Adkins v. Ballard et al

Filing 46

MEMORANDUM OPINION AND ORDER directing that the 44 Proposed Findings and Recommendation is adopted in part and rejected in part; defendants' 23 Motion for Summary Judgment is granted with respect to plaintiff's claim of supervisory liab ility, and denied insofar as there is a genuine dispute of material fact regarding the alleged choking; defendant Ballard is dismissed from this action. Signed by Judge John T. Copenhaver, Jr. on 2/25/2020. (cc: plaintiff; counsel of record; United States Magistrate Judge) (kew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
STEVEN LEE ADKINS, JR.,
Plaintiff,
v.

Civil Action No. 2:18-cv-00342

WARDEN DAVID BALLARD,
CAPTAIN TONEY, C.O. DEMPSEY,
JOHN DOE #1, and JOHN DOE #2,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is defendants’ motion for summary judgment,
filed March 8, 2019.

I. Background
In his complaint, plaintiff brings claims of
(1) excessive use of force, (2) supervisory liability, and
(3) emotional and mental distress.

See Compl.

These claims

relate to a July 25, 2017 incident in which plaintiff refused to
leave his cage in the recreation yard of Mount Olive
Correctional Complex (“MOCC”), resulting in the correctional
officers (“COs") removing him by force.
This action was previously referred to the Honorable
Dwane L. Tinsley, United States Magistrate Judge, for submission

to the court of his Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
On January 7, 2020, the magistrate judge entered the PF&R
recommending that the court grant defendants’ motion for summary
judgment and dismiss this case from the court’s docket.
PF&R 11.

See

Plaintiff filed timely objections on January 21, 2020.

Defendants did not file objections or a response.

II. Legal Standard
Upon an objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a district
court to ‘make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or
recommendations to which objection is made.’”

Diamond v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (first alteration added) (quoting 28 U.S.C. § 636(b)(1)).
Summary judgment is appropriate only “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).

“Material” facts are those necessary to

establish the elements of a party’s cause of action.

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d

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570, 576 (4th Cir. 2010).

A “genuine” dispute of material fact

exists if, in viewing the record and all reasonable inferences
drawn therefrom in a light most favorable to the non-moving
party, a reasonable fact-finder could return a verdict for the
non-moving party.

Anderson, 477 U.S. at 248.

Inferences that are “drawn from the underlying
facts . . . must be viewed in the light most favorable to the
party opposing the motion.”
U.S. 654, 655 (1962).

United States v. Diebold, Inc., 369

A party is entitled to summary judgment

if the record, as a whole, could not lead a rational trier of
fact to find for the non-moving party.
F.2d 820, 823 (4th Cir. 1991).

Williams v. Griffin, 952

Conversely, summary judgment is

inappropriate if the evidence is sufficient for a reasonable
fact-finder to return a verdict in favor of the non-moving
party.

Anderson, 477 U.S. at 248.

III. Discussion
Plaintiff lists several objections.

Among them, he

asserts that “[t]here are genuine issues of disputed material
facts such as, them choking me after I was subdued/strained and
had said 3 times ‘I am not resisting’ in a clear and calm
voice.”

See Obj. 1 (emphasis in original).

Plaintiff also

objects that he should have been allowed to see a mental health

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professional and that he intends to show at trial that the MOCC
staff illegally refused to see him and provide medical
attention.

Id. at 1–2.
These objections largely repeat plaintiff’s arguments

raised in response to defendants’ motion for summary judgment
that:
All arguments of justification of use of force
administered against me, such as excessive O.C.
[Oleoresin Capsicum spray]; and choking me
unprofessionally and dangerously after I was subdued
and not resisting and stated so clearly verbally
multiple times all of which can be verified by
footage, isn’t true. All use of force was avoidable
if prison officials would’ve let me speak to mental
health as policy directives suggest before an
extraction and as I requested to CO’s and Bess and
camera footage/audio can verify.
Pl.’s Resp. Opp. Mot. Summ. J. 4.
The magistrate judge concluded that defendants’
conduct did not constitute an “unnecessary and wanton infliction
of pain” under the Eighth Amendment of the United States
Constitution.

See PF&R 10.

As explained by the magistrate

judge, an excessive force claim “necessitates inquiry as to
whether the prison official acted with a sufficiently culpable
state of mind (subjective component) and whether the deprivation
suffered or injury inflicted on the inmate was sufficiently
serious (objective component).”

Id. (quoting Williams v.

Benjamin, 77 F.3d 756, 761 (4th Cir. 1996)).
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Defendants’ motion

for summary judgment and the PF&R focused on the subjective
component.

