Anderson v. Eagleton et al

Filing 87

ORDER RULING ON REPORT AND RECOMMENDATION: The court ACCEPTS the Report and Recommendation of the Magistrate Judge (ECF No. 74 ). It is therefore ordered that Defendants' Motion for Summary Judgment (ECF No. 36 ) is DENIE D. The court further DENIES Defendants' Motion for Summary Judgment as to Defendant Officer Corporal V. Lovin (Vernon) and Defendant Officer Doe Lucas on the basis of qualified immunity and Eleventh Amendment immunity. Finally, Defendant Warden Willie L. Eagleton is DISMISSED from this matter.IT IS SO ORDERED. Signed by Honorable J Michelle Childs on 09/15/2017. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Sherald Anderson, #250152,

)
)
Plaintiff,
)
) Civil Action No.: 4:16-cv-02462-JMC
v.
)
)
)
ORDER AND OPINION
Warden Willie L. Eagleton (Official Capacity),
)
Corporal V. Lovin (Vernon),
)
Officer Doe Lucas,
)
In Their Individual Capacities,
)
Defendants.
)
)
__________________________________________)
This matter is now before the court upon the Report and Recommendation (“Report”)
(ECF No. 74) filed by United States Magistrate Judge Thomas E. Rogers, III on June 22, 2017.
Plaintiff Sherald Anderson (“Plaintiff”), a prisoner at Evans Correctional Institution in the
South Carolina Department of Corrections (“SCDC”) proceeding pro se, filed this action
pursuant to 42 U.S.C. § 1983 alleging Eighth and Fourteenth Amendment violations against
Defendants Warden Willie L. Eagleton, Officer Corporal V. Lovin (Vernon) (“Officer Lovin”),
and Officer Doe Lucas (“Officer Lucas”) ( collectively “Defendants”). (ECF No. 1.)
This review considers Defendants’ Motion for Summary Judgment (ECF No. 36), the
Magistrate Judge’s Report (ECF No. 74), Response to Defendants’ Motion for Summary
Judgment and Cross-Motion for Summary Judgment on Behalf of the Plaintiff (ECF No. 76),
Defendants’ Objections to Report and Recommendation (“Objections”) (ECF No. 79),
Defendants’ Response in Opposition to Plaintiff’s Motion for Summary Judgment (ECF No. 83),
Plaintiff’s Response in Opposition to Defendants’ Objection to the Report and Recommendation
(ECF No. 84), and Plaintiff’s Response in Opposition to Defendants’ Motion for Summary
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Judgment (ECF No. 86). For the reasons set forth herein, the court ACCEPTS the Magistrate
Judge’s Report (ECF No. 74) and DENIES Defendants’ Motion for Summary Judgment (ECF
No. 36).
I.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

