United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD, Chief District Judge.
John Donohue, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging that, after he covered his window and flooded his cell on June 6, 2013, the defendant prison officials at Red Onion State Prison used excessive force against him in violation of the Eighth Amendment, when they pepper sprayed him, cuffed him too tightly, beat him with their fists in his cell and in the shower, and confined him in five-point restraints for thirteen hours. In addition, Donohue sues one officer for placing him on strip cell status on May 11 and 20, 2013. The parties have filed motions for summary judgment, which the court finds ripe for disposition. Donohue has also filed separate motions to amend to add defendants and allegations to his original claims,  as well as new claims against new defendants. The court will allow these amendments.
For reasons herein stated, the court finds material facts in dispute as to Donohue's claims that some defendants used excessive force or failed to intervene to prevent such force on June 6 and 7, 2013. The court concludes, however, that the defendants are entitled to summary judgment as to Donohue's claims concerning the OC pepper spray and strip cell status, and as to his claims against certain defendants. Therefore, the defendants' motion for summary judgment will be granted in part and denied in part, and the matter will be set for a jury trial. In light of the material factual disputes and renewed, clarified discovery requests, Donohue's motions for summary judgment will be denied without prejudice. The new due process and retaliation claims against new defendants, however, must be summarily dismissed as without merit, pursuant to 28 U.S.C. § 1915A(b)(1).
I. Donohue's Allegations in the Complaint
On May 11, 2013, after officers told Donohue that he would not receive recreation and a shower and refused to call the sergeant to talk to Donohue, he started to cover his cell door window. The sergeant then came, removed Donohue and his property from the cell without any resistance, and returned Donohue to the cell on modified strip cell status, while his property remained on a table in the pod for seven hours. When Donohue got his property back, four expensive law books were missing.
On May 20, 2013, and several times before that day, Officer Quillen allegedly provided Donohue with an empty meal tray. Donohue claims that from receiving an insufficient amount of food, he has lost 40 pounds since he came to Red Onion. Not knowing what else to do to get fed, Donohue stopped up his toilet, causing a flood in his cell and the surrounding pod area. Officers removed him from his cell, dragged his property through the water on the floor, and brought a disciplinary charge against him for intentional flooding. The conviction and the penalty of restricted privileges on that charge were upheld, despite Donohue's complaints of not being fed.
On June 6, 2013, during recreation period, Inmate C. Smith passed Donohue a copy of a settlement order in a 1981 prisoner civil rights case. When Officer Rose came to the recreation area to return Donohue to his cell, Rose confiscated the document as contraband. Donohue states that he intended to use this document to challenge the legality of a recently implemented system of graduated privileges for Red Onion inmates. When Donohue insisted that he needed the document for his litigation efforts, Rose threatened to beat him for protesting Red Onion policies. To protest the confiscation, Donohue covered his window and flooded his cell. Officers came to the cell, ordered him to uncover his window, and when he did not comply, sprayed him three times with OC pepper spray. An extraction team entered Donohue's cell and, after a struggle, restrained him and escorted him to the shower for decontamination.
Donohue alleges that during the restraint process, Officer White applied one handcuff so tightly that it caused nerve damage to his left wrist. Donohue also alleges that after he was fully restrained inside his cell, White and Carroll struck him in the face numerous times, causing his right eye to swell and bleed. White allegedly said, "[T]his is... for all the grievances you have been filing, and you better back off if you know what's f_____ good for you." (Compl. 9.)
Donohue also alleges that while he was in the shower, White and Carroll continuously slammed his head into the shower wall and kneed him in the ribs several times before pushing his head under the water and placing a spit mask on his head to hide the cuts, bruises, and lacerations they had caused. Donohue alleges that Gilbert, Franklin, Swiney, Mullins, Rose, McCurdy, Payne, Deel, and Lambert "idly stood by and watched" and failed to intervene as White and Carroll assaulted Donohue in the shower for four minutes. (Id.)
Officers then placed Donohue in five-point restraints without resistance, where he remained for several hours. He claims that he was not offered a bathroom break for seven hours, during which time he urinated on himself. When Officer McCowan did release him from the five-points at midnight and placed him in ambulatory restraints to use the restroom and eat, Donohue was not resistant. Nevertheless, officers returned him to five-point restraints for several more hours. After these incidents, officers brought three disciplinary charges against Donohue: tampering with security equipment, intentionally flooding an area, and disobeying an order. Donohue was found guilty on each charge and penalized with a fine.
Donohue also claims that on June 10, 2013, two officers threatened to "make him bleed worse than in the shower" if he filed paperwork about the June 6, 2013 strap-down and beatings. He asserts that Red Onion Warden Mathena knows of and condones such violence and abuse of policy.
