China v. South Carolina Department of Corrections et al
ORDER RULING ON REPORT AND RECOMMENDATION accepting 56 Report and Recommendation, granting 46 MOTION for Summary Judgment only to the extent Defendants seek dismissal of claims against them stemming from their official capacities, and to the extent that Defendant Thompson is named as a Defendant. Defendants' Motion is otherwise DENIED. Signed by Honorable J Michelle Childs on 3/31/2017. (asni, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Ofc. Armet Coles; Sgt. Dustin Mincey; and )
Warden Fred B. Thompson,
Antoine Jarmaine China,
Civil Action No. 5:15-cv-03728-JMC
ORDER AND OPINION
Plaintiff Antoine Jarmaine China (“Plaintiff”), proceeding pro se, filed this action
(“Complaint,” ECF No. 1) pursuant to 42 U.S.C. § 1983 alleging that Defendants Armet Coles,
Dustin Mincey, and Fred B. Thompson (hereinafter collectively referred to as “Defendants”)
used excessive force against Plaintiff in violation of his constitutional rights. (ECF No. 1.)
Defendants responded by filing an Answer (ECF No. 29) and a Motion to Dismiss, or in the
Alternative, for Summary Judgment. (ECF No. 46.)
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02, the matter was
referred to United States Magistrate Judge Kaymani D. West for pre-trial handling.
December 13, 2016, the Magistrate Judge issued a Report and Recommendation (“Report,” ECF
No. 56) recommending the court grant Defendants’ Motion for Summary Judgment (ECF No.
46), but only to a certain extent. This review considers Defendants’ Objections to the Report and
Recommendation (“Objections”) filed December 28, 2016. (ECF No. 58.) For the reasons set
forth herein, the court ACCEPTS the Magistrate Judge’s Report (ECF No. 56), and GRANTS
Defendants’ Motion for Summary Judgment, but only to the extent Defendants seek dismissal of
claims against them stemming from their official capacities, and to the extent that Defendant
Thompson is named as a Defendant (ECF No. 46). Defendants’ Motion is otherwise DENIED.
FACTUAL AND PROCEDURAL HISTORY
This court concludes, upon its own careful review of the record, that the Magistrate
Judge’s factual synopsis is accurate and incorporates it by reference. This court will thus focus
on the facts pertinent to the analysis of Plaintiff’s Objections.
Plaintiff is no longer incarcerated within the South Carolina Department of Corrections
(“SCDC”).1 Plaintiff alleges that on October 17, 2012, his roommate flooded his cell in order to
get the attention of the Supervisor because Plaintiff believed “[his] life [was] in danger.”2 (ECF
No. 1 at 3.) In response to the flooding, Plaintiff asserts that Defendants Coles and Mincey
sprayed an excessive amount of chemical munitions on his back, after already spraying his cell a
few minutes prior, and slammed the cell door on his finger.3 (ECF No. 1 at 3.) Plaintiff also
alleges that someone “cut off the water” after Defendant Coles first sprayed chemical munitions
into the cell. (Id.) Plaintiff seeks a jury trial, $500,000.00 in punitive damages from each
Defendant, and an additional $500,000.00 settlement, along with an early release from his parole.
(Id. at 6.)
On May 20, 2016, Defendants filed a Motion to Dismiss, or in the Alternative, for
Summary Judgment (“Motion”). (ECF No. 46.) Thereafter, the Magistrate Judge sent an Order
At the time of the incident, Plaintiff was an inmate at the SCDC Lieber Correctional Institution
(“Lieber”). Plaintiff was subsequently transferred to SCDC Lee Correctional Institution (“Lee”).
Plaintiff is no longer an inmate in the SCDC and currently resides at 202 Plowden Mill Rd.,
Sumter, S.C. 29153. (ECF No. 55.) On August 10, 2016, Plaintiff filed a Notice of Change of
Plaintiff had filed multiple grievances and written letters about his safety concerns. (ECF No. 1
Plaintiff does not explicitly say that Defendants Coles and Mincey slammed the cell door
purposefully on his finger.
on May 23, 2016, pursuant to Roseboro v. Garrison, 538 F.2d 309 (4th Cir. 1975), advising
Plaintiff of the importance of such motions and the need for him to file an adequate response.
(ECF No. 47.) On July, 21, 2016, Plaintiff filed his Response in Opposition (ECF No. 53), and
on August 8, 2016, Defendants filed a Reply to Plaintiff’s Response (ECF No. 54).
