Rivera v. Dickenson et al
Filing
69
OPINION & ORDER granting 32 Motion for Summary Judgment; granting in part and denying in part 45 Motion for Summary Judgment; denying 67 Prisoner Miscellaneous Motion; granting 68 Prisoner Miscellaneous Motion; granting 22 Motion for Summary Judgment. Signed by Judge James P. Jones on 9/21/2015. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
DENIS RIVERA,
Plaintiff,
v.
SGT. J. B. DICKENSON, ET AL.,
Defendants.
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Case No. 7:14CV00573
OPINION AND ORDER
By: James P. Jones
United States District Judge
Denis Rivera, Pro Se Plaintiff; John Michael Parsons, Assistant Attorney
General, Office of the Attorney General of Virginia, Richmond, Virginia, for
Defendants Dickenson, Patrick, Clarke, Hinkle, and Mathena; Rosalie Pemberton
Fessier, Timberlake, Smith, Thomas & Moses, P.C., Staunton, Virginia, for
Defendant Scott.
Denis Rivera, a Virginia inmate proceeding pro se, filed this civil rights
action under 42 U.S.C. § 1983. Liberally construed, Rivera’s Amended Complaint
alleges the following as violations of his constitutional rights, actionable under
§ 1983: (1) Correctional Officers Dickenson and Patrick at Red Onion State Prison
used excessive force against Rivera on December 28, 2012; (2) Nurse Scott acted
with deliberate indifference to Rivera’s serious medical needs related to that
incident; (3) Warden Mathena and Virginia Department of Corrections (“VDOC”)
Director Harold Clarke failed to provide their subordinates with training in the
proper use of force and provision of medical care; and (4) Warden Mathena and
Regional Administrator George Hinkle upheld the alleged violators’ actions during
the grievance proceedings. After review of the record, I conclude that summary
judgment must be granted as to defendants Clarke, Hinkle, Mathena and Scott, but
denied as to Rivera’s claims of excessive force by defendants Dickenson and
Patrick. Because none of the parties have invoked the right to a jury trial, I will
refer the matter to the magistrate judge to conduct further proceedings.
I. Excessive Force.
“[O]nly the unnecessary and wanton infliction of pain” violates the Eighth
Amendment prohibition against cruel and unusual punishment. Whitley v. Albers,
475 U.S. 312, 319 (1986) (internal quotation marks and citations omitted). The
court conducts an objective inquiry — whether “the alleged wrongdoing was
objectively harmful enough to establish a constitutional violation,” and a subjective
inquiry — whether a specific prison official “act[ed] with a sufficiently culpable
state of mind.” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (internal quotation
marks and citation omitted).
The objective component of an excessive force claim focuses on “the nature
of the force,” which must be “nontrivial,” Wilkins v. Gaddy, 559 U.S. 34, 39
(2010), and can be met by “the pain itself,” even if the prisoner has no “enduring
injury.” Williams v. Benjamin, 77 F.3d 756, 762 (4th Cir. 1996) (internal quotation
marks and citations omitted). The subjective component focuses on “whether
force was applied in a good-faith effort to maintain or restore discipline, or
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maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7. Factors the
court should consider include (1) the need for application of force, (2) the
relationship between the need and the amount of force that was used, (3) the extent
of the injury, (4) the threat reasonably perceived by the officers, and (5) any efforts
made to temper the severity of a forceful response. Whitley, 475 U.S. at 321.
The type and extent of the injury the inmate suffered are relevant to the
objective and subjective facets of the analysis in determining “whether the use of
force could plausibly have been thought necessary in a particular situation” and as
“some indication of the amount of force applied.” Wilkins, 559 U.S.at 37 (internal
quotation marks and citations omitted).
However, “[w]hen prison officials
maliciously and sadistically use force to cause harm, contemporary standards of
decency [and the Eighth Amendment] always are violated.” Hudson, 503 U.S. at
9.