II. The Parties' Motions for Summary Judgment
An award of summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). Then, the burden shifts to the nonmoving party to show that such an issue does, in fact, exist. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986).
For a party's evidence to raise a genuine issue of material fact sufficient to avoid summary judgment, it must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). In making this determination, "the court is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party." Shaw v. Stroud , 13 F.3d 791, 798 (4th Cir. 1994). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Scott v. Harris , 550 U.S. 372, 380 (2007) (omitting quotation).
A. Defendants' evidence
The defendants offer the following undisputed evidence in support of their motion for summary judgment. On June 6, 2013, Defendant Deel saw that Donohue and the inmate in the next cell had covered their windows. Offenders are not permitted to cover their cell windows for any reason, because it prevents staff from seeing into the cell. Donohue refused to respond or uncover his window. In addition, Deel saw water flowing out from under Donohue's cell door. Both inmates refused to uncover their windows after the officers gave repeated orders for them to do so. Officer Deel called Defendant Payne, who repeatedly ordered Donohue to uncover his window. When Donohue refused to comply, the officers obtained approval from the medical department to use OC pepper spray and electronics on these two offenders. Payne again ordered the inmates to uncover their windows, and they failed to comply. Payne notified Major Gallihar of the incident and obtained his approval to use a cell entry team to remove Donohue and the other inmate from their cells if necessary.
Payne then ordered Donohue to back up to the cell door to be restrained, but Donohue failed to do so. Payne then administered a one-half to one second burst of OC pepper spray into the cell, and then gave Donohue another order to back up to the cell door to be restrained. Again, Donohue failed to comply. Payne sprayed a second burst of OC pepper spray into the cell and ordered him to back up to be restrained. Donohue still did not comply. Payne shot a third short burst of the pepper spray into the cell and gave a final order for Donohue to comply with restraint procedures, but he failed to do so. Payne then ordered a cell entry team to enter the cell, restrain Donohue, and extract him from his cell, as Gallihar had authorized.
The extraction team consisted of Officers White, McCurdy, Rose, Mullins, and Carroll. When the cell door opened, White and McCurdy entered first, carrying electronic shields. After some struggle, the team placed handcuffs and shackles on Donohue,  and White, Mullins, and McCurdy escorted him the shower for decontamination from the OC pepper spray. Rose stayed in the pod area to help extract another inmate.
Donohue was in the shower for four minutes. After decontamination, Donohue was escorted to the medical unit. Nurse Cox assessed Donohue's condition, noting a blackened right eye, laceration to his head and foot, scrapes on his back, head, foot, and chest, and red areas on his shoulder and chest. The nurse cleaned these areas with sterile water and told Donohue to follow up with medical as needed.
At approximately 5:52 p.m., Blevins, Lambert, and Barton placed Donohue in five-point restraints in medical cell #1 without incident, as authorized by Gallihar,  in order to control his disruptive behavior. Officers' notes from regular checks of Donohue's behavior state that he continued to be disruptive while in restraints, yelling that he would get out and kill all the officers or make them pay. Based on reports that Donohue continued to make comments like these throughout the night and show aggression and anger toward staff, even after they gave him an incident-free break in ambulatory restraints at midnight, officers reapplied the five-point restraints. Medical staff also checked on Donohue several times during the night, but noted no voiced complaints.
Supervisory officials must decide when an inmate's behavior has improved and when to release him from five-point restraints; correctional officers may not make these decisions. At approximately 6:50 am on June 7, 2013, Lt. Day and Lt. Fleming released Donohue from five-point restraints. Donohue complained that his left hand hurt. The nurse checked him and noted no redness, bruising or deformities. A doctor examined Donohue's hand on June 10, 2013, after Donohue complained of pain and numbness. The doctor noted that the hand had good strength and normal appearance with numb areas diagnosed as neuropaxia/acute nerve trauma which would likely resolve with time.
Donohue's primary contention is that the defendants used excessive force against him in several ways on June 6 and 7, 2013, in violation of the Eighth Amendment to the United States Constitution, which prohibits "cruel and unusual punishments." U.S. Const., Amend. VIII. The Eighth Amendment does not prohibit all applications of force or infliction of pain against prisoners. United States v. Gore , 592 F.3d 489, 494 (4th Cir. 2010). "[O]nly the unnecessary and wanton infliction of pain" rises to the level of a constitutional violation. Whitley v. Albers , 475 U.S. 312, 319 (1986). The court conducts an objective inquiry-whether "the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, " ...