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Wilson v. Tincher

United States District Court, W.D. Virginia, Roanoke Division

February 18, 2016

DUSTIN C. WILSON, Plaintiff,
LT. TINCHER, et al., Defendants.


Norman K. Moon United States District Judge

Dustin C. Wilson, a Virginia inmate proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983. Wilson names several staff of the River North Correctional Center ("RNCC") as defendants: Warden Wright, Lieutenant Tincher, Sergeant Lundy, Grievance Counselor Walls (collectively, "correctional defendants"), and Nurse Payne. Wilson argues that defendants violated the Eighth Amendment by using excessive force and being deliberately indifferent to a serious medical need and that they violated the Fourteenth Amendment by not assigning him to protective custody. The correctional defendants filed a motion for summary judgment, Nurse Payne filed a motion to dismiss, and Wilson filed a cross-motion for summary judgment and brief in opposition to the motion to dismiss. Upon consideration of this action, I conclude that Warden Wright, Sgt. Lundy, Grievance Counselor Walls, and Nurse Payne are entitled to summary judgment and that Lt. Tilcher is as well, except for the claim involving Oleoresin Capsicum ("OC") spray.


At approximately 9:45 p.m. on July 31, 2014, Wilson flooded his cell by breaking a sprinkler head and damming the door. Sgt. Lundy responded to the cell first and saw a lot of water inside. Wilson refused Sgt. Lundy's six orders to go to the cell door to be restrained and replied that staff would have to come get him.

After correctional staff received approval from the medical department to use OC spray[1], Sgt. Lundy sprayed it into Wilson's cell at 10:05 p.m., hitting Wilson in the back. Sgt. Lundy again ordered Wilson to cuff-up at the door. Wilson turned toward the door, and Sgt. Lundy then shot another burst of OC spray into the cell. Wilson retreated to the back of the cell, lay in the standing water, covered himself with a wet sheet, and repeatedly washed off the OC spray. Wilson asserts that Sgt. Lundy deployed OC spray for ten to fifteen seconds, but Sgt. Lundy avers that he never sprayed it for more than one full second for either burst.

A RNCC staffer began video recording Wilson, and after Wilson refused Lt. Tincher's order to cuff-up, a cell extraction team entered the cell at approximately 10:15 p.m. Upon entering, Lt. Tincher told the extraction team member holding the shock shield[2] to "light it up, " and what could be electrical arcing can be heard in the video as the extraction team wades toward Wilson. However, the arcing stopped before the shield touches Wilson, despite Lt. Tincher's second command to "light it up" while Wilson and the extraction team stood in inches of water in a cell furnished with metal furniture. Notably, no one alleges that Wilson was shocked.

The extraction team easily restrains Wilson, who was calm and compliant. The extraction team brought Wilson to the medical department for decontamination of the OC spray. However, Wilson refused to undergo decontamination of the OC spray if hot water would be used because Wilson believed hot water would re-activate the OC spray. Deeming his objection as a refusal for decontamination, Lt. Tincher ordered the extraction team to move Wilson into an isolation cell in the medical department.

Once in the medical cell, Lt. Tincher and the extraction team cut off Wilson's clothes and put Wilson in ambulatory restraints. Nurse Payne checked the restraints in accordance with a policy that required the restraints be applied loosely enough to insert a finger between the inmate's skin and the restraint.[3]

Nurse Payne checked the restraints and recommended that the right wrist restraint be loosened, and the officers loosened it. Nurse Payne rechecked all four restraints and noted in the medical report that: her exam did not reveal any injury, trauma, or abuse; Wilson's lungs sounded clear; Wilson denied having shortness of breath or sustained any injury; and Wilson did not complain of chest pain. Nurse Payne further noted that Wilson washed his eyes in the sink without difficulty.

At approximately 2:17 a.m., Nurse Payne wrote in Wilson's medical record that Wilson complained about a leg iron cutting into his leg. Nurse Payne examined the leg and did not see any break in the skin. Nonetheless, Lt. Tincher adjusted the restraint, and Nurse Payne rechecked all four restraints. Nurse Payne noted in the medical record that the restraints were adequate and not too tight and that Wilson was calm and cooperative.

At approximately 8:15 a.m., another nurse assessed Wilson's eyes. The nurse noted that Wilson's eyes were red and puffy and cleaned his eyes with sterile water.

The ambulatory restraints were removed without incident at about 2:41 p.m. on August 1, 2014, and Wilson was transferred to Red Onion State Prison ("ROSP") on August 5, 2014.[4]During the interim, Wilson's property was removed from the flooded cell and likely remained in the housing unit's storage room. Per policy, Wilson's property should have been transferred with him to ROSP, but Wilson complains that he never received his property.


Wilson lists the following claims in ...

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