Greene v. Feaster

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

MICHAEL JERMAINE GREENE,

Plaintiff,

v. Civil Action No. 5:16CV51

(STAMP)

SIDNEY FEASTER and

DOUG WHITE,

Defendants.

MEMORANDUM OPINION AND ORDER

DENYING PLAINTIFF’S EXCESSIVE FORCE CLAIM

I. Introduction

On April 18, 2016, the pro se plaintiff, Michael Jermaine

Greene (“Greene”), an inmate then-incarcerated at the Northern

Correctional Facility1 in Moundsville, West Virginia, initiated

this case by filing a civil rights complaint against the above-

named defendants pursuant to 42 U.S.C. § 1983. ECF No. 1. Along

with his complaint, the plaintiff filed a motion to proceed in

forma pauperis with supporting documents. ECF Nos. 2, 3, 4. The

plaintiff was granted permission to proceed as a pauper and

directed to pay an initial partial filing fee on April 26, 2016.

ECF No. 7. Pursuant to a Show Cause Order entered on June 20,

2016, the plaintiff was directed to show cause why his case should

not be dismissed for the failure to prosecute. ECF No. 11. The

plaintiff filed a response to the Show Cause Order on June 23,

1Petitioner is presently incarcerated at the Mt. Olive

Correctional Center (“MOCC”) in Mt. Olive, West Virginia.

2016. On July 6, 2016, the plaintiff paid the initial partial

filing fee. ECF No. 16.

On August 8, 2016, the plaintiff moved to voluntarily dismiss

his case. ECF No. 20. By order entered August 10, 2016, the

motion to dismiss was granted; the case was dismissed without

prejudice; the in forma pauperis order was vacated; and the

plaintiff was relieved of the obligation to pay the balance of his

filing fee. ECF No. 21 at 1. On August 12, 2016, the plaintiff

filed a Notice of Voluntary Dismissal. ECF No. 23. On September

6, 2016, the plaintiff wrote a letter to the Clerk of Court,

attaching a Memorandum from the Huttonsville Correctional Center

(“HCC”). ECF No. 27. By order entered September 7, 2016, the

letter was construed as a motion to reopen the case; the case was

reopened and reinstated to the active docket; and the in forma

pauperis order was reinstated. ECF No. 28. On September 28, 2016,

the plaintiff filed a demand for a jury trial and a motion to

appoint counsel. ECF Nos. 30, 31.

On October 5, 2016, United States Magistrate Judge James E.

Seibert conducted a preliminary review of the complaint, determined

that summary dismissal was not warranted at that time and directed

the defendants to answer the complaint. ECF No. 33. On November

3, 2016, the defendants filed a Motion to Dismiss or, in the

Alternative, Motion for Summary Judgment with a memorandum in

support, attaching an affidavit and an exhibit. ECF Nos. 39, 40.

2

On November 7, 2016, a Roseboro2 Notice and Direction to Clerk to

correct the spelling of the defendants’ names on the docket was

issued. ECF No. 43. The plaintiff filed a response in opposition

on November 23, 2016. ECF No. 51. On December 5, 2016, the

defendants filed a reply. ECF No. 52. On March 1, 2017, the

plaintiff filed a document docketed as Supplemental Evidence,

attaching copies of four Inmate Medical Service Requests. ECF

No. 54.

On May 24, 2017, Magistrate Judge James E. Seibert entered a

Report and Recommendation, recommending that the defendants’ Motion

to Dismiss or, in the Alternative, Motion for Summary Judgment be

granted and that the plaintiff’s complaint be dismissed with

prejudice. ECF No. 57. On June 1, 2017, Greene filed a letter

motion to withdraw due to improper venue. ECF No. 59. On June 14,

2017, Greene filed his objections to the Report and Recommendation.

ECF No. 61. On August 16, 2017, after a review of the Report and

Recommendation and objections, the Court then issued an order

adopting the magistrate judge’s Report and Recommendation. ECF

No. 62. In its order, the Court made an independent de novo

consideration of the recommendations to which objections were

filed; the remaining recommendations, to which Greene filed no

objection, were reviewed using the clearly erroneous standard. The

Court then concluded that the magistrate judge’s recommendation was

2Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).

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proper, and that Greene’s objections failed to meet the heavy

burden specifically prescribed by the Eighth Amendment. Id.

