaintiff has failed
to set forth a prima facie claim of a constitutional violation. See id. Defendant argues that one
instance of spitting on a prisoner does not violate the Eighth Amendment, and, even if it did,
Defendant would be entitled to qualified immunity because it has not been clearly established that
one instance of a prison official spitting on a prisoner violates the Eighth Amendment. See id. at 4–
5. Defendant argues that there is no controlling authority in the circuit demonstrating that the
challenged act was unconstitutional. See id. at 5. Defendant then argues that dismissal of the fire
extinguisher claim is also appropriate because Plaintiff has provided no proof that Defendant
committed such an act, nor has he provided a scintilla of evidence of injury. See id. at 6.
I.

Plaintiff’s Failure to Respond
Defendant’s first argument in her objections is that her motion should be granted because

Plaintiff never responded to it. The Court finds that, due to the muddled procedural history of this
matter, Plaintiff’s failure to file a response to the motion does not justify granting Defendant’s
motion. After Defendant filed her motion, the Court issued an order pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion to dismiss and summary
judgment procedures and the possible consequences if he failed to respond adequately. See Order,
ECF No. 20.

Plaintiff’s deadline to respond to Defendant’s motion was December 6, 2013.

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However, on November 19, 2013, the Magistrate Judge went ahead and issued an R & R, the First
R & R, which recommended that Defendant’s motion be denied. See ECF No. 22. The Court,
however, rejected this R & R and gave the parties an opportunity to submit any additional evidence.
See ECF No. 33 at 5. Neither party ended up submitting any additional evidence.
While the Court agrees that Plaintiff has not filed a response to Defendant’s motion, there
was likely some confusion caused by the Magistrate Judge’s issuance of the initial R & R prior to
the expiration of Plaintiff’s deadline to respond. As discussed more fully below, because the
Magistrate Judge issued the First R & R prior to the expiration of Plaintiff’s time to respond to
Defendant’s motion, it could be argued that Plaintiff did not get a sufficient opportunity to respond
by way of a memorandum. Accordingly, the Court finds that granting summary judgment on this
basis would be inappropriate.
II.

Excessive Force Claim
The Court agrees with the Magistrate Judge that the complaint sets forth sufficient facts to

state a claim for excessive force. Plaintiff alleges that Defendant applied force by spitting in his eye
and by attempting to strike or spray him with a fire extinguisher in order to cause harm. He admits
that he asked Defendant why she did not exercise to try and lose weight, but Plaintiff does not set
forth any additional facts suggesting Defendant was acting in a good faith effort to restore
discipline. Plaintiff alleges that he was injured by both the spitting and the fire extinguisher assault.
The Court finds that this is sufficient to survive a 12(b)(6) motion.
The Court also agrees with the Magistrate Judge that Defendant’s motion for summary
judgment is premature at this early stage of the litigation. After Plaintiff filed his complaint,
Defendant immediately filed this motion to dismiss, or in the alternative, motion for summary
judgment. Defendant strongly disputes Plaintiff’s version of events, and asserts that she is entitled

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to qualified immunity. The Court is mindful that, “[b]ecause the doctrine [of qualified immunity]
seeks to protect government officials from the burdens of trial and preparing for trial, the Supreme
Court has ‘repeatedly . . . stressed the importance of resolving immunity questions at the earliest
possible stage in litigation.’” Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324,
330 (4th Cir. 2009). Therefore, “[u]nless the plaintiff’s allegations state a claim of violation of
clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the
commencement of discovery.” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
The Court must examine two prongs to determine whether qualified immunity is
appropriate. The Court must decide (1) whether Plaintiff has alleged facts sufficient to make out a
violation of a constitutional right and (2) whether the right was “clearly established” at the time of
Defendant’s alleged misconduct. Saucier v. Katz, 533 U.S. 194, 232 (2001). The Court can address
these requirements in any order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Moreover, “[a]
constitutional right is ‘clearly established’ when ‘its contours [are] sufficiently clear that a
reasonable official would understand that what he is doing violates that right.’” Cooper v. Sheehan,
735 F.3d 153, 158 (4th Cir. 2013) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). If no
discovery has been conducted, the Court’s inquiry is to assess “whether the plaintiff’s complaint
states sufficient factual allegations that, if true, show a violation of clearly established constitutional
rights.” McDevitt, 555 F.3d at 331.
In her motion for summary judgment and objections to the Second R & R, Defendant argued
that Plaintiff failed to establish a constitutional violation. The Eighth Amendment “serves as the
primary source of substantive protection to convicted prisoners in cases . . . where the deliberate use
of force is challenged as excessive and unjustified.” Whitley v. Albers, 475 U.S. 312, 327 (1986).
The Eighth Amendment clearly prohibits “unnecessary and wanton infliction of pain” against

