Patterson v. Abney

Filing 30

REPORT AND RECOMMENDATION recommending 18 MOTION for Summary Judgment filed by April Abney be granted. Objections to R&R due by 1/9/2009. Signed by Magistrate Judge William M Catoe on 12/19/08. (Attachments: # 1 Objection notice)(ladd, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE DISTRICT OF SOUTH CAROLINA G R E E N V IL L E DIVISION

B a rry Patterson, Plaintiff, vs. S g t. April Abney, Defendant.

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Civil Action No. 6:07-3565-HFF-W M C REPORT OF MAGISTRATE JUDGE

T h is matter is before the court on the defendant's motion for summary ju d g m e n t. The plaintiff, who is proceeding pro se, filed this action pursuant to Title 42, United S ta te s Code, Section 1983, claiming that his constitutional rights were violated by the d e f e n d a n t while he was a detainee at the Greenwood County Detention Center ("GCDC"). P u rsu a n t to the provisions of Title 28, United States Code, Section 636(b)(1)(B), a n d Local Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial m a tte rs in cases filed under Title 42, United States Code, Section 1983, and submit findings a n d recommendations to the District Court. O n March 5, 2008, the defendant filed a motion for summary judgment. By o rd e r filed March 6, 2008, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4 th Cir. 1975), the p la in tiff was advised of the summary judgment dismissal procedure and the possible c o n s e q u e n c e s if he failed to adequately respond to the motion. On April 3, 2008, the plaintiff file d his opposition to the motion for summary judgment.

F AC T S PRESENTED T h e plaintiff was incarcerated at the GCDC on charges of shoplifting on A u g u s t 6, 2005. At the time of his arrest, the plaintiff did not have identification, and he gave

th e officers a false name. As a result, he was booked into the detention center under the n a m e of Barry Robinson. The plaintiff asserts that on September 17, 2005, he was involved in an incident with officers employed by the Sheriff of Greenwood County at the GCDC, and h e was shot by a taser by defendant Sergeant April Abney. As a result of this incident, the p la in tiff claims defendant Abney violated his constitutional right to be free from excessive use o f force. The plaintiff further alleges that he was denied medical care after this incident. W h e n the plaintiff was booked into the GCDC, he was placed in the F Unit, an o p e n unit for inmates with minor offenses. He was involved in a disturbance on September 1, 2 0 0 5 , and at that time all the inmates in the F Unit were placed in the C Unit, which is a lo c k d o w n unit, for failing to follow the rules of the institution and having contraband. The in m a te s from F unit were placed in lockdown for 30 days, with a review to be made after 15 d a ys. After 15 days, it was determined that the plaintiff could be moved to B Unit, which is a lower security level than C Unit (Linda Butler aff. ¶¶ 5-8). T h e plaintiff was moved to B Unit on September 17, 2005. The plaintiff claims h e did not want to go to B Unit because he did not get along with other inmates in that unit (B u tle r aff. ¶ 9). On that date, the plaintiff approached Officer Mitzi W o o d y in a loud and th r e a te n in g manner, and refused to go back to his cell (Mitzi W o o d y aff. ¶ 5). W h e n the p la in tiff continued to refuse to comply with Officer W o o d y's orders and crossed over the blue lin e toward her, which is considered an aggressive action, she called for back-up (id. ¶¶ 6-8). O f fic e r Chris Rooney responded and found the plaintiff wrapped around the railing that kept in m a te s from falling from the second level down to the first level and refusing to go back to h is cell (Chris Rooney aff. ¶ 9; W o o d y aff. ¶¶ 8-9). Officer Rooney tried to get the plaintiff to le t go of the railing, but the plaintiff refused (Rooney aff. ¶ 10). Officer Rooney then asked O f f ic e r W o o d y to call for back-up, and Sergeant Abney, who was the shift supervisor, and C a p ta in Ralph Evans of the Greenwood County Sheriff's Office responded to the call for b a c k - u p (Rooney aff. ¶ 11; W o o d y aff. ¶ 10).

