Lowe v. John Doe et al
Filing
117
MEMORANDUM OPINION AND ORDER the 55 MOTION by David Ballard, Kathy Dillon, Doug Elliot, Brian Fernandez, Jeffrey Hillewitz, Russell Matheney, Robert Rhodes, Jim Rubenstein for Summary Judgment is GRANTED with respect to Count Two of the plaintiff's Third Amended Complaint and DENIED with respect to Counts One and Three. Signed by Judge Joseph R. Goodwin on 9/30/2015. (cc: attys; any unrepresented party) (skh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
KEITH W.R. LOWE,
Plaintiff,
v.
Case No. 2:13-cv-22416
CAPTAIN RUSSELL MATHENEY,
LIEUTENANT BRIAN FERNANDEZ,
SERGEANT JEFFREY HILEWITZ,
OFFICER DOUG ELLIOT,
WARDEN DAVID BALLARD,
COMMISSIONER JAMES RUBENSTEIN,
KATHY DILLON, and MAJOR ROBERT RHODES,
each in his or her individual capacity,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is the defendants’ Motion for Summary Judgment
[ECF No. 55]. For the reasons stated below, the Motion for Summary Judgment is
GRANTED in part and DENIED in part.
I.
Factual and Procedural Background1
Around 7 a.m. on October 1, 2012, the plaintiff—an inmate at Mount Olive
Correctional Complex who suffers from myriad mental health disorders—informed
Officer Doug Elliot that he had been “asking for mental health for months” and “he
was done asking or talking about anything and he would not speak another word
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The facts are set forth in the light most favorable to the plaintiff and as presented by the plaintiff.
until mental health came down to speak to him.” Third Am. Compl. ¶ 27 [ECF No.
35]. After about twenty minutes with no response, the plaintiff “gave up hoping for
help” and “covered his cell door window, and began to prepare for the attack that he
knew was coming.” Id. ¶ 28. When Sergeant Jeffery Hilewitz knocked on the door of
his cell, the plaintiff responded he “needed mental health”; he offered no further
response. Then the plaintiff began to hallucinate. He “began to frantically rip and tie
numerous sheets all over his cell creating a web type contraption’s [sic] to try and
prevent them from getting him,” and he “got back under his bunk and waited.” Id. ¶
29.
Because the plaintiff was not responsive, the defendant officers repeatedly
deployed a chemical agent called Phantom into the plaintiff’s cell, fired beanbag
rounds from a shotgun into the plaintiff’s cell, deployed an aerosol fogger with a
mixture of pepper and tear gas (i.e., Aerko Clear Out) into the plaintiff’s cell, and
tossed multiple stingball grenades into the plaintiff’s cell. The plaintiff did not
respond despite the officers’ use of “riot type style weapons.” Pl.’s Suppl. Resp. 8 [ECF
No. 111]. After using all of these chemicals and arms, the officers entered the
plaintiff’s cell, cuffed the plaintiff’s hands behind his back, shackled the plaintiff’s
feet, and extracted the plaintiff from his cell.
After removing the plaintiff from his cell, the officers took the plaintiff to the
recreation yard and placed the plaintiff into a mechanical restraint chair. According
to the plaintiff, the officers inflicted additional injuries during this process. For
example, the plaintiffs claims Lieutenant Brian Fernandez twisted and injured the
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plaintiff’s foot and ankle; the officers dropped the plaintiff on concrete; and Captain
Russell Matheney elbowed, forearmed, and punched the plaintiff. Despite the prior
use of chemical agents, the officers did not decontaminate the plaintiff.
Once the plaintiff was secured in the restraint chair, the officers wheeled the
chair into the multi-purpose room, where the plaintiff remained restrained for eight
hours.
These events provide the basis for the plaintiff’s Third Amended Complaint. In
his Third Amended Complaint, the plaintiff alleges claims of excessive force and of
supervisory liability. Count One addresses the conduct leading up to the extraction
of the plaintiff from his cell. Count Two addresses the conduct of defendants
Matheney and Fernandez while moving the plaintiff from his cell to the recreation
yard and placing him in a restraint chair. Count Three address the placement of the
plaintiff in the restraint chair for eight hours. Count Four address the supervisory
liability of defendants Matheney, Warden David Ballard, Major Robert Rhodes,
Kathy Dillon, and Commissioner James Rubenstein.2 The plaintiff seeks monetary
damages, as well as various forms of declaratory and injunctive relief, including an
order to transfer the plaintiff to another prison.
Subsequently,
defendants
moved
for
summary
judgment.
In
their
memorandum in support of this motion, defendants largely rely on a video
documenting their efforts to extract, restrain, and detain the plaintiff on October 1,
2012. Defs.’ Mot. for Summary Judgment Exhibit E [ECF No. 57].
Defendants Matheney, Rhodes, Dillon, and Rubenstein moved to dismiss this count of the Third
Amended Complaint. This issue is addressed in a separate memorandum opinion and order.
2
3
II.
Standard
To obtain summary judgment, the moving party must show “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). A court considering a motion for summary
judgment does not resolve disputed facts, weigh the evidence, or make determinations
of credibility. Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir. 1995); Sosebee
v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). Instead, the court draws any
permissible inferences from the facts in the light most favorable to the nonmoving
party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Nonetheless, “[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.” Scott
v. Harris, 550 U.S. 372, 380 (2007).
III.
