Barrett v. Davis

1

Rafael Barrett, Plaintiff, v. Lt. Davis; Lt. Kipp; Capt. McFadden; and Capt. Witherspoon, Defendants.

C. A. No. 5:21-cv-1763-JD-KDW

United States District Court, D. South Carolina

November 4, 2022

REPORT AND RECOMMENDATION

Kaymani D. West, United States Magistrate Judge

Plaintiff proceeding pro se and in forma pauperis, brought this action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. This matter is before the court on Defendants' Motion for Summary Judgment, ECF No 75, filed April 25, 2022. On September 1, 2022, Plaintiff responded to Defendants' Motion for Summary Judgment, ECF No. 93. Defendants filed a reply on September 8, 2022, ECF No. 94, and Plaintiff filed what he styled as a “sur reply” to Defendants' reply. ECF No 95.^[1] This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) and (e), D.S.C. Because this Motion is dispositive, a Report and Recommendation (“R&R”) is entered for the court's review.

I. Factual Background

Plaintiff alleges these actions violated his First, Eighth, and Fourteenth Amendment rights. Within his Complaint, Plaintiff alleges that on January 20, 2021, the chaplain at the correctional facility where he was housed^[2] allowed or approved a request made by Plaintiff to grieve with his family over the phone after learning of the death of Plaintiff's relative. ECF No. 1 at 4. Plaintiff alleges that he had not yet been able to communicate with his family when the named Defendants were at his cell speaking with him through his food flap. ECF No. 1 at 4. Plaintiff alleges that while attempting to speak with the associate warden about going to the chaplain's office to call his family, the Defendants slammed his hand in the food flap and sprayed him with chemicals. Id. Plaintiff alleges that he was not attempting to harm anyone. Id. Plaintiff further alleges that after spraying Plaintiff with chemicals, Defendants left Plaintiff in his cell while he was choking and convulsing on the floor due to the sprayed chemicals in his cell. Id. According to Plaintiff's allegations, the named Defendants took part in what he alleges was an assault, either directly or indirectly, by failing to intervene while he was assaulted. Id. Plaintiff alleges damages, including injury to his hand. Id. at 5.

In their Motion, Defendants deny these claims. Defendants acknowledge that Plaintiff made efforts to contact the associate warden to seek approval to speak to his family regarding the death of a relative. ECF No. 75-1, Defs.' Br. at 2. However, relying upon statements made in several Incident Reports compiled as Exhibit B to their Motion, as well as Plaintiff's testimony in his deposition, also attached to their Motion, Defendants have established the following timeline of events. See Incident Reports, ECF No 75-3, Exhibit B to Defendants' Motion for Summary Judgment; Deposition of Rafael Barrett, ECF No. 75-6, Exhibit E to Defendants' Motion for Summary Judgment. On January 20, 2021, during the time that Defendant Davis tried to deliver a meal to Plaintiff, Plaintiff refused to accept the tray and placed his arms in his food flap, thereby preventing anyone from securing the food flap. Defs.' Br. at 2; see Incident Report of Enquarer Davis. After Defendant Davis, Defendant Witherspoon, and Defendant Kipp gave several directives to Plaintiff to remove his hands from the flap, the prison staff gained approval to use chemical munitions to obtain compliance. Id. Prior to dispensing the chemical munitions, security staff again gave Plaintiff verbal directives to remove his arms from the flap. Defs.' Br. at 3; see Incident Report of Davis. Defendant Davis administered three bursts of chemical munitions, the additional two bursts being administered after Plaintiff continued to refuse to remove his arms from the flap. Id. According to Defendants, Lt. Gibbons, who is no longer a Defendant in this action, attempted to close the flap to Plaintiff's cell upon believing that Plaintiff removed his arms after several administrations of chemical munitions. Id.; see Incident Report of Jacob Kipp. However, Plaintiff apparently placed his arms back in the flap while Lt. Gibbons was attempting to secure the flap closed, thereby causing injury to Plaintiff's middle and fourth fingers on his left hand. Defs. Br. at 3-4. Plaintiff was then seen by medical staff at the prison prior to being transported to Tuomey Prisma hospital for additional treatment. Id. Upon his return to prison, Defendants state that Plaintiff was seen by South Carolina Department of Corrections (“SCDC”) medical staff on several occasions, and Plaintiff was also seen by mental health on at least one occasion. Id.; see Plaintiff's Medical Records, ECF No. 75-5, Exhibit D to Defendants' Motion.

Plaintiff's Response in Opposition to Summary Judgment lists what he styles as several genuine issues of material fact. Relevant to the claims at issue, Plaintiff argues there is a genuine issue of material fact as to whether the alleged use of force in spraying the chemical munitions was used maliciously and sadistically to cause harm. Pl's. Br. at 1. Further, he argues there is a genuine issue of material fact as to whether Gibbons' applied use of force in closing the food flap while Plaintiff's hand was still inside the food flap was done maliciously and sadistically to cause harm. Pl's. Br. at 1. Plaintiff also argues there is a genuine issue of material fact as to whether he was exposed to a substantial risk of harm. Pl's. Br. at 1.^[3]

Along with several Incident Reports, Defendants provided Plaintiff's Voluntary Statement, ECF No. 75-4; Exhibit C, Plaintiff's medical records, ECF No. 75-5; Exhibit D, excerpts from Plaintiff's deposition, ECF No. 75-6; Exhibit E, Plaintiff's Step 1 Grievance Form, ECF No. 757, Exhibit F; and Defendants' First Set of Interrogatories, Requests for Production of Documents and Requests for Admission, ECF No. 75-8, Exhibit G.^[4] Plaintiff has also provided copies of these Incident Reports, as well as his Step 1 Grievance Form and its corresponding response. ECF No. 93-2, Exhibits A through E.

II. Standard of Review

The 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[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. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own argument, affidavit, or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).

Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc.Servs., 901 F.2d 387, 391 (4th Cir. 1990).

III. Analysis

Defendants raise the following arguments in their Motion: (1) Plaintiff failed to exhaust his administrative remedies; (2) Defendants are not “persons” subject to suit under § 1983; (3) Plaintiff cannot prove a constitutional deprivation sufficient for recovery under § 1983; (4) and Defendants are entitled to qualified immunity. In response, Plaintiff argues he has stated a sufficient claim for relief against these Defendants. The undersigned will address each argument in turn.

1. Exhaustion of Administrative Remedies

Defendants argue that Plaintiff failed to exhaust his administrative remedies, which is a prerequisite to...