On December 13, 2016, the Magistrate Judge issued a Report, recommending that
Defendants’ Motion (ECF No. 46), be granted only to the extent that Defendants seek dismissal
of claims against them stemming from their official capacities,4 and to the extent that Defendant
Thompson is named as a Defendant. Otherwise, the Magistrate Judge’s Report recommended
that Defendants’ Motion be denied. Although Judge West’s Report found that some application
of force was needed (ECF No. 56. at 8), the Report questioned the reasonability of Defendants
Coles and Mincey’s actions5 (id. at 10), noted that the facts relative to the threat Plaintiff posed
were in dispute (id. at 10-11), and found that Defendants Coles and Mincey did not appear to
have made any attempt to mitigate their chemical munitions usage, and thus use force in good
faith (id. at 11-12). The Report recommended Defendant Thompson be dismissed as a party to
the action, stating “there is simply no proof of personal involvement or knowledge and tacit
approval of the other Defendants’ action.” (Id. at 16.) The Report also recommended that
Defendants Coles and Mincey not be granted qualified immunity. (Id. at 18.) On December 28,
2016, Defendants filed timely Objections to the Report. (ECF No. 58.) Plaintiff did not file
objections to the Report.
Plaintiff clarified in his Response in Opposition that his §1983 claims were focused on
Defendants’ actions pursuant to their “individual capacities.” (ECF No. 53 at 5.)
Defendant Coles sprayed Plaintiff with 4 grams of chemical munitions from his MK-4 canister.
(ECF No. 46-7 at 3.) Defendant Mincey sprayed Plaintiff with 163 grams of chemical munitions
from his MK-9 canister. (ECF No. 46-8 at 2.)
The Magistrate Judge’s Report 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)). Moreover, the court is charged with making a de novo
determination of those portions of a report and recommendation to which specific objections are
made, and the court may accept, reject, or modify, in whole or in part, a magistrate judge’s
recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
Objections to a Report and Recommendation must specifically identify portions of the
Report and the basis for those objections. Fed. R. Civ. P. 72(b). “[I]n the absence of a timely
filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy
itself that there is no clear error on the face of the record in order to accept the
recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note). Failure to timely file specific written
objections to a Report will result in a waiver of the right to appeal from an order from the court
based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v.
Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). If
the plaintiff fails to properly object because the objections lack the requisite specificity, then de
novo review by the court is not required.
Additionally, pro se filed documents should be “liberally construed,” held to a less
stringent legal standard than those complaints or proceedings drafted by lawyers. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However,
even liberally construed, objections to a Report must specifically identify portions of the Report
and the basis for those objections. Fed. R. Civ. P. 72(b)(2).
In the absence of Plaintiff’s Objections to the Report, the court is not required to provide
an explanation for adopting the Report’s recommendation in regard to granting Defendants’
Motion in the context of claims against Defendants in their official capacities, and to the extent
that Defendant Thompson is named as a Defendant. See Camby v. Davis, 718 F.2d 198, 199 (4th
Cir. 1983). Rather, “in the absence of a timely filed objection, a district court need not conduct a
de novo review, but instead must ‘only satisfy itself that there is not clear error on the face of the
record in order to accept the recommendations.’” Diamond v. Colonial Life & Accident Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). The
court concludes that there was no clear error in the Magistrate Judge’s Report in regard to its
recommendations for Defendant Thompson, and Defendants Coles and Mincey’s actions in their
official capacities under the Eleventh Amendment.
Here, the court need only address Plaintiff’s excessive force accusations against
Defendants Coles and Mincey, and determine whether Defendants Coles and Mincey are entitled
to qualified immunity. To state a claim under § 1983, a plaintiff must allege two elements: (1)
“the violation of a right secured by the Constitution and laws of the United States” and (2) this
violation “was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.
42, 48 (1988). To establish a claim of excessive force under the Eighth Amendment, an inmate
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).6 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, 559 U.S. 34, 37 (2010). The court finds the
Report persuasive, and that the facts, viewed in the light most favorable to Plaintiff, support a
finding that Defendants Coles and Mincey violated Plaintiff’s constitutional right to be free from
excessive force, and as such are not entitled to qualified immunity.
