Opinion
Civil Action 1:22-cv-224
05-24-2024
DAARON SHEARS, Plaintiff, v. C.O. BRANDON BROWN, C.O. GALLAGHER, SGT. SMOUSE, LIEUTENANT HAGGERTY, and C.O. GUARNIERI, Defendants.
Susan Paradise Baxter Judge
REPORT AND RECOMMENDATION
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Motion for Summary Judgment filed by Defendants C.O. Brandon Brown, C.O. Gallagher, Sgt. Smouse, Lieutenant Haggerty, and C.O. Guarnieri be granted.
II. Report
A. Relevant Procedural History
Plaintiff Daaron Shears (“Shears”), an inmate in the custody of the Pennsylvania Department of Corrections, brings this pro se civil rights action under 42 U.S.C. § 1983, concerning events that occurred at the State Correctional Institution at Forest. The operative complaint in this case is the Amended Complaint. (ECF No. 44.)In response to that complaint, Defendants filed an Answer (ECF No. 47) and the parties subsequently engaged in discovery.
The Court construed Plaintiff's proposed Amended Complaint as Shears' effort to identify the defendants who had been named as John Does in the original Complaint (ECF No. 43) and ordered it to be docketed as such.
Defendants' Motion for Summary Judgment is supported by a Brief, a Statement of Material Facts not in Dispute, and an Appendix of exhibits. (ECF Nos. 57, 58, 59, and 60 respectively.) Shears has filed a Response in in Opposition to the Motion for Summary Judgment, supported by a Statement of Material Facts not in Dispute, and a Brief in Support. (ECF Nos. 73, 74, and 76, respectively.) Defendants' motion is ripe for consideration.
B. Factual Background
Shears brings claims of excessive force and deliberate indifference against Defendants Gallagher, Smouse, Haggerty and Guanieri based on the deployment of Oleoresin Capsicum (“OC”) spray into his cell. (ECF No. 44 at 6, 7, 8, 9, 11, 12, 13, and 14.) With respect to Defendant Brown, Shears brings a claim of failure to intervene based on Brown's presence when Smouse sprayed OC into Shears' cell. (Id. at 10.)
As set forth in Defendants' Statement of Material Facts, on July 3, 2022, Shears covered his cell door window. (ECF No. 59 ¶ 9.) Correctional staff ordered him to uncover it, but he did not. (Id. ¶¶ 10-11.) Sergeant Smouse deployed an application of OC spray through the cell vent, but it did not have the desired effect. (Id. ¶ 12.) Lieutenant Greer ordered Shears to cooperate and cuff up multiple times, but Shears refused. (Id. ¶ 13.) Instead, Shears threatened corrections officers through the cell door, stating that he had a sharp object, he knew how to fight, he wanted to play games, and asking them to spray him. (Id. ¶¶ 15-18.)
Greer documented that Shears covered his cell vents, preventing OC spray from getting in. (Id. ¶ 19.) A second application of OC spray was then deployed. (Id. ¶ 22.) Shears then turned the lights out in his cell and continued to refuse orders to come out. (Id. ¶¶ 23-24.)
Lieutenant Haggerty assembled a cell extraction team, which included a nurse, and confirmed that Shears was cleared for the use of OC spray. (Id. ¶¶ 25-26.) Shears was ordered to turn on his lights and to remove his clothing to comply with a strip search. (Id. ¶¶ 28-29.) The correctional staff observed Shears swallowing something and Shears informed them that he swallowed a pen. (Id. ¶¶ 30-31.)
Corrections officer Guarnieri deployed OC spray into Shears' cell through the wicket. (Id. ¶ 32.) The extraction team then entered the cell, placed Shears in handcuffs and removed him from the cell. (Id. ¶¶ 33-34.) Shears was walked over to the medical department where he underwent decontamination. (Id. ¶¶ 35-36.)
