Odom v. United States of America et al

Filing 50

ORDER granting 28 Motion for Partial Summary Judgment; adopting 34 Report and Recommendation. The court GRANTS summary judgment in favor of defendants as to plaintiff's Bivens and assault claims. Signed by Honorable David C. Norton on 03/25/2014. (gcle, 3/25/14)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
MERCELIS ODOM, No. 242768,
Plaintiff,
vs.
UNITED STATES OF AMERICA, et.
al.,
Defendants.

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No. 5:13-cv-01231-DCN

ORDER

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This matter comes before the court on an action filed by plaintiff, a federal
prisoner, pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971). United States Magistrate Judge Kaymani D. West has issued a report
and recommendation (“R&R”), recommending that the court grant the motion for
summary judgment filed by defendants Officer Michael Pittman (“Pittman”) and the
United States of America. For the reasons set forth below, the court adopts the report and
recommendation and grants defendants’ partial motion for summary judgment.
I. BACKGROUND
Odom is a federal prisoner who, during the relevant time period, was housed in
the Federal Corrections Institution in Edgefield, South Carolina (“FCI Edgefield”).
A. Factual Allegations
Because defendants have moved for summary judgment, the court construes the
facts in the light most favorable to Odom. On November 30, 2011, Odom was assaulted
by another inmate while he was exiting the dish room of FCI Edgefield’s dining hall.
Am. Compl. 3; Mercelis Odom Aff. 1, Feb. 17, 2014. The inmate who attacked Odom

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hit Odom in the head and on the back. Odom Aff. 1. Odom ran out of the dish room and
was chased by his attacker into the dining hall. Id. Between three and five minutes after
the assault was over, Pittman responded to the dining hall with two other officers. Id.
Pittman yelled at Odom “Mother fucker, get on the ground.” Am. Compl. 3. Odom,
disoriented from the blow to the head that he had received, could not respond quickly to
Pittman’s order. Id. While Odom was “getting on [his] knees with both hands in the air,”
Pittman forcefully grabbed Odom’s left arm. Odom Aff. 1. Pittman forced Odom’s arm
behind his back and forced Odom to lie face down on the ground. Id. As a result of
Pittman’s actions, Odom suffered a left arm injury. Am. Compl. 3. Odom complains of
persistent left arm and shoulder weakness, numbness, and tingling. See, e.g., Defs.’ Mot.
for Summ. J. Ex. 4. On March 28, 2013, a neurologist diagnosed Odom with brachial
neuritis or radiculitis and noted that there is evidence of mild carpal tunnel syndrome. Id.
B. Procedural History
Odom filed an amended civil complaint against Pittman and the United States on
June 7, 2013, seeking relief pursuant to Bivens, which established a direct cause of action
against federal officials for the violation of federal constitutional rights. A Bivens claim
is analogous to a claim against state officials under 42 U.S.C. § 1983; federal officials
cannot be sued under Section 1983 because they do not act under color of state law. See
42 U.S.C. § 1983; Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (“The purpose
of Bivens is to deter individual federal officers from committing constitutional
violations.”); Holly v. Scott, 434 F.3d 287, 291 (4th Cir. 2006) (same). Odom’s
complaint alleges that Pittman’s actions violated the Federal Tort Claims Act (“the
FTCA”) as well as Odom’s constitutional rights under the Eighth and Fourteenth

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Amendments. Through the FTCA, Odom asserts state law claims of assault and
negligence against defendants.
On August 26, 2013, defendants filed a motion for summary judgment. Odom
responded to the motion on September 17, 2013. The matter was referred to the
magistrate judge, who issued her R&R on December 31, 2013, recommending that the
court grant defendants’ motion for partial summary judgment.
On February 21, 2014, Odom filed objections to the R&R. Defendants have not
replied to Odom’s objections. The matter has been fully briefed and is now ripe for the
court’s review.
II. STANDARDS OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s report to which specific, written objections are made, and may accept,
reject, or modify, in whole or in part, the recommendations contained in that report. 28
U.S.C. § 636(b)(1). The magistrate judge’s recommendation does not carry presumptive
weight, and it is the responsibility of this court to make a final determination. Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). A party’s failure to object may be treated as
agreement with the conclusions of the magistrate judge. See Thomas v. Arn, 474 U.S.
140, 150 (1985).
Odom appears pro se in this case. Federal district courts are charged with
liberally construing complaints filed by pro se litigants to allow the development of a
potentially meritorious case. See Haines v. Kerner, 404 U.S. 519, 521 (1972). The
requirement of liberal construction does not mean that the court can ignore a clear failure
in the pleadings to allege facts which set forth a cognizable claim, nor does it mean the

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court can assume the existence of a genuine issue of material fact where none exists.
Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
Summary judgment shall be granted if the movant shows that there is no genuine
dispute as to any issue of material fact and that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the ECF of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will
not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary
judgment stage, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in his favor. Id. at 255.
III. DISCUSSION
The R&R makes the following findings: (1) it is an open question of fact whether
Odom’s Bivens claim was procedurally exhausted; (2) Odom’s Bivens claim nevertheless
fails because the amount of force Pittman used was not excessive; (3) even if Odom’s
Bivens claim had merit, it would fail because Pittman is entitled to qualified immunity;
(4) Odom’s assault claim also fails because Pittman’s use of force was not excessive; and
(5) summary judgment is inappropriate on Odom’s negligence claim because defendants
have not sought summary judgment on that claim. The parties have not objected to the
magistrate judge’s first and fifth findings. The court has reviewed these portions of the
R&R and agrees with the magistrate judge’s reasoning. As a result, the court accepts
these portions of the R&R without further comment.