In their Objections, Defendants dispute the Report’s denial of summary judgment and
qualified immunity for Defendants Coles and Mincey in their individual capacities. (ECF No. 58
at 1.) Defendants use the factors from Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008), to
explain that Defendants Coles and Mincey’s forceful response to Plaintiff’s actions was
necessary and objectively reasonable. (ECF No. 58 at 2-6.) Defendants refute the Report’s
assertions in their own Iko analysis, stating that: (1) because Plaintiff continued to defy orders
after Defendant Coles’ initial chemical munitions burst, Defendant Mincey’s larger chemical
burst was necessary (id. at 3); that Plaintiff did pose a threat that needed to be quelled (id. at 4),
and that because Defendants’ presence and verbal commands were ignored, Defendants should
be afforded deference in how to “preserve order” (id. at 5). Defendants assert that they did not
violate Plaintiff’s constitutional rights because their use of force was made in a good-faith effort
The Fourth Circuit Court of Appeals (“Fourth Circuit”) instructed that the following test be
used to analyze the subjective component (“wantonness”) prong of excessive force allegations:
“(1) ‘the need for the application of the force’; (2) ‘the relationship between the need and the
amount of force that was 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 v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008) (quoting Whitley v. Albers,
475 U.S. 312, 321 (1986)). To establish the objective component prong, Plaintiff must show
“that the alleged wrongdoing is objectively ‘harmful enough’ to establish a constitutional
violation” in the context of “contemporary standards of decency.” Hudson v. McMillian, 503
U.S. 1, 2 (1992) (quoting Wilson v. Seiter, 501 U.S. 294, 303 (1991)).
to restore discipline, as Plaintiff posed a continuous risk to prison officials and other inmates by
flooding his cell and refusing to comply with Defendants’ verbal directives. (Id. at 6-7.)
The court agrees with Defendants that the use of chemical munitions to control an unruly
inmate is “far preferable to ‘hands on’ use of force’” (id. at 5), and does not dispute that the use
of munitions may have been necessary. 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. The court finds that there
exists a genuine issue of material fact as to whether the application of an additional 163 grams of
chemical munitions, after Plaintiff had already been sprayed shortly before, was a quantity
greater than necessary.7
In regard to the threat posed by Plaintiff, a genuine issue of material fact exists. Plaintiff
and Defendants’ accounts diverge widely on this issue, with Plaintiff asserting “no one conduct
was out of control” [sic] (ECF No. 53 at 8), while Defendants assert Plaintiff threatened to “bust
out” (ECF No. 46-1 at 2) and that Plaintiff “rushed the cell door” (id. at 3). There is no dispute
that Plaintiff’s cell had flooded. On a motion for summary judgment, the court is required to
view the facts and inferences in a light most favorable to the non-moving party (Plaintiff). See
Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255 (1986). Though the court finds that a
The Report notes that cases before this court have found the usage of chemical munitions
acceptable up to 33.5 grams. (ECF No. 56 at 8.) Though Defendants simply refer to Defendant
Mincey’s second burst of munitions as “larger” then Defendant Coles’ burst, the second burst
was larger by a factor of 40.
flooding cell poses a threat, there is a dispute as to whether the water was indeed cut off from the
cell before Plaintiff was sprayed a second time. Though Defendants assert that there is “no
evidence to support Plaintiff’s claim that the water had been shut off” (ECF No. 58 at 3), if the
water had indeed been shut off by Defendants, that could have helped mitigate the threat, and
afforded Defendants an opportunity to reduce the severity of their subsequent response.
The court finds that Plaintiff suffered a sufficient injury to satisfy Iko’s objective prong.
The court also finds that Plaintiff has demonstrated Defendants Coles and Mincey’s actions
satisfy Iko’s subjective prong.
Viewing the facts in the light most favorable to Plaintiff,
Defendants Coles and Mincey’s conduct violated Plaintiff’s Eighth Amendment protection
against excessive force. Furthermore, Plaintiff’s constitutional right was clearly established at
the time of Defendants’ conduct. The court concludes that Defendants Coles and Mincey are not
entitled to qualified immunity.
Based on the aforementioned reasons and a thorough review of the Report and the record
in this case, the court ACCEPTS the Magistrate Judge’s Report (ECF No. 56), and GRANTS
Defendants’ Motion for Summary Judgment (ECF No. 46) only to the extent Defendants seek
dismissal of claims against them stemming from their official capacities, and to the extent that
Defendant Thompson is named as a Defendant. Defendants’ Motion is otherwise DENIED.
IT IS SO ORDERED.
United States District Judge
March 31, 2017
Columbia, South Carolina
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