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Wilson v. Swiney

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

September 5, 2017

SWINEY, et al., Defendants.



         Dustin Wilson, proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendants, two Red Onion State Prison (“Red Onion”) officials, subjected him to excessive force, failed to protect him from that force, and denied him access to medical treatment. This matter is before me on the parties' cross motions for summary judgment.[1] After reviewing the record, I conclude that Wilson's motion for summary judgment must be denied and defendants' motion for summary judgment must be granted in part and denied in part.


         Wilson alleges that on July 20, 2015, while housed at Red Onion in a segregation cell, he asked defendant Unit Manager (“UM”) Swiney to place him in protective custody because Wilson felt that his life was “constantly placed in harm's way” and because Wilson “was not suppose[d] to be housed in general population.” Wilson states that UM Swiney “began to laugh” and told Wilson that he was not going to place him in protective custody and that Wilson should stop asking. Wilson asked UM Swiney for an informal complaint so that he could grieve the issue and UM Swiney “suddenly became angered” and told defendant Lieutenant Kiser to “cuff Wilson.” Lt. Kiser instructed Wilson to turn around to be cuffed and Wilson states that he “did as instructed.” After Wilson placed his right hand into the tray slot to have the handcuff applied, Lt. Kiser told Wilson that he had put the wrong hand out and Wilson responded by telling Lt. Kiser that he had the “wrong cuff.” Lt. Kiser called Wilson a “smart ass” and then “maliciously grabbed” Wilson's right hand, which caused a “loud popping noise” and “immediate pain.” Wilson alleges that while he “was still complying and waiting to be cuffed, ” he heard a “loud hissing noise, ” turned his head around, and was sprayed by the defendants with Oleoresin Capsicum (“OC”) spray[2] “directly into his face for a prolonged period of time.” Wilson states that he was unable to breathe or see and felt “a sever[e] burning.” The tray slot was then “slammed shut” and the defendants left Wilson to “suffer” without decontamination and did not call for medical assistance. Wilson states that “later, ” a nurse came to his cell during pill call. Wilson asked the nurse for assistance and the nurse told him to submit a sick call request. Wilson alleges that he wrote three separate requests for medical assistance, but he “never” received “any type of confirmation, assistance, or verbal response.”

         Wilson contends that Lt. Kiser and UM Swiney used excessive force against him, that UM Swiney failed to intervene to stop Lt. Kiser from using excessive force, and that both defendants failed to decontaminate him or call for medical assistance.


         A party is entitled to summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact. 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). A genuine issue 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-movant. Id. The moving party has the burden of showing - “that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant satisfies this burden, then the non-movant must set forth specific, admissible facts that demonstrate the existence of a genuine issue of fact for trial. Id. at 322-23. A party is entitled to summary judgment if the record as a whole could not lead a rational trier of fact to find in favor of the non-movant. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991); see Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995) (“Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.”). However, summary judgment is not appropriate where the ultimate factual conclusions to be drawn are in dispute. Overstreet v. Ky. Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991). In adjudicating a motion for summary judgment, a court may not resolve disputed facts, weigh the evidence, or make determinations of credibility. Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir. 1995); Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). Instead, a court accepts as true the evidence of the non-moving party and resolves all internal conflicts and inferences in the non-moving party's favor. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979). A plaintiff cannot use a response to a motion for summary judgment to amend or correct a complaint challenged by the motion for summary judgment. Cloaninger v. McDevitt, 555 F.3d 324, 336 (4th Cir. 2009).


         Defendants assert that Wilson's claims for injunctive relief are moot because Wilson is no longer housed at Red Onion. On August 14, 2017, Wilson advised the court that he was released from incarceration. If developments occur during the course of a case which render the court unable to grant a party the relief requested, the claims must be dismissed as moot. Blanciak v. Allegheny Ludlum Co., 77 F.3d 690, 698-99 (3d Cir. 1996). The transfer or release of a prisoner generally renders moot any claims for injunctive or declaratory relief relating to the former place of confinement. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (prisoner's transfer rendered moot his claims for injunctive and declaratory relief); Magee v. Waters, 810 F.2d 451, 452 (4th Cir. 1987) (holding that transfer of a prisoner rendered moot his claim for injunctive relief). Accordingly, I conclude that Wilson's claims for injunctive relief are now moot and, therefore, will grant defendants' motion for summary judgment as to any claim for injunctive relief.


         To the extent Wilson brings this action against the defendants in their official capacity for monetary damages, his claim is not cognizable in § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989). Therefore, I will grant defendants' motion for summary judgment as to Wilson's claim for monetary damages against defendants in their official capacity.


         Defendants argue that Wilson failed to exhaust his administrative remedies before filing this action. I conclude that there is a material dispute as to whether administrative remedies were available to Wilson and, therefore, will deny summary judgment on this ground.

         The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. 1997e(a). Administrative exhaustion under § 1997e(a) is not a jurisdictional requirement and does not impose a heightened pleading requirement on the prisoner. Rather, the failure to exhaust administrative remedies is an affirmative defense to be ...

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