Leslie v. Frederique et al
Filing
73
MEMORANDUM OPINION. Signed by Magistrate Judge John F. Anderson on 08/31/2020. (dvanm, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
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[L
AUG
JERMAINE LEE LESLIE, JR.,
Plaintiff,
V.
RUDY J. FREDERIQUE,
Defendant.
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I 202
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CLERK, U.S. DISTRICT COURT
ALEXANDRIA VIRGINIA
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Civil Action No. I : 17cvl061 (TSE/JFA)
MEMORANDUM OPINION
':
Jermaine Lee Leslie, Jr., a Virginia inmate proceeding prose, filed a complaint pursuant
to 42 U.S.C. § 1983 alleging that defendant Rudy J. Frederique, a former Deputy at Henrico
County Regional Jail, used excessive force against him on April 19, 2017. (Docket no. I).
Plaintiff filed a motion for summary judgment, accompanied by several supporting exhibits.
(Docket no. 51 ). Defendant, also proceeding prose, filed an opposition to the motion along with
several supporting exhibits. (Docket no. 53). Plaintiff fi led a reply. (Docket no. 63). The
parties have consented to a magistrate judge deciding this motion fo r summary judgment.
(Docket nos. 69- 71). For the reasons below, plaintiffs motion for summary j udgment will be
denied.
I. BACKGROUND
Plaintiff and defendant have somewhat differing versions of the April 19, 2017 incident
giving rise to this litigation. Accordingly, the comt recounts the parties ' versions separately. 1
1
Pla intiffs version of the facts is limited to those included in his motion for summary
judgment. (Docket no. 51) Similarly, defendant' s version is limited to those facts included in
his opposition. (Docket no. 53). As noted below, further detai ls concerning the incident in
question are provided by materials from the Henrico County Sherifrs Office.
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A. Plaintiff's Venion of Events
Plaintiff was instructed by defendant to pack up his belongings prior to being relocated to
segregation following an alleged fight with another inmate. (Docket no. 51 at 3). Plaintiff told
defendant that he did not have a trash bag to use to pack up his belongings. (Id). Defendant
yelled at plaintiff "in an irate tone" to come and get the trash bag that he had in his hand. (Id).
Plaintiff came down the stairs and "grabbed" the trash bag before walking back up the stairs.
(Id). As he did so, defendant came up behind him, "twisted" his neck, and began to pepper
spray plaintiff in the face. (Id at 3-4). Defendant then "threw" plaintiff to the ground and
threatened him, stating "stop resisting or I'm going to break your [expletive] neck." (Id. at 4).
Plaintiff contends he was not resisting "during the entire encounter." (Id). After defendant
pepper-sprayed plaintiff, plaintiff went to the ground and put his hands behind his back. (Id).
He was then taken to medical for treatment of the pepper spray in his eyes. (Id.). As a result of
defendant's actions, plaintiff has experienced "burning eyes," lung congestion, and ongoing
anxiety when in the presence of law enforcement and prison guards. (Id.).
B. Defendant's Venion of Events
Defendant was conducting security checks when he was told about an incident between
plaintiff and another inmate. (Docket no. 53 at 1). Defendant was informed that video footage
showed that plaintiff had been involved in an altercation, so plaintiff was to be removed from the
tier. (Id). Defendant asked plaintiff to come down the stairs of the tier to collect a trash bag in
order to pack up his belongings. (Id). At that time, plaintiff was upstairs in the dayroom with
inmates Silva and Jones "hyp[ing]" him up. (Id.). Defendant asked plaintiff for the third time to
come down the stairs. (Id.). Plaintiff did so and was "ready to fight" defendant. (Id.). Plaintiff
"grabbed" the trash bag and "words [were] exchanged" as the plaintiff went back upstairs. (Id.).
