Berrow v. Bissette

Full title: MELVIN DOUGLAS BERROW, Plaintiff, v. DWAYNE E. BISSETTE, et al., Defendants

Court: United States District Court, E.D. North Carolina, Western Division

Date published: Jan 19, 2006

No. 5:04-CT-510-FL (E.D.N.C. Jan. 19, 2006)

Opinion

No. 5:04-CT-510-FL.

January 19, 2006

ORDER

LOUISE FLANAGAN, Magistrate Judge

This matter is before the court on the motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure of defendants Dwayne E. Bissette (hereinafter "defendant Bissette") and Christopher Edwards (hereinafter "defendant Edwards"). Also before the court is plaintiff's motion in limine and motion for pretrial conference. These matters are ripe for adjudication. For the following reasons, the court grants defendants' motion for summary judgment and denies as moot plaintiff's motion in limine and motion for pretrial conference.

STATEMENT OF THE CASE

On July 19, 2004, plaintiff filed this pro se complaint pursuant to 42 U.S.C. § 1983, alleging an Eighth Amendment claim for excessive force against defendants Bissette and Edwards. On July 22, 2005, defendants filed a motion for summary judgment arguing that their use of force against plaintiff was not excessive. In the alternative, defendants contend that they are entitled to qualified immunity. Plaintiff filed a response to defendants' motion on August 18, 2005, and a declaration for stay of summary judgment or denial of summary judgment on October 13, 2005.

STATEMENT OF THE FACTS

The facts seen in the light most favorable to plaintiff are as follows. On January 2, 2004, plaintiff was disciplined for indecent exposure. After the incident, Officer Edmond attempted to remove plaintiff from his cell to take him to administrative segregation in cell 2C-209. As he was being removed, plaintiff admits that he "slapped the cell door with an open palm in frustration." The door struck Officer Edmond, injuring her wrist. Plaintiff was then secured in cell 2C-209 and it was determined that he should be moved to the facility segregation unit. To facilitate the move, defendant Edwards contacted the officer in charge and defendant Bissette was assigned to assist with the move.

Defendants Bissette and Edwards along with Correctional Officer Domani Edwards went to cell 2C-209 to escort plaintiff to the segregation unit. Initially, plaintiff was cooperative and exited the cell without incident. However, once outside of the cell-block area, plaintiff asked why he was being locked up and was told that he was being placed in segregation for assaulting an officer earlier that morning. Plaintiff then became agitated and stated "I'm going to give you motherf____ers a reason to lock me up."¹ While passing through the front entrance to the cellblock, plaintiff became louder and more aggressive stating "this is bullshit."

1 Plaintiff admits in his complaint that he stated he was going to give the officers a reasons to lock him up. (Complaint p. 4.)

In an attempt to calm plaintiff, defendant Edwards guided him into the Unit Management Office. After defendant Edwards opened the office and stepped through the door, plaintiff lowered his head and charged defendant Edwards. In response, defendant Edwards removed his pepper spray canister and administered one short burst of spray to plaintiff's face. At the same time, defendant Bissette grabbed plaintiff's left arm and pulled him away from defendant Edwards. Plaintiff then attempted to kick defendant Bissette, and defendant Edwards drew his baton and counter-struck plaintiff once in the lower leg. Plaintiff responded by attempting to kick defendant Edwards and again received a counter-strike to the leg. At that point, plaintiff kicked defendant Edwards on his left side, just below his ribs. Defendant Edwards responded with two counter-strikes to plaintiff's lower leg. Defendant Bissette then pushed plaintiff's head down while pulling his right arm in an attempt to bring plaintiff to the floor. Although unsuccessful, defendant Bissette continued to hold plaintiff's head down until he finally ceased struggling. Plaintiff was then placed in a chair while other uninvolved corrections staff were summoned to escort him from the building.

DISCUSSION

I. Standard of Review

Summary judgment is appropriate when there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the burden of initially coming forward and demonstrating an absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party must then affirmatively demonstrate that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 250.