The incident involved in this matter was videoed. Because there is video evidence regarding the events at issue, the Supreme Court's holding in Scott v. Harris, 550 U.S. 372 (2007), is significant to the Court's analysis. In Scott, a videotape of the events at issue flatly contradicted the plaintiff's allegations. Id. at 379-80. The Court held that: “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. at 380. See also Morgan v. Borough of Fanwood, 680 Fed.Appx. 76, 80 (3d Cir. 2017) (“when, as here, there is reliable video footage of the facts in the record, we view the facts in the light as depicted by the videotape.”)
With this principle in mind, the Court has reviewed the three videos available in this case and in relevant summary, they depict the following:
The first video, (ECF No. 60-1, entitled “Unplanned uof”) which is nearly 39 minutes long, depicts a situation already in progress outside of Shears' cell. Multiple corrections officers are gathered. The officers instruct Shears to take the towel down that is covering his cell window and to cuff up or he will be sprayed again. They report that spray was deployed once into the cell, but that Shears blocked the vent and none of the spray entered.
A prolonged back and forth between the officers and Shears ensues. Shears takes the towel down but turns his light on and off several times. Although he is
repeatedly ordered to cuff up, he does not comply, instead telling the officers that he wants to fight and later, that he wants “to play.” The officers report that Shears is soaping up his floor, “greasing” himself up, and tying socks over his shoes. The officers turn the water off to Shears' cell.
Haggerty arrives and tells Shears that if he complies, he can keep his “stuff,” otherwise, they will have to extract him and return him to an empty cell. Shears does not comply. The officers report that Shears is urinating into a Styrofoam cup.
An officer asks Shears again to comply. He refuses. The video ends as the extraction team arrives.
The second video (ECF No. 60-2, entitled “P UOF Shears KV1912”) is approximately 41 minutes long. It begins with Haggerty briefing an extraction team. The team consists of seven corrections officers in various roles (plus a camera operator) as well as a nurse. Haggerty informs the team that Shears has been cleared to be sprayed.
When the team arrives as Shears' cell, Haggerty orders Shears to turn his light on and come to the door. Shears does so.
Officer Ferguson instructs Shears how to comply with a visual strip search. Haggerty tells Shears to comply with Ferguson's orders or force will be used. Both Ferguson and Haggerty repeat their instructions multiple times. As these instructions are being given, Shears tells the officers that he has swallowed a pen.
The officers' instructions continue. At Haggerty's command, spray is deployed into Shears' cell for approximately ten seconds. Although Shears is not visible at that point, no immediate distress from him is audible.
Shears then complies with the orders and the strip search ensues. Shears is shackled and removed from his cell and taken to be decontaminated and scanned.
The third video (ECF No. 60-3, entitled “Unplanned continued”) is only 31 seconds long. Therein a lieutenant provides a short debrief of the removal of Shears and his return to an accountability cell.
The Court finds that the video evidence corroborates Defendants' summary of the incident at issue.
While Shears filed a verified Statement of Material Facts, (ECF No. 74), it is not a responsive statement that admits or denies the facts contained in Defendants' Statement of Material Facts as the Court ordered (ECF No. 62 at 2) and as required by Local Rule 56.C. Instead, he has submitted his own version of the facts. Nonetheless, Shears' statement aligns with the video evidence set forth above in terms of the events in question. The principal factual dispute raised by Shears in his statement of facts is whether Shears was “cleared” for OC spray on the date in question. Shears avers that OC spray was contraindicated for him and that Defendants had knowledge of this contraindication. (ECF No. 74 ¶¶ 9, 11, 17.) Shears cites to what appears to be a page from his prison medical records in support of his statement. (ECF No. 44-1 at 1). This page is from a report generated on October 20, 2021, and it is primarily a list of Shears' daily medications. At the bottom of the page is a category called “Allergies,” which lists “FISH” and “OC CONTRAINDICATION.”
In turn, Defendants have submitted a “Use of Force Clearance/Contraindications Form” signed by a Certified Registered Nurse Practitioner on December 8, 2021. This form states that while Shears has a medical contraindication for OC spray, he was cleared for its use. As stated in the form:
Patient with diagnosis of asthma. The Xopenex HFA inhaler appears to last for 7 months without needing renewal of the medication or complaints of s/s of asthma. Sleep study demonstrated no breathing issues along with other documents. Patient is cleared for use of OC .. based on the information reviewed throughout his chart. He is a concern to cause severe harm/injury to himself on past incidents without interventions.(ECF No. 60-4 at 4.) Defendants also submitted a declaration from Jana Jordan, a Registered Nurse/Correctional Health Care Administrator at SCI Forest, confirming that the above-cited document cleared Shears for use of OC. (Id. at 1-3.)