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Another inmate, Mr. Jones, could see that plaintiff was angry, so came down the stairs to step
between plaintiff and defendant in an attempt to defuse the situation. (Id). Defendant noted that
it seemed as though plaintiff was "staggering" with Mr. Jones up the stairs. (Id.). Defendant
warned plaintiff that if he did not calm down and come down the stairs, he would be peppersprayed. (Id.). Plaintiff became "combative" and turned around as if he was coming down "for"
defendant. (Id.). Defendant felt threatened, removed his pepper spray, and "headed" upstairs
before plaintiff had a chance to come down the stairs. (Id.). Defendant delivered "a single one
second burst of spray to the chin to subdue" plaintiff. (Id.). Plaintiff was then placed on the
ground and handcuffed. (Id.). Both plaintiff and defendant were taken to medical; neither had
any injuries and no photographs were taken. (Id.).
C. Henrico County Sheriff's Office Records
Also available to the court is material pertaining to both plaintiff and defendant from
Henrico County Sheriff's Office. (See Docket no. 43).2 Many of these records are cited by the
parties in their respective briefs, and it appears prudent to provide a detailed account of the
institutional response to this incident separately, including its response to grievances and internal
incident forms as well as its internal affairs investigation. As shown below, these materials
further elucidate the facts surrounding this incident.
1. Incident Detail Reports
Defendant filed an incident detail report against plaintiff on April 19, 2017 for
"threatening staff/, (Docket no. 51 at 31 ). Defendant stated that plaintiff had been asked to pack
up all his belongings to which plaintiff"refuse[d] and became very combative." (Id.).
2
The court provided the documents from the Henrico County Sheriffs Office to plaintiff
and defendant on January 27, 2020. (Docket no. 48). The court retained the disc containing the
available video footage of the incident. (Id.).
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Consequently, plaintiff was charged with a "2-2 [violation], Treating to do bodily hann to any
person." (Id). On April 26, 2017, a disciplinary hearing record form was completed whereby
the charge against plaintiff was dismissed. (Id. at 32). Plaintiff was not punished. (Id.). Under
the "reason for finding" section of the form, the hearing officer simply noted "per Lt. Jarrell."
(Id). An inter-office memorandum completed by the Chief Jailor reiterated the disposition of
the charge as "dismissed." (Id at 33).
Defendant also filed an incident detail report against plaintiff on April 19, 2017 for "2-1
fighting." (Id at 34). Defendant indicated that, while he was doing a head count, an inmate had
approached him to say that two other inmates were fighting. (Id). Defendant called "central" to
review the video tapes of the alleged incident and then called Sgt. Morman for assistance. (Id.).
Upon review of the tape, it was determined that two inmates, which included plaintiff, had been
fighting and that both were to be charged with a violation of"2-1 Fighting-Engaging in a
physical altercation with one another." (Id.). On April 26, 2017, a second disciplinary hearing
record form was completed whereby this charge against plaintiff was also "dismissed" with the
reason for this finding listed as "per Lt. Jarrell." (Id. at 35). Again, an inter-office memorandum
from the Chief Jailor confirmed this disposition. (Id. at 36).
2. Plaintiff's Grievance
Foilowing the incident on April 19, 2017, plaintiff filed an inmate grievance form on
April 24, 2017 briefly summarizing the event and seeking to press charges against defendant "for
using excessive force and making life risking remarks." (Docket no. 51 at 23). The grievance
coordinator forwarded plaintiffs grievance to Lt. Jenkins on the same day. (Id.). On April 25,
2017, Lt. Jenkins responded to plaintiff explaining that the matter had been investigated and his
complaint deemed "founded." (Id. at 24-25). "Appropriate actions ha[d] been taken," the
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institutional charges against plaintiff were dismissed, and he was to be returned to the RISE
program. (Id. at 25). It was also noted that an investigator met with plaintiff on the same day
regarding plaintiff's desire to pursue criminal charges. (Id.).
Plaintiff filed an appeal to the response on May 13,2017. (Id at 22). He explained that
he had not been provided with assistance in filing criminal charges against defendant and that he
had been threatened "to be put back in the hole [sic]' ifhe did not stop "pushing blue notes to
press charges." (Id.). Plaintiff also sought paperwork which "state[ed) that the Commonwealth
said [it could not] press charges because [it] do[es] [not] have enough concrete evidence." (Id).