In Plaintiff’s Complaint, he alleges that Officer Lovin sprayed chemical munitions on his
face, slammed and hit him on his mouth, and knocked out his front tooth. (ECF No. 1 at 7.)
Plaintiff contends that Officer Lucas held him while Officer Lovin administered chemical
munitions. (ECF No. 86.) On or about April 4, 2016, Plaintiff was charged with Assault and/or
Battery of an SCDC Employee and Threatening an Employee. (ECF No. 36-2.) A disciplinary
hearing was held and Plaintiff was found guilty on the assault and/or battery charge. (ECF No. 11 at 2.)
On December 27, 2016, Defendants filed a Motion for Summary Judgment. In this
Motion, Defendants denied excessive use of force on Plaintiff and claimed Eleventh Amendment
Immunity and qualified immunity. (ECF No. 36.) Defendants further state that Defendant
Warden Eagleton did not assist in the use of force against Plaintiff. Hence, Respondeat superior
liability should not be imputed to him. (Id.) The Magistrate Judge recommended that
Defendants’ Motion for Summary Judgment as to Officers Lovin and Lucas be denied based on
Eleventh Amendment Immunity and qualified immunity. (ECF No. 74 at 11-12.) However, the
Magistrate Judge determined that Plaintiff could sue Officers Lovin and Lucas in their individual
capacities for personal liability for their actions under color of state law. (Id.) Thus, Plaintiff’s
Eighth Amendment lawsuit is not treated as a suit against the state. (Id.) Next, the Magistrate
Judge determined that Officers Lovin and Lucas are not entitled to a qualified immunity defense
because “malicious and sadistic use of force for the very purpose of causing pain is always in
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violation of clearly established law.” (Id.) The Magistrate Judge recommended that Plaintiff’s
Eighth Amendment claim against Warden Eagleton be dismissed because Plaintiff did not allege
that this defendant was personally involved in the use of force against him. In Plaintiff’s
Complaint, he did not contend that Warden Eagleton had actual knowledge of any specific harm
to him, and then took no corrective actions. (Id.)
On July 12, 2017, Defendants filed an objection to the Magistrate Judge’s
recommendation to deny their Motion for Summary Judgment as to Plaintiff’s excessive force
claims under the Eighth Amendment on the basis that: (1) Plaintiff was found guilty of assault
and/or battery as a result of the alleged incident on April 4, 2016, (2) Plaintiff did not allege that
Officer Lucas was involved in the use of force against Plaintiff or caused him any injures, and (3)
Plaintiff’s Response to their Motion for Summary Judgment was untimely. (ECF No. 1-1 at 2.)
The court finds that it is not necessary to fully address Defendants’ third argument as the court
finds that Plaintiff’s response to Defendants’ Motion for Summary Judgment is timely.1
II.

LEGAL STANDARDS

The Magistrate Judge’s Report and Recommendation is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. “The Court is
not bound by the recommendation of the magistrate judge but, instead, retains responsibility for
the final determination.” Wallace v. Hous. Auth., 791 F. Supp. 137, 138 (D.S.C. 1992) (citing
Matthews v. Weber, 423 U.S. 261, 271 (1976)). The court is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific objections

1

The Magistrate Judge granted Plaintiff’s Motion for Extension of Time and ordered Plaintiff to respond to
Defendants’ Motion for Summary Judgment (ECF No. 36) by June, 29, 2017. (ECF No. 71.) The Magistrate Judge
issued a Report and Recommendation on June 22, 2017. (ECF No. 74.) Although after the issuance of the Magistrate
Judge’s Report, on June, 28, 2017, Plaintiff filed a timely Response to Defendants’ Motion for Summary Judgment
and Cross-Motion for Summary Judgment on Behalf of the Plaintiff (ECF No. 76).

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are made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge’s
recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show 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). To prevail on a motion for summary judgment, the movant must
demonstrate that: (1) there is no genuine issue as to any material fact and (2) that he is entitled to
judgment as a matter of law. In determining whether a genuine issue has been raised, the court
must construe all inferences and ambiguities against the movant and in favor of the non-moving
party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the
district court that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the movant 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. Rather, the non-moving party must demonstrate that specific, material facts exist
which give rise to a genuine issue. See id. at 324. Under this standard, the existence of a mere
scintilla of evidence in support of the plaintiff’s position is insufficient to withstand the summary
judgment motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Likewise,
conclusory allegations or denials, without more, are insufficient to preclude the granting of the
summary judgment motion. See Ross v. Commc’ns Satellite Corp., 759 F.2d 355, 365 (4th Cir.
1985). “Only 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.” Anderson, 477 U.S. at 248.

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III.

ANALYSIS

Because Plaintiff was disciplined for assault and/or battery that arose out of the incident in
question, the court will analyze Defendants’ Motion for Summary Judgment in light of Heck v.
Humphrey, 512 U.S. 477 (1994). In Heck, the U.S. Supreme Court held that in order
to recover damages for allegedly unconstitutional conviction or imprisonment, or
for other harm caused by actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive order, declared invalid
by a state tribunal reversed on direct appeal, authorized to make such
determination, or called into question by a federal court’s issuance of a writ of
habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated is not cognizable under §
1983. Thus, when a state prisoner seeks damages in a §1983 suit, the district court
must consider whether a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence; if it would, the complaint must
be dismissed unless the plaintiff can demonstrate that the conviction or sentence
has already been invalidated. But if the district court determines that the
plaintiff’s action, even if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the action should be allowed
to proceed, in the absence of some other bar to the suit.
Id. at 486-487. The rule in Heck has been extended to apply to rulings issued in prison
disciplinary proceedings. See Edwards v. Balisok, 520 U.S. 641 (1997) (a prisoner’s § 1983
claim that prison officials were deceitful and biased during his disciplinary hearing was not
cognizable because it necessarily implies the invalidity of the punishment imposed by the prison
officials).
A.

