United States District Court, W.D. Virginia, Roanoke Division
GREGORY S. HINES, Plaintiff,
EARL C. BARKSDALE, et al., Defendants.
Jackson L. Kiser Senior United States District Judge.
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.
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 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.
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.
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. Plaintiff saw the facility doctor
on June 23, 2016, and returned to his usual cell the
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.
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
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. 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).
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).
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. ...