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Hines v. Barksdale

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

June 27, 2018

GREGORY S. HINES, Plaintiff,
EARL C. BARKSDALE, et al., Defendants.


          Hon. Jackson L. Kiser Senior United States District Judge.

         Gregory S. Hines, a Virginia inmate proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff names as defendants: Earl C. Barksdale, who is the former Warden of the Red Onion State Prison ("ROSP"), and ROSP staff Officer Kenneth Rose, K-9 Officer Nicholas Roop, and Nurse Vicky Phipps. Plaintiff alleges that Defendants imposed cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. Defendants filed a motion for summary judgment, and Plaintiff responded, making this matter ripe for disposition. After reviewing the record, I grant Defendants' motion for summary judgment.


         Plaintiff began fighting with another inmate inside a crowded housing unit on June 17, 2016. Officer Rose was inside the control booth, but no staff was inside the housing unit. Officer Rose activated the warning buzzer and ordered them to stop fighting and lie down. Although other inmates in the unit lay on the ground, Plaintiff and the other inmate continued to fight. Officer Rose then fired a round of Oleoresin Capsicum ("OC") spray[1] toward them, and again warned them to stop fighting and lie down. Neither Plaintiff nor the other inmate complied. Officer Rose next fired six non-lethal "impact rounds" from a multi-launcher. Officer Rose paused between firing each round to again order them to stop fighting. Plaintiff did not comply, even after rounds struck his right calf, lower back, and above his left ear.

         A non-defendant officer responded to the housing unit with his K-9. By this time, Plaintiff was still fighting and had pinned the other inmate down on top of the unit stairs. The inmates consistently refused orders to stop fighting both before and after the K-9 bit them. Only after another officer approached the inmates and deployed O/C spray was the fight physically broken up.

         Plaintiff was taken to the medical department for assessment after being decontaminated of O/C spray. A non-defendant nurse noted Plaintiff had sustained a dog bite to his right calf, a laceration on the left side of his head, and abrasions. The nurse cleaned the abrasions, "glued shut" the laceration, cleaned and bandaged the dog bite marks, placed Plaintiff in a medical cell for observation, and approved doses of Motrin and Tylenol.[2] Plaintiff saw the facility doctor on June 23, 2016, and returned to his usual cell the following day.

         Plaintiff was convicted of a disciplinary infraction for fighting, and Barksdale upheld the conviction after administrative review. A regional administrator subsequently vacated the conviction because Barksdale had not been reviewed the conviction within the ten-day limit.

         Plaintiff argues that Officer Rose used excessive force by shooting the impact round at his head. Plaintiff also argues that Nurse Phipps, as the "Medical Dep[artment] Head," was deliberately indifferent to his need for medical treatment, including mental health treatment necessitated by these events. Plaintiff argues that Warden Barksdale "covered up" the actions of his "subordinates" by allowing the destruction of relevant video recordings. Plaintiff alleges that it is a "common occurrence[]" for staff to shoot impact rounds at inmates' heads.


         A party is entitled to summary judgment if the pleadings, the disclosed 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 facts 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 dispute of material fact exists if, in viewing the admissible evidence 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 (19861 Ifthemovant satisfies this burden, then the non-movant must set forth specific facts that demonstrate the existence of a genuine dispute of fact for trial.[3] Id. at 322-24. 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). However, "[m]ere unsupported speculation ... is not enough to defeat a summary judgment motion." Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).



         Plaintiff argues that Officer Rose used excessive force when one of the three impact rounds hit him in the side of his head. Determining excessive force depends on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the purpose of causing harm." Id. at 320-21. The factors to consider include the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, the extent of the threat to the safety of staff and inmates reasonably perceived by responsible officials, any efforts made to temper the severity of a forceful response, and whether the plaintiff was actively resisting. Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015); Whitley v. Albers, 475 U.S. 312, 321 (1986). Courts recognize that corrections officials must act "in haste, under pressure, and frequently without the luxury of a second chance." Whitley, 475 U.S. at 320. Consequently, the court must give prison officials "wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Hudson v. McMillian, 503 U.S. 1, 7 (1992).

         Officer Rose is entitled to qualified immunity and summary judgment for shooting Plaintiff with impact rounds. Even viewing the evidence in a light most favorable to Plaintiff, it is evident that Officer Rose was acting in a good faith effort to maintain or restore discipline and was compelled to intervene as best he could from the control booth. See, e.g.. Farmer v. ...

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