Under these principles, I cannot find that correctional officers Dickenson
and Patrick are entitled to summary judgment. 1 Taking Rivera’s allegations as
1
A court should grant summary judgment “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
of law.” Fed. R. Civ. P. 56(a). “In reviewing the evidence, the court must draw all
reasonable inferences in favor of the nonmoving party and may not make credibility
determinations or weigh the evidence.” Williams v. Staples, Inc., 372 F.3d 662, 667 (4th
Cir. 2004); see also Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991) (stating that at this
stage of the proceedings, “[i]t is not [the court’s] job to weigh the evidence, to count how
many affidavits favor the plaintiff and how many oppose him, or to disregard stories that
seem hard to believe”).
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true, after the officers escorted him from the shower back to his cell on December
28, 2012, he was kneeling on the floor in handcuffs and shackles, per policy,
holding only his towel and washcloth in his hands. Yet, without any disruptive
behavior or other provocation from Rivera, the officers struck him in the back of
the head, slammed him to the floor, and choked, punched, kicked, kneed, and
elbowed him in the head, face and ribs. As a result, Rivera allegedly suffered a
concussion, multiple facial abrasions and bruises, long-term cheek and jaw pain,
memory lapses, insomnia, nightmares, vision problems, and episodes of twitching
near his eye.
The officers’ affidavits and evidence tell a different story. They state that as
they escorted Rivera back to his cell, they saw that he was carrying a large plastic
bag.
They contend that Rivera refused to comply with multiple orders to
relinquish the bag, before and after he knelt in his cell, and that he then grabbed
Dickenson’s left wrist and tried to stand up. 2 The officers state that they used only
as much force as needed to place Rivera on the floor and hold him there until Sgt.
Collins arrived.
They also assert that Rivera’s de minimis injuries from the
incident reflect that any force used was also de minimis and, therefore, not
unconstitutional.
2
Rivera was later found guilty on a disciplinary charge for grabbing Dickenson’s
arm.
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While the officers may ultimately convince the court that their account is
more credible and that they did not use excessive force under such circumstances, I
cannot so find at this stage of the proceedings. I find genuine issues of material
fact in dispute as to Rivera’s behavior, the officers’ observations, the degree of
threat the officers reasonably could have perceived from the circumstances, the
need for force, the relationship between the need for force and the amount of force
applied, and the extent of Rivera’s injuries from the incident.3 The finder of fact
could resolve these disputes so as to return a verdict in Rivera’s favor on his claim
of excessive force.4 Accordingly, I cannot grant summary judgment for Dickenson
and Patrick on this claim.
3
Rivera states that he suffered more than one abrasion to his face, some of which
left scars, and painful bruises on his body that appeared as dark spots after the alleged
assault. For weeks after the incident when he tried to chew his food, he “felt extreme
pain around [his] cheek/chin area and all around [his] head,” suffered loss of appetite, and
experienced “problems memorizing what [he] had just read.” (Pl.’s Counter - Aff. 8-9,
ECF No. 63.) He complains that he suffered a concussion and states that he has sought
help with “ongoing insomnia [and] nightmares.” (Id. 9, 11.) The optometrist prescribed
glasses to correct blurry vision in Rivera’s right eye, prescribed medication, and approved
tinted glasses, allegedly related to periodic episodes of twitching in the right eye area.
4
Based on these material factual disputes, I also find no merit to these
defendants’ assertions that they are entitled to summary judgment on the ground of
qualified immunity on this claim. See Buonocore v. Harris, 65 F.3d 347, 359 (4th Cir.
1995) (finding that when resolution of qualified immunity question and plaintiff’s claim
itself depends upon determining what happened, summary judgment on qualified
immunity grounds is not proper).
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II. Liability of Supervisory Defendants.
In a § 1983 case, a supervisory official cannot be held vicariously liable
under the doctrine of respondeat superior for constitutional violations committed
by his subordinates. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977).
Rivera may establish supervisory liability only if he states facts showing personal
fault on the part of each defendant, (a) based on the defendant’s personal conduct,
or (b) based another’s conduct in execution of the defendant’s policies or customs
or with the defendant’s tacit authorization. See Fisher v. Wash. Metro. Area
Transit Auth., 690 F.2d 1133, 1142-43 (4th Cir. 1982).
