plaintiff inmate’s subjective belief that a lesser amount of pepper spray could have been used or that the officer should have entered the cell while plaintiff continued to hold his cellmate restrained on the floor, was of no legal significance
How later courts described this case
- plaintiff inmate’s subjective belief that a lesser amount of pepper spray could have been used or that the officer should have entered the cell while plaintiff continued to hold his cellmate restrained on the floor, was of no legal significance
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:22-cv-00003-MR
QUAMAINE DESHAWN )
CARMICHAEL, )
)
Plaintiff, )
) MEMORANDUM OF
vs. ) DECISION AND ORDER
)
JOHNNY XAYAVONG, )
)
Defendant. )
_______________________________ )
THIS MATTER is before the Court on the Defendant Johnny
Xayavong’s Motion for Summary Judgment [Doc. 36].
I. BACKGROUND
The incarcerated Plaintiff Quamaine Deshawn Carmichael, proceeding
pro se, is serving a sentence of more than 23 years in the North Carolina
Department of Adult Corrections for offenses including attempted first-
degree murder (principal). The Plaintiff filed this action pursuant to 42 U.S.C.
§ 1983 addressing an incident that allegedly occurred while he was
incarcerated at the Alexander Correctional Institution.1 [Doc. 1: Complaint].
The Plaintiff’s unverified Complaint passed initial review against Defendant
1 The Plaintiff is presently incarcerated at the Granville Correctional Institution.
Xayavong for the use of excessive force. [Doc. 8: Order on Initial Review].
The Plaintiff seeks $300,000 in compensatory damages. [Doc. 1-1:
Complaint Attach. at 6].
Defendant Xayavong filed the instant Motion for Summary Judgment.
[Doc. 36: MSJ]. Thereafter, the Court entered an Order in accordance with
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising the Plaintiff of
the requirements for filing a response to the summary judgment motion and
of the manner in which evidence could be submitted to the Court. [Doc. 41:
Roseboro Order]. The Plaintiff filed an unverified Response and supporting
documents.2 [Doc. 42: MSJ Response;3 Doc. 42-1: MSJ Memo.;4 Doc. 42-2:
Plaintiff’s Decl. and Response Ex.; Doc. 43: Sealed Medical Records]. The
Defendant filed a Notice of Intent to Not File a Reply [Doc. 44: Notice]. This
matter is ripe for disposition.
II. STANDARD OF REVIEW
Summary judgment shall be granted “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). A factual dispute is
2 Only the Plaintiff’s Declaration is verified.
3 Titled “Plaintiff’s Motion in Opposition to Defendant’s Motion for Summary Judgment.”
4 Titled “Memorandum of Law in Support of Plaintiff’s Motion in Opposition to Defendant’s
Motion for Summary Judgment.”
genuine “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). A fact is material only if it might affect the outcome of the suit under
governing law. Id.
The movant has the “initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal citations omitted).
Once this initial burden is met, the burden shifts to the nonmoving
party. The nonmoving party “must set forth specific facts showing that there
is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may not
rely upon mere allegations or denials of allegations in his pleadings to defeat
a motion for summary judgment. Id. at 324. Rather, the nonmoving party
must oppose a proper summary judgment motion with citation to
“depositions, documents, electronically stored information, affidavits or
declarations, stipulations …, admissions, interrogatory answers, or other
materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). Namely, the
nonmoving party must present sufficient evidence from which “a reasonable
jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248. To that end, only evidence admissible at trial may be considered by the
Court on summary judgment. Kennedy v. Joy Technologies, Inc., 269 F.
App’x 302, 308 (4th Cir. 2008) (citation omitted).
When ruling on a summary judgment motion, a court must view the
evidence and any inferences from the evidence in the light most favorable to
the nonmoving party. Anderson, 477 U.S. at 255. Facts, however, “must be
viewed in the light most favorable to the nonmoving party only if there is a
‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127
S.Ct. 1769, 1776 (2007). As the Supreme Court has emphasized,
“[w]hen the moving party has carried its burden under
Rule 56(c), the opponent must do more than simply
show there is some metaphysical doubt as to the
material facts …. Where the record taken as a whole
could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for trial.’”
Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87, 106 S. Ct. 1348 (1986)
(footnote omitted). “[T]he mere existence of some
alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-28, 106 S. Ct.
2505 (1986). 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.
Scott, 550 U.S. at 380.
III. FACTUAL BACKGROUND
The parties’ forecasts of evidence show the following, which is
undisputed except as otherwise noted.
Officer Xayavong was working at the Alexander CI Green Unit on April
28, 2021. [Doc. 38-1: Xayavong Decl. at ¶ 5]. At that time, Green Unit
management had enacted a rule that all offenders who were out for their
dayroom recreation must be seated in the dayroom, in order to combat
problems with offenders sliding contraband from cell door to cell door. [Doc.
38-1: Xayavong Decl. at ¶ 7].
At approximately 3:57 p.m., Officer Xayavong and Officer Moonyham
entered the Green Unit. [Doc. 42-2 at 6: Plaintiff’s Decl. at ¶ 6; Doc. 38-1:
Xayavong Decl. at ¶ 6]. Officer Moonyham told the Plaintiff to sit down. [Doc.