On May 29, 2017, the Jail Administrator's response indicated that the action taken was
"unfounded" and that Investigator DeLuca had spoken with plaintiff about this matter on several
occasions. (Id.).
3. Henrico County Sheriff's Office's Internal Affairs Investigation
Both plaintiff and defendant refer to the results of Henrico County Sheriff's Office's
internal investigation in support of their respective positions. In fact, it forms much of the basis
of plaintiff's memorandum in support of his motion for summary judgment and defendant
extensively highlights passages as part of his opposition. Accordingly, an overview of the report
is provided below.
On April 26, 2017, Lt. Jenkins sent a memorandum to Sheriff Michael Wade of the
Office of the Sheriff, County of Henrico, Virginia, detailing the internal affairs investigation she
had conducted following plaintiff's grievance against defendant. (Id. at 17-20). At the outset,
Lt. Jenkins noted that defendant had been restricted to the post of central control pending the
outcome of the investigation. (Id. at 17). Lt. Jenkins reviewed the incident report as part of her
investigation; she explained that the report had been written by defendant and no email alert was
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sent out about it, nor did Major Johnson, have any knowledge that it had occurred. (Id.). She
also reviewed the video footage which was operational during the incident and provided the
following overview of what it showed. (Id). 3
At 2028 hours inmate Leslie can be seen coming down the bottom of the stairs,
towards Deputy Frederique, takes the trash bag, communicates with the Deputy
briefly, more than arms [sic] length away, before the Deputy reaches to his side
and takes out his O.C. spray. At this time inmate Toyre Jones comes down the
stairs and steps between inmate Leslie and the Deputy and appears to push inmate
Leslie away from the Deputy, up the stairs. The Deputy can be seen following the
two inmates up the stairs with his arm extended towards them (possibly deploying
O.C.). Inmate Jones can be seen returning back down the stairs first at 2028:24
hours, backing away from the incident. At 2028:29 Deputy Frederique comes
down the stairs appearing to be struggling with inmate Leslie, pins the inmate
against the wall and then pulls him to the floor. At 2028:48 it appears that inmate
Leslie attempted to stand up and was taken back to the floor by Deputy
Frederique and handcuffs were placed behind his back.
(Id.).
Lt. Jenkins then recounts the interviews conducted by Investigator DeLuca. (Id. at 18).
Investigator DeLuca interviewed both plaintiff and inmate Autry regarding the "2-1 Fighting"
charge that proved to be the precursor to the event at issue here. According to Investigator
DeLuca, plaintiff and Mr. Autry reported that plaintiff was "inappropriately pepper sprayed,"
with Mr. Autry adding that plaintiff had been "walking away when it happened." (Id.).
Investigator DeLuca had watched the video footage of the alleged fighting incident that
defendant referred to in his incident report but did not observe any punches thrown. (Id).
According to plaintiff and Mr. Autry, they were engaging in horseplay and no one was injured.
(Id). Investigator DeLuca also interviewed the witnesses to the incident; inmates Silva and
Jones. (Id). Both stated that plaintiff had been "mouthing off'' at defendant and that Mr. Jones
3
Lt. Jenkins notes that Camera 154, which would have shown a full view of the staircase
where this incident transpired, was not operational during the event. (Id. at 17).
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had intervened, attempting to defuse the situation. (Id). At that point, both inmates stated that
defendant reached around Mr. Jones to pepper spray plaintiff as he was walking away. (Id.).
Lt. Jenkins interviewed plaintiff, defendant, and Mr. Jones as part of her investigation.
(Id. at 18-20). Relaying her conversation with defendant, Lt. Jenkins noted that she had to ask
defendant to tell her his version of events twice, slowing down on the second time and providing
more detail. (Id. at 18). Initially, defendant reported that he told plaintiff four times to pack up
his belongings and, it was after this fourth occasion, that plaintiff "came downstairs ready to
fight me." (Id). Defendant directed plaintiff to go back upstairs to which plaintiff allegedly
responded, "I don't have to listen to you, I can take you." (Id). Defendant then jumped to when
plaintiff was on the stairs; he explained that "it seemed like the inmate was going to tum around,
so he ran upstairs, [and] a 'shuffle' ensued." (Id.). Plaintiff and defendant "held" one another, at
which point defendant verbally warned plaintiff he was going to be pepper-sprayed. (Id.).