Eighth Amendment Claims Under § 1983.
To address Defendants’ Objections to the Report, which state that Plaintiff’s disciplinary

conviction of assault and/or battery is inconsistent with his Eighth Amendment claims, the court
must first determine whether Plaintiff’s allegations of the use of chemicals munitions and his
bodily injuries under § 1983 would implicitly invalidate his conviction. The court records show
Plaintiff filed a SCDC Inmate Grievance (Step 1) challenging his disciplinary conviction for his
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assault and/or battery of a SCDC employee. (ECF No. 1-1.) In Plaintiff’s SCDC Inmate
Grievance Form (Step 2), Plaintiff reiterates the challenge of his assault and/or battery
conviction. (ECF No. 1-1.) However, Plaintiff’s SCDC Inmate Grievance Forms do not show
whether Plaintiff’s Eighth Amendment claims as to Officers Lovin and Lucas were considered in
his disciplinary hearing for his assault and/or battery charge.
The U.S. Supreme Court in Heck observed that § 1983 unlawful arrest claims fail in cases
where “[a] state defendant is convicted of and sentenced for the crime of resisting arrest . . .
[because] he would have to negate an element of the offense of which he has been convicted.”
Heck 512 U.S. at 486 n.6. Under South Carolina law, misdemeanor assault and battery involves
causing injury or threatening or attempting to cause injury to another. Assault and battery that
causes severe injury or that occurs during a statutorily enumerated offense is a felony. S.C. Code
Ann. § 16-3-600 (1976, as amended). “[W]hen a state prisoner seeks damages in a § 1983 suit,
the district court must consider whether a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed
unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.”
Heck, 512 U.S. at 487 (emphasis added).
Not all § 1983 plaintiffs who are criminally liable for the same incident upon which their
civil claims are based are barred from bringing a civil rights case. In Muhammad v. Close, 540
U.S. 749 (2004), the U.S. Supreme Court reversed a ruling by the Sixth Circuit that a prisoner
plaintiff’s § 1983 claim was barred by Heck. In Muhammad, the plaintiff alleged that a prison
official charged him with “threatening behavior” after he had an altercation with him. The
plaintiff claimed that the prison official subjected him to mandatory lock-up prior to his hearing
in retaliation for filing prior grievances and complaints against him. Id. at 752-53. After a

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disciplinary hearing, the plaintiff was found guilty of insolence, a misdemeanor, which did not
require him to be locked up prior to the disciplinary hearing. Id. at 752. The U.S. Supreme Court
ruled that the Sixth Circuit relied on its prior published opinion in Huey v. Stine, 230 F.3d 226
(6th Cir. 2000). Id. at 753-54. The Supreme Court observed that the Sixth Circuit’s decision
“was flawed as a matter of fact and as a matter of law.” Id. at 754. The factual error hinged on
the Sixth Circuit’s assumption that the plaintiff sought to expunge the misconduct charge from
his prison record, which “overlooked the amended complaint that sought no such relief.” Id.
Because the Sixth Circuit’s legal error was based on the opinion that “Heck applies categorically
to all suits challenging prison disciplinary proceedings,” the Supreme Court ruled that Heck did
not bar the plaintiff’s claim because his claim did not challenge his ultimate conviction for the
lesser charge, insolence, or the state’s calculation of his time served. Id. at 754-55. Rather, the
plaintiff’s claim, as to which the rule in Heck was inapplicable, was that the prison official
retaliated against the plaintiff when he charged him with a greater offense that required
mandatory pre-hearing detention. Id. at 755.
The court finds that plaintiff’s § 1983 claims of excessive force in this matter based on
the alleged incident are distinguishable from Heck. In Muhammad, the U.S. Supreme Court held
that Heck does not apply to all suits challenging prison disciplinary proceedings, but only to
those suits which would, if successful, challenge the validity of the underlying conviction or
affect the fact or duration of confinement. Id. at 754. Similarly in this case, Plaintiff’s § 1983
excessive force claims pursuant to the Eighth Amendment do not challenge his disciplinary
conviction of assault and/or battery. (ECF No. 1-1 at 1.) In the Objections, Officers Lovin and
Lucas do not contend that Plaintiff’s factual allegations of excessive force claims are inconsistent
with the validity of his disciplinary convictions of assault and/or battery as in Heck. Thus,