Shears has not submitted any evidence that contradicts his clearance as of December 2021 nor has he submitted any evidence that he sustained a serious injury from the use of OC on the date in question.
C. Legal Standard
Rule 56 of the Federal Rules of Civil Procedure provides that: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of showing the absence of a genuine, material dispute and an entitlement to judgment. Id. at 323. This showing does not necessarily require the moving party to disprove the opponent's claims. Instead, this burden may often be discharged simply by pointing out for the court an absence of evidence in support of the non-moving party's claims. Id.
Once the moving party has met their initial burden, then the burden shifts to the nonmoving party to demonstrate, by affidavit or other evidence, “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A non-moving party must “go beyond the pleadings” and show probative evidence creating a triable controversy. Celotex, 477 U.S. at 324. An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In following this directive, a court must take the facts in the light most favorable to the non-moving party and must draw all reasonable inferences and resolve all doubts in that party's favor. Hugh v. Butler Cty. Fam. YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
Although courts must hold pro se pleadings to “less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), at the summary judgment stage a pro se plaintiff is not exempt from his burden of providing some affirmative evidence, not just mere allegations, to show that there is a genuine dispute for trial. See, e.g., Barnett v. N.J. Transit Corp., 573 Fed.Appx. 239, 243 (3d Cir. 2014) (holding that the pro se plaintiff was still “required to designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories . . . sufficient to convince a reasonable fact finder to find all the elements of her prima facie case”) (citation and quotation omitted); Siluk v. Beard, 395 Fed.Appx. 817, 820 (3d Cir. 2010) (“[T]he right of self-representation does not exempt a party from compliance with relevant rules of procedural law.”); Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (pro se plaintiffs “cannot flout procedural rules-they must abide by the same rules that apply to all other litigants.”)
D. Analysis
1. Claims against Gallagher, Smouse, Haggerty, and Guanieri
Shears' Eighth Amendment claims of excessive force and deliberate indifference to his health or safety against Defendants Gallagher, Smouse, Haggerty, and Guanieri are based on the use of OC spray on the date in question. His principal assertion is that the use of OC spray violated his constitutional rights because Defendants knew that Shears was allergic to/not cleared for OC spray.
The central question in evaluating an excessive force claim is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). There are several factors that a court examines in determining whether a correctional officer has used excessive force in violation of the Eighth Amendment, including: “(1) ‘the need for the application of force'; (2) ‘the relationship between the need and the amount of force that was used'; (3) ‘the extent of injury inflicted'; (4) ‘the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them'; and (5) ‘any efforts made to temper the severity of a forceful response.'” Brooks, 204 F.3d at 106 (quoting Whitley v. Albers, 475 U.S. 312 (1986)). Further, as the Third Circuit has held, “the use of chemical agents to subdue recalcitrant prisoners is not cruel and unusual when reasonably necessary.” Gibson v. Flemming, 837 Fed.Appx. 860, 862 (3d Cir. 2020) (citing Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984)).
“A prison official may be held liable under the Eighth Amendment for acting with ‘deliberate indifference' to inmate health or safety only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted). To demonstrate the existence of deliberate indifference to a risk of harm, a plaintiff must show that the prison official had a “sufficiently culpable state of mind.” Id. at 834. While the risk of harm is an objective requirement, the standard for deliberate indifference is subjective; thus, the prison official “must actually have known or been aware of the excessive risk to inmate safety.” Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001).
While Shears' prior medical records do indicate that OC spray was medically contraindicated for him, he was cleared for its use on December 8, 2021, months before the incident at issue on July 2, 2022. None of the named Defendants issued the form nor is there any evidence in the record that they had any role in making the December 2021 determination. Further, there is no evidence that Defendants Gallagher, Smouse, Haggerty or Guanieri had any knowledge about Shears' medical contraindication, and given the clearance for the use of OC spray, Shears has not presented any evidence that these Defendants were deliberately indifferent to Shears' health or safety.