Defendant then removed the pepper spray from his belt and "delivered a single one second burst
of spray" to plaintiffs chin in an attempt to "subdue ... calm" him. (Id.). Defendant reported
that he felt threatened and that plaintiff was "combative," "fighting back, trying to elbow him"
once he had restrained plaintiff on the ground. (Id.).
On the second recount, defendant stated that once plaintiff was down the stairs he was in
defendant's face, "flexing" his arms and fists. (Id). When asked to clarify, defendant first
repeated that plaintiff was in his face but then stated he was an "arm's length away." (Id.).
Plaintiff allegedly told him that he would have to call for back up; defendant felt threatened but
could not call for assistance, and did not, because his radio was charging in the building unit
manager's office. (Id.). Defendant stated that he could not have reached through the door, to
which he was near, to retrieve his radio and he felt that he needed to take "immediate" action.
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(Id.). Defendant asked plaintiff to go back upstairs and plaintiff complied, but then plaintiff
turned around "coming towards me." (Id. at 18-19). However, plaintiff did not have a chance to
come down the stairs before defendant "met him on the steps." (Id. at 19). Plaintiff was making
several verbal statements such as "he's gonna take me" and "he's not built that way," and in
response, defendant met him on the stairs and grabbed his arm. (Id). Mr. Jones tried to pull
plaintiff up the stairs and told plaintiff to go back upstairs. (Id). However, defendant said
plaintiff tried to "come at" him. (/d). Defendant pepper-sprayed plaintiff, put the spray away,
pulled plaintiff downstairs, placed him on his stomach, and then cuffed him. (Id). Defendant
denied making any statements to plaintiff such as "stop resisting or I will break your neck," but
noted that plaintiff was not resisting when on the floor. (Id).
Following the incident, defendant spoke with Sgt. Walker who advised him that "he
could have walked away from [plaintiff] and gained distance," but defendant respectively
disagreed. (Id). He initially did not agree because he was by the door, he was the only Deputy
in the building at the time, and he did not have his radio. (Id). Defendant and Lt. Jenkins
reviewed the video of the incident together and, according to Lt. Jenkins, defendant "admitted
that it was not the way he had remembered things going." (Id). In this further discussion,
defendant acknowledged that plaintiff was three to four steps up the stairway when plaintiff
turned his body around toward him, but plaintiff did not move his feet or take any steps down the
stairway before defendant approached plaintiff. (/d.). Defendant stated that he was confident the
plaintiff would have hit him "ifhe had been able to come down the steps." (Id.). Upon
reviewing the video footage, defendant admitted that he could have backed away to gain some
distance and, in doing so, would still have had the time to react if plaintiff did in fact "charge" at
him. (Id).
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Lt. Jenkins' interview of Mr. Jones revealed that he only became involved in the incident
as a means of "trying to remove" plaintiff from the situation. (Id.). Mr. Jones was mentoring
plaintiff and did not want to see him get into trouble. (Id). Based on this interview, Lt. Jenkins
decided to dismiss the charge that was filed against Mr. Jones. (Id. at 20).
Lt. Jenkins also interviewed plaintiff. (Id). Plaintiff admitted that he and another inmate
had been "horse playing" and realized that was against the rules but he was initially advised by
an instructor that he was recommending "an LE for his behavior." (Id.). He admitted that when
defendant told him to pack his stuff he "cussed" at defendant and was mad at the time thinking
that it was "common sense" that he could not pack up his belongings if he did not have a bag.
(Id). Plaintiff denied any physically aggressive behavior toward defendant and accused
defendant of calling him "young minded," telling him to "grow up." (Id). Mr. Jones came
down the stairs and told plaintiff to "come on" and they began walking up the stairs. (Id.).