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Plaintiff’s Eighth Amendment claims against Officers Lovin and Lucas for his bodily injuries
and the spraying of chemical munitions on him would not necessarily imply the invalidity of his
disciplinary conviction of assault and/or battery.
B.

Excessive Force Claim
Plaintiff contends that Officers Lovin and Lucas applied excessive force on him in

violation of the Eighth and Fourteenth Amendments. 42 U.S.C. § 1983 provides a cause of action
to individuals whose rights, privileges, or immunities under the Constitution and laws of the
United States have been violated by a “person” under color of state law. The Supreme Court,
construing § 1983 in conjunction with the Eleventh Amendment, has held that “neither a State
nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 70 (1989). In order to state a claim pursuant to 42 U.S.C. § 1983, a
plaintiff must allege (1) that he or she “has been deprived of a right, privilege or immunity
secured by the Constitution or laws of the United States,” and (2) “that the conduct complained
of was committed by a person acting under color of state law.” Dowe v. Total Action Against
Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983).
The Eighth Amendment to the United States Constitution prohibits the infliction of “cruel
and unusual punishments.” U.S. Const., amend. VIII. The Eighth Amendment's proscription of
cruel and unusual punishments governs prison officials' use of force against convicted inmates.
Whitley v. Albers, 475 U.S. 312, 321 (1986). To prove the use of excessive force in violation of
the Eighth Amendment, Plaintiff is required to demonstrate that the prison official acted with a
sufficiently culpable state of mind (subjective component) and the injury inflicted was
sufficiently serious (objective component). Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008)
(citing. Wilson v. Seiter, 501 U.S. 294, 298-300 (1991)).

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To prove the subjective component, Plaintiff must show that an officer acted with a
“sufficiently culpable state of mind.” Wilson, 501 U.S. at 298. The state of mind required in
excessive force claims is “wantonness in the infliction of pain.” Whitley v. Albers, 475 U.S. 312,
322 (1986) “[T]he core judicial inquiry [for excessive force claims] is … whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992) (citing Whitley, 475 U.S. at 321)).
As to the objective component of the test, an injury is “sufficiently serious” if it rises
above the level of de minimis harm. Hudson, 503 U.S. at 9-10 (rejecting the argument that
“minor” injuries are not actionable). This rule aligns with “society’s expectations” regarding the
use of force: if an inmate can show the malevolence required to prove the subjective component,
the actual injury suffered as a result of such malevolence need not be great for “contemporary
standards of decency [to be] violated.” Id. at 9. The Fourth Circuit has recognized that
there may be highly unusual circumstances in which a particular application of
force will cause relatively little, or perhaps no, enduring injury, but nonetheless
will result in an impermissible infliction of pain. In these circumstances, we
believe that either the force used will be of a sort repugnant to the conscience of
mankind, and thus expressly outside the de minimis force exception, or the pain
itself will be such that it can properly be said to constitute more than de minimis
injury.
Norman v. Taylor, 25 F. 3d 1259, 1266 (4th Cir. 1994) (internal citations and quotations omitted)
(en banc), cert. denied, 513 U.S. 1114 (1995). See also Williams v. Benjamin, 77 F.3d 756, 762
(4th Cir. 1996) n.2 (noting that “courts should be wary of finding uses of force that inflict
‘merely’ pain but not injury to be de minimis, and therefore beyond requiring justification under
the Eighth Amendment.”).
There are several relevant factors to consider in determining whether constitutionally
excessive force was used. These include (1) "the need for the application of force"; (2) "the