In the Amended Complaint, Rivera alleges, generally, that Director Clarke
and Warden Mathena should be liable for failing “to implement and/or enforce
proper provisions and/or employee training [regarding] the use of force by officers
and/or the treatment (med.) provided to prisoners.” (Am. Compl. 3, ECF No. 251.) He also alleges that he filed grievances about the excessive force used against
him by Dickenson and Patrick and the inadequate medical assessment by Nurse
Scott, but Mathena and Hinkle deemed these grievances to be unfounded.
In response to these accusations, Clarke states that, in his role as state-wide
director, he oversees the overall operations of the VDOC, but does not have any
personal involvement in supervising daily activities at individual correctional
facilities. Mathena states that when he was the prison warden from October 2011
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to January 2015, he required security staff to complete annual in-service training,
which included instruction on the use of force. Records indicate that Patrick has
completed such training annually since 2009, and that Dickenson has completed
such training annually since 2010.
Rivera’s conclusory allegation of an
unspecified failure to train officers in use of force techniques is not sufficient to
preclude summary judgment in the face of the defendants’ specific evidence to the
contrary.
In Rivera’s response to the motions for summary judgment, he submits
statements from other inmates about officers’ past use of force against them.
Apparently, Rivera is attempting thereby to support a claim that Mathena and
Clarke knew from these past force incidents of a risk that his officers might use
unconstitutional force against Rivera, but failed to take corrective action. This
claim also fails.
“A supervisor may be held liable under a tacit authorization theory [or
failure-to-train theory] if that supervisor fails to take action in response to a known
pattern of comparable conduct occurring before the incident at issue took place.”
Danser v. Stansberry, 772 F.3d 340, 350 (4th Cir. 2014) (emphasis added). A
claim under this theory requires evidence that: (1) the defendant knew his
subordinates had previously engaged in a widespread pattern of conduct that posed
a pervasive and unreasonable risk of constitutional injury to people like plaintiff,
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(2) the defendant’s response to this knowledge was so inadequate as to show
deliberate indifference to or tacit authorization of the alleged offensive practices,
and (3) there was an affirmative causal link between the defendant’s supervisory
inaction and plaintiff’s alleged constitutional injury. Shaw v. Stroud, 13 F.3d 791,
799 (4th Cir. 1994).
Rivera’s evidence in response to defendants’ motion concerns mostly events
in 2013, 2014, and 2015, involving other inmates who have characterized officers’
actions against them as excessive force. (See, e.g., Pl.’s Counter - Aff. Ex. L, ECF
No. 63-2 at 98-103; Mot. Suppl., ECF No. 68.) Clearly, none of the defendants
could have known of these isolated occurrences before the incident at issue in this
lawsuit, which occurred in December 2012. Moreover, the events Rivera presents
do not suggest any widespread pattern at Red Onion State Prison of officers using
excessive force while placing an inmate back in his cell after a shower, as Rivera’s
lawsuit alleges. Thus, I find no genuine issue of fact here on which Rivera could
show that Mathena and Clarke were on notice of a “pervasive and unreasonable
risk” that Dickenson and Patrick would violate Rivera’s rights as they allegedly
did. Shaw, 13 F.3d at 799. Furthermore, Rivera offers no evidence that defendant
Scott, a registered nurse, responded as he did to Rivera’s medical complaints,
based on any lack of job-appropriate training. I must, therefore, grant summary
judgment for Mathena and Clarke.
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For different reasons, I must also grant summary judgment for Mathena,
Clarke, and Hinkle for any involvement in addressing Rivera’s grievances about
the 2012 force incident. First, because inmates have no constitutional right to
participate in grievance procedures, officials’ responses to grievances do not
implicate any constitutionally protected right and are not actionable under § 1983.
See Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); Brown v. Va. Dep’t Corr., No.
6:07-CV-00033, 2009 WL 87459, at *13 (W.D. Va. Jan. 9, 2009). Second, Rivera
has no constitutional right to have a particular incident investigated or to have
officers disciplined. See, e.g., Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)
(finding individual has no constitutional right regarding criminal prosecution or
non-prosecution of another person); Leeke v. Timmerman, 454 U.S. 83, 86-87
(1981) (finding that inmates had no constitutional claim based on magistrate’s
refusal to issue requested criminal warrant charging guards with assault). In short,
the defendants are entitled to judgment as a matter of law regarding Rivera’s
complaints about their grievance responses.