Plaintiff did not hear defendant verbally warn him that he was about to be pepper-sprayed;
rather, he began walking up the stairs away from defendant but could see out of the corner of his
eye that defendant was following him and Mr. Jones up the stairs. (Id). Plaintiff says defendant
then reached over Mr. Jones and pepper sprayed him. (Id.). Although plaintiff admitted that he
understood that he had not handled the situation in the best way, his actions did not warrant
being pepper sprayed. (Id). Plaintiff also admitted to having anger management issues and that,
at certain times, he gets "black-out" mad." (Id.).
Ending her report, Lt. Jenkins noted that all charges pertaining to the incident against
plaintiff had been dismissed and he had been returned to the RISE program. (Id.). On April 26,
2017, defendant had been suspended without pay pending an additional internal affairs
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investigation.4 (Id.). Ultimately. Lt. Jenkins• recommended that plaintiff's allegation of
excessive and unnecessary force be deemed "founded" given that it was "clear" that plaintiff was
moving away from defendant when the defendant pulled out his pepper spray. "closed the
distance and deployed it without proper justification." (Jd). 5
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, summary judgment is granted "if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). The moving party bears the burden of
proving that judgment as a matter of law is appropriate. See Celotex Corp. v. Catrett, 4 77 U.S.
317, 323 (1986). In order to meet that burden, the moving party must demonstrate that no
genuine issues of material fact exist. Id. at 322. If the moving party meets its burden, then the
burden shifts to the nonmoving party to show those facts that do create disputed factual issues.
Anderson v. Liberty Lobby, Inc., 4 77 U.S. 242, 248 (1986). In deciding a motion for summary
judgment, the court should consider the evidence in the light most favorable to the non-moving
4
Defendant's opposition clarifies that he was suspended, and ultimately terminated, in
response to a situation unrelated to the issue here. (Docket no. 53 at 13-14).
5
The court recognizes the importance of this internal affairs investigation to the parties'
arguments; as noted, both plaintiff and defendant heavily rely on the memorandum as support for
their respective arguments. Specifically, plaintiff places considerable weight on the report to
demonstrate that his excessive force grievance was "founded" thereby emphasizing that this
court• s finding should mirror that conclusion. Furthermore, plaintiff stresses that the internal
incident reports pertaining to this incident were "dismissed" to show that they contained "false
allegations." (See Docket no. 51 at 4). But it is worth noting that the dismissal of the charges
against plaintiff does not corollate to a finding that defendant used excessive force. Moreover,
while the internal investigations report weighs in favor of plaintiff given Lt. Jenkins' findings, at
this motion for summary judgment stage, the court must view the evidence in the light most
favorable to the non-moving party and all reasonable inferences are drawn in his favor.
Accordingly. the court has limited its use of the memorandum to the interviews of those
involved; namely, plaintiff. defendant, Mr. Silva, and Mr. Jones.
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party and draw all reasonable inferences in favor of that party. United States v. Diebold, Inc.,
369 U.S. 654,655 (1962); see also Thompson v. Potomac Elec. Power Co., 312 F.3d 645,649
(4th Cir. 2002) ('"Conclusory or speculative allegations do not suffice, nor does a mere scintilla
of evidence in support of [the non-moving party's] case.").
A fact is considered "material" if it could "affect the outcome of the suit under the
governing law." Anderson, 477 U.S. at 248. A dispute of material fact is considered "genuine"
if there is sufficient evidence in favor of the non-moving party which would allow the trier of
fact to return a verdict for that party. Id. at 248-49. Summary judgment, therefore, is only
appropriate where no material facts are genuinely disputed and the evidence, taken as a whole,
could not lead a rational fact finder to find in favor of the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,587 (1986).
III. ANALYSIS
The Eighth Amendment prohibits the infliction of"cruel and unusual punishments." U.S.
