Gordon v. Bartee et al
Filing
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MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on March 30, 2019. (sfc)
03/30/2019
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
CARL D. GORDON,
Plaintiff,
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)
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v.
BARTEE, et al.,
Defendants.
Civil Action No. 7:17-cv-00503
MEMORANDUM OPINION
By: Norman K. Moon
Senior United States District Judge
Carl Gordon, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to
42 U.S.C. § 1983.1 The matter before the court is the defendants’ motion for summary judgment.2
I will grant in part and deny in part the motion for the reasons that follow.
I.
Background
On November 10, 2015, Defendants Bartee and Carnes were instructed to escort Gordon
to the intake area at Wallens Ridge State Prison so that he could be transported to Red Onion State
Prison. Bartee Aff. ¶ 4, dkt. 27-1.3 Bartee and Carnes arrived at Gordon’s cell and instructed
Gordon to back up to the tray slot. Bartee Aff. ¶ 4. Gordon complied and they handcuffed him
and placed leg restraints on him. Id. After that, Bartee and Carnes assisted Gordon to his feet. Id.
Gordon then turned, sat down on the toilet, and refused to leave his cell because he could not take
a laundry bag of legal materials with him. Id.
1
Internal citations, alterations, and quotation marks will be omitted throughout this
opinion, unless otherwise noted. See United States v. Marshall, 872 F.3d 213, 217 n.6 (4th Cir.
2017).
2
I previously dismissed all claims against defendants B. Berg, B. J. Ravizee, Lt. Fleming,
Warden Fleming, Henry Ponton, and Curtis Parr. Only the excessive force claims against Bartee
and Carnes remain. See Order, dkt. 47.
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Bartee and Carnes were transportation officers that “were responsible for going to the
offender’s cell, restraining him, [and] escorting him to the intake area where the offender could
change his clothes.” Carnes Aff. ¶ 4, dkt. 27-3.
Gordon alleges, under penalty of perjury, that after a brief discussion about the legal
materials, Bartee responded, “We don’t care,” and “grabbed and jerked” Gordon, causing him to
fall backwards and hit his head on the toilet and the floor. Compl. 8 & 9. He asserts that the waistchain and handcuffs prevented him from bracing himself, and after the fall Bartee and Carnes
dragged him out of the cell. Id. Gordon refused to get up and continued to lay on the catwalk
floor until Bartee and Carnes called a lieutenant. The lieutenant assured Gordon that his materials
would follow him to the next institution, and Gordon allowed Bartee and Carnes to escort him to
the intake area. Gordon states that he suffered a head injury that caused wooziness, dizziness,
blurred vision, and a painfully throbbing head, at least in the immediate aftermath of his alleged
fall. Id. at 11. He also states that he has continued to have periodic headaches, dizziness, and
blurred vision after the incident, especially during exercise, at least in the days that followed the
alleged incident. Id. at 68.
Defendants contend that they did not use excessive force against Gordon, they did not drag
Gordon, and Gordon did not fall or hit his head on the toilet. They have attached Gordon’s medical
records, which reflects that (1) a nurse noted that Gordon was in good health with no injury or
distress when he arrived at Red Onion on November 10, 2015; (2) the medical department received
request forms from Gordon dated November 10, November 15, and December 3, 2015 for
headaches and blurred vision; (3) Gordon was scheduled for sick call and the nurse evaluated
Gordon and referred him to the doctor on November 16, 2015; (4) on November 16, 2015, the
doctor gave Gordon Tylenol and scheduled another appointment for the following week; (5) on
November 23, 2015, the doctor examined Gordon for his complaints of headache and noted that
Gordon complained of a headache since falling on November 10, 2015; and (6) the doctor ordered
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a skull x-ray and the results were normal. Nurse B. Witt Aff. ¶¶ 4-6 & Enclosures A & B, dkt. 274. The medical staff did not note any other issues.
The defendants also proffered video evidence of the incident. After restraining Gordon,
the officers wait outside his cell for thirty seconds. Exh. 5, D-3 Pod Back Video, at 7:23:337:24:00, dkt. 29. At that point one of the officers then enters the cell and brings Gordon out. Id.
at 7:24:00-7:24:05. The other officer stays just outside the cell and assists the other officer once
Gordon was brought to the door threshold. Id. Bartee states that Carnes took Gordon’s right arm
and supported his right shoulder with the other hand while he, Bartee, was standing just outside
the cell door and reached into the cell to assist with Gordon’s left arm and left shoulder to bring
him out of the cell. Bartee Affidavit, ¶ 5, dkt. 27-1. Carnes did not recall Gordon or any incident
with him. Carnes Affidavit ¶ 4, dkt. 27-3. Gordon claims that it was Bartee who grabbed and
jerked him, causing him to fall and hit his head. Compl. 5.
II.
Claims
Gordon asserts one claim: that Bartee and Carnes violated the Eighth Amendment when
they used excessive force in dragging him out of his cell. He seeks a declaration that the defendants
violated his rights, damages, and associated court costs.
III.