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relationship between that need and the amount of force used"; (3) "the extent of any reasonably
perceived threat that the application of force was intended to quell"; and (4) "any efforts made to
temper the severity of a forceful response." Iko, 535 F. 3d at 238.
Under the first Iko factor, “the need for the application of force,” Plaintiff states that there
was no need for force and that “we usually carry our own drinking cup and eating utensils to the
café per policy and sometimes we may have our radio or other personal items on our persons and
we keep them on our persons to maintain them from being stolen or what not because our cells
are locked when we exit. We are always locked out of our cells and this is why we carry our
personal items on us and officers are aware of this.” (ECF No. 86.) Conversely, Officers Lovin
and Lucas filed Affidavits attesting to the following information. (ECF Nos. 36-2; 83-2.) On
April 4, 2016, they saw a big bulge on Plaintiff’s jacket pocket, and ordered him to stop and
allow him to check his jacket. (Id.) However, Plaintiff ignored this order and walked into the
Santee A Wing, but was stopped by Officer Lovin near the Officer’s phone station. (Id.) Officer
Lovin ordered Plaintiff a second time to allow him to check his jacket, but Plaintiff said “Fuck
that, not today Lovin. I ain’t scared of you.” (Id.) Officer Lucas was standing at the A Wing
door when Officer Lovin called Officer Lucas to assist him. (Id.) Next, Officers Lovin and Lucas
informed Plaintiff to step into the Sally Port so they could check his jacket. (Id.) Officer Lucas
states that Plaintiff stepped up into Officer Lovin’s face, approximately 3 inches away, and said
“Fuck You Lovin. I ain’t scared of you.” (Id.) Officer Lovin administered one short burst of
chemical munitions to Plaintiff’s facial area, and Plaintiff backed up toward Unit Manager
Whittington’s office. (Id.) The Incident Report indicates that Officer Lovin disbursed 8.9 grams
of chemical munitions. (ECF No. 36-2 at 10.) Plaintiff ran toward Officer Lovin, grabbed him by
his legs, picked him up, and slammed his back into the bulletin board. Officer Lucas then

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grabbed Plaintiff by his waist and tried to get him off Officer Lovin. (Id.) However, Plaintiff
swung Officer Lovin and hit him in the left side of his face. (Id.) Officer Lovin started dropping
his elbow on Plaintiff’s head to try to get him to stop.
These varying versions of the facts present concerns about the need for the use of force.
The record demonstrates that Officer Lovin sprayed chemical munitions when Plaintiff failed to
comply with the officers' orders and the resulting injuries occurred from such sprayings. A prison
official's use of chemical munitions on an inmate to prevent disorder generally does not infringe
upon 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) (italics added). However, whether the use of chemical
munitions on an inmate 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. See Williams, 77 F.3d at 763 (the Fourth Circuit reversed a district court’s
grant of motion for summary judgment where 5.5 grams of mace was sprayed into a prisoner’s
cells block and medical research showed that six grams of tear gas to be a lethal dose in the
confines of a small cell). 'The Eighth Amendment prohibits punishments that are "incompatible
with `the evolving standards of decency that mark the progress of a maturing society' ... or which
`involve the unnecessary and wanton infliction of pain.'" Estelle v. Gamble, 429 U.S. 97, 102-03,
(1976) (citations omitted). Plaintiff presents genuine issues of material fact as to whether there
was sufficient need for the application of force under prong one of Iko factors based on
Plaintiff’s actions or inactions while being ordered to stop by Officers Lovin and Lucas.
Next, the court weighs the second and third Iko factors—“the relationship between that
need and the amount of force used” and “the extent of any reasonable perceived threat that the