Const., amend. VIII. In the prison context, the Eighth Amendment "protects inmates from
inhumane treatment and conditions while imprisoned." Iko v. Shreve, 535 F.3d 225, 238 (4th
Cir. 2008) (quoting Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996)). "An inmate's
Eighth Amendment excessive force claim involves both an objective and a subjective
component." Brooks v. Johnson, 924 F.3d 104, 112 (4th Cir. 2019). The first component-the
objective-inquires as to whether the force applied was sufficiently serious to establish a cause
of action. Id This is not a high bar to meet; rather, it requires only something more than "de
minimis" force. Id. (citing Hudson v. McMillian, 503 U.S. 1, 10 (1992)). In contrast, the
subjective component exacts a more demanding standard. Id. The prisoner must meet a heavy
burden to satisfy this component-"the state of mind required is wantonness in the infliction of
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pain" which "ultimately 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." Id at
12-13 (quoting Whitley v. Albers, 475 U.S. 313, 320-22 (1986), abrogated on other grounds by
Wilkins v. Gaddy, 559 U.S. 34 (2010)).
A. Objective Component
"An injury is sufficiently serious for purposes of the objective component of an Eighth
Amendment excessive force claim as long as it rises above the level of de minimus hann." lko,
535 F. 3d at 238 (citing Hudson, 503 U.S. at 9-10). The focus is not on the severity of the
injuries inflicted, but rather on "'the nature of the force,' which must be 'nontrivial."' Tedder v.
Johnson, 527 F. App'x 269,272 (4th Cir. 2013) (quoting Wilkins, 559 U.S. at 39). A prison
official may violate the Eighth Amendment when he "use[s] mace, tear gas or other chemical
agents in quantities greater than necessary or for the sole purpose of infliction of pain." lko, 535
F.3d at 240 (quoting Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996)). However, the use
of pepper spray does not amount to "per se ... cruel and unusual punishment." McCargo v.
Mister, 462 F. Supp. 813, 818 (D. Md. 1978).
Plaintiff asserts that he suffered injuries as a result from the pepper spray. (See Docket
no. 51 at 4). Immediately following the incident, he was taken to medical for "treatment of the
pepper spray in [his] eyes." (Id). Plaintiff also includes in the exhibits to his motion for
swnmary judgment "offender request" forms from August and October 2019 where he requested
treatment for worsening eye sight due to the "chemical agents" in the pepper spray, anxiety due
to the incident, and trouble sleeping because of the anxiety. (Id. at 4, 38, 40, 41). By contrast,
defendant contends that both he and plaintiff visited medical following the incident, no injuries
were noted, and no photographs taken. (Docket no. 53 at 1). Despite acknowledging the copies
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of plaintiff's request for medical treatment forms, defendant asserts that plaintiff has failed to
produce any evidence pertaining to treatment by a nurse for his anxiety and trouble sleeping. (Id
,_,
at 3).
Plaintiff has met the objective component of his excessive force claim. Defendant's
argument focuses on the extent of plaintiff's injuries, or rather what he contends as a lack of
injuries. But the extent of plaintiff's injuries is not dispositive here. Defendant does not deny
pepper-spraying plaintiff. Defendant clearly engaged in more than de minimis force when he
pepper-sprayed plaintiff in the face.
B. Subjective Component
The subjective component of the analysis is far more demanding, and plaintiff bears a
heavy burden. Brooks, 924 F.3d at 112. The key question is "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." Whitley, 4 75 U.S. at 320-21. In Whitley, the Court outlined factors
to consider when determining whether a prison official acted wantonly or maliciously: "(l) the
need for the application of 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." Id at
321. The application of these factors is intended "to [help] determine whether punitive intent
behind a defendant's use of force may be inferred because the force is not reasonably related to a
legitimate nonpunitive governmental objective or could not plausibly have been thought
necessary by the officers." Shiheed v. Harding, 802 F. App'x 765, 768 (4th Cir. 2020) (quoting
Brooks, 924 F.3d at 116).
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This case is a close call. But, as the non-moving party, defendant is entitled to have all
the evidence considered in a light most favorable to him and all reasonable inferences drawn in
his favor. And, upon an analysis of the evidence in the record, a reasonable factfinder could find
in defendant's favor that he did not use excessive force when he pepper-sprayed plaintiff.