See Defs.’ Mem. Supp. Mot. Summ. J.; PF&R.
As to the subjective component, “whenever prison

officials stand accused of using excessive physical force in
violation of the Cruel and Unusual Punishments Clause, the core
judicial inquiry is that set out in Whitley [v. Albers, 475 U.S.
312 (1986)]: whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically
to cause harm.”

Hudson v. McMillian, 503 U.S. 1, 6–7 (1992)).

Courts use the following four factors to assess a defendant’s
subjective intent:
(1) “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.”
Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008) (quoting
Whitley, 475 U.S. at 321); see also Brooks v. Johnson, 924 F.3d
104, 116 (4th Cir. 2019).
Analyzing these factors, the magistrate judge
concluded that the “undisputed” audio/video footage furnished by
defendants demonstrates that the use of force was made in a good
faith effort to restore order in the recreation yard containment
unit.

See PF&R 7–10.

In particular, the magistrate judge found

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that plaintiff has not offered any admissible evidence to
challenge the incident reports and audio/video provided by
defendants.

See id. at 1.

Pursuant to Roseboro v. Garrison,

528 F.2d 309 (4th Cir. 1975), the magistrate judge’s September
6, 2018 scheduling order notified plaintiff of his right and
obligation to respond to any motion for summary judgment filed
by defendants, “submitting affidavits or statements subject to
the penalties of perjury, exhibits, or other legal or factual
material supporting his position in the case.”

See Sept. 6,

2018 Order.
Plaintiff did so when he filed his complaint on
February 22, 2018.

He signed and dated his complaint “under

penalty of perjury that the foregoing is true and correct.”
Compl. at 10.

See

“[A] verified complaint is the equivalent of an

opposing affidavit for summary judgment purposes, when the
allegations contained therein are based on personal knowledge.”
Griffin, 952 F.2d at 823 (emphasis in original); see also Fed.
R. Civ. P. 56(c)(4) (“An affidavit or declaration used to
support or oppose a motion must be made on personal knowledge,
set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the
matters stated.”).

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As noted in the 2010 Amendment to the Advisory
Committee Notes on Federal Rule of Civil Procedure 56(c)(4), “28
U.S.C. § 1746 allows a written unsworn declaration, certificate,
verification, or statement subscribed in proper form as true
under penalty of perjury to substitute for an affidavit.”
R. Civ. P. 56 advisory committee’s note.

Fed.

For unsworn

declarations to satisfy the requirements of 28 U.S.C. § 1746,
they must be signed and dated as true and correct under penalty
of perjury, “in substantially

. . . the form” of the model

declaration provided in the statute.

28 U.S.C. § 1746; see also

Roberson v. Hayti Police Dep’t, 241 F.3d 992, 995 (8th Cir.
2001); Schroeder v. McDonald, 55 F.3d 454, 460 n.10 (9th Cir.
1995).

The model declaration shows that a declarant must

“declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct.”

28 U.S.C. § 1746(2).

Plaintiff’s complaint, signed under penalty of perjury
to be true and correct, complies with these requirements.1
Insofar as the verified complaint describes allegedly
unconstitutional Oleoresin Capsicum spray and choking, it “was

1

On January 2, 2020, plaintiff also filed a self-styled
declaration providing, “With declaration under punishment of
perjury, I state my words here are true and everything I’ve sent
to the courts in writing prior to this date are true.” See
Declaration of Steven Adkins, Jr. However, the declaration does
not specify any facts itself. In addition, none of plaintiff’s
other submissions satisfy 28 U.S.C. § 1746.
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based upon his own personal knowledge and set forth specific
facts admissible in evidence.”

Griffin, 952 F.2d at 823.

Plaintiff thus offered evidence to refute defendants’
materials notwithstanding the magistrate judge’s findings
otherwise.

In his verified complaint, plaintiff alleges that he

explained to a “unit team manager” on the recreation yard that
he had “been trying for weeks to speak with” mental health
personnel to no avail.

Compl. ¶ 1.

Plaintiff told the CO that

he “desperately needed to talk to mental health” and would not
leave his cage until they reached out to mental health
personnel.

Id.

“Soon after,” a group of COs dressed in riot

gear entered the recreation yard asking plaintiff “to leave the
cage and cuff up,” but plaintiff continued to refuse until they
granted his request.

Compl. ¶ 3.

Following a “brief discussion

with Capt. Toney regarding” plaintiff’s request, the COs
proceeded to spray plaintiff several times in “3 to 5 second
burst[s],” blinding plaintiff as he also struggled to breath.
Id. ¶ 4.