Greene filed a notice of appeal. ECF No. 65. On appeal,

Greene reiterated the facts of this case, claiming he was

“unlawfully” sprayed, and argued that the District Court erred by

not requesting the video footage to review before deciding his

excessive force claim. (4th Cir. ECF No. 8-1)(17-7179).

In an unpublished per curiam opinion issued on May 2, 2018,

the United States Court of Appeals for the Fourth Circuit affirmed

in part, finding that Greene had failed to plead that the

defendants were responsible for the allegedly retaliatory acts of

losing his medical services request forms, and that he had not

objected to the magistrate judge’s recommendation to dismiss his

deliberate indifference claim, thus waiving appellate review of the

claim. Further, the Fourth Circuit vacated in part, remanding the

plaintiff’s excessive force claim, finding that the Court had erred

by failing to treat Greene’s verified complaint as the equivalent

of the defendants’ sworn affidavit in light of World Fuel Servs.

Trading, DMCC v. Hebei Prince Shipping Co., 783 F.3d 507, 516 (4th

Cir. 2015), and in granting summary judgment to the defendants on

the excessive force claim. Tolan v. Cotton, 572 U.S. 650, 659

(2014). See ECF No. 71. The Fourth Circuit further noted that

“the videotape of the incident might ultimately resolve the

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parties’ key factual dispute — whether Greene was complying with

Defendants’ orders at the time he was pepper sprayed[.]” Id. at 4.

On August 14, 2018, the Court entered an order referring the

case to United States Magistrate Judge Michael John Aloi. ECF

No. 77. By Order entered August 13, 2018, Magistrate Judge Aloi

directed the defendants to file a copy of the February 1, 2016

surveillance video of the pepper spray incident at issue. ECF

No. 76. The defendants sent copies of two DVDs to Magistrate Judge

Aloi on August 16, 2018; on August 22, 2018, the DVDs were

forwarded to the Wheeling Office of the Clerk of Court for review

by the Court. Id.

On August 23, 2018, the plaintiff filed a second Motion to

Appoint Counsel (ECF No. 81) and his First Set of Interrogatories

and First Request for Production of Documents. ECF Nos. 82, 82-1.

On August 24, 2018, the defendants filed a motion for an indefinite

extension of time in which to respond to the plaintiff’s discovery

request until the Court had completed review of the record,

including the surveillance video. ECF No. 84. By Order entered

August 28, 2018, the plaintiff’s First Set of Interrogatories and

First Request for Production of Documents were stricken from the

record as premature and returned to him, and discovery was stayed.

ECF No. 85. By separate Orders entered the same day, the

plaintiff’s second Motion to Appoint Counsel and the defendants’

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motion for the indefinite extension of time to respond to the

plaintiff’s discovery requests was denied as moot. ECF No. 86, 87.

On August 30, 2018, the plaintiff filed an affidavit3 and a

third Motion to Appoint Counsel. ECF Nos. 88, 89. On September 4,

2018, the plaintiff filed a fourth Motion to Appoint Counsel and a

Motion for Leave for Discovery. ECF Nos. 90, 91. On September 5,

2018, the plaintiff filed a response to the defendants’ motion for

the indefinite extension of time to respond to his initial

discovery requests (ECF No. 92) and a Motion to Schedule Conference

(ECF No. 93).

On October 15, 2018, the plaintiff filed a copy of a letter to

defendants’ counsel, offering to settle the case. ECF No. 96. On

3The affidavit reiterated the claims in the complaint and

raised new allegations, accusing the defendants of having

retaliated against him by tampering with his mail and his food,

causing him to be hospitalized on October 2016, and to have

“received mental illness . . . damages to his kidneys and liver:

[sic] small pericardial effusion that got resolved in Hospital

[sic].” See ECF No. 88 at 3.

Further, the affidavit contends that after plaintiff was

transferred from HCC to MOCC, he found that HCC staff “had a nurse

place a liquid item inside Mr. Greene[’s] body that allowed the

(HCC) and (MOCC) staff to know what Mr. Greene is thinking and

bring pain to his body 24/7. (HCC[)] and (MOCC) got radio’s [sic]

placed all over the prison that got a female and male speaking . .

. about Mr. Greene and what he [sic] doing in his cell. In other

words, with this liquid item inside Mr. Greene, the (MOCC)

staff/CO’s [sic] know what Mr. Greene stating to the court and

Defendants[’] counsel[] before he send it out in the mail. Mr.

