United States District Court, W.D. Virginia, Roanoke Division
JACOB D. PEYTON, Plaintiff,
HAROLD W. CLARK, et al., Defendants.
REPORT AND RECOMMENDATION
ROBERT S. BALLOU, Magistrate Judge.
Plaintiff Jacob D. Peyton, a Virginia inmate proceeding with counsel, filed a verified Complaint pursuant to 42 U.S.C. § 1983. Peyton names as defendants Harold W. Clarke, the Director of the Virginia Department of Corrections ("VDOC"); John M. Jabe, former Deputy Director of VDOC Operations; James R. Camache, former Deputy Director of VDOC Community Corrections; Randall Mathena, former Warden of the Wallens Ridge State Prison ("WRSP"); Jeff Kiser, former Assistant Warden of WRSP; and Correctional Officers Major John C. Combs, Sergeant Nathan D. Jackson, Sergeant John McQueen, and K-9 Officer Steele. Peyton alleges that Defendants are liable for using excessive force or being deliberately indifferent to a substantial risk that the excessive force would occur, in violation of the Eighth Amendment of the United States Constitution.
By order entered February 6, 2014, the Honorable Jackson L. Kiser, Senior United States District Judge of this court, referred Defendants' motion for summary judgment to me for a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, I FIND that genuine issues of material facts remain in dispute by which Peyton could prove that Sgt. Jackson and Officer Steele used excessive force and Maj. Combs and Sgt. Jackson are liable as bystanders; however, I also FIND that no reasonable trier of fact could find in Peyton's favor for any other claim. Therefore, I RECOMMEND that Defendants' motion for summary judgment be GRANTED in part and DENIED in part.
A. Procedural History
Peyton's § 1983 Complaint, initially filed pro se, named as defendants Director Clarke, Warden Mathena, Maj. Combs, Sgt. Jackson, Ofc. Steele, and five Unknown Members of the WRSP emergency response team and demanded damages, costs, and an injunction closing WRSP. Soon after the Clerk issued waivers of service on Defendants, counsel entered an appearance on Peyton's behalf and amended the Complaint to, inter alia, abandon claims against the Unknown Members, modify the relief requested, and join Sgt. McQueen, Asst. Warden Kiser, Dep. Dir. Jabe, and Dep. Dir. Camache as defendants. The court granted the parties' request to enter a scheduling order, and Defendants subsequently filed the instant motion for summary judgment supported with affidavits. Peyton responded to that motion and filed a video recording of the pod during the alleged use of excessive force and an excerpt of the applicable VDOC Operating Policy governing the use of force in VDOC facilities.
B. The Evidence
At approximately 2:48 p.m. on August 2, 2011, two inmates began fighting while Peyton was in a shower at the back of WRSP's B-1 pod. Security staff responded to the disturbance, and all offenders not involved in the fight were ordered to lie down on the ground with their arms extended and hands open.
Peyton alleges that he did not hear any warning shot or order to get on the floor. Maj. Combs entered the pod, approached Peyton, and ordered him to lay down on the floor of the shower. Peyton claims that he complied with the order and laid on the shower floor, but that Maj. Combs directed Sgt. Jackson to use oleoresin capsicum ("OC") spray on Peyton, ordered Ofc. Steele to make Axel bite Peyton, and ordered other officers to block the view of the pod video camera.
In support of his claims, Peyton filed two affidavits from inmates who were in the pod during these events. Inmate Benjamin Powell states that he saw and heard Maj. Combs order the correctional officers to attack Peyton and command the K-9 dog, Axel, to bite Peyton while Peyton laid on the shower floor. Although not alleged by Peyton, Powell also states that he saw "a couple of [c]orrectional [o]fficers" kick Peyton in the face. (ECF 60 at 1, ¶ 7.)
Inmate Michael Copes states the following pertinent facts. Correctional officers ordered Peyton to lie down at the shower's entrance. (ECF 61 at 1, ¶ 8.) While Peyton was lying in the "push-up position" on the floor, Ofc. Steele brought Axel within inches of Peyton's head, and Peyton "began to stand up [i]n a non-aggressive stance." (Id. at 1-2, ¶¶ 9-11.) Ofc. Steele released Axel to attack Peyton while correctional officers used so much OC spray that Copes "had a hard time breathing" in his cell on the second floor. (Id. ¶¶ 13-14, 16.) Copes heard Peyton screaming in pain throughout the incident. (Id. ¶ 15.)
Defendants argue that use of the OC spray and directing Axel to attack Peyton were necessary and lawful uses of force because Peyton refused orders to lie peacefully on the floor. Defendants aver that Maj. Combs, Sgt. Jackson, and Ofc. Steel arrived in the B-1 pod and saw all inmates in the pod on the floor except for two inmates in the shower. Maj. Combs ordered Peyton and the other inmate to lie down, and Peyton and the other inmate complied. However, Peyton began cursing and "aggressively began to stand up." Peyton refused Sgt. Jackson's subsequent orders to stay on the floor, and Sgt. Jackson used a one-half to one-second burst of OC spray to Peyton's forehead and eye area. Peyton still refused to comply with orders to remain on the floor, and Ofc. Steele ordered Axel to bite Peyton's right shoulder. Once Peyton complied with orders to stay on the floor, Ofc. Steele removed Axel from Peyton, and Sgt. Jackson approached Peyton. However, Peyton again attempted to stand up. Consequently, Ofc. Steele ordered Axel to bite Peyton's left leg. After being bitten again, Peyton struck Axel in the head, and Axel bit Peyton's right leg. Once Peyton obeyed orders to stop attacking Axel, Ofc. Steele commanded Axel to return to Ofc. Steele, and Peyton was placed in restraints without further incident. Upon arriving at the medical department, Peyton voiced no complaints, and a nurse noted Peyton had bilateral eye irritation, multiple abrasions, and dog-bite puncture wounds. The nurse recommended that Peyton use triple antibiotic ointment on the dog bite wounds for seven days. Peyton also received a prescription for an antibiotic twice a day for a week. Peyton then showered and received clean clothes.
Axel was assessed and treated at a local animal hospital for facial trauma and forelimb lameness. Peyton was charged with and convicted of two institutional charges: causing bodily injury to a VDOC canine and disobeying a direct order. Warden Mathena upheld the convictions on appeal and ...