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application of force was intended to quell.” The Magistrate Judge determined that the parties
stated different versions of the use of force as applied by Officers Lovin and Lucas. (ECF No. 74
at 10.) Plaintiff contends that he was not a threat to the Officers and other inmates and that “the
entire altercation was provoked by both officers exgagerat[ing] the need for force.” (ECF No. 86
at 2.) Plaintiff alleges Officer Lucas held him down while Officer Lovin beat him on the face.
(Id.) Plaintiff appears to assert that Officer Lovin sprayed chemical munitions on him in an
attempt to get his attention to comply with their directives. (Id.) In Plaintiff’s Complaint, he
attaches Affidavits of individuals attesting their observations of Officer Lovin spraying tear gas
on Plaintiff’s face and that Officer Lovin elbowed Plaintiff on the face and knocked out his front
tooth. (ECF No. 1-1 at 3-5.) Officers Lovin and Lucas attest that they finally got Plaintiff on the
ground and handcuffed him. (ECF Nos. 36-2; 83-2.) Plaintiff was charged with Assault and/or
Battery of an SCDC Employee and Threatening an Employee. (ECF No. 1-1 at 2.) A disciplinary
hearing was held and Plaintiff was found guilty of assault and/or battery charge. (Id.) Officers
Lovin and Lucas state that any force used was for the purpose of controlling Plaintiff and the
force was the minimum amount available to protect the safety of himself, Officer Lovin, the
other officers, Plaintiff, and the other inmates. (Id.) Based on the evidence presented, the court is
unable to determine the second Iko factor in Officers Lovin and Lucas’ favor. As to the third Iko
factor, the amount of force that was used or the need for the force applied and whether Plaintiff
was a threat to Officers Lovin and Lucas or anyone else when the alleged incident occurred
remains a disputed issue of fact.
Finally, the court considers the fourth Iko factor—“any efforts made to temper the
severity of a forceful response.” Officer Lucas attests that Plaintiff was medically treated. (ECF
No. 36-2.) In Defendants’ Response in Opposition to Plaintiff’s Motion for Summary Judgment,

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Defendants attach the Affidavit of Officer Lovin restating generally Officer Lucas’ attestation,
which addresses Plaintiff’s claims of bodily injuries and the use of chemical munitions. (ECF
No. 83-2 at 2-19.) Officers Lovin and Lucas attest that their actions were not carried out to
“maliciously and sadistically” cause harm to Plaintiff. (ECF Nos. 36-2; 83-2.) In support of this
response, Defendants attach depictions representing Plaintiff’s bodily injuries on his face. (Id.)
Defendants further attach Plaintiff’s medical records, which showed Plaintiff was exposed to
chemical munitions, but no vital signs were obtained “due to security issues.” (ECF No. 79-1 at
25.) The medical note also shows that Plaintiff was escorted out by security “due to Officer
coming to medical w/ injuries.” (Id.) Based upon the foregoing, viewing the evidence in the light
most favorable to Plaintiff, a trier of fact could conclude based on the Iko factors that Officers
Lovin and Lucas used force wantonly and maliciously for the purpose of causing Plaintiff harm.
To complete the analysis of Plaintiff’s § 1983 claim of excessive force, the court assesses
Plaintiff’s injury. If Plaintiff can show the malevolence required to prove the subjective
component, the actual injury suffered as a result of such malevolence need not be great, for
“contemporary standards of decency [to be] violated.” Hudson, 503 U.S. at 9.
Here, Defendants attach depictions representing Plaintiff’s bodily injuries on his face.
(ECF No. 83-2 at 2-19.) The medical note shows that Plaintiff was escorted out by security “due
to Officer coming to medical w/ injuries.” (Id.) Plaintiff avers that Officer Lucas held him while
Officer Lovin beat him on the face and that “Officer Lovin sprayed Plaintiff to attempt to get
Plaintiff to comply with directives that were unnecessary.” (ECF No. 86.) Plaintiff further
alleges that he sustained bodily injuries when Officer Lovin “elbows Plaintiff numerous of times
in his mouth and thereby, knocking out Plaintiff’s front tooth.” (ECF No. 1.) Medical records,
submitted by Defendants in support of their Opposition to Plaintiff’s Motion for Summary

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Judgment show Plaintiff was exposed to chemical munitions, but no vital signs were obtained
“due to security issues.” (ECF No. 79-1 at 25.)