Applying the Whitley factors, what is most at issue here is whether defendant reasonably
perceived a threat to his safety that required the use of force. A reasonable factfinder could
resolve the different descriptions of the events that transpired between plaintiff and defendant
and credit defendant's proffered version. In the interests of fairness, and to highlight the
narrowness of the factual dispute that remains at issue here, the court will proceed with an
analysis of each of the Whitley factors.
(i) "The Need for the Application ofForce"
Plaintiffs main contention is that he should not have been pepper-sprayed at all. (Docket
no. 51 at 20). Although he admitted to not handling the situation in the best way, he asserts that
his actions did not warrant defendant's actions. (Id). Defendant, by contrast, contends that he
used pepper spray to "subdue" plaintiff. (Docket no. 53 at I). He felt plaintiff was "combative"
and turned "as ifhe [was] coming down for me," at which point he felt threatened. (Id).
Despite viewing the facts in the light most favorable to defendant, the evidence in the
record suggests that there was no need for the application of force at the time defendant applied
it. The internal investigation, as detailed extensively above, found that plaintiff was walking
away from defendant when the defendant pulled out his pepper spray, closed the distance, and
deployed the spray. (Docket no. 51 at 20). Inmate Autry, when interviewed, also noted that
plaintiff was walking away from defendant. (Id. at 19). And another officer, Sgt. Walker,
attested that defendant could have gained distance and walked away from plaintiff, although
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defendant disagrees with this assessment. (Id). When defendant applied the pepper spray, it
appears that plaintiff had complied with defendant's directives by walking away from defendant
and up the stairs to begin gathering his belongi.ngs. The facts, therefore, concerning this first
Whitley factor favor plaintiff.
(ii) "The Relationship Between the Need and the Amount ofForce that was Used"
Because the facts favor a conclusion that no force was actually necessary at the time, the
second Whitley factor also favors plaintiff.
(iii) "The Extent ofany Reasonably Perceived Threat that the Application of
Force was Intended to Quell"
It is this factor that proves critical to the court's denial of plaintiffs summary judgment
motion. Analysis of this factor requires the court to consider the extent of any threat to the safety
of staff as reasonably perceived by the prison official at the time of the incident. See Whitley,
475 U.S. at 321 ("But equally relevant are such factors as to 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.").
Defendant asserts that he asked plaintiff at least three times to come down the stairs and
collect the trash bag for his belongings. (See Docket no. 53 at 1). To that end, on the third time
of asking, defendant contends that plaintiff came down the stairs "ready to fight." (Id). Plaintiff
"grabbed" the bag and "words [were] exchange[d]" as plaintiff proceeded back up the stairs.
(Id.). At this point, defendant noted the involvement of inmate Jones whom he recognized as
attempting to defuse the situation. (Id). Defendant alleges that plaintiff looked to be
"staggering" up the stairs with Mr. Jones, so he warned plaintiff that ifhe did not calm down, he
would use his pepper spray. (Id). Defendant then contends that plaintiff became "very
combative" and "turned around as if he [was] coming down for me." (Id.). Defendant claims he
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felt threatened, removed his pepper-spray, and proceeded up the stairs before plaintiff"had a
chance to come down the stairs." (Id).
Defendant explained to Lt. Jenkins that he was unable to call for assistance because his
radio was charging in the building unit manager's office and he could not have reached through
the door to retrieve the radio. (Docket no. 51 at 18). Defendant also noted he felt like he needed
to take immediate action. (Id). He stated that plaintiff was making several verbal threats
suggesting he was preparing to fight defendant. (See id.). And again, noting inmate Jones'
involvement, defendant stated that inmate Jones was trying to "pull" plaintiff up the stairs in
order to diffuse the situation. (Id). Moreover, defendant respectively disagreed with Sgt.
Walker, who later advised him that he could have walked away from plaintiff to gain some
distance, noting that he was the only Deputy in the building at the time and without his radio.