Standards of Review
A. Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that a court shall 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.” “As to materiality, . . . [o]nly disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The dispute
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over a material fact must be genuine, “that is, the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. As such, the moving party is entitled to summary
judgment if the evidence supporting a genuine issue of material fact “is merely colorable or is not
significantly probative.” Id. at 249-50.
The moving party must initially demonstrate the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the moving party meets this burden,
then the nonmoving party must set forth specific facts to demonstrate a genuine issue of fact for
trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In considering
a motion for summary judgment, the court must view the record as a whole and draw all reasonable
inferences in the light most favorable to the nonmoving party. Celotex, 477 U.S. at 322-324; Shaw
v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). However, the nonmoving party may not rely on beliefs
or speculation to defeat a motion for summary judgment. Baber v. Hosp. Corp. of Am., 977 F.2d
872, 874-75 (4th Cir. 1992).
B. Pro Se Pleadings
Gordon is proceeding pro se and, thus, entitled to a liberal construction of the pleading.
See, e.g., Erickson v. Pardus, 551 U.S. 89, 90-95 (2007). The Fourth Circuit has explained that
“though pro se litigants cannot, of course, be expected to frame legal issues with the clarity and
precision ideally evident in the work of those trained in law, neither can district courts be required
to conjure up and decide issues never fairly presented to them.” Beaudett v. City of Hampton, 775
F.2d 1274, 1276 (4th Cir. 1985).
C. Section 1983
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
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committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Negligent deprivations are not actionable under § 1983. See, e.g., Daniels v. Williams, 474 U.S.
327, 330 (1986); Pink v. Lester, 52 F.3d 73, 77 (4th Cir. 1995).
D. Excessive Force
The Eighth Amendment’s prohibition on cruel and unusual punishment forbids the
malicious and sadistic infliction of pain on prisoners. Whitley v. Albers, 475 U.S. 312, 319-21
(1986). To determine “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,” the Supreme Court
has established the following factors: (1) the need for application of force, (2) the relationship
between the need and the amount of force used, (3) the extent of any inflicted injury, (4) 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, and (5) any efforts made to temper the severity of a forceful
response. Id. at 320-21. The core judicial inquiry, however, is not whether a certain quantum of
injury was sustained but rather whether force was applied in a good-faith effort to maintain or
restore order, or maliciously and sadistically to cause harm. Wilkins v. Gaddy, 559 U.S. 34, 37
(2010).
“It is obduracy and wantonness, not inadvertence or error in good faith, that characterize
the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs
in connection with establishing conditions of confinement, supplying medical needs, or restoring
official control over a tumultuous cellblock.” Id. “The infliction of pain in the course of a prison
security measure, therefore, does not amount to cruel and unusual punishment because it may
appear in retrospect that the degree of force authorized or applied for security purposes was
unreasonable, and hence unnecessary in the strict sense.” Id. The Eighth Amendment does not
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require significant injury: “When prison officials maliciously and sadistically use force to cause
harm, contemporary standards of decency always are violated. This is true whether or not
significant injury is evident.” Hudson v. McMillian, 503 U.S. 1, 9 (1992).
E. Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a defendant asserts the
affirmative defense of qualified immunity, the court must determine “whether the facts that a
plaintiff has alleged . . . make out a violation of a constitutional right[,]” and “whether the right at
issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Id. at 232 (citing
Saucier v. Katz, 533 U.S. 194, 201 (2001)).
In determining whether the law was clearly established at the time of the claimed violation,
the court “ordinarily need not look beyond the decisions of the Supreme Court, [the Fourth Circuit
Court of Appeals], and the highest court of the state in which the case arose.” Edwards v. City of
Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999). The onus is on a defendant asserting qualified
immunity to actually put forth authorities and argument showing that he is entitled to it. Meyers
v. Baltimore Cty., Md., 713 F.3d 723, 731 (4th Cir. 2013).
IV.
Discussion
A. Official Capacity
To the extent Gordon brings this action against defendants in their official capacity for
monetary damages, such claims are not cognizable under § 1983. “Neither a State nor its officials
acting in their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State
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Police, 491 U.S. 58, 71 (1989). Because the defendants in their official capacity are not “persons”
who can be sued under § 1983, I will grant the defendants’ motion for summary judgment with
respect to Gordon’s official capacity claims.
B. Excessive Force
In his only remaining claim, Gordon alleges that Bartee and Carnes used excessive force
when they allegedly dragged and jerked him out of his cell, causing him to hit his head on the toilet
and floor. Defendants assert that no force at all was used in the incident.
1.
Bartee
Gordon has established a genuine dispute of material fact regarding his allegations that
Defendant Bartee used excessive force. All the Whitley factors4 are in dispute. For factors 1, 2,
4, and 5, Gordon, in his Complaint filed under penalty of perjury, states that he was not a threat
and Bartee unjustifiably grabbed, jerked, and dragged him. See Compl. 5-6. Meanwhile, Bartee
asserts that no force was used at all and Gordon did not hit his head on the toilet or floor. Bartee
Aff. ¶ 6. The video evidence shows that one of the two officers (Bartee and Carnes) exercised at
least some force on Gordon by entering Gordon’s cell and bringing him out to the catwalk. Dkt.
