United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION & ORDER
Anthony J. Trenga United States District Judge
Cooper, a Virginia inmate proceeding pro se, has filed a
civil rights complaint pursuant to 42 U.S.C. § 1983,
alleging violations of his constitutional rights. Defendants
Nichols and Dixon have filed a Motion to Dismiss the claims
against them, as a well as a memorandum in support thereof.
Dkt. Nos. 15-16. Plaintiff was provided the Notice required
by Local Rule 7(K) and the opportunity to file responsive
materials pursuant to Roseboro v. Garrison, 528 F.2d
309 (4th Cir. 1975), but has not filed any further
documentation. For the reasons that follow, defendants'
Motion to Dismiss will be granted in part and denied in part.
This denial is without prejudice to defendants' ability
to file a properly-supported Motion for Summary Judgment
within thirty (30) days of the date of this Order.
following allegations are assumed true for the purpose of
ruling on defendants' Motion to Dismiss. On December 10,
2017, plaintiff was lying down in his cell when he was awoken
by Officer Freeman ordering plaintiffs cellmate, G. Ortiz, to
"pack up and cuff up." Dkt. No. 4, § IV. Ortiz
refused to comply with the order, prompting Officer Freeman
to request backup. Id. Officer Dixon arrived on
scene and informed Ortiz that, if he did not comply with
orders, prison staff would deploy OC spray into the cell.
point, plaintiff requested to be removed from the cell prior
to the use of the OC spray but was denied by Officer Dixon,
who stated that plaintiff had to wait until Ortiz was
handcuffed. Id. Ortiz at that time, "did not
posed [sic] a threat" and simply requested to speak to a
higher ranking official. Id. Officers Freeman and
Dixon summoned Sergeant Nichols, who "came to the door
 pretending to talk to Ortiz and out of nowhere OC sprayed
directly in the cell hitting" plaintiff and his cell
mates. Id. Plaintiff struggled to breathe due to the
fumes from the spray and was told by Sergeant Nichols to sit
in the back of the cell and that, if he wanted to leave, he
had to "remove [his] celly Ortiz," who had placed a
mat in front of the cell door. Id. Ortiz told
plaintiff not to touch him. Id.
asked the prison staff whether he would receive any
punishment for moving Ortiz in order to receive his handcuffs
and be removed from the cell. Id. Defendants stated
that they did not care what plaintiff did so long as he
removed the mat from the cell's entrance. Id.
Plaintiff "tussled" with Ortiz in order to move him
from the area. Id. "[A]fter 43 minutes of this
incident," plaintiff and Moore were handcuffed, and Ortiz
moved to the back of the cell. Id. The officers then
opened the cell door and "used [plaintiff and Moore] as
a shield in rush[ing] Ortiz," causing plaintiff to hit
his leg on an object, which caused him pain. Id.
Plaintiff and Moore were asked to "step in the gym"
until officers could escort them to the medical unit.
Id. Fifteen minutes later, plaintiff and Moore were
taken to be evaluated, but medical staff "didn't do
nothing [sic] but take [plaintiffs] blood pressure and send
[him] back out of medical without documenting [his] injurys
Standard of Review
motion to dismiss tests whether a complaint states a cause of
action upon which relief can be granted. Whether a complaint
sufficiently states a claim is determined by "the
familiar standard... under Fed.R.Civ.P. 12(b)(6)."
Sumner v. Tucker. 9 F.Supp.2d 641, 642 (E.D. Va.
1998). Accordingly, a plaintiffs alleged facts are presumed
true, and the complaint should be dismissed only when
"it is clear that no relief could be granted under any
set of facts that could be proved consistent with the
allegations." Hishon v. King & Spalding.
467 U.S. 69, 73 (1984).
survive a 12(b)(6) motion, "a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face."'
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twomblv. 550 U.S. 544, 570
(2007)). A claim is facially plausible when "the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. A plaintiffs
allegations must "raise a right to relief above the
speculative level," and "threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice" to meet this standard.
complaint is filed by a prisoner acting pro se, however, that
complaint must be construed liberally regardless of how
unskillfully it is pleaded. Haines v. Kerner, 404
U.S. 519 (1972). A pro se litigant is therefore not held to
the strict pleading requirements demanded of attorneys.
Estelle v. Gamble. 429 U.S. 97, 106-07 (1976);
Figgins v. Hudspeth. 584 F.2d 1345 (4th Cir. 1978),
cert, denied, 441 U.S. 913 (1979). For these
reasons, a court's "power to summarily dismiss a
prisoner's pro se complaint is limited."
Figgins, 584 F.2d at 1347.
alleges that he endured defendants' use of excessive
force and deliberate indifference to his serious medical
needs. Defendants in their Motion to Dismiss argue that
plaintiffs allegations could, if liberally construed, be
taken as claims based on conditions of confinement or for
failure to protect. Dkt. No. 16, pp. 9-12. Even a liberal
reading of the complaint does not support such a view. The
sufficiency of plaintiffs pleadings will therefore not be
analyzed under these frameworks.
states two potential factual bases to support a claim of
excessive force: the use of OC spray on the occupants of his
cell and the use of traditional physical force as defendants
pursued and restrained his cellmate. In determining whether a
complaint states an Eighth Amendment claim that a defendant
used excessive force, the "core judicial inquiry"
is "whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and
sadistically to cause harm." Hudson v.
McMillian, 503 U.S. 1, 7 (1992); see also Whitlev v.
Albers. 475 U.S. 312, 320-21 (1986). "When prison
officials maliciously and sadistically use ...