III. Deliberate Indifference to Medical Needs.
Rivera directs this claim solely at Nurse Scott and alleges the following
relevant facts. After Dickenson and Patrick placed Rivera on the floor of his cell
on December 28, 2012, Sgt. Collins called for a nurse to examine Rivera. Nurse
Scott reported to the scene. Standing about two or three feet in front of Rivera,
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who was in shackles and handcuffed to the back, Scott visually assessed the
inmate’s condition. Rivera told Scott about pain he was experiencing in his back,
waist, hip, and knees, as well as his face, eye, neck and head. He asked Scott to lift
his T-shirt to assess his bruises, but Scott did not do so, saying, “You don’t have
nothing.” (Pl.’s Counter - Aff. 3, ECF No. 63.) After Rivera told Scott that the
sergeant had filmed his injuries, Scott said “I only see cuts on your face.” (Id.) He
refused Rivera’s request to have the cuts cleaned with alcohol pads.
Scott stated that Rivera had a knot on the back of his head. When Rivera
asked for an ice bag for his head, however, Scott said, “No, you in Seg.” (Id. 4.)
Rivera told Scott that his neck hurt from being choked and he had abrasions on his
knee and severe pain in his eye. According to Rivera, Scott did not check these
areas, take his vital signs, assess him for symptoms of concussion, broken bones,
or nerve damage, advise him how to care for his injuries or tell officers what items
Rivera would need to do so, or refer him to the doctor and eye doctor, as Rivera
requested.5
5
Scott’s nursing notes for his visual examination of Rivera on December 28,
2012, mostly track Rivera’s allegations. Scott noted that Rivera complained about his
head, his eye, and his wrist; he was alert and oriented to person, place, and time; his
breathing was “even and unlabored”; he had a “small knot approx. 2 cm in diameter” to
the left side of the back of his head, with “no redness noted to area”; he had a “[s]mall
abrasion 1 cm in diameter noted to [the] edge of [his right] eyebrow,” with no bleeding,
redness, or swelling around it; and he had a “[s]mall abrasion hardly visible at [his right]
wrist where the handcuffs touch.” (Scott’s Mem. Supp. Mot. Summ. J. Ex. A 12-13, ECF
No. 23-1.) Scott noted no other complaints from Rivera. According to Scott’s notes, he
instructed Rivera to use a cool compress on the back of his head and to clean the
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After the incident, officers removed Rivera’s property from his cell, leaving
him without soap to wash his injuries. Over the next two days, he filed emergency
grievances and talked to officers, asking for pain medication and assessment by a
doctor and an eye doctor. He was advised to place sick call requests, as his
situation was not an emergency. After the second emergency grievance, a nurse
placed Rivera on the sick call list.
On January 1, 2013, Nurse Stump assessed Rivera through his cell door
window at sick call. She noted a small bruise on his right hip, a bruise on his right
eye and cheekbone area, and “skin pilling on cheek bone area [and] scab[b]ing on
both wrist[s].” (Pl.’s Counter - Aff. 7, ECF No. 63.) He also complained of
headaches, blurred vision, flashes of light, nausea, memory loss, trouble
concentrating, and dark spots on his skin. The nursing staff consulted with the
institutional physician, who ordered additional medications for Rivera. Staff then
placed Rivera on the list to see the doctor. On January 6 and 9, 2013, Rivera filed
emergency grievances to the medical staff. In response, staff contacted the doctor,
who ordered Tylenol.
Scott was not involved in any of these medical staff
interactions with Rivera after December 28, 2012.
abrasions with soap and water; he told Rivera to stretch and move his wrist and hand
through a full range of motion, and when Rivera did so, Scott did not observe any
grimace or other sign that the movement caused him pain; and he instructed Rivera to
place a sick call request for any symptoms that persisted.
