Robinson v. South Carolina Department of Corrections et al

Filing 153

ORDER RULING ON REPORT AND RECOMMENDATION. The court adopts Magistrate Judge West's Report and Recommendation and incorporates it herein. It is therefore ORDERED that Defendant LCI's motion to dismiss 42 is granted . Is it further ORDERED that Defendants' motion for summary judgment 111 is granted. It is further ORDERED that Robinson's pending motions 67 , 82 , and 97 are denied as moot. Signed by Honorable Henry M Herlong, Jr on 3/13/2012. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION

Corey Jawan Robinson,

)
)
Plaintiff,
)
)
vs.
)
)
South Carolina Department of Corrections; )
John Ozmint; James Blackwell; Sgt. W.
)
Young; Tiffany Starks; Sarah M. Roberts; )
Ann Hallman; HCA Gregory Sarver;
)
Lieber Correctional Institution; David
)
Tatarsky; Anna Moaks; Candace A.
)
Wigfall; Ramnarine Jaglal; Lt. Dessirence )
Lloyd; Sgt. Y. Blowe; DHO A. Brown;
)
Warden Wayne McCave; Cpl. Grealin
)
Frazier; Sgt. J. Smith; Doctor R. Babb,
)
)
)
Defendants. )

C.A. No. 5:10-2593-HMH-KDW

OPINION & ORDER

This matter is before the court with the Report and Recommendation of United States
Magistrate Judge Kaymani D. West, made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02 of the District of South Carolina.1 Corey Jawan Robinson (“Robinson”), a
state prisoner proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983, alleging that
Defendants violated his constitutional rights. Defendant Lieber Correctional Institution (“LCI”)
filed a motion to dismiss on May 5, 2011. On September 15, 2011, the Defendants collectively
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The recommendation has no presumptive weight, and the responsibility for making a final
determination remains with the United States District Court. See Mathews v. Weber, 423
U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of
those portions of the Report and Recommendation to which specific objection is made. The
court may accept, reject, or modify, in whole or in part, the recommendation made by the
magistrate judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
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filed a motion to dismiss, or in the alternative, motion for summary judgment. Magistrate Judge
West recommends granting both motions. For the reasons explained below, the court adopts the
magistrate judge’s Report and Recommendation.
I. FACTUAL AND PROCEDURAL BACKGROUND
Robinson is a South Carolina prisoner serving a fifteen-year term of imprisonment for
resisting arrest and assaulting an officer. (Def. Mem. Supp. Summ. J. 2.) He commenced this
§ 1983 action on October 7, 2010, alleging multiple constitutional and other deprivations against
Defendants including deliberate indifference to his medical needs, deliberate indifference to a
substantial risk of harm, excessive force, denial of court access, and violation of due process
rights with respect to prison disciplinary actions. (Am. Compl., generally.) Magistrate Judge
West recommends granting LCI’s motion to dismiss because LCI is not a “person” against
whom a § 1983 action may be brought. (Report & Recommendation 4.) Robinson does not
object to that portion of the Report and Recommendation. The magistrate judge further
determined that the remaining Defendants are entitled to summary judgment on each of
Robinson’s claims. Robinson filed objections.
II. DISCUSSION OF THE LAW
A. Summary Judgment Standard
Summary judgment is appropriate only “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). In deciding whether a genuine issue of material fact exists, the evidence
of the non-moving party is to be believed and all justifiable inferences must be drawn in his
favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly
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disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Id. at 248.
A litigant “cannot create a genuine issue of material fact through mere speculation or the
building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).
“Where the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, disposition by summary judgment is appropriate.” Monahan v. County of
Chesterfield, 95 F.3d 1263, 1265 (4th Cir. 1996).
B. Objections
Objections to the Report and Recommendation must be specific. Failure to file specific
objections constitutes a waiver of a party’s right to further judicial review, including appellate
review, if the recommendation is accepted by the district judge. See United States v. Schronce,
727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the Report and
Recommendation of the magistrate judge, this court is not required to give any explanation for
adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Upon review, the court finds that the majority of Robinson’s objections are non-specific,
unrelated to the dispositive portions of the magistrate judge’s Report and Recommendation, or
merely restate his claims. However, he raises specific objections to the magistrate judge’s
determination that Defendants are entitled to summary judgment on his deliberate indifference
and excessive force claims. The court addresses each claim in turn.