Greene only state[s] this because an appointed attorney can/will

affirm it on his/her visit upon proving in best interest.” ECF No.

88, ¶ 10 at 3.

Because these new claims were not raised until well after the

defendants filed their dispositive motion, and MOCC staff are not

defendants in this action, they will not be considered here.

6

November 19, 2018, the plaintiff filed certificates of service,

evincing having served defendants with his First Set of

Interrogatories and First Request for Production of Documents, to

which he had attached copies of each. ECF Nos. 97, 97-1, 98, 98-1.

By Order entered November 20, 2018, Plaintiff’s First Set of

Interrogatories and First Request for Production of Documents were

again stricken from the record as premature; discovery was again

stayed; and the defendants were directed to disregard the discovery

requests. ECF No. 100. On February 11, 2018, Greene filed a

Notice of Inquiry regarding the status of the case. ECF No. 103.

II. Procedural History

As noted in the Report and Recommendation, the complaint

raised three claims: (1) excessive force arising out of a February

1, 2016 incident at HCC during which Greene was pepper sprayed; (2)

retaliation by the defendants and possibly other correctional

officers (“COs”) for “filing paper work,” by making one of Greene’s

sick call requests go missing (ECF No. 1-1 at 2); and (3)

deliberate indifference to serious medical needs, because Greene

did not receive timely or adequate medical care after the pepper

spray incident. As relief, Greene sought $200,000.00 in damages.

ECF No. 1 at 10.

The defendants’ dispositive motion argued that the complaint

should be dismissed or summary judgment granted in their favor,

because (1) the complaint failed to state a claim upon which relief

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can be granted (ECF No. 40 at 4); (2) defendants were entitled to

qualified immunity (id. at 7); (3) Greene’s injury from the

incident was de minimis (id. at 10); (4) Greene failed to state a

cognizable excessive force claim (id. at 11); and (5) Greene failed

to state a cognizable deliberate indifference claim (id. at 13).

In response, Greene reiterated some of his claims and

attempted to refute the defendants’ arguments on the same. ECF No.

51 at 1–2. In reply, the defendants noted that Greene’s response

effectively admitted that his complaint could not survive their

dispositive motion; failed to address the arguments made in that

motion; and only restated his “deficient allegations” without

explaining why his complaint should survive a summary judgment

motion. ECF No. 52 at 1–2.

Here, this Court will specifically address the plaintiff’s

remaining claim of excessive force. For the reasons set forth

below, having considered Greene’s claim in light of the new

evidence provided by the DVD video footage of the incident, the

Court again denies the claim.

III. Analysis

In general, the Eighth Amendment prohibits “cruel and unusual

punishment.” Farmer v. Brennan, 511 U.S. 825 (1994). The cruel

and unusual punishment clause of the Eighth Amendment applies to

the States through the Due Process Clause of the Fourteenth

8

Amendment to the United States Constitution. See Wilson v. Seiter,

501 U.S. 294 (1991).

In order to comply with the Eighth Amendment, prison

punishment must comport with “the evolving standards of decency

that mark the progress of a maturing society.” Estelle v. Gamble,

429 U.S. 97, 102 (1976). “A prison official cannot be found liable

under the Eighth Amendment for denying an inmate humane conditions

of confinement unless the official knows of and disregards an

excessive risk to inmate health or safety; the official must both

be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the

inference.” Farmer v. Brennan, 511 U.S. at 837.

Moreover, while courts should give deference to a jail

official’s determination of what measures are necessary to maintain

discipline and security, “the unnecessary and wanton infliction of

pain” constitutes cruel and unusual punishment which is prohibited

by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 321-22

(1986). In order for a plaintiff to prove a claim of excessive

force, the plaintiff must first establish that “the alleged

wrongdoing was objectively ‘harmful enough’ to establish a

constitutional violation.” Norman v. Taylor, 25 F.3d 1259, 1262

(4th Cir. 1994) (en banc), cert. denied, 513 U.S. 1114 (1995)

(quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). Second, the

plaintiff must show that the prison officials inflicted unnecessary

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and wanton pain and suffering. Hudson, 503 U.S. at 6; Williams v.

Benjamin, 77 F. 3d 756 (4th Cir. 1996).