Similarly, the record does not support Shears' claim that the use of force was otherwise not justified (ECF No. 76 at 10). He argues that “‘[h]yperthetically [sic] speaking,' if the OC spray used on Plaintiff was to gain compliance after allegedly multiple refusals for the extended period of time, it is still considered excessive force when the Defendants['] use of force was more than de minimis and unconstitutional.” (Id.)
The use of force is not automatically unconstitutional if it exceeds de minimis force. As discussed, multiple factors must be considered, specifically: “(1) ‘the need for the application of force'; (2) ‘the relationship between the need and the amount of force that was used'; (3) ‘the extent of injury inflicted'; (4) ‘the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them'; and (5) ‘any efforts made to temper the severity of a forceful response.” Brooks, 204 F.3d at 106.
Shears' noncompliance with officers' repeated orders over a significant amount of time is clear from the video evidence. Shears was warned that his continued resistance to orders would result in the administration of OC spray. During the intervals before the OC spray was deployed, he engaged in various conduct, including covering his cell window, turning his lights on and off, making threats, covering his floor with soap, attempting to swallow a pen, and covering various vents to stop OC spray from entering his cell.
In Shears' Declaration, the sole evidence he offers concerning the lack of a need for force is an assertion that he had begun to comply with Officer Ferguson's order to strip when the final OC spray was administered. (ECF No. 74 at 8.) This evidence is insufficient to establish a material question of fact. While the video evidence reflects that Shears partially complied with the officers' instructions to undress, it further reflects that Shears' compliance then ceased. During that time, Shears swallowed what he said was a pen. The officers then instructed Shears approximately eight times to take off his pants. The OC spray was used after those instructions were given.
Thus, it is uncontroverted that force was applied in a good-faith effort to restore discipline as opposed to with malicious intent. As the Third Circuit has instructed, the use of chemical agents is not cruel and unusual when reasonably necessary. Under the uncontroverted facts, despite Defendants' efforts to engage with Shears and avoid the use of any force, Shears refused to comply with multiple orders and took various evasive actions that ultimately culminated in the need to intervene. The amount of force used was not extreme or excessive, and there is no evidence that Shears sustained any serious injuries.
Thus, in the absence of any genuine issue of material fact, Defendants Gallagher, Smouse, Haggerty and Guanieri are entitled to judgment in their favor with respect to the claims against them.
2. Claim against Brown
As it relates to Defendant Brown, Shears claims that he failed to intervene when Smouse sprayed OC into Shears' cell. It is well-established that any duty to intervene is limited to situations involving excessive force. Armstrong v. Furman, 2020 WL 5545270, at *7 (W.D. Pa. Sept. 16, 2020). “To be directly liable under a failure to intervene theory, ... the plaintiff must have demonstrated that [(1)] her underlying constitutional rights were violated; (2) the officer had a duty to intervene; and (3) the officer must have had a realistic and reasonable opportunity to intervene.” Klein v. Madison, 374 F.Supp.3d 389, 419 (E.D. Pa. 2019) (citations omitted).
Given the lack of any evidence that excessive force was used, there is no basis for a claim that Defendant Brown failed to intervene to stop the use of OC spray. Therefore, he is also entitled to judgment in his favor regarding Plaintiff's claim against him.
Defendants also argue that they are entitled to qualified immunity based on a lack of evidence that Defendants violated Shears' constitutional rights. (ECF No. 58 at 11.) Based upon the foregoing analysis, it is not necessary for the Court to reach this argument. Defendants additionally argue that Shears failed to exhaust his administrative remedies. (Id. at 12-15.) However, Defendants did not provide sufficient evidence from which a determination on this issue could be made.
E. Conclusion
For these reasons, it is respectfully recommended that the Court grant Defendants' Motion for Summary Judgment (ECF No. 57).
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties may, within fourteen (14) days, file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).