As noted above, the Fourth Circuit has

recognized
there may be highly unusual circumstances in which a particular application of
force will cause relatively little, or perhaps no, enduring injury, but nonetheless
will result in an impermissible infliction of pain. In these circumstances, we
believe that either the force used will be of a sort repugnant to the conscience of
mankind, and thus expressly outside the de minimis force exception, or the pain
itself will be such that it can properly be said to constitute more than de minimis
injury.
Norman, 25 F.3d at 1266 (internal citations and quotations omitted) (en banc), cert. denied, 513
U.S. 1114 (1995). See also See Williams, 77 F.3d at 762 n.2 (noting that “courts should be wary
of finding uses of force that inflict ‘merely’ pain but not injury to be de minimis, and therefore
beyond requiring justification under the Eighth Amendment.”). Assessing Plaintiff’s averments
by this standard, the court finds sufficient evidence to support excessive force claims as to
Officers Lovin and Lucas. Thus, Defendants’ Objections to the Magistrate Judge’s Report with
respect to Plaintiff’s § 1983 excessive force claims pursuant to the Eighth Amendment are
OVERRULED.
B.

Qualified Immunity Defense
In the Objections, Officers Lovin and Lucas having been sued in their individual

capacities assert that they are entitled to a qualified immunity defense, and seek summary
judgment on Plaintiff’s Eighth Amendment claims. Under the qualified immunity defense,
“government officials performing discretionary functions generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982); see also Cone v. Nettles, 308 S.C. 109, 417 S.E.2d 523 (1992).

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“Qualified immunity ensures that “[o]fficials are not liable for bad guesses in gray areas; they are
liable for transgressing bright lines.’” Swagler v. Sheridan, Civil Action No.: RDB-08-2289,
2011 WL 2746649 (D. Md. July 12, 2011) (citing Iko, 535 F.3d at 238.)) “To resolve a qualified
immunity defense, the court must (1) determine whether the facts alleged, taken in the light most
favorable to the plaintiff, show that the defendants’ conduct violated a constitutional right, and
(2) determine whether the right was clearly established at the time of the alleged misconduct.”
VanDerHorst v. Hoffer, C/A No. 0:09-cv-0706-SB-PJG, 2010 WL 1009997, at *2 (D.S.C. Feb.
16, 2010) (citing Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009)). “Courts may address the
two prongs of the qualified immunity analysis in whichever order is appropriate in light of the
circumstances of the particular case at hand.” Id.
To determine whether those rights were clearly established at the time of the violation,
[t]he contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right. This is not to say that
an official action is protected by qualified immunity unless the very action in
question has been previously held unlawful; but it is to say that in light of preexisting law the unlawfulness must be apparent.
Anderson v. Creighton, 483 U.S. 635, 640 (1987). The issue that the court must resolve is
whether, at the time the events occurred, the law “gave the officials ‘fair warning’ that their
conduct was unconstitutional.” See Howie v. Prince George’s Cty., Civil Action No. DKC 20063465, 2009 WL 2426018, at *7 (D. Md. Aug. 5, 2009) (quoting Ridpath v. Bd. Of Governors
Marshall Univ., 447 F.3d 292, 313 (4th Cir. 2006)).
The Magistrate Judge determined that Officers Lovin and Lucas are not entitled to
qualified immunity. (ECF No. 74 at 12-13.) Officers Lovin and Lucas contend that even if they
violated Plaintiff’s constitutional rights, which they deny, they are entitled to qualified immunity