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1. Defendants Sarver, Dr. Babb, and Moaks
Robinson objects to the magistrate judge’s determination that Defendants HCA Gregory
Sarver (“Sarver”), Doctor R. Babb (“Dr. Babb”), and Anna Moaks (“Moaks”) are entitled to
summary judgment on his claim for deliberate indifference to his medical needs. (Objections 2.)
To establish an Eighth Amendment violation for deliberate indifference to a serious medical
need, Robinson “must prove two elements: (1) that objectively the deprivation of a basic human
need was sufficiently serious, and (2) that subjectively the prison officials acted with a
sufficiently culpable state of mind.” Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998)
(internal quotation marks omitted). A medical need is sufficiently serious if it is “one that has
been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor’s attention.” Iko v. Shreve, 535 F.3d
225, 241 (4th Cir. 2008). To satisfy the second prong, Robinson must show more than
negligence or malpractice; rather, he must establish that Defendants acted with “either actual
intent or reckless disregard.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1999). With respect
to health care providers, “the treatment must be so grossly incompetent, inadequate, or excessive
as to shock the conscience or to be intolerable to fundamental fairness.” Id.
Robinson alleges that Sarver, Dr. Babb, and Moaks were deliberately indifferent to a
serious medical need by delaying treatment for glaucoma in his right eye. (Am. Compl. ¶ 7.)
On June 16, 2010, Robinson was examined by pulmonologist Dr. Paul Kirschenfeld
(“Dr. Kirschenfeld”) at Lexington Medical Center for treatment of a rare condition he has called
sarcoidosis. (Def. Resp. Opp’n Pl. Mot. TRO Ex. 1 (Robinson Medical Records at 16).)
Dr. Kirschenfeld prescribed prednisone for Robinson to treat his sarcoidosis. (Id. Ex. 1
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(Robinson Medical Records at 15).) He further observed weakness in Robinson’s right eye and
referred him to an ophthalmologist for an examination. (Id. Ex. 1 (Robinson Medical Records at
102).) Robinson was examined by Dr. Babb at the prison medical clinic on October 1, 2010.
(Id. Ex. 1 (Robinson Medical Records at 11).) According to Robinson’s medical records,
Dr. Babb noted that Robinson reported “vague eye complaints” and informed Dr. Babb that he
had previously been referred to an eye doctor. (Id. Ex. 1 (Robinson Medical Records at 11).)
Dr. Babb administered Robinson a fundoscopic exam and found that his eye was “grossly
normal.” (Def. Resp. Opp’n Pl. Mot. TRO Ex. 1 (Robinson Medical Records at 11).) Later that
same day, Dr. Babb discovered Dr. Kirschenfeld’s recommendation that Robinson be seen by an
ophthalmologist, and he referred Robinson for a ophthalmology consultation. (Id. Ex. 1
(Robinson Medical Records at 11).) Robinson was examined by an ophthalmologist on June 14,
2011. (Id. Ex. 1 (Robinson Medical Records at 1).) The ophthalmologist found that Robinson
had glaucoma in his right eye, and he prescribed Robinson eye drops to be taken for six to eight
weeks. (Id. Ex. 1 (Robinson Medical Records at 1).)
Robinson alleges that Sarver, Moaks, and Dr. Babb acted with deliberate indifference by
delaying his examination to the ophthalmologist for eleven months. (Am. Compl. ¶ 7;
Objections 2.) Robinson’s claims, however, cannot survive summary judgment because he has
failed to allege or otherwise show that he suffered any harm as a result of the eleven-month
delay. Webb v. Hamidullah, No. 06-7381, 2008 WL 2337608, at *7 (4th Cir. June 6, 2008)
(unpublished) (“An Eighth Amendment violation only occurs, however, if the delay results in
some substantial harm to the patient.”). Furthermore, there is no evidence in the record that
Sarver and Moaks were personally involved in the delay of medical treatment. McAdoo v. Toll,
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591 F. Supp. 1399, 1404 (D. Md. 1983) (“[L]iability under § 1983 is conditioned on a showing
of some personal involvement or participation in the denial of civil rights.”). Although
Robinson’s medical records show that he raised “vague eye complaints” to Dr. Babb on
October 1, 2010, Robinson has produced no evidence showing that Dr. Babb personally delayed
treatment by an ophthalmologist. (Def. Resp. Opp’n Pl. Mot. TRO Ex. 1 (Robinson Medical
Records at 11).) To the contrary, Robinson’s medical records demonstrate that as soon as
Dr. Babb became apprised of Dr. Kirschenfeld’s recommendation that Robinson be seen by an
eye doctor, he immediately referred him for an ophthalmology consultation. (Id. Ex. 1 (Medical