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According to Rivera’s medical records, he saw the prison doctor on January
10, 2013. The doctor noted that Rivera was complaining of blurred vision and
head pain while chewing, but found that Rivera was afebrile and in no apparent
distress, with vital signs stable. He also noted on Rivera’s report that he had
“vomited last 2 days” and was “having memory problems.” (Scott’s Mem. Supp.
Mot. Summ. J. Ex. A 10, ECF No. 23-1.) The doctor found a questionable “minor
concussion” based upon the history provided by the patient but not based upon the
clinical exam. (Id.) The doctor referred Rivera to an optometrist for his vision
complaints.
Rivera saw the prison doctor again on January 39 and March 4, 2013,
voicing similar complaints. The doctor did not diagnose a concussion or any other
serious injury after these examinations.
Deliberate indifference to an inmate’s serious medical needs is a violation of
the Eighth Amendment and is actionable under Section 1983.
See Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976). “To establish that a health care provider’s
actions constitute deliberate indifference to a serious medical need, the treatment
must be so grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896
F.2d 848, 851 (4th Cir. 1990) (overruled on other grounds by Farmer v. Brennan,
511 U.S. 825 (1994)).
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An official is deliberately indifferent only if he was personally aware of
facts indicating a excessive risk to an inmate’s health or safety, actually recognized
the existence of such risk, and disregarded or responded unreasonably to that risk.
Farmer, 511 U.S. at 837. A defendant’s “knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, including inference
from circumstantial evidence, . . . and a factfinder may conclude that a prison
official knew of a substantial risk from the very fact that a risk was obvious.” Id.
at 842 (citation omitted).
“[A]n inadvertent failure to provide adequate medical care” does not amount
to the deliberate indifference required to prove a violation of the Eighth
Amendment. Estelle, 429 U.S. at 105-06. Similarly, the “deliberate indifference
standard is not satisfied by . . . mere disagreement concerning ‘[q]uestions of
medical judgment.’” Germain v. Shearin, 531 F. App’x 392, 395 (4th Cir. 2013).
Even taking the evidence in the light most favorable to Rivera, I cannot find
that he has stated facts on which he could persuade the finder of fact that Nurse
Scott acted with deliberate indifference to any serious medical needs. Clearly,
Rivera disagrees with Scott’s diagnosis and treatment decisions that day. Rivera
believes Scott should have taken his vital signs and checked for nerve damage,
provided him with an ice pack, and referred him to a doctor and an eye doctor. In
addition, Rivera denies Scott’s claim that he advised Rivera to care for his injuries
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by moving his wrist to check his range of motion and instructing him to use a
compress and wash his cuts with soap. I cannot find these disputes to be material,
however. It is undisputed that Scott made a visual evaluation of Rivera’s condition
on December 28, 2012, and in his medical judgment, noted no condition or
symptom, at that time, which necessitated immediate medical treatment by medical
staff.
Rivera’s beliefs to the contrary are essentially accusations that Scott’s
examination and treatment decisions were negligent, and negligent actions alone
are not actionable under § 1983.6 See Estelle, 429 U.S. at 106 (finding that alleged
“[m]edical malpractice does not become a constitutional violation merely because
the victim is a prisoner”).
Moreover, Rivera has not presented any evidence on which he could
persuade the fact finder that he exhibited any serious medical need for which
immediate treatment was medically necessary when Scott examined him. Rivera
admits that he had washed off the blood from his cuts and abrasions by the time
Scott arrived, and Scott saw no active bleeding. 7 Rivera’s medical records do not
6
Rivera’s complaints that Scott merely failed to follow protocol or normal
nursing examination procedures arise, if at all, under state regulatory or medical
malpractice law. Section 1983 was intended to protect only federal rights guaranteed by
federal law. Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985). Rivera’s state law
claims are thus not independently actionable under § 1983, and I decline to exercise
supplemental jurisdiction over them in this action. See 28 U.S.C. § 1367(c). I will
dismiss all such claims without prejudice.