(Id).
Witnesses of the incident attest to plaintiff's behavior. For example, inmates Silva and
Jones stated to Investigator Deluca that plaintiff had been "mouthing off' at defendant hence
inmate Jones' involvement to attempt to calm the situation. (Id.). Inmate Jones noted to Lt.
Jenkins that he had been ''trying to remove" plaintiff from the situation as he had been mentoring
him and did not want to see him get into trouble. (Id at 19). And plaintiff himself admitted that
he had "cussed" at defendant and was "mad" at the time this incident was unfolding. (Id. at 20).
Furthermore, as far as defendant was concerned, plaintiff was being removed from the tier as a
result of fighting with another inmate, not horse-playing. (See Docket no. 53 at 1). Given these
statements by defendant, a reasonable trier of fact could find that the defendant's version
supports a finding that he did perceive a threat to his safety at the time he approached the
plaintiff and discharged his pepper spray.
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Case 1:17-cv-01061-TSE-JFA Document 73 Filed 08/31/20 Page 17 of 18 PageID# 350
As noted above, since this matter is before the court solely on plaintiff's motion for
summary judgment, the evidence must be viewed in the light most favorable to the defendant and
all inferences drawn in the defendant's favor. As such, it is important to note that there are many
facts in the record from which a reasonable trier of fact could conclude that plaintiff posed no
physical threat to the defendant at the time. For example, plaintiff, in his interview with Lt.
Jenkins, denied engaging in physically aggressive behavior. (Id). And, in his motion for
summary judgmen4 plaintiff contends that it is his belief that he was pepper-sprayed in
retaliation for other inmates' behavior toward defendant; namely, their mocking of his heavy
African accent. (Docket no. 51 at 4). The parties agree that plaintiff had complied with the
defendant's instructions and started to proceed up the stairs away from the defendant when the
defendant advanced toward the plaintiff and discharged the pepper spray. But, without the
benefit of hindsight and viewing the extent of the threat as reasonably perceived by defendant at
the time of the incident, the court cannot faithfully find that this Whitley factor does not favor
defendant in some respects.
(iv) "Any Efforts Made to Temper the Severity ofa Forceful Response"
Plaintiffs contention, as noted above, is that he should not have been pepper-sprayed at
all. (Docket no. 51 at 20). Implicitly, defendant notes that he delivered "a single one second
burst of spray to [plaintiff's] chin." (Docket no, 53 at 1). Given the analysis as to the first two
Whitley factors, this factor proves of no significant value to defendant. Plaintiff appears to have
been complying with defendant's directive, even if aggressively so, thus a reasonable fact-finder
could find that a forceful response was not necessitated.
As explained above, this case is a close call. However, the subjective component of an
excessive force claim is highly demanding with plaintiff bearing a heavy burden. See Whitley,
17
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Case 1:17-cv-01061-TSE-JFA Document 73 Filed 08/31/20 Page 18 of 18 PageID# 351
475 U.S. at 321; Brooks, 924 F.Jd at 112. Plaintiff must show that defendant had the requisite
state of mind-that is "wantonness in the infliction ofpain"- and that the force applied was
done so maliciously and sadistically for the purpose of causing harm . Brooks, 924 F.3d at 112.
The court cannot, in good faith, find that plainti ff has met that burden here: there are several
material facts still in genuine dispute which preclude a ruling in favor of plaintiff's motion for
summary judgment.
IV. CONCLUSION
For the reasons stated above, the court will deny plaintiff's motion for summary
judgment. (Docket no. 51). Given this ruling on plaintiffs motion for summary judgment, the
parties are to inform the court by September 2 1, 2020, if they w i11 consent to have the
undersigned conduct an evidentiary hearing and make a final rul ing on plaintiff's claims after
hearing the testimony of the plaintiff and the defendant.
Entered this 31st day of August, 2020.
-,---...,..__
/S
i
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John F. Anderson
United States Magistrate .ludge
John F. Anderson
United States Magistrate Judge
Alexandria, Virginia
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