27-5, D-3 Pod Back Video, at 7:24:00-7:24:05. Bartee has not provided evidence that that officer
was not him. I cannot determine the amount or necessity of the force because the camera angles
only show the back and side of the officer entering the cell. 5 Id. The video does not show the
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(1) The need for application of force, (2) the relationship between the need and the amount
of force used, (3) the extent of any inflicted injury, (4) 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, and (5) any efforts made to temper the severity of a forceful response. See Whitley, 475
U.S. at 319.
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The distances and angles of the cameras, the body positioning of both officers and
Gordon, and the typical issues with REM video footage, leave room for the possibility of the
alleged unconstitutional actions. Like most REM footage, the video is choppy.
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inside of Gordon’s cell, and, for a few brief moments, the officer is in the cell and out of frame.
Id. For the third factor, Gordon contends that he suffered wooziness, dizziness, blurred vision,
and a painfully throbbing head immediately after the incident, and that he has continued to have
periodic headaches, dizziness, and blurred vision. The medical record establishes that Gordon
sought treatment for the alleged injuries.
Although the Defendants provided video, affidavit, and medical evidence, genuine disputes
of material fact remain regarding Bartee because the video footage is not conclusive as to his action
and even insignificant injuries, when maliciously inflicted, violate the Eighth Amendment. See
McMillian, 503 U.S. at 9. In light of the nature of the excessive force claims, Bartee is not entitled
to qualified immunity.
2.
Carnes
Gordon alleges that Carnes used excessive force when Carnes assisted Bartee in dragging
Gordon from the floor out of his cell. Compl. 5. In his affidavit, Carnes states that he does not
remember Gordon or any incident with him. Carnes Aff. ¶ 4, dkt. 27-3. Bartee states that Carnes
took Gordon’s right arm and supported his right shoulder with Carnes’ other hand while he, Bartee,
was standing just outside the cell door and reached into the cell to assist with Gordon’s left arm
and left shoulder in bringing him out. Bartee Aff., ¶¶ 4, 5, dkt. 27-1.
Gordon’s complaint, which he filed under penalty of perjury, states that as he moved to sit
on the toilet “Bartee grabbed and jerked me, causing me to fall backwards and my head to slam
into the toilet, and then hit the floor.” Compl. ¶ 9.6 Only after this impact does Gordon assert that
“Bartee and [Carnes] dragged me on the floor, out of [the] cell.” Compl. ¶ 10. And again, Gordon
Gordon was allowed to amend his complaint to identify Carnes as the other officer
involved. Dkt. 19.
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refers to “Bartee grabbing, jerking, and causing me to fall backwards.” Id. And once again,
referring to Bartee, “Grabbing and jerking me, which caused my head to hit the toilet and floor,
was totally unnecessary force, and there was no need to drag me on the floor.” Compl. ¶ 12. The
reference to Carnes with respect to Gordon hitting his head is that Carnes helped Bartee drag
Gordon from the cell after his head hit the toilet and floor. Compl. ¶¶ 9, 10. Although in his
response to defendants’ motion for summary judgment Gordon says the question is whether or not
he hit his head on a hard surface while being dragged by Bartee and Carnes, dkt. 39 ¶ 6, that
statement contradicts Gordon’s definitive assertion that he hit his head on the toilet and floor
because of Bartee’s actions before Bartee and Carnes dragged him out of the cell. See Compl. ¶¶
9, 10, 11.
Further, the video footage shows Gordon being brought through the cell door to the
catwalk. The video footage shows that Gordon was on his knees with his torso vertically-oriented,
not on his back, as he was pulled through the cell door. The video did not show Gordon being
jerked or falling at that time. Only after reaching the catwalk did he lie down. Dkt. 27-5, D-3 Pod
Back Video, at 7:24:00-7:24:07. Gordon’s claim to the contrary, the video footage shows no
excessive force as he was pulled through the cell door. Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.
2008) (“[w]hen opposing parties tell two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary judgment. In particular, where, as here,
the record contains an unchallenged videotape capturing the events in question, we must only
credit the plaintiff’s version of the facts to the extent it is not contradicted by the videotape.”).
Carnes has shown the absence of a genuine dispute as to a material fact with respect to
Gordon’s excessive force claims against him. Gordon has failed to counter Carnes’ showing by
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setting forth facts to demonstrate a genuine issue of fact for trial.
Indeed, Gordon’s own
statements, made under penalty of perjury, and the video evidence, demonstrate that no reasonable
jury could return a verdict for Gordon with respect to his excessive force claim against Carnes.
The Court, therefore, will grant summary judgment in favor of Carnes.
V.
Conclusion
Accordingly, the defendants’ motion for summary judgment as to the excessive force claim
against Bartee will be denied except to the extent Plaintiff seeks monetary damages against Bartee
in his official capacity. Summary judgment will be entered in favor of Carnes.
The Clerk is directed to send a copy of this opinion and the accompanying order to the
parties.
30th
ENTER: This _____ day of March, 2019.
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