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inmates. Id. at 319. To establish a claim for excessive force, a Plaintiff must prove that prison
officials applied force “maliciously and sadistically for the very purpose of causing harm,” rather
than in a good faith effort to maintain or restore discipline. Wilkins v. Gaddy, 559 U.S. 34, 40
(2010).
The Fourth Circuit has found it is clearly established “that the wanton infliction of pain on
an inmate without penological justification constitutes cruel and unusual punishment.” Jackson v.
Morgan, 19 Fed. App’x 97, 111 n.5 (4th Cir. 2001). Accordingly, because Plaintiff alleged such an
infliction of pain, the only inquiry at this juncture is whether Plaintiff set forth sufficient facts to
establish a violation of a constitutional right. The Court agrees with the Magistrate Judge that
Plaintiff’s allegations are sufficient to make out a claim that Defendant’s actions were not taken in a
“good faith effort to maintain and restore discipline,” but rather were done maliciously and
sadistically for the purpose of causing harm. Although Defendant vehemently opposes Plaintiff’s
characterization of the facts, the Court cannot say at this juncture that Plaintiff failed to allege
sufficient facts.
The Court finds that this matter “requires greater factual development and is better decided
once discovery has been conducted.” Tobey v. Jones, 706 F.3d 379, 389 (4th Cir. 2013). As the
Fourth Circuit has explained, “where there is a material dispute over what the defendant did . . . it
may be that the qualified immunity question cannot be resolved without discovery.” DiMeglio v.
Haines, 45 F.3d 790, 795 (4th Cir. 1995). Therefore, the Court finds that Defendant’s motion
should be denied as premature. The Court explicitly notes, however, that Defendant’s motion is
denied without prejudice to Defendant’s right to refile and reassert the argument contained in this
motion, or any additional arguments Defendant may have. Plaintiff should be given the right to

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conduct limited written discovery the extent of which will be determined by the Magistrate Judge in
her discretion.
As the Court noted above, because the Magistrate Judge issued the First R & R before
Plaintiff’s time to respond to Defendant’s motion expired, it could be argued that Plaintiff did not
receive a sufficient opportunity to respond by way of a memorandum. To avoid any confusion, the
Court denies Defendant’s motion without prejudice to Defendant’s right to refile after the limited
discovery period. Plaintiff should be given a full opportunity to respond to any additional motions
filed by Defendant before the Magistrate Judge issues an R & R. As the Magistrate Judge also
indicated, this Court expresses no opinion on the merits, but simply finds that, at this juncture,
summary judgment is premature. Therefore, Defendant’s motion for summary judgment is denied
without prejudice as to the excessive force claim.
III.

Retaliation
The Magistrate Judge did not specifically address Plaintiff’s retaliation claim in the Second

R & R. However, she recommended that Defendant’s motion be denied in its entirety. Defendant
did not object to the Magistrate Judge’s determination that summary judgment should also be
denied on the retaliation claim. Accordingly, finding no clear error, the Court also denies the
motion without prejudice as to Plaintiff’s retaliation claim.
CONCLUSION
The Court has thoroughly reviewed the entire record. For the reasons stated above and by
the Magistrate Judge, the Court hereby overrules Defendant’s objections and adopts the Magistrate
Judge’s R & R. IT IS THEREFORE ORDERED that Defendant’s motion for summary judgment
is DENIED WITHOUT PREJUDICE to the right to refile at a later time.

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IT IS SO ORDERED.

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
August 20, 2014

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