II. Analysis

In response to plaintiff's complaint, defendants assert the defense of qualified immunity. Qualified immunity shields government officials performing discretionary functions from personal liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which [a] reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); DiMeglio v. Haines, 45 F.3d 790, 794 (4^th Cir. 1995). This immunity "protects law enforcement officials from `bad guesses in gray areas' and ensures that they are liable only `for transgressing bright lines.'" Wilson v. Collins, 141 F.3d 111, 114 (4^th Cir. 1998) (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4^th Cir. 1992)). Immunity applies to "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Government officials performing a discretionary function are immune from civil damages unless (i) the official's conduct violates a federal statutory or constitutional right; (ii) the right was clearly established at the time of the conduct; and (iii) an objectively reasonable officer would have understood that the conduct violated that right. Milstead v. Kibler, 243 F.3d 157, 161 (4^th Cir. 1991) (citing Wilson v. Layne, 526 U.S. 603, 614-15 (1999)).

Plaintiff contends that defendants Bissette and Edwards used excessive force against him by spraying him with mace and by beating him about the back, head, leg, and knee area with their "sticks." In order to establish an excessive force claim under the Eighth Amendment, a plaintiff must satisfy a two-pronged test consisting of an objective prong and a subjective prong. To satisfy the objective prong, an inmate must show that "the deprivation of [a] basic human need was objectively `sufficiently serious.'" Hudson v. McMillian, 503 U.S. 1, 9 (1992). To satisfy the subjective prong, an inmate must show that the official acted with a sufficiently culpable state of mind of wantonness. Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). Specifically, the judicial inquiry under the subjective standard is "whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm." Hudson, 503 U.S. at 6. Verbal provocation alone does not justify use of force. Miller v. Leathers, 913 F.2d 1085, 1089 (4^th Cir. 1990).

The court will begin its analysis with the objective component of plaintiff's Eighth Amendment claim. The objective portion of an excessive force claim requires a prisoner to show that the injury inflicted was sufficiently serious. Although a plaintiff need not show a significant injury, see Hudson, 503 U.S. at 7, the Fourth Circuit, in Norman v. Taylor, 25 F.3d 1259 (4^th Cir. 1994), cert. denied, 513 U.S. 1114 (1995), held that "absent the most extraordinary circumstances, a plaintiff cannot prevail on an Eighth Amendment excessive force claim if his injury is de minimis." Norman, 25 F.3d at 1263; Taylor v. McDuffie, 155 F.3d 479, 484 (1998) (finding that abrasions about the wrists and ankles, and tenderness in the ribs is de minimis); Otlaw v. Newkirk, 259 F.3d 833, 839 (7^th Cir. 2001) (pain, swelling, and bruising to prisoner's hand as a result of injury involving cuffport were de minimis). With only a de minimis physical injury, a prisoner may only recover if the challenged conduct resulted "in an impermissible infliction of pain" or was otherwise "of a sort repugnant to the conscience of mankind." Norman, 25 F.3d at 1263 n. 4.

In this case, the record reflects that after the use of force, plaintiff was medically screened and reported no injury. (DE # 31, Exh. B.) Initially, plaintiff rejected a medical exam, but later submitted a sick call request and was examined by a nurse at the prison. (Id.) During his exam, plaintiff complained of tenderness to the left side of his thoracic cavity, and the nurse noted erythema (redness of the skin). (DE # 31, Exh. B.) These injuries are de minimis. See Taylor, 155 F.3d at 484. Plaintiff has provided no evidence to the contrary. In addition, plaintiff's allegations do not indicate that the force used by defendants was "repugnant to the conscience of mankind." Thus, plaintiff is unable to satisfy the objective element of his Eighth Amendment claim. Therefore, defendants are entitled to qualified immunity because plaintiff has not alleged a constitutional violation.

CONCLUSION

For the foregoing reasons, defendants' motion for summary judgment (DE # 28) is hereby GRANTED. Therefore, plaintiff's motion in limine (DE # 25) and motion for pretrial conference (DE # 23) are DENIED as moot. Accordingly, the clerk is directed to close this case.

SO ORDERED.