Records at 11).) Based on the foregoing, Sarver, Dr. Babb, and Moaks are entitled to summary
judgment.
Robinson further alleges that Sarver, Dr. Babb, and Moaks were deliberately indifferent
to a serious medical need by delaying and denying treatment for his sarcoidosis. Specifically, he
complains that Defendants denied him Ensure, a dietary supplement drink, for weight loss in
April 2010 and that they refused him access to doctors for the treatment of his sarcoidosis. (Am.
Compl. ¶ 7; Objections 2.) Robinson, however, has neither alleged nor produced any evidence
showing that Sarver and Moaks were personally involved in either of the alleged deprivations.
Furthermore, there is no evidence that Dr. Babb acted with deliberate indifference by denying
Robinson Ensure. According to Robinson’s medical records, Dr. Babb noted on April 20, 2010
that Robinson could have one Ensure each day for one month, and that his weight should be
monitored. (Def. Resp. Opp’n Pl. Mot. TRO Ex. 1 (Robinson Medical Records at 18).)
Robinson has failed to produce any evidence demonstrating that Defendants acted with
deliberate indifference by denying him Ensure for weight loss. Furthermore, although Robinson
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conclusory alleges that prison officials have denied him access to “a sarcoidosis doctor,” he has
not proffered any evidence showing that he ever requested treatment and was denied access to a
doctor. His medical records demonstrate that he was seen on multiple occasions by an
ophthalmologist, pulmonologist, and neurologist between November 6, 2009 and June 15, 2011.
Based on the foregoing, the court agrees with the magistrate judge’s determination that Sarver,
Moaks, and Dr. Babb are entitled to summary judgment on Robinson’s claims for deliberate
indifference.
2. Defendant Roberts
Robinson next objects to the magistrate judge’s determination that Defendant Sarah M.
Roberts (“Roberts”) is entitled to summary judgment on Robinson’s claim for deliberate
indifference. (Objections 2.) Robinson alleges that Roberts violated his Eighth Amendment
rights by failing to administer medical treatment after being sprayed with chemical munitions.
(Am. Compl. ¶ 6; Objections 2.) On September 2, 2010, Roberts and Officer Tiffany Starks
(“Starks”) observed Robinson masturbating when they arrived at his cell to deliver his
medication. (Def. Mot. Summ. J. Ex. 4 (Use of Force Doc. at 5).) Starks administered two
short bursts of chemical munitions towards Robinson’s face and chest after he defied her
commands to cease his lewd conduct. (Id. Ex. 4 (Use of Force Doc. at 5).)
Robinson contends that Roberts acted with deliberate indifference by failing to
administer medical treatment following his confrontation with Sparks. However, he has failed
to allege any discernable injury as a result of the confrontation or otherwise produce any
evidence showing the existence of a serious medical need. See Duncan v. Gordon, C/A No.
8:06-cv-396-MBS, 2007 WL 1031939, at *8 (D.S.C. Mar. 29, 2007) (unpublished) (noting that
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prisoner’s allegations that he suffered “breathing complications, chest pain, and mental
depression from being sprayed with chemical munitions” failed to establish a serious medical
need necessary to demonstrate an Eighth Amendment violation). Roberts, moreover, averred
that Robinson appeared to be in no acute distress following the confrontation and that he
sustained no injury as a result of confrontation. (Def. Mot. Summ. J. Ex. 4 (Roberts Aff. ¶ 12).)
Based on the foregoing, the court agrees with the magistrate judge’s determination that Roberts
is entitled to summary judgment.
3. Defendants Jaglal and Wigfall
Robinson alleges that Defendants Dr. Ramnarine Jaglal (“Dr. Jaglal”) and Candace
Wigfall (“Wigfall”) acted with deliberate indifference by delaying dental care for an infected
tooth. (Am. Compl. ¶ 14.) Robinson reported to the prison dental clinic on May 14, 2010,
complaining that his left cheek was swollen and sensitive to touch. (Def. Resp. Opp’n Pl. Mot.
TRO Ex. 1 (Robinson Medical Records at 16).) Dr. Jaglal found that Robinson had an
abscessed tooth, and he prescribed pain medication and antibiotics for Robinson. (Id. Ex. 1
(Robinson Medical Records at 16).) Robinson again complained about tooth pain on
October 16, 2010, and he requested that the tooth be extracted. (Id. Ex. 1 (Robinson Medical
Record at 11).) Dr. Jaglal scheduled a follow-up appointment to extract the tooth on
October 28, 2010, but Robinson was unable to make the appointment because he was placed in
crisis intervention. (Id. Ex. 1 (Robinson Medical Records at 10); Objections 3.) Robinson was