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because at the time of the alleged violation, Plaintiff’s right was not clearly established and they
reasonably believed that their actions were lawful. (ECF No. 83 at 6.)
Over a decade ago, the Fourth Circuit held that “[i]t is generally recognized that it 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.”
Williams, 77 F.3d at 761. (internal quotations omitted) (emphasis added). Therefore, Plaintiff’s
right to be free from the excessive use of chemical munitions, whether it be pepper spray, mace,
or riot gas, was clearly established at the time of this incident.
Taking the facts in the light most favorable to Plaintiff, Plaintiff alleges that Officer
Lucas held him while Officer Lovin beat him on the face and that “Officer Lovin sprayed
Plaintiff to attempt to get Plaintiff to comply with directives that were unnecessary.” (ECF No.
86.) Furthermore, Plaintiff alleges that Officer Lovin “elbows Plaintiff numerous of times in his
mouth and thereby, knocking out Plaintiff’s front tooth.” (ECF No. 1 at 7.) Conversely, Officer
Lucas states that Plaintiff stepped up into Officer Lovin’s face, approximately 3 inches away.
(ECF Nos. 36-2; 83-2.) Next, Officer Lovin administered one short burst of chemical munitions
to Plaintiff’s facial area. (Id.) The Incident Report shows that Officer Lovin disbursed 8.9 grams
of chemical munitions. (ECF No. 36-2 at 10.) Because there are material issues of fact with
respect to Plaintiff’s excessive force claim as to Officers Lovin and Lucas, Officers Lovin and
Lucas are not entitled to summary judgment on the issue of qualified immunity because if
Plaintiff was gassed in a “quantity greater than necessary or for the sole purpose of infliction of
pain,” they had “‘fair warning’ that their conduct was unconstitutional.” Ridpath, 447 F.3d at 313
(citation omitted). The “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. Courts must

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evaluate the “totality of the circumstances, including the provocation, the amount of gas used,
and the purposes for which the gas is used [to] determin[e] the validity of the use ... in the prison
environment.” Bailey, 736 F.2d at 969. As stated above, courts must consider the totality of the
circumstances to determine whether the use of chemical munitions rises to the level of a
constitutional violation. Accordingly, taken in the light most favorable to Plaintiff, the facts show
Officers Lovin and Lucas’ conduct may have violated a clearly established constitutional right.
Therefore, this court denies Officers Lovin and Lucas’ Motion for Summary Judgment on the
grounds of qualified immunity.
C.

Respondeat Superior Liability Claim

The doctrine of respondeat superior does not apply in § 1983 claims. See Love-Lane v.
Martin, 355 F. 3d 766, 782 (4th Cir. 2004). See also Trulock v. Freeh, 275 F. 3d 391, 402 (4th
Cir. 2001) (no respondeat superior liability in a Bivens suit). A plaintiff asserting respondeat
superior liability under 1983 must prove that: (1) the supervisor had actual or constructive
knowledge that his or her subordinate was engaged in behavior that posed a pervasive and
unreasonable risk of constitutional injury to plaintiff, (2) the supervisor’s response to the
knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the
alleged offensive practices, and (3) there was an affirmative causal relationship between the
supervisor’s inaction and particular constitutional injury suffered by the plaintiff. Shaw v. Stroud,
13 F. 3d 791, 799 (4th Cir. 1994). The Magistrate Judge determined that Warden Eagleton was
not involved in the use of force against Plaintiff. Additionally, Plaintiff does not allege that
Warden Eagleton had any actual knowledge of any specific harm to him, yet took no corrective
measures. Accordingly, the court accepts the Magistrate Judge’s recommendation that Warden
Eagleton be dismissed from this matter.

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III. CONCLUSION
Based on the aforementioned reasons and a thorough review of the Report and the record
in this case, the court ACCEPTS the Report and Recommendation of the Magistrate Judge (ECF
No. 74). It is therefore ordered that Defendants’ Motion for Summary Judgment (ECF No. 36) is
DENIED. The court further DENIES Defendants’ Motion for Summary Judgment as to
Defendant Officer Corporal V. Lovin (Vernon) and Defendant Officer Doe Lucas on the basis of
qualified immunity and Eleventh Amendment immunity. Finally, Defendant Warden Willie L.
Eagleton is DISMISSED from this matter.
IT IS SO ORDERED.

J. Michelle Childs
United States District Judge
September 15, 2017
Columbia, SC

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