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W h e n Sergeant Abney arrived, she found the plaintiff holding on to the railing, a c t in g in a confrontational manner, and refusing to obey any commands from the officers (A b n e y aff. ¶ 7; Rooney aff. ¶¶ 12-13; W o o d y aff. ¶ 11; Evans aff. ¶¶ 5-8). Sergeant Abney w a s concerned the plaintiff might try to jump and harm himself or others (Abney aff. ¶ 7). As a result, Sergeant Abney ordered the plaintiff to let go of the railing and return to his cell (A b n e y aff. ¶ 8). After repeated commands by all officers to comply, Sergeant Abney told the p la in tif f she would shoot him with the taser (Abney aff. ¶¶ 9-10; Rooney aff. ¶ 14; W o o d y aff. ¶ 12; Evans aff. ¶ 9). After the third time the plaintiff was advised to let go of the railing, he tu rn e d toward the rail as if he were going to jump (Abney aff. ¶ 11; Rooney aff. ¶ 15; W o o d y a ff. ¶ 13; Evans aff. ¶ 11; pl. complaint at 3, the plaintiff admits he turned his back on S e r g e a n t Abney before he was shot with the taser). S e rg e a n t Abney believed the plaintiff was a possible threat to himself, the other o f fic e r s, and other inmates, and believed the use of the taser was the least amount of force n e c e s s a r y to bring the plaintiff into compliance and protect everyone involved (Abeny aff. ¶¶ 1 2 , 15). As a result, defendant Abney shot the plaintiff with the taser, which caused him to le t go of the railing (Abney aff. ¶ 12). According to Officer Rooney, he handcuffed the plaintiff a fte r he was shot with the taser (Rooney aff. ¶ 16). The plaintiff claims he was already h a n d c u ffe d when he was shot with the taser (pl. complaint at 3). Officer W o o d y does not re m e m b e r whether the plaintiff was handcuffed before or after he was shot with the taser (W o o d y aff. ¶ 15). According to the witnesses, the plaintiff did not appear to be injured, did n o t request medical assistance, and was then escorted back to his cell (Abney aff. ¶¶ 13,17; R o o n e y aff. ¶ 16; W o o d y aff. ¶¶ 14,16; Evans aff. ¶ 14). These officers had no other in v o lv e m e n t with the plaintiff. T h e plaintiff filed a grievance related to this incident on September 17, 2005. L ie u te n a n t Linda Butler received the grievance on September 22, 2005, and referred the p la in tiff to medical on that date. A nurse went to his cell and found nothing wrong with the

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p la in tiff at that time (Butler aff. ¶ 15). According to Lieutenant Butler, whether the plaintiff was h a n d c u ffe d before or after he was shot with the taser, Sergeant Abney followed policy and tra in in g in using the taser as it was the least amount of force to bring him into compliance w ith o u t causing harm to the plaintiff, officers, or other inmates (id. ¶ 16). T h e medical care of inmates at the GCDC is handled by a contract with an o u ts id e company. According to the plaintiff's medical records, he was seen in medical on a c o u p le of occasions after this incident. On October 2, 2005, he complained of back pain. T h e medical staff noted that examination revealed no abnormal findings. The plaintiff was g iv e n ibuprofen. The medical notes also show that the plaintiff had been observed bending a n d throwing towels and uniforms without difficulty. On October 21, 2005, he was again seen in medical complaining of back pain when getting up in the morning and at night (id. ¶ 18, ex. C ).

AP P L IC AB L E LAW F e d e ra l Rule of Civil Procedure 56 states, as to a party who has moved for s u m m a ry judgment: T h e judgment sought shall be rendered forthwith if the pleadings, d e p o s itio n s, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine is s u e as to any material fact and that the moving party is entitled to judgment as a matter of law. A c c o r d in g ly, to prevail on a motion for summary judgment, the movant must d e m o n s tra te that: (1) there is no genuine issue as to any material fact; and (2) that he is e n title d to summary judgment as a matter of law. As to the first of these determinations, a fa c t is deemed "material" if proof of its existence or nonexistence would affect the disposition o f the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1 9 8 6 ). An issue of material fact is "genuine" if the evidence offered is such that a reasonable ju ry might return a verdict for the non-movant. Id. at 257. In determining whether a genuine