The COs then opened the gate to his cage and tackled

him to the ground.

Id. ¶ 5.

The complaint continues, “Once I

was completely restrained on the ground they were still
assaulting me, one of them reached around and grabbed my throat
with their hands and started choking me for no reason.
already subdued, restrained and not resisting.”

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I was

Id. ¶ 6.

In the audio/video furnished by defendants, Parts 1
through 3 show plaintiff refusing to comply with requests to
leave the recreation yard cage for over an hour.

See PF&R 9;

Suppl. Mem. Supp. Defs.’ Mot. Summ. J., Dec. 11, 2019 DVD
Exhibits (“DVD Exhibits”).

In Part 4, the audio/video shows

plaintiff “assuming a combative stance with a toboggan covering
his head and displaying obscene gestures to the officers” as he
continued to reject their commands.

See PF&R 9; DVD Exhibits.

It depicts plaintiff maintaining a combative posture even after
the COs used the Oleoresin Capsicum spray.
Exhibits.

See PF&R 9–10; DVD

The COs tackled plaintiff only after plaintiff

charged toward them when they entered the cage to finally subdue
him.

See PF&R 9–10; DVD Exhibits.
As the audio/video shows, plaintiff states “I’m not

resisting” as the guards restrain him on the ground,
approximately 20 seconds after he first charged toward them in
the cage.

See DVD Exhibits.

He repeats this phrase

approximately four times over the next 20 seconds as the guards
continue to apply the mechanical restraints.

Id.

The

audio/video does not show whether the COs choked plaintiff when
he was on the ground.

Id.

The incident reports furnished by

defendants indicate that one of the COs, Johnny Wilson, was
responsible for “secur[ing] his head and neck area while

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mechanical restraints were applied to both his wrist and
ankles.”

See Defs.’ Mot. Summ. J., Ex. C at 10, 12.

In the

less than a minute and a half it took to subdue and restrain
plaintiff in the video, his body is largely obscured by the team
of COs.

See DVD Exhibits.
The audio/video shows that application of force was

necessary as plaintiff was noncooperative and hostile even after
the Oleoresin Capsicum spray was administered.

Yet, the need to

maintain order or restore discipline no longer exists when “the
victim is restrained, compliant, and incapable of resisting or
protecting himself, and otherwise presents no physical threat in
any way.”

Thompson v. Commonwealth of Virginia, 878 F.3d 89,

105 (4th Cir. 2017).

While defendants’ motion and the PF&R

focus on the importance of using the Oleoresin Capsicum spray to
get plaintiff out of his cage, plaintiff contends that he was
choked for no reason after he “was already subdued, restrained
and not resisting.”

Compl. ¶ 6.

Regarding the third Whitley factor, plaintiff was
noncompliant and presented a physical threat when the COs
entered the cage.

Plaintiff aggressively rushed towards the

officers when they first tried to subdue him, not to mention his
defiance during the hour-long confrontation that led to the use
of force.

See PF&R 9-10; DVD Exhibits.

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“Officials are entitled

to use appropriate force to quell prison disturbances.”
Benjamin, 77 F.3d at 761.

In these circumstances, COs “must

balance the need ‘to maintain or restore discipline’ through
force against the risk of injury to inmates.

Both situations

may require prison officials to act quickly and decisively.”
Hudson, 503 U.S. at 6 (1992).

The court “must accord due

deference to an officer’s efforts to restrain a detainee when
faced with a dynamic and potentially violent situation;
otherwise, ‘we would give encouragement to insubordination in an
environment which is already volatile enough.’”

Scarbro v. New

Hanover Cty., 374 F. App’x 366, 370 (4th Cir. 2010) (quoting
Grayson v. Peed, 195 F.3d 692, 697 (4th Cir.1999)).
Nonetheless, defendants do not explain how choking
plaintiff after he was tackled and restrained would satisfy the
second and fourth Whitley factors.

To be sure, “use of mace can

be constitutionally used in small quantities to . . . control a
‘recalcitrant inmate.’”

See Benjamin, 77 F.3d at 763; PF&R.

The limited use of Oleoresin Capsicum spray to gain compliance
from plaintiff while he remained hostile was supported by the
audio/video.

The incident reports and audio/video also show

that restraining plaintiff’s head and neck was necessary to
subdue him and apply the mechanical restraints.
Summ. J., Ex. C at 10, 12; DVD Exhibits.

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See Defs.’ Mot.

Yet, there remains a

genuine dispute of material fact.

The verified complaint

asserts that plaintiff was choked after he “was already subdued,
restrained and not resisting” while defendants deny that any COs
choked plaintiff during the incident.
Answer ¶ 11.