7
Rivera has filed what he titles a “Motion for Spoliation,” complaining that
prison officials failed to preserve, or destroyed, surveillance video camera footage of the
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reflect that any doctor ever definitively diagnosed him as having suffered a
concussion on December 28, 2012, or found any adverse effect Rivera suffered
from Scott’s failure to provide different treatment recommendations on that date.
In addition, Rivera stood and talked with Scott for several minutes, reflecting the
capability to heed Scott’s advice to file a sick call request if his pain or other
reported complaints persisted.8 For these reasons, I conclude that Scott is entitled
to judgment as a matter of law and will grant his motion for summary judgment.
December 28, 2012 incident, as well as photographs taken of his injuries after that
incident. See, e.g., Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 155 (4th Cir. 1995)
(“Under the spoliation of evidence rule, an adverse inference may be drawn against a
party who destroys relevant evidence.”). The nonmedical defendants have presented
evidence that, after diligent searching, these items could not be located and that because
they were not downloaded to a disc for preservation, officials recorded over them and
they cannot be recovered.
As relief in his spoliation motion, Rivera asks for production of the lost items. I
cannot order officials to produce what no longer exists. For that reason, I will deny
Rivera’s motion. Moreover, Rivera presents no evidence that defendant Scott or any of
his medical supervisors had any responsibility over the photographs at any time.
Therefore, I cannot find that Rivera is entitled to have any adverse inference drawn
against Scott on summary judgment, based on the loss of the video footage and
photographs. Furthermore, these lost items have no bearing on my determination that
defendants Clarke, Hinkle, and Mathena are entitled to summary judgment. In the
presentation of his evidence at trial, however, Rivera may argue for an adverse inference
against defendants Dickenson and Patrick, based on alleged spoliation of the video and
photographic evidence.
8
The record also reflects that Rivera could have sought additional medical
assessment at any time using a sick call request, and thus, at the most, Nurse Scott’s
medical decisions delayed for a few hours the medical care that Rivera believed he
needed after the alleged assault. Rivera has not presented evidence that this delay
resulted in substantial aggravation or complication of his conditions. See, e.g., Webb v.
Hamidullah, 281 F. App’x 159, 166 (4th Cir. 2008) (finding alleged intentional delay of
medical care states constitutional claim only if plaintiff shows defendant’s conduct
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IV. Conclusion.
For the reasons stated, I will deny the Motion for Summary Judgment as to
Rivera’s claims of excessive force by defendants Dickenson and Patrick, but will
grant that motion as to all claims against defendants Clarke, Mathena, and Hinkle.
I will also grant defendant Scott’s Motion for Summary Judgment as to the claim
of deliberate indifference to Rivera’s serious medical needs after the excessive
force incident and will dismiss any related state law claims without prejudice.
For the reasons stated, it is ORDERED as follows:
1.
The plaintiff’s “Motion to Supplement” (ECF No. 68) is GRANTED,
and his case is supplemented with the additional documentary
evidence submitted with the motion;
2.
The plaintiff’s “Motion for Spoliation” (ECF No. 67) is DENIED;
3.
The defendants’ Motion for Summary Judgment (ECF No. 45) is
GRANTED IN PART AND DENIED IN PART; the motion is
GRANTED as to all claims against defendants Clarke, Mathena, and
Hinkle, but is DENIED as to the excessive force claims against
defendants Dickenson and Patrick;
resulted in substantial harm to him). Moreover, because Rivera chose to file emergency
grievances instead of sick call requests as required, he himself delayed his receipt of
further medical assessment and treatment of the symptoms he experienced in the days
following the alleged assault.
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4.
Defendant Scott’s Motion for Summary Judgment (ECF Nos. 22 and
32) is GRANTED, and any related state law claims are DISMISSED
without prejudice, pursuant to 28 U.S.C. § 1367(c);
5.
The clerk shall terminate the following defendants as parties to this
action: Clarke, Mathena, Hinkle, and Scott; and
6.
This case is REFERRED to the Honorable Pamela Meade Sargent,
United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B),
for further proceedings and preparation of a report setting forth
appropriate findings of fact, conclusions of law, and a recommended
disposition of the remaining claims.
.
ENTER: September 21, 2015
/s/ James P. Jones
United States District Judge
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