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is s u e has been raised, the court must construe all inferences and ambiguities against the m o v a n t and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 6 5 5 (1962). T h e party seeking summary judgment shoulders the initial burden of d e m o n s tr a ti n g to the district court that there is no genuine issue of material fact. Celotex C o rp . v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold d e m o n s tra tio n , the non-moving party, to survive the motion for summary judgment, may not re s t on the allegations averred in his pleadings; rather, he must demonstrate that specific, m a te ria l facts exist which give rise to a genuine issue. Id. at 324. Under this standard, the e x is te n c e of a mere scintilla of evidence in support of the plaintiff's position is insufficient to w ith s ta n d the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory a lle g a tio n s or denials, without more, are insufficient to preclude the granting of the summary ju d g m e n t motion. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4 th Cir. 1985), o v e rr u le d on other grounds, 490 U.S. 228 (1989). "Only disputes over facts that might affect th e outcome of the suit under the governing law will properly preclude the entry of summary ju d g m e n t. Factual disputes that are irrelevant or unnecessary will not be counted."

A n d e rs o n , 477 U.S. at 248. Accordingly, when Rule 56(e) has shifted the burden of proof to th e non-movant, he must provide existence of every element essential to his action which he b e a r s the burden of adducing at a trial on the merits.

AN AL Y S I S E x c e s s iv e Force In Riley v. Dorton, 115 F.3d 1159, 1166 (4 th C ir . 1997), the Fourth Circuit Court of Appeals concluded that the excessive force claims of pretrial detainees are governed by th e Due Process Clause of the Fourteenth Amendment. The proper analysis under the F o u rte e n th Amendment is "whether the force applied was `in a good faith effort to maintain

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o r restore discipline or maliciously and sadistically for the very purpose of causing harm.'" T a y lo r v. McDuffie, 155 F.3d 479, 483 (4 th Cir. 1998). The court can consider several factors w h e n "determining whether prison officials acted maliciously and sadistically: 1) the need for th e application of force; 2) the relationship between the need and the amount of force used; 3 ) the threat reasonably perceived by the officials and 4) the efforts made to temper the s e v e r ity of a forceful response." Tate v. Anderson, C.A. No. 8:05-3085-HMH-BHH, 2007 W L 2 8 9 8 2 , *3 (D.S.C. 2007 (citing Williams v. Benjamin, 77 F.3d 756, 762 (4 th Cir. 1996)). H e re , the evidence shows that the force applied was necessitated by the p la in tiff's actions, and the officers' actions were a good faith effort to restore discipline. The a ffid a vits of all witnesses indicate that the plaintiff was refusing to follow the orders of the o ffic e rs , was belligerent, and appeared to be trying to harm himself or others. Therefore, the f ir s t element weighs in favor of a use of force. Secondly, the amount of force used was very lo w on the continuum of force (Evans aff. ¶ 10; Butler aff. ¶ 14). Defendant Abney testified th a t she was concerned that the plaintiff might try to jump off the railing, possibly injuring h im s e lf , inmates below, or officers trying to control him (Abney aff. ¶ 7). As a result, there w a s clearly a need for force, and the force used was very minor.1 Third, it was reasonable fo r all of the officers involved to believe that the plaintiff was a threat as he had already c r o s s e d over the blue line, which is a clear violation of detention center policy. Moreover, w h e n the inmate continued to wrap himself around the railing, refused to obey officer c o m m a n d s , and acted aggressively toward the officers, it was reasonable to think there n e e d e d to be force to control this inmate. Finally, the officers clearly tried to temper the use o f force by making multiple commands to the plaintiff to comply. In fact, defendant Abney

The officers testified in their affidavits that the use of mace, which is similar to the taser in the f o rc e continuum, would not have been appropriate in this case as mace could possibly disable the other o f f ic e r s trying to gain control of the plaintiff, and mace would simply disable the plaintiff's eyes leaving h im able to use his hands against the officers or jump over the railing (Rooney aff. ¶ 17; Abney aff. ¶ 14).