42-2 at 6: Plaintiff’s Decl. at ¶ 7; Doc. 38-1: Xayavong Decl. at ¶ 9]. The
Plaintiff was “non-compliant” with that order. [Doc. 42-2 at 6: Plaintiff’s Decl.
at ¶ 8; see Doc. 38-1: Xayavong Decl. at ¶ 10]. The Plaintiff and Officer
Moonyham “exchanged words.” [Doc. 42-2 at 6: Plaintiff’s Decl. at ¶ 9; see
Doc. 38-1: Xayavong Decl. at ¶ 10]. The Plaintiff was “non-aggressive.”
[Doc. 42-2 at 6: Plaintiff’s Decl. at ¶ 9]. Officer Moonyham discharged pepper
spray at the Plaintiff’s face. [Doc. 42-2 at 6: Plaintiff’s Decl. at ¶ 10; Doc. 38-
1: Xayavong Decl. at ¶ 12 (describing this as one “puff” of pepper spray)].
The Plaintiff “immediately, turn[ed] [his] back towards the two officers and
head[ed] to the nearest wall.” [Doc. 42-2 at 6: Plaintiff’s Decl. at ¶ 11]. Officer
Xayavong perceived Officer Moonyham’s discharge of pepper spray as a
“misfire.” [Doc. 38-1: Xayavong Decl. at ¶¶ 12]. Officer Xayavong then
administered one discharge of pepper spray to the Plaintiff’s face.5 [Doc. 42-
2 at 6: Plaintiff’s Decl. at ¶ 12; Doc. 38-1: Xayavong Decl. at ¶ 13]. No further
use of force occurred. Doc. 42-2 at 6: Plaintiff’s Decl. at ¶ 15; Doc. 38-1:
Xayavong Decl. at ¶ 17]. The Plaintiff was promptly escorted to the Red Unit
to be medically assessed and for a decontamination shower. [Doc. 42-2 at
6: Plaintiff’s Decl. at ¶ 14; Doc. 38-1: Xayavong Decl. at ¶ 16].
The Plaintiff has a history of nasal congestion from pepper spray, for
which he had received a surgical procedure about a year before the incident
at issue. [Doc. 43: Med. Ex. at 4]. Both nostrils were initially congested
following the incident, and one nostril remained congested the next day. [Id.
at 1].
5 Officer Xayavong states that the Plaintiff did not face the wall and submit to hand
restraints after Officer Moonyham discharged a “puff” of pepper spray; rather, the Plaintiff
went to the wall and submitted to cuffs only after Xayavong administered pepper spray.
[Doc. 38-1: Xayavong Decl. at ¶ 15]. Officer Xayavong states that his use of pepper spray
was meant solely to regain to control the situation after the Plaintiff refused orders to be
seated, it was not meant to injure or otherwise harm the Plaintiff, and it was not done to
be cruel or evil. [Id. at ¶¶ 18-19].
Officer Xayavong has filed a video exhibit [Doc. 38-3: Manually Filed
Video Exhibit] containing footage from the prison dayroom that show the
following events:
3:53:37 Seven inmates are seated in the dayroom; the Plaintiff
stands up and walks across the dayroom to greet orderlies
who enter the area
3:54:35 The Plaintiff approaches the table where he had been
seated, but he remains standing
3:55:26 Officer Moonyham enters the dayroom, addresses the
offenders, and gestures while five inmates, including the
Plaintiff, are standing
3:55:34 Officer Xayavong comes into view and stands beside
Officer Moonyham
3:55:39 The Plaintiff walks across the dayroom while Moonyham
continues speaking and gesturing
3:55:57 The Plaintiff stops and stands near a table, and the officers
leave the camera’s view
3:56:02 The Plaintiff walks back across the dayroom and stands by
his original table
3:56:15 An officer briefly comes into view, pointing into the
dayroom and apparently conversing with someone off-
camera
3:56:21 The Plaintiff walks across the dayroom again and nears the
area where the officers had appeared
3:56:55 The Plaintiff looks at someone off-camera, points to
himself, shakes his head side-to-side, and walks towards
the speaker
3:57:11 The Plaintiff stops walking, continues speaking, and again
shakes his head side-to-side
3:57:12 Officer Moonyham’s hand appears and deploys pepper
spray towards the Plaintiff; the Plaintiff turns his face away
from the spray, turns around, and takes four steps further
into the dayroom, followed by Officers Xayavong and
Moonyham
3:57:16 The Plaintiff turns his head and appears to converse with
Officer Xayavong as Xayavong approaches the Plaintiff
3:57:18 Officer Xayavong deploys a short burst of pepper spray at
the Plaintiff’s face from the side; the Plaintiff immediately
turns his face away, turns his body towards the wall, steps
towards the wall, and puts his hands up
3:57:26 The Plaintiff is handcuffed
3:57:44 Additional correctional staff arrive
3:57:58 The Plaintiff is escorted out of the dayroom
IV. DISCUSSION
A. Excessive Force
The Eighth Amendment prohibits the infliction of “cruel and unusual
punishments,” U.S. CONST. amend. VIII, and protects prisoners from the
“unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312,
319 (1986). To establish an Eighth Amendment claim, an inmate must
satisfy both an objective component–that the harm inflicted was sufficiently
serious–and a subjective component–that the prison official acted with a
sufficiently culpable state of mind. Williams v. Benjamin, 77 F.3d 756, 761
(4th Cir. 1996). In adjudicating an excessive force claim, the Court must
consider such factors as the need for the use of force, the relationship
between that need and the amount of force used, the extent of the injury
inflicted, and, ultimately, whether the force was “applied in a good faith effort
to maintain or restore discipline, or maliciously and sadistically for the very
purpose of causing harm.” Whitley, 475 U.S. at 320-21.
