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Whitten v. Clarke

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

September 11, 2017

ANTWON G. WHITTEN, Plaintiff,
v.
HAROLD CLARKE, et al., Defendants.

          MEMORANDUM OPINION

          Elizabeth K. Dillon United States District Judge

         Antwon G. Whitten, a Virginia inmate proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendants used excessive force against him, failed to protect him, denied his grievances and appeals concerning the excessive force incident, and failed to adequately investigate the incident. Defendants filed a motion for summary judgment, and Whitten responded, making this matter ripe for disposition.[1] Having considered the record, the court will grant in part and deny in part defendants' motion.

         I. BACKGROUND

         A. Whitten's Allegations

         On October 31, 2015, Whitten and his cellmate (Brown) engaged in a physical altercation. Whitten admits that he used a weapon during the fight, but states that he only “struck” Brown with the weapon once and then set it down to fight with Brown. Whitten alleges that defendant Officer Lawson “stood at the cell door [during] the entire fight and maced [them] through the . . . food [tray] slot that [Officer Lawson] opened.” Officer Lawson called for assistance on his radio, and defendant Officers Cooke and Gunter responded to the request. After Officers Cooke and Gunter arrived, the cell door was opened. When it opened, Brown was holding one of Whitten's hands with both of Brown's hands and biting two of Whitten's fingers on the other hand. Someone other than Officer Gunter pulled Brown from the cell, and Officer Gunter ordered Whitten to get on his stomach and stay on the ground. Whitten alleges that he turned over to his stomach and complied with Officer Gunter's orders and “the next thing [he] kn[e]w, [Officer Gunter] allowed his K-9 to bite [Whitten seven] different times from [his] head to [his] underarm and back without any reason.” Whitten was “yelling and screaming” for Officer Gunter to pull his dog off and “begg[ing] for mercy, ” while he suffered “extreme” pain. Officer Gunter “seemed to be enjoying himself along with” Officers Cooke and Lawson. Officers Cooke and Lawson “stood at the door and just watched the unprovoked mauling.” Whitten alleges that Officers Cooke and Lawson could have “communicate[d] with [Officer] Gunter verbally at any point” to get Gunter to stop the “mauling, ” but they did not. Whitten further alleges that they all could have handcuffed him immediately when Brown was pulled from the cell, but they did not. As a result of the “brutal and malicious” “attack, ” Whitten had to go to the emergency room and suffered wounds on his head, back, and underarm that required somewhere between 58 and 90 sutures. Whitten argues that Officer Gunter used excessive force against Whitten “by guiding his K-9 to bite [Whitten] on the back of [his] head, back, and under [his] left armpit in an unprovoked incident.”[2] Whitten further argues that Officers Cooke and Lawson violated his constitutional rights by failing to intervene to stop the “illegal” conduct of Officer Gunter. (Am. Compl. 4-5, 9-11, Dkt. No. 31; Decl. Opp'n to Mot. Summ. J. 7-8, Dkt. No. 58.)

         Whitten notified Warden L. Fleming and defendant Major Anderson of the incident, but they “were only concerned with taking lots of pictures on their cell phones and talking about the job their K-9 did on [Whitten].” Whitten argues that Major Anderson failed to properly investigate and discipline Gunter for the “illegal attack” on Whitten. (Id. at 5, 11.)

         Whitten also states that defendant K.M. Fleming, an institutional investigator, was only concerned with the fight between Whitten and Brown and “totally ignored” and took no action concerning the “illegal mauling.” Whitten argues that Fleming violated Whitten's rights by failing to properly investigate. (Id. at 12, 13.)

         Whitten alleges that defendant Virginia Department of Corrections (VDOC) Director Clarke became aware of the incident after a “serious incident report” (SIR) was filed. Whitten states that Director Clarke is responsible for reviewing all SIRs after an investigation has been completed. Whitten claims that in reviewing the SIR of this incident, Director Clarke failed to “acknowledge” security video footage of the incident and, thus, “approve[d] of such illegal practices or enforce[d] this illegal policy of misconduct.” (Id. at 11.)

         Whitten also alleges that defendants Ravizee, the institutional ombudsman, and Elam, a regional ombudsman, violated his constitutional rights by “fail[ing] to acknowledge [Whitten's] allegations” and by “just concurr[ing] with the prison's grievance response without any investigation.” (Id. at 13.)

         B. Defendants' Allegations

         Defendants paint a different picture. Officer Lawson states that on October 31, 2015, while he was making rounds, he heard an inmate repeatedly saying, “I'm going to get you.” When Officer Lawson arrived at Whitten's cell door, he saw Whitten fighting with Brown inside the cell. Officer Lawson made a radio call that there was a fight in progress, he dropped open the tray slot on the door, and he ordered Whitten and Brown to stop fighting. When they did not stop fighting, Officer Lawson administered a short burst of Oleoresin Capsicum (OC) spray[3]through the tray slot. Whitten and Brown continued to fight. (Lawson Aff. ¶¶ 4-6, Dkt. No. 50, Attach. 2.)

         Officer Cooke arrived at the cell door and ordered Whitten and Brown to stop fighting. When they did not, Officer Cooke also administered a short burst of OC spray through the tray slot. Whitten and Brown continued to fight. (Cooke Aff. ¶ 4, Dkt. No. 50, Attach. 3.)

         Officer Gunter arrived at the housing unit with his K-9, Bert. Officer Gunter saw Whitten “on top of his cellmate . . . making stabbing motions towards Brown's face.” Officer Gunter states that Whitten “had a weapon in his hand, and the cell was covered in blood” and the “weapon appeared to be about four inches long and two inches wide, and it resembled a piece of glass.” Officer Gunter “called via radio that there was a weapon involved in the cell.” He then gave Whitten several orders to drop the weapon, but Whitten refused and continued to stab Brown. (Gunter Aff. ¶ 5, Dkt. No. 50, Attach. 1.)

         After Whitten refused to comply with orders, Officer Gunter instructed the control booth to open the cell door. As the cell door opened, Officer Gunter “kept a safe distance from the fighting offenders and utilized canine Bert on Whitten, who was the aggressor.” Initially, Bert engaged Whitten on the back of his head, but because this is a “possible vital area, ” Officer Gunter gave the command for Bert to release, and he did. Whitten continued to stab Brown and Officer Gunter ordered Bert to reengage. Bert grabbed on to Whitten's upper back. Whitten ...


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