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e v e n gave the plaintiff three warnings that she was going to shoot him with the taser if he did n o t comply. Based upon the foregoing, it is clear that the force applied by defendant Abney w a s a good faith effort to restore order. In Norman v. Taylor, 25 F.3d 1259, 1263 (4 th C ir. 1994) (en banc), the court held that "absent the most extraordinary circumstances, a plaintiff cannot prevail on an Eighth A m e n d m e n t excessive force claim if his injury is de minimis." Further, "extraordinary

c irc u m s ta n ce s are present when `the force used [is] of a sort repugnant to the conscience of m a n kin d ... or the pain itself [is] such that it can properly be said to constitute more than de m in im is injury.'" Taylor, 155 F.3d at 483-84 (citing Norman, 25 F.3d at 1263 n. 4).

Im p o rta n tly, in Riley, the court extended the holding of Norman to excessive force claims b ro u g h t by pretrial detainees. Riley, 115 F.3d at 1166. Here, the plaintiff's injuries, as e v id e n c e d by the medical records, were no more than de minimis in nature. See Taylor, 155 F .3 d at 484 ("temporary swelling and irritation is precisely the type of injury this Court c o n s id e rs de minimis."); Stanley v. Hejirika, 134 F.3d 629, 637-38 (4 th Cir. 1998) ("bruising o f his right arm, left jaw, left and right wrists and back, and a tooth which was loosened" c o n stitu te d de minimis injury); Henderson v. Gordineer, C.A. No. 3:06-1425-TLW -J R M , 2007 W L 840273, **7-8 (D.S.C. 2007) (finding that there was no indication the plaintiff suffered a n yth in g more than de minimis injury as a result of being shot with taser). Based upon the fo r e g o in g , the excessive force claim fails.

Me d ic a l Care T h e plaintiff claims that he was denied appropriate medical care after the taser in c id e n t. "The Fourteenth Amendment right of pretrial detainees, like the Eighth Amendment rig h t of convicted prisoners, requires that government officials not be deliberately indifferent to any serious medical needs of the detainee." Belcher v. Oliver, 898 F.2d 32, 34 (4 th Cir. 1 9 9 0 ) (citing Martin v. Gentile, 849 F.2d 863, 871 (4 th Cir.1988)). The duty to attend to

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p r is o n e r s * medical needs does not presuppose "that every claim by a prisoner that he has n o t received adequate medical treatment states a violation of the Eighth Amendment." E s te lle v. Gamble, 429 U.S. 97,105 (1976). Instead, it is only when prison officials have e x h ib ite d "deliberate indifference" to a prisoner*s "serious medical needs" that the Eighth A m e n d m e n t is offended. Id. at 104. As such, "an inadvertent failure to provide adequate m e d ic a l care" will not comprise an Eighth Amendment breach. Id. at 105-106. In order to state a claim, "[a] plaintiff must satisfy two elements . . . : he must s h o w a serious medical need and he must prove the defendant's purposeful indifference th e r e t o ." Sires v. Berman, 834 F.2d 9, 12 (1 st Cir. 1987). A medical need is "serious" if "it is d ia g n o s e d by a physician as mandating treatment or one that is so obvious that even a lay p e rs o n would recognize the necessity for a doctor*s attention." Gaudreault v. Municipality of S a le m , Mass., 923 F.2d 203, 208 (1 st Cir. 1990), cert. denied, 500 U.S. 956 (1991). "It is only s u c h indifference that can offend `evolving standards of decency' in violation of the Eighth A m e n d m e n t." Estelle, 429 U.S. at 106. Mere negligence or malpractice does not violate the E ig h th Amendment. Id. Moreover, disagreements between an inmate and a physician over th e inmate's proper medical care do not state a Section 1983 claim unless exceptional c irc u m s ta n c e s are alleged. Wright v. Collins, 766 F.2d 841, 849 (4 th Cir. 1985). H e r e , defendant Abney testified that the plaintiff did not request medical care fro m her after the incident, and she was not involved with the plaintiff's care after the incident (A b n e y aff. ¶ 17). In his response to the motion for summary judgment and in his complaint, th e plaintiff does not contend that he requested medical attention from defendant Abney. F u rth e r, if the plaintiff is trying to allege that other individuals denied him medical care after th is incident, this would fail to state a claim against this defendant. The plaintiff has

p re s e n te d no evidence that the named defendant was personally involved in his medical c a r e . Medical care at the GCDC is contracted out to a private party (Butler aff. ¶ 17). F u r th e r , the evidence does not show the elements necessary to establish a claim under a

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s u p e r v i s o r y theory.