Moreover, “[c]orrectional officers do not have to be under physical
attack to justify the use of force; they can also use appropriate force ‘to
preserve internal order by compelling compliance with prison rules and
procedures.’” Shiheed v. Harding, 802 F. App’x 765, 767 (4th Cir. 2020)
(quoting Brooks v. Johnson, 924 F.3d 104, 112 (4th Cir. 2019)). “‘And we owe
officers wide-ranging deference in their determinations that force is required
to induce compliance with policies important to institutional security.’” Id.
(quoting Brooks, 924 F.3d at 112).
Here, the forecast of evidence construed in the light most favorable to
the Plaintiff demonstrates that the Plaintiff was standing in the Dayroom
contrary to policy; that he refused to be seated when Officer Moonyham
ordered him to do so; that Officer Moonyham deployed pepper spray toward
the Plaintiff’s face, and the Plaintiff turned away from officers and began
walking in the general direction of a wall; and that Officer Xayavong deployed
a second burst of pepper spray to the Plaintiff’s face, after which the Plaintiff
submitted to hand restraints. The Plaintiff’s contention that he “immediately,
turn[ed] [his] back towards the two officers and head[ed] to the nearest wall”
after Moonyham sprayed him is conclusively refuted by the objective video
evidence and need not be accepted by the Court. [Doc. 42-2 at 6: Plaintiff’s
Decl. at ¶ 11]; Scott, 550 U.S. at 380. The video footage confirms that the
Plaintiff did turn away from officers and begin to walk away from them, in the
general direction of a wall, after Moonyham sprayed him. However, the
Plaintiff then began turning towards Xayavong, and away from the wall, as
Xayavong approached him. It was only after Defendant Xayavong sprayed
the Plaintiff that he stepped up against the wall and put up his hands. It was
objectively reasonable for Defendant Xayavong to apply this minimal use of
force in light of the Plaintiff’s refusal to comply with Officer Moonyham’s
orders. The Plaintiff’s subjective belief that the use of pepper spray was not
permitted by prison policy under these circumstances is of no legal
significance. See generally Jackson v. Sampson, 536 F. App’x 356, 357 (4th
Cir. 2013) (unpublished) (holding that “prison officials’ failure to follow
internal prison policies are not actionable under § 1983 unless the alleged
breach of policy rises to the level of constitutional violation”); see, e.g.,
Kitchen v. Ickes, 116 F.Supp.3d 613, 628-29 (D. Md. July 14, 2014) (plaintiff
inmate’s subjective belief that a lesser amount of pepper spray could have
been used or that the officer should have entered the cell while plaintiff
continued to hold his cellmate restrained on the floor, was of no legal
significance). Accordingly, Defendant Xayavong is entitled to summary
judgment on the Plaintiff’s excessive force claim.
B. Qualified Immunity
“Qualified immunity protects officers who commit constitutional
violations but who, in light of clearly established law, could reasonably
believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531
(4th Cir. 2011) (en banc). “To determine whether an officer is entitled to
qualified immunity, the court must examine (1) whether the plaintiff has
demonstrated that the officer violated a constitutional right and (2) whether
that right was clearly established at the time of the alleged violation.” E.W.
ex rel. T.W. v. Dolgos, 884 F.3d 172, 178 (4th Cir. 2018) (internal quotation
marks omitted). The doctrine of qualified immunity “gives government
officials breathing room to make reasonable but mistaken judgments and
protects all but the plainly incompetent or those who knowingly violate the
law.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (internal quotation marks
omitted).
Here, because the Plaintiff has not forecast evidence that the
Defendant violated a constitutional right, the Defendant is also entitled
qualified immunity. Accordingly, summary judgment is granted on this
ground as well.
IV. CONCLUSION
For the reasons stated herein, the Court grants Defendant's Motion for
Summary Judgment, and this action is dismissed with prejudice.
ORDER
IT IS, THEREFORE, ORDERED that Defendant’s Motion for Summary
Judgment [Doc. 36] is GRANTED, and this action is DISMISSED WITH
PREJUDICE.
The Clerk is respectfully directed to terminate this action.
ITIS SO ORDERED. August 29, 2023
Martifi Reidinger ee
Chief United States District Judge AS
12