seen again by Dr. Jaglal on March 31, July 28, August 4, and August 11, 2011. (Def. Mot.
Summ. J. Ex. 6 (Jaglal Aff. ¶¶ 10-13).) Dr. Jaglal avers that at each appointment, he
recommended that the tooth be extracted but Robinson refused treatment. (Def. Resp. Opp’n Pl.
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Mot. TRO Ex. 1 (Robinson Medical Records at 6, 66); Def. Mot. Summ. J. Ex. 6 (Jaglal Aff.
¶¶ 10-13).)
On this record, Robinson is unable to demonstrate that Dr. Jaglal and Wigfall acted with
deliberate indifference by delaying treatment for his abscessed tooth. Robinson does not allege
any circumstance where Defendants ignored his request for treatment. Prison medical records
show that Defendants repeatedly responded to Robinson’s complaints about tooth pain, and that
Robinson refused Dr. Jaglal’s recommendation to extract the tooth. Furthermore, he has failed
to allege or otherwise show how a delay in treatment has caused substantial harm. Webb, 2008
WL 2337608, at *7. Based on the foregoing, the court agrees with the magistrate judge’s
determination that Dr. Jaglal and Wigfall are entitled to summary judgment.
4. Defendants McCave, Frazier, and Smith
Robinson next objects to the magistrate judge’s determination that Defendants Warden
McCave (“McCave”), Cpl. Frazier (“Frazier”), and Sgt. J. Smith (“Smith”) are entitled to
summary judgment on his claims that these Defendants were deliberately indifferent to a
substantial risk of harm to him, conspired to cause him harm, and failed to provide him the
proper medical treatment. (Am. Compl. ¶ 16; Objections 3-4.) Robinson’s claims relate to an
altercation with his cell mate, Bryan Murray (“Murray”). On October 26, 2010, Robinson was
removed from his cell and placed in crisis intervention. (Def. Resp. Opp’n Pl. Mot. TRO Ex. 1
(Robinson Medical Records at 9).) He was released from crisis intervention on October 29,
2010, after denying having homicidal or suicidal thoughts and telling prison officials that he
merely “needed a time out alone.” (Id. Ex. 1 (Robinson Medical Records at 9).) Robinson
claims that he told prison officials, however, that he “did not feel comfortable” returning to his
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cell because Murray had been convicted of a violent crime. (Am. Compl. ¶ 16; Pl. Mem. Supp.
Summ. J. 1-2; Objections 3.) Despite his concerns, he contends McCave “gave a directive to
put me back in [my] cell with inmate Murray” around noon on October 29, 2010. (Id.) Minutes
after he was returned to his cell, Robinson and Murray got into an altercation. Murray’s
declaration, submitted by Robinson in support of his motion for summary judgment, states that
Robinson initiated the altercation by placing him in a “choke hold.” (Pl. Mot. Partial Summ. J.
Ex. 3 (Murray Decl. ¶ 3).) Robinson alleges that as a result of the altercation, he “hurt [his] side
on [the] edge of [his] bed.” (Am. Compl. ¶ 16.) He contends that following the altercation,
Defendants were deliberately indifferent to a substantial risk of harm because he was not
separated from Murray for five hours following the confrontation. (Pl. Mem. Supp. Mot. Summ.
J. 2; Objections 4.)
Prison officials have a duty under the Eighth Amendment “to protect prisoners from
violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994).
However, not “every injury suffered by one prisoner at the hands of another . . . translates into
constitutional liability for prison officials responsible for the victim’s safety.” Id. at 834. To
establish an Eighth Amendment claim for failure to protect, a prisoner must show, first, that he
was incarcerated under conditions posing a substantial risk of serious harm, and second, that
prison officials acted with deliberate indifference. Id. “Only extreme deprivations are adequate
to satisfy the objective component of an Eighth Amendment claim regarding conditions of
confinement.” De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003). “[T]o demonstrate
such an extreme deprivation, a prisoner must allege a serious or significant physical or
emotional injury resulting from the challenged conditions or demonstrate a substantial risk of
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such serious harm resulting from the prisoner’s exposure to the challenged conditions.” Id.
(internal citation and quotation marks omitted). Robinson must also prove that prison officials
had a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834. To do so, he must
establish that prison officials knew of and disregarded “the objectively serious condition,
medical need, or risk of harm.” Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995).