The doctrine of respondeat superior generally is inapplicable to

S e c tio n 1983 suits. Monell v. Department of Social Services, 436 U.S. 658, 694 (1978); V in n e d g e v. Gibbs, 550 F.2d 926, 928-29 (4 th Cir. 1977). The plaintiff must establish three e le m e n ts to hold a supervisor liable for a constitutional injury inflicted by a subordinate: (1) th e supervisor had actual or constructive knowledge that a subordinate was engaged in c o n d u c t that posed "a pervasive and unreasonable risk" of constitutional injury to people like th e plaintiff; (2) the supervisor's response was so inadequate as to constitute deliberate in d iffe r e n c e or tacit authorization of the subordinate's conduct; and (3) there is an "affirmative c a u s a l link" between the supervisor's inaction and the plaintiff's constitutional injury. Shaw v . Stroud, 13 F.3d 791, 799 (4th Cir.), cert. denied, 513 U.S. 813 (1994). The plaintiff has fa ile d to establish these elements. F u rth e rm o r e , Lieutenant Butler testified that when the plaintiff made a request fo r medical care in a grievance form, she personally contacted medical, who came to e x a m in e the plaintiff (Butler aff. ¶ 18). Medical found no problems with the plaintiff at that tim e . Id. The plaintiff was then seen in medical on several other occasions, and he never h a d any symptoms to match his complaints. Id. At most, the plaintiff has stated a claim that h e does not agree with the medical care provided to him. However, a disagreement over m e d ic a l care does not state a constitutional claim. See Wright, 766 F.2d at 849. As a result, e v e n if this defendant was involved in the plaintiff's medical care, the plaintiff could not state a claim. Based upon the foregoing, the plaintiff's medical care claim fails.

Q u a lif ie d Immunity T h e defendant argues that, to the extent the plaintiff raises his claims against h e r in her individual capacity, she is entitled to qualified immunity as her conduct did not v io la te any clearly-established constitutional or statutory rights of which a reasonable person s h o u ld have known. This court agrees. Qualified immunity protects government officials

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p e rfo rm in g discretionary functions from civil damage suits as long as the conduct in question d o e s not "violate clearly established rights of which a reasonable person would have known." H a rlo w v. Fitzgerald, 457 U.S. 800, 818 (1982). This qualified immunity is lost if an official v io la te s a constitutional or statutory right of the plaintiff that was clearly established at the tim e of the alleged violation so that an objectively reasonable official in the defendants' p o s itio n would have known of it. Id. In addressing qualified immunity, the United States Supreme Court has held th a t "a court must first determine whether the plaintiff has alleged the deprivation of an actual c o n s titu tio n a l right at all and, if so, proceed to determine whether that right was clearly e s ta b lis h e d at the time of the alleged violation." Wilson v. Layne, 526 U.S. 603, 609 (1999); s e e also Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4 th Cir. 2000). Further, the S u p re m e Court held that "[d]eciding the constitutional question before addressing the q u a lifie d immunity question also promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the general public." Wilson, 526 U.S. at 609. If the c o u rt first determines that no right has been violated, the inquiry ends there "because g o v e r n m e n t officials cannot have known of a right that does not exist." Porterfield v. Lott, 156 F .3 d 563, 567 (4 th Cir. 1998). The plaintiff has failed to demonstrate that the defendant v io la te d any of his constitutional rights. Therefore, the defendant is entitled to qualified im m u n ity.

C O N C L U S IO N AND RECOMMENDATION W h e re fo re , based upon the foregoing, it is recommended that the defendant's m o tio n for summary judgment (doc. 18) be granted.

D e c e m b e r 19, 2008 G r e e n v ille , South Carolina

s /W illia m M. Catoe U n ite d States Magistrate Judge

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