Discussion
The plaintiff alleges the defendants used excessive force when they used a
collection of chemical agents and assorted arms in an attempt to extract the plaintiff
from his cell, moved the plaintiff from his cell to the recreation yard, and left the
plaintiff bound to a restraint chair for eight hours.
The Eighth Amendment prohibits cruel and unusual punishment and forbids
the unnecessary and wanton infliction of pain. E.g., Whitley v. Albers, 475 U.S. 312,
319 (1986). The analysis of an excessive force claims has two components: (1)
“whether the prison official acted with a sufficiently culpable state of mind (subjective
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component)” and (2) “whether the deprivation suffered or injury inflicted on the
inmate was sufficiently serious (objective component).” Williams v. Benjamin, 77 F.3d
756, 761 (4th Cir. 1996).
“What must be established with regard to each component ‘varies according to
the nature of the alleged constitutional violation.’” Id. (quoting Hudson v. McMillian,
503 U.S. 1, 5 (1992)). In this case, the inquiry centers on the subjective component
because, “[w]hen prison officials maliciously and sadistically use force to cause harm,
contemporary standards of decency always are violated” regardless of whether the
resulting injuries are significant. Hudson, 503 U.S. at 9. So the core judicial inquiry
in an excessive force case 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.” Id. at 6 (quoting Whitley, 475 U.S. at 320–21). Four factors guide this
analysis: (1) “the need for application of force”; (2) “the relationship between that need
and the amount of force used” (3) “the threat ‘reasonably perceived by the responsible
officials’”; and (4) “any efforts made to temper the severity of a forceful response.” Id.
at 7 (quoting Whitley, 475 at 321).
A. Count One—Extraction from Cell
After receiving no response from the plaintiff, the defendants essentially
emptied their armory in an effort to extract the plaintiff from his cell. They filled the
cell with two chemical agents (i.e., Phantom and Aerko Clear Out); they fired beanbag
rounds from a shotgun and tossed stingball grenades into the cell. The plaintiff
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contends the use of these chemicals and arms was excessive. The video offered by the
defendants corroborates the plaintiff’s description of the raid on his cell.
Upon review of the Whitley factors, whether the defendants used excessive
force remains a disputed question of fact. Essentially, when met with an unresponsive
inmate, the defendants responded by clearing out their armory, using anti-riot
measures on a single inmate in a small cell. I cannot—and I will not—declare as a
matter of law that the use of such force is reasonably necessary to effect a cell
extraction. Whether the use of chemical agents, beanbag shotgun rounds, and
stingball grenades under the circumstances was malicious or sadistic is a question
for the jury.
Accordingly, the defendants’ Motion for Summary Judgment is DENIED as to
Count One of the plaintiff’s Third Amended Complaint.
B. Count Two—Transfer to Recreation Yard
The plaintiff alleges that he was further subjected to the excessive use of force
by defendants Matheney and Fernandez as he was being carried to the recreation
yard and in the process of being placed in a restraint chair. However, the video
submitted by the defendants wholly contradicts the plaintiff’s allegations, warranting
summary judgment. See Scott, 550 U.S. at 380 (“Respondent’s version of events is so
utterly discredited by the record that no reasonable jury could have believed him.”).
For example, despite the plaintiff’s claim that defendant Matheny elbowed and
punched him and that defendant Fernandez also used force, the video does not show
that such events transpired. In light of the video, there is no genuine issue of material
6
fact concerning the conduct of defendants Matheney and Fernandez during the
transfer to the recreation yard and his placement in the restraint chair.
Accordingly, the defendants’ Motion for Summary Judgment is GRANTED as
to Count Two of the plaintiff’s Third Amended Complaint.
C. Count Three—Confinement to Restraint Chair
Finally, the plaintiff challenges the constitutionality of placing him in a
restraint chair for eight hours.
According to the plaintiff, prison policy directs that “restraints are used only
in extreme circumstances” and further states that “[i]nstruments of restraint shall
be used only as a precaution against escape during transfer, for medical reasons, by
direction of a medical officer, or to prevent self-injury, injury to others, or property
damage. . . . Restraints shall not be applied for more time than absolutely necessary.”
Pl.’s Suppl. Resp. 11 (emphasis omitted). The plaintiff claims this policy was violated
in this case and is violated as a matter of course, as evidenced by an email from
defendant Rhodes. Id. at 12; see also Compl. Exhibit 6, at 9 [ECF No. 35-1]
(“[G]enerally speaking the inmate will be restrained in the chair in conjunction with
needed uses of force.”).
It is apparent from the video that the plaintiff was basically compliant once he
was extracted from his cell and there is no evidence that he became non-compliant or
resistant after that time. Nonetheless, the defendants placed the plaintiff in a
restraint chair for a period of eight hours. Nothing in the record indicates why the
defendants felt it was reasonably necessary to strap a compliant inmate into a
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restraint chair. In my opinion, this fact is material and remains in dispute. Whether
binding the plaintiff to a restraint chair for eight hours under the circumstances was
malicious or sadistic remains a question for the jury.
Accordingly, the defendant’s Motion for Summary Judgment is DENIED as to
Count Three of the plaintiff’s Third Amended Complaint.
IV.
Conclusion
For the reasons stated herein, it is hereby ORDERED that the defendants’
Motion for Summary Judgment [ECF No. 55] is GRANTED with respect to Count
Two of the plaintiff’s Third Amended Complaint, and DENIED with respect to
Counts One and Three.
The court DIRECTS the Clerk to send a copy of this Memorandum Opinion
and Order to counsel of record and any unrepresented party.
ENTER:
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September 30, 2015
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