See Compl. ¶ 6;

Plaintiff’s portrayal in the verified complaint is

not “blatantly contradicted” by the audio/video.
U.S. at 380.

See Scott, 550

The video does not clearly show what happened

immediately after plaintiff was tackled when plaintiff’s body
was obscured by a team of COs.

See DVD Exhibits.

The video depicts COs placing their arms around
plaintiff’s head and neck area to subdue him.

See DVD Exhibits.

Later in the video when the COs walk him away, his neck does
show signs of redness and possible bruising.

Id.

Defendants do

not provide any deposition testimony, affidavit, medical
reports, or further evidence to contradict plaintiff’s
contention that he was choked after he was “subdued, restrained
and not resisting.”

Compl. ¶ 6.

Although defendants deny the

choking allegation in their answer, they do not address it in
their motion and supporting memoranda.

Taken in the light most

favorable to plaintiff, choking him when he was already
restrained and compliant may amount to malicious and sadistic
use of force.

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In addition, the court cannot say as a matter of law
that the use of force was “nontrivial.”
559 U.S. 34, 39 (2010).

See Wilkins v. Gaddy,

“An inmate who complains of a “‘push or

shove’” that causes no discernible injury almost certainly fails
to state a valid excessive force claim.”
Hudson, 503 U.S. at 9).

Id. at 38 (quoting

That said, “[a]n inmate who is

gratuitously beaten by guards does not lose his ability to
pursue an excessive force claim merely because he has the good
fortune to escape without serious injury.”

Id.

“[A] lack of

injury is not dispositive, so long as there is sufficient
evidence of maliciously-applied force.”

Mann v. Failey, 578 F.

App’x 267, 272 (4th Cir. 2014) (citing Wilkins, 559 U.S. at 38).
Plaintiff does not describe a mere push or shove.

As a result

of the alleged choking, plaintiff states that his “throat was
bruised, and sore for 3-4 weeks” and that he “could not swallow
or eat, lost weight, and muscle/neck soreness” in addition to
suffering mental distress.

Compl. ¶¶ 11–12.

Consequently,

defendants are not entitled to judgment as a matter of law on
plaintiff’s excessive force claim.
Finally, plaintiff’s objection regarding his
supervisory liability claim against Warden David Ballard based
on plaintiff’s unsupported assertion of MOCC’s long history of
indifference is without merit.

The magistrate judge found that

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inasmuch as plaintiff has not established an Eighth Amendment
violation against any of the defendants, plaintiff has not
raised a genuine issue of material fact that Ballard acted with
deliberate indifference or tacit authorization of the alleged
constitutional abuses.

See PF&R (citing Shaw v. Stroud, 13 F.3d

791, 798 (4th Cir. 1994)).

Even though plaintiff may be able to

sustain his excessive force claim, he provides no evidence to
support his allegation that Ballard “condoned a pattern and
practice of use of excessive force and has been found liable in
the past as supervisory liability in another use of force case.”
Compl. at 5.

Plaintiff does not provide any details regarding

the alleged other case against Ballard.
Inasmuch as this part of the verified complaint merely
contains conclusory allegations, it will not satisfy the
requirements of Rule 56(c)(4).

See Fed. R. Civ. P. 56(c)(4);

Walker v. Tyler Cty. Comm’n, 11 F. App’x 270, 274 (4th Cir.
2001); see also Lantec, Inc. v. Novell, Inc., 306 F.3d 1003,
1018–19 (10th Cir. 2002) (affirming that “the relevant
paragraphs of the complaint could not be treated as an affidavit
because they did not relate to facts [based on] personal
knowledge”); Sheinkopf v. Stone, 927 F.2d 1259, 1262–63 (1st
Cir. 1991) (disregarding conclusory allegations in verified
complaint while considering “factual averments of the complaint,

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to the extent demonstrated to come within [plaintiff’s] personal
knowledge”).

Thus, defendant Ballard is entitled to judgment as

a matter of law on plaintiff’s supervisory liability claim.

IV. Conclusion
Therefore, the PF&R of United States Magistrate Judge
Tinsley is hereby adopted in part and rejected in part.

It is

ORDERED that defendants’ motion for summary judgment be, and it
hereby is, granted with respect to plaintiff’s claim of
supervisory liability, and denied insofar as there is a genuine
dispute of material fact regarding the alleged choking.

It is

further ORDERED that defendant Ballard be dismissed from this
action.
The Clerk is directed to forward copies of this
memorandum opinion and order to plaintiff, all counsel of
record, and the United States Magistrate Judge.
ENTER: February 25, 2020

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