Robinson has failed to produce any evidence sufficient to satisfy either the objective or
subjective prongs of the Eighth Amendment analysis. Although he baldly claims that prison
officials subjected him to a risk of harm because they failed to separate him from Murray for
five hours following the altercation, he has failed to allege any significant injury as a result of
being confined with Murray. Instead, he merely states that he did not feel comfortable around
Murray because he “did not know if [Murray] had a knife.” (Am. Compl. ¶ 16.) However, a
mere “generalized concern for his safety or welfare” is insufficient to satisfy the objective
element of a claim for deliberate indifference. Drayton v. Cohen, No. CA 2:10-3171-TMC,
2012 WL 666839, at *7 (D.S.C. Feb. 29, 2012) (unpublished). Without any evidence that
Robinson was exposed to an objectively serious risk of harm, the court agrees with the
magistrate judge’s determination that Defendants are entitled to summary judgment.
Furthermore, Robinson has failed to produce any evidence showing that Defendants subjectively
knew of and disregarded an objectively serious risk of harm. Although Robinson contends that
he told prison officials he did not feel comfortable being detained with Murray because he had
been convicted of a violent crime, (Pl. Mem. Supp. Summ. J. 1; Objections 3), such an obscure
warning is insufficient to place prison officials on notice that Murray posed a substantial risk of
harm. Robinson’s own witness averred that Robinson initiated the confrontation with Murray.
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(Pl. Mot. Partial Summ. J. Ex. 3 (Murray Decl. ¶ 3).) Furthermore, prisoners have no
constitutional right to choose their cell mate, and there is no evidence that Murray had a history
of violence while incarcerated at LCI. (Def. Mem. Supp. Summ. J. 11.) Based on the foregoing,
McCave, Frazier, and Smith are entitled to summary judgment.
Robinson conclusorily alleges that he was denied medical treatment following the
altercation with Murray. (Am. Compl. ¶ 16; Objections 4; Pl. Mem. Supp. Mot. Summ. J. 2.)
However, Robinson does not allege, and there is no evidence in the record to support, that he
requested medical treatment for any alleged injury or pain resulting from the altercation. He
further fails to identify any specific Defendant who knew of or disregarded an allegedly serious
medical need. Consequently, summary judgment is proper.
5. Defendants Young, Starks, and Lloyd
Robinson next alleges claims of excessive force against Defendants Sgt. W. Young
(“Young”), Starks, and Lt. Dessirence Lloyd (“Lloyd”). Robinson’s claims pertain to
Defendants’ use of chemical munitions on four occasions between August and November 2010.
He alleges that on August 9, 2010, Young used unconstitutionally excessive force when he
discharged one burst (11.4 grams) of chemical munitions towards Robinson’s face. (Am.
Compl. 3; Def. Mot. Summ. J. Ex. 10 (Young Aff. ¶ 10).) Robinson concedes, however, that
prior to Young’s use of force, he engaged in a verbal confrontation with Young and used
profane language. (Am. Compl. ¶ 3.) On September 2, 2010, Young again administered one
burst (6 grams) of chemical munitions toward Robinson’s facial area while he was confined in
his cell. (Id. ¶ 4; Def. Mot. Summ. J. Ex. 10 (Young Aff. ¶ 13).) Young averred that she
sprayed chemical munitions after she observed Robinson masturbating in his cell, and he defied
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repeated orders to cease his lewd conduct. (Def. Mot. Summ. J. Ex. 10 (Young Aff. ¶¶ 12, 13).)
Later that same day, Starks and Nurse Sarah Roberts arrived at Robinson’s cell to deliver
medication. They observed Robinson masturbating, and Starks directed him to stop. (Id. Ex. 11
(Starks Aff. ¶ 5).) Robinson disobeyed Starks’ command, and she administered two short bursts
(28.1 grams) of chemical munitions towards Robinson’s facial area. (Id. Ex. 11 (Starks Aff.
¶¶ 7-9).) Finally, on November 15, 2010, Lloyd found Robinson masturbating in his cell. (Id.
Ex. 12 (Lloyd Aff. ¶¶ 7, 8).) After he refused to obey her order to quit his conduct, she
administered two short bursts (31 grams) of chemical munitions. (Id. Ex. 12 (Lloyd Aff. ¶ 9).)
To establish a claim for excessive force under the Eighth Amendment, a prisoner must
show that “the prison official acted with a sufficiently culpable state of mind (subjective
component) and . . . the deprivation suffered or injury inflicted on the inmate was sufficiently
serious (objective component).” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008). Whether
there is an Eighth Amendment violation in the context of a prison disturbance depends upon
“whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010). The
predominate focus in a claim for excessive force is not on the extent of the injury but rather the
nature of and justification for the inflicted force. Id. at 1179. The Supreme Court has identified
the following four factors to consider when determining whether a prison official’s actions were
carried out “maliciously and sadistically” to cause harm: (1) “the need for application of force”;
(2) “the relationship between the need and the amount of force” used; (3) “the extent of the
injury inflicted”; and (4) “the extent of the threat to the safety of staff and inmates as reasonably
perceived by the responsible officials on the basis of the facts known to them.” Whitley v.
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Albers, 475 U.S. 312, 321 (1986). Although the “core judicial inquiry” in a claim for excessive
force focuses upon a prison official’s justification for force, the extent of a prisoner’s injuries
remains relevant in determining whether the application of force was reasonable. Wilkins, 130
S. Ct. at 1178. As the Supreme Court emphasized, “[a]n inmate who complains of a push or
shove that causes no discernible injury almost certainly fails to state a valid excessive force
claim.” Id. (emphasis added).
The Fourth Circuit has recognized that the “limited application of mace may be much
more humane and effective than a flesh to flesh confrontation with an inmate.” Williams v.
Benjamin, 77 F.3d 756, 763 (4th Cir. 1996) (internal quotation marks omitted). Consequently, a
prison official’s use of chemical munitions on an inmate to prevent disorder generally does not
infringe the Eighth Amendment’s prohibition against cruel and unusual punishment as long as
the quantity of chemical munitions is commensurate with the gravity of the occasion. Bailey v.
Turner, 736 F.2d 963, 968 (4th Cir. 1984). Whether the use of chemical munitions on an inmate
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.
Robinson is unable to demonstrate that the force inflicted was unconstitutionally
excessive. First, the evidence demonstrates that prison officials used relatively small amounts of
chemical munitions in each of the confrontations. It is undisputed that Defendants never
administered more than two short bursts of chemical munitions, and that the largest quantity of
chemical munitions dispersed was 31 grams. See Plummer v. Goodwin, Civil Action No. 8:072741-TLW-BHH, 2010 WL 419927, at *7 n.4 (D.S.C. Jan. 29, 2010) (unpublished) (finding the
use of 33.5 grams of chemical munitions to be “not constitutionally relevant”). Second,
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Robinson has failed to allege or otherwise show that he suffered any discernible injury as a
result of the four confrontations with prison officials. See Sun v. Dickson, Civil Action No.
9:09-2050-RMG-BM, 2011 WL 766930, at *2 (D.S.C. Feb. 25, 2011) (unpublished) (granting
summary judgment on claim for excessive force where plaintiff failed to allege any injury); see
also Willams v. Thompson, Civil Action No. 5:11cv68, 2012 WL 645060, at *3 (E.D. Tex. Feb.
28, 2012) (unpublished) (noting that “the Fifth Circuit has consistently held that civil rights
plaintiffs must allege an actual injury caused by defendants’ actions” and that “no case within
the Fifth Circuit has upheld an excessive use of force claim in which the plaintiff suffered no
injuries at all”). Furthermore, regarding Defendants’ need for force, Robinson concedes that he
was involved in a verbal altercation with Defendant Young on August 9, 2010, and he does not
dispute that he defied prison officials’ orders to stop masturbating in both the September 2 and
November 15, 2010 confrontations. Sharp v. Longe, C/A No. 1:09-2402-JFA-SVH, 2011 WL
489938, at *4 (D.S.C. Jan. 7, 2011) (unpublished) (explaining that prison guard was justified in
administering chemical munitions against confined inmate because “inmates cannot be allowed
to be disruptive and violate direct orders of the correctional officers”); Brown v. Walker, Civil
Action No. 9:09-3064-RMG-BM, 2010 WL 4484185, at *4 (D.S.C. Oct. 6, 2010), report and
recommendation adopted by, 2010 WL 4482100, at *1 (D.S.C. Nov. 1, 2010) (unpublished)
(granting summary judgment in favor of defendants on claim of excessive force when prison
official used chemical munitions against prisoner who conceded he engaged in verbal altercation
with prison official). In his objections, Robinson argues in support of his excessive force claims
that Defendants violated prison disciplinary policies and procedures by failing to give him two
directives to stop masturbating before discharging chemical munitions. (Objections 6-8.) Even
15

