Butler v. Bessinger et al

Filing 186

ORDER RULING ON REPORT AND RECOMMENDATION: The Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the R&R (Dkt. No. 178 ) as the Order of the Court. The Court GRANTS Defendants' motion for summary judgment (Dkt. No. 144 ) to dismiss (i) all claims against Defendant Washington, (ii) Plaintiff's medical indifference claim and (iii) Plaintiff's excessive force claim specifically for injuries to his hand and face or eyes. The Court DENIES Defendant's motion for summary judgment on Plaintiff's excessive force claim only as the claim is for injuries sustained from falling down the stairs. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 02/20/2019. (dsto, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

Lavadre Butler, #337779,
Plaintiff,
V.

Trevor Bessinger, Lisa Young,
Gregory Washington, Mr. Esterline,
Mr. Suarez, Mr. Braddy, Mr. Shorter,
Mr. Williams,
Defendants.
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Civil Action No. 4:16-3662-RMG

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ORDER AND OPINION

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Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge
(Dkt. No. 178) recommending that the Court grant Defendants' motion for summary judgment
(Dkt. No. 144) to dismiss claims as to Defendant Washington and Plaintiffs medical
indifference claim, and deny the motion as to Plaintiffs excessive force claim. For the reasons
set forth below, the Court adopts in part and declines to adopt in part the R & R as the Order of
the Court.
I.

Background

Plaintiff Lavandre Butler is a prose incarcerated person alleging pursuant to 42 U.S.C. §
1983 that Defendants violated his constitutional rights by using excessive force and being
indifferent to his medical needs while he was confined at the Broad River Correctional
Institution. (Dkt. No. 99.) The Court previously dismissed without prejudice Butler' s claims
against J.C. Wilson pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (Dkt. No.
152.) The Court previously denied Defendants' motion for summary judgment, brought on the
grounds that Butler failed to exhaust the available administrative remedies pursuant to the Prison
Litigation Reform Act. (Dkt. No. 172.) Defendants' motion for summary judgment is now
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addressed on its merits. The Magistrate Judge issued an order allowing the parties ten days to
file additional responses to the motion for summary judgment, and no responses were filed.
Defendants filed objections to the R & R. (Dkt. No. 182.)
II.

Legal Standard

A.

Review of R & R
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. See, e.g., Mathews v. Weber, 423 U.S. 261, 270-71 (1976). 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)(l)(C). Where there are specific objections to the R & R, the Court
"makes a de nova determination of those portions of the report or specified proposed findings or
recommendations to which objection is made." Id. Where there are no objections to the R & R,
the Court reviews the R & R to "only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation." Fed. R. Civ. P. 72 advisory committee's note; see

also Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983) ("In the absence of objection ... we do
not believe that it requires any explanation.").
B.

Motion for Summary Judgment
Summary judgment is appropriate if a party "shows that there is no genuine dispute as to

any material fact" and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
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., 810 F .2d 1282, 1286 (4th Cir. 1987). "In determining
whether a genuine issue has been raised, the court must construe all inferences and ambiguities
in favor of the nonmoving party." HealthSouth Rehab. Hosp. v. Am. Nat '! Red Cross, 101 F.3d
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1005, 1008 (4th Cir. 1996). The prose litigant's complaint is afforded a liberal construction.
Cruz v. Beto, 405 U.S . 319 (1972).
The party seeking summary judgment has the initial burden of demonstrating to the
Court that there is no genuine issue of material fact. See 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. Id. Under this standard, " [c]onclusory or speculative
allegations do not suffice, nor does a ' mere scintilla of evidence"' in support of the non-moving
party' s case. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting
Phillips v. CSX Transp., Inc., 190 F.3d 285 , 287 (4th Cir. 1999)).
III.

Discussion

A.

Defendant Washington
The Magistrate Judge recommends that all claims against Defendant Washington be

dismissed because there is no evidence in the record that he was personally involved in Butler' s
allegations and he cannot be held liable under a respondeat superior theory under 42 U.S.C. §
1983 for his subordinate employees' conduct absent an official policy or custom. Monell v. Dep 't
of Soc. Servs., 436 U.S. 658, 694 (1978); Fisher v. Washington Metro Area Trans. Auth., 690
F.2d 1133, 1142-43 (4th Cir. 1982). Defendants ' motion for summary judgment is granted with
respect to all claims against Defendant Washington. 1

Defendants also contend that they are all entitled to qualified immunity. To resolve a
qualified immunity defense, the Court must determine whether the facts alleged, taken in the
light most favorable to Butler, show that Defendants' conduct violated a constitutional right that
was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S.
223 , 231-32 (2009). As the Magistrate Judge notes, Defendants are not entitled to qualified
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B.