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While Odom’s objections note defendants’ assertion of qualified immunity, Odom
in no way contests the magistrate judge’s recommendation that defendants are entitled to
qualified immunity. Odom’s Objections 3 (“Before the court can determine whether or
not that the defendant is entitled to qualified immunity the court must first determine if
plaintiff has stated a claim for use of excessive force . . . .”). Because neither party has
objected to the magistrate judge’s qualified immunity finding, and because the court finds
no error in the magistrate judge’s reasoning, the court adopts this portion of the R&R as
well.
What remains to be considered are Odom’s objections to the magistrate judge’s
second and fourth findings, which relate to Odom’s Bivens and assault claims. The
success or failure of these claims hinge on whether Pittman’s actions amount to an
excessive use of force in violation of the Eighth Amendment.1
It is well-settled that the Eighth Amendment’s prohibition against “cruel and
unusual punishment” prohibits prison officials from inflicting pain unnecessarily and
wantonly against prisoners. Whitley v. Albers, 475 U.S. 312, 319 (1986); Hill v. Crum,
727 F.3d 312, 317 (4th Cir. 2013). “An inmate’s Eighth Amendment claim involves a
subjective component and an objective component.” Iko v. Shreve, 535 F.3d 225, 238
(4th Cir. 2008). Specifically, the court must decide “whether the prison official acted
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In his complaint, Odom specifically invokes the protections of the Eighth and Fourteenth
Amendments. However, the Supreme Court has explained that, after conviction, it is the Eighth
Amendment – not the Fourteenth – that protects prisoners against the excessive use of force.
After conviction, the Eighth Amendment serves as the primary source of
substantive protection in cases where the deliberate use of force is challenged as
excessive and unjustified. Any protection that “substantive due process” affords
convicted prisoners against excessive force is, we have held, at best redundant of
that provided by the Eighth Amendment.
Graham v. Connor, 490 U.S. 386, 399 n.10 (1989) (internal quotations omitted). As a result, the
court analyzes Odom’s claims only under the rubric of the Eighth Amendment.
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with a sufficiently culpable state of mind (subjective component) and whether the
deprivation suffered or injury inflicted on the inmate was sufficiently serious (objective
component).” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). Where, as here, a
prisoner makes an excessive force claim, the court’s subjective component analysis
“turns on whether force was applied in a good faith effort to maintain or restore discipline
or maliciously and sadistically for the very purpose of causing harm.” Hudson v.
McMillian, 503 U.S. 1, 6 (1992) (citations omitted); see also Williams, 77 F.3d at 761.
The parties agree that Pittman’s actions occurred as he responded to a prisoneron-prisoner assault. Odom complains that Pittman used excessive force when he grabbed
Odom’s arm, forced Odom’s arm behind his back, and made Odom lie down on the floor.
Defendants respond that FCI Edgefield’s standard operating procedures direct prison
personnel to gain physical control of all inmates involved in an altercation so that they
can be handcuffed. See Manly Parker Aff. ¶ 4, July 24, 2013. Defendants contend that
Pittman’s actions fully complied with prison procedures and that Pittman used only
enough force to contain the situation.
In his objections, Odom argues at length that Pittman had failed to properly
supervise the prison dining hall before Odom was assaulted by the other inmate, and that
Pittman’s negligence resulted in his using more force against Odom than he otherwise
would have had to use. Odom asserts – without citation to any evidence – that Pittman
acted maliciously and sadistically because he realized “that he was either late to respond
to an incident, or he was enraged at the parties/situation.” Pl.’s Objections 7.
Even if the court were to assume that Odom’s arm injury is sufficiently serious to
satisfy the objective component of the excessive force test, Odom has not demonstrated

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that Pittman’s actions satisfied the subjective component. Odom’s unfounded
speculation regarding Pittman’s state of mind does not hold up against defendants’
evidence that Pittman responded to the inmate-on-inmate altercation in precisely the
manner required by prison regulations.
As the magistrate judge explained, Odom has not demonstrated that the force
Pittman used was unnecessary or excessive. Accordingly, the court grants summary
judgment on Odom’s Bivens claim.
Because Odom’s excessive force claim fails, his assault claim also fails. Carter v.
Rogers, 805 F.2d 1153, 1158 (4th Cir. 1986) (finding that, where a federal excessiveforce claim fails, a South Carolina state law claim for assault also fails).
IV. CONCLUSION
For the reasons set forth above, the court ADOPTS the magistrate judge’s R&R,
ECF No. 34, and GRANTS defendants’ partial motion for summary judgment, ECF No.
28. Specifically, the court GRANTS summary judgment in favor of defendants as to
Odom’s Bivens claim and his state law assault claim.2
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 25, 2014
Charleston, South Carolina
Because defendants have not sought summary judgment on Odom’s state law negligence claim,
which he brings pursuant to the FTCA, that claim is not addressed by this order.
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