accepted as true, a prison official’s failure to adhere to prison procedures is insufficient to
establish a constitutional violation that gives rise to a § 1983 claim. Keeler v. Pea, 782 F. Supp.
42, 44 (D.S.C. 1992). Robinson has failed to produce any evidence from which a reasonable
jury could conclude that Defendants’ use of force was carried out “maliciously and sadistically”
to cause harm. Accordingly, the court agrees with the magistrate judge’s determination that
Young, Starks, and Lloyd are entitled to summary judgment on Robinson’s claims for excessive
force.
Robinson’s remaining objections to the magistrate judge’s Report and Recommendation
are non-specific and conclusory or otherwise unrelated to the dispositive portions of the Report.
Based on the foregoing, and for the reasons explained in the Report and Recommendation, the
court concludes that Defendants are entitled to summary judgment. After a thorough review of
the Report and Recommendation and the record in this case, the court adopts Magistrate Judge
West’s Report and Recommendation and incorporates it herein.

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It is therefore
ORDERED that Defendant LCI’s motion to dismiss, docket number 42, is granted. It is
further
ORDERED that Defendants’ motion for summary judgment, docket number 111, is
granted. It is further
ORDERED that Robinson’s pending motions, docket numbers 67, 82, and 97, are
denied as moot.
IT IS SO ORDERED.

s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
March 13, 2012

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

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