Excessive Force Claim
Butler alleges that on November 14, 2014, Defendants used unconstitutionally excessive

force when they extracted him from his prison cell and lead him down the stairs at the Broad
River Correctional Institution. Plaintiff alleges that the officers injured him by cutting his hand
and spraying his eyes and face with chemical munition while extracting him, and then slamming
him to the floor at the bottom of a flight of stairs.
When faced with an excessive force claim, the Court must determine "whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm." Hudson v. McMillan, 503 U.S. 1, 6-7 (1992). To make this determination, the
Court balances 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 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. Jko v. Shreve, 535 F.2d 225, 239 (4th Cir. 2008).
The record here consists of Defendants' affidavits, Butler's deposition testimony and a
prison video of the encounter.

Regarding Butler's allegation of excessive force resulting in

injury to his hand and eyes or face, viewing the record in a light most favorable to Butler, a
reasonable fact finder would not find that Defendants used excessive force while removing him
from his cell. The record reflects that Butler barricaded himself in his cell in violation of prison
policy and threatened to kill himself or anyone who tried to enter. The video depicts officers
spending over twelve minutes ordering Butler to exit his cell, forcing open the cell door that
Butler locked shut with sheets and barricaded with a mattress, and intermittently spraying short
bursts of chemical munitions into the cell. A reasonable fact finder would not find that Butler's

immunity because there is no question that Plaintiff was protected by the Eighth Amendment in
November 2014.
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hand was cut or chemicals were sprayed in his eyes in act of excessive force while removing him
from his cell.
But, regarding Butler's allegation of excessive force when he fell down a flight of stairs
after being removed from his cell, there remain material facts in dispute as to whether the
officers acted in good faith or maliciously. The video depicts the officers leading Butler, with
his feet shackled and hands shackled to a belly chain, to the top of the stairs, where they pause.
Butler attempts to jab the officer standing behind him to the left with his left elbow. Another
officer standing behind Defendant to the right then reaches forward. Defendant falls down the
flight of stairs. Defendants contend the officer' s forward reach was to restrain Defendant after
the elbow jab, but, as the Magistrate Judge notes, the record is unclear. Defendants object to the
R & R on this point, arguing that the Court must consider the reasonableness of the force from
the officer's perspective. (Dkt. No. 182 at 3.) From that perspective, Defendants contend, the
Court should find that any alleged thrust was an attempt to maintain control of Butler as he
caused difficulty moving down the stairs, rather than a malicious act. (Id.) But even assuming
the video clearly depicted that Butler resisted moving down the stairs or needed to be controlled,
a reasonable fact finder would not conclude from the video that the officer pushed Butler down
the stairs in good faith or that Butler fell on his own. Meaning, from this record, the reasonable
fact finder could find either that Butler was creating difficulty moving down the stairs and
therefore fell or was inadvertently pushed as a result of his own conduct, or that the officer
maliciously pushed Butler down the stairs, perhaps in response to Butler creating difficulty
barricading himself into his cell and attempting to jab an officer.
Therefore, this narrow aspect of Butler' s excessive force claim- that Defendants thrust
him down the stairs while handcuffed, resulting in injury-survives summary judgment.

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C.

Medical Indifference Claim
Butler claims Defendants were indifferent to his medical needs. To bring a claim for

medical indifference against officers who are non-medical prison personnel, a plaintiff must
demonstrate that the defendants were personally involved with the denial of his treatment,
deliberately interfered with prison doctors' treatment, or tacitly authorized or were indifferent to
doctors' misconduct. Mi/tier v. Beorn, 896 F.2d 848 (4th Cir. 1990). But the video depicts
Butler receiving medical care, with which Defendants did not interfere, when a nurse checked his
vital signs, placed him on oxygen and washed any chemical munition from his eyes and face, as
well as when Butler was subsequently treated by medical before released to his cell. Therefore,
Defendants' motion for summary judgment on the medical indifference claim is granted.
IV.

Conclusion
For the foregoing reasons, the Court ADOPTS IN PART and DECLINES TO ADOPT

IN PART the R & R (Dkt. No. 178) as the Order of the Court.

The Court GRANTS

Defendants' motion for summary judgment (Dkt. No. 144) to dismiss (i) all claims against
Defendant Washington, (ii) Plaintiffs medical indifference claim and (iii) Plaintiffs excessive
force claim specifically for injuries to his hand and face or eyes.

The Court DENIES

Defendant's motion for summary judgment on Plaintiffs excessive force claim only as the claim
is for injuries sustained from falling down the stairs.
AND IT IS SO ORDERED.

FebruaryW, 2019
Charleston, South Carolina

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