With regard to prison disturbances, whether unnecessary and

wanton pain and suffering was inflicted “ultimately turns on

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.” Whitley, 475 U.S. at 320-21. In

determining whether the defendant acted maliciously and

sadistically, the following factors should be balanced: (1) “the

need for application of force;” (2) “the relationship between the

need and the amount of force that was used;” (3) “the extent of the

injury;” (4) the threat reasonably perceived by the responsible

official; and (5) “any efforts made to temper the severity of a

forceful response.” Id. at 321; see also Williams, 77 F.3d at 762.

Moreover, in the Fourth Circuit, “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. Although a de minimis injury

reveals that de minimis force was used, id. at 1262, the Fourth

Circuit has held that in certain circumstances, a claim may be made

even if the injury is de minimis. Specifically, the Fourth Circuit

has stated:

There may be highly unusual circumstances in which a

particular application of force will cause relatively

little, or perhaps no, enduring injury, but nonetheless

will result in an impermissible infliction of pain. Cf.

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Hudson, 503 U.S. at ---, 112 S. Ct. at 1000 (“diabolic”

or “inhuman” physical punishment unconstitutional,

regardless of injury). In these circumstances, we

believe that either the force used will be “of a sort

‘repugnant to the conscience of mankind,’ and thus

expressly outside the de minimis force exception, see

Hudson, 503 U.S. at ---, 112 S. Ct. at 1000 (citations

omitted), or the pain itself will be such that it can

properly be said to constitute more than de minimis

injury.”

Norman, at 1264, n.4. Further, prison officials violate the Eighth

Amendment by using “mace, tear gas or other chemical agents in

quantities greater than necessary or for the sole purpose of

infliction of pain.” Williams v. Benjamin, 77 F.3d 756, 763 (4th

Cir. 1996) (internal quotation marks omitted); see also Iko v.

Shreve, 535 F.3d 225, 239-40 (finding use of pepper spray during

cell extraction of nonconfrontational inmate constituted excessive

force).

As previously noted, Greene alleges that at around 3:00 p.m.

on Monday, February 1, 2016, he pushed his call light to talk to

staff but because he got no response “for at least an hour or so”

he began “repeatedly hitting . . . [his] call light again” and then

kicked his cell door “a good (2) two to (3) three times.” ECF No.

1 at 7. He avers that defendants Sidney Feaster (“Feaster”) and

Doug White (“White”) came to his cell door and told him to stop

kicking or he would be sprayed. Id. Greene asserts that he

replied “OK, no problem” and the two officers then walked a short

distance away, where he overheard them say “we can see it on the

camera.” Id. at 8. The officers then returned “out of the blue

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(for no reason)” and told him to back up; Greene complied; White

then ordered Feaster to spray Greene. Id. Greene contends that

Feaster then sprayed him for two to three seconds and then he was

left in his cell for at least five minutes before being permitted

to shower for “five minutes tops.” Id.

Attached to Greene’s complaint is a February 10, 2016 response

to his Grievance # Hcc-E1-47, which states in pertinent part:

On 01 February 2016 staff on unit E-1 did address the

issue of you repeatedly hitting your call light. You

then began kicking your cell door. Staff did address

This [sic] issue with you several times, due to your

escalation in behavior you were exposed to Oloeresin

[sic] Capsicum. You were then removed from your cell and

decontaminated. Once decontaminated you were Assessed

[sic] by medical staff. At this time you had no

complaints and you were returned to your cell.

ECF No. 1-1 at 3.

Feaster and White deny that anything other than reasonable

force was used to get Greene to stop repeatedly hitting his call

light and kicking his cell door when he was told to, but when his

behavior escalated, he was subjected to pepper spray. ECF No. 40

at 2. In support, they attach a sworn affidavit by Marvin Plumley

(“Plumley”), HCC Warden, attesting to the fact that the HCC’s Use

of Force Committee reviewed reports of the February 1, 2016

incident and concluded that the use of force was “minimal and

justified.” ECF No. 40-1 at 1. Defendants also produced a

February 3, 2016 memorandum to Plumley from AWS Bryan K. Lanham,

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regarding the “Use of Force Review Committee Findings on Greene,

Michael,” stating in pertinent part, that:

[o]n Monday 01 February 2016, at approximately 1626

hours, COII Sydney Feaster did respond to Cell #41 on

Unit E-1 housed by I/M Greene, Michael #3520461, due to

him kicking his cell door. COII Feaster did give

multiple direct orders to stop kicking his cell door.

I/M Greene refused by continuing to kick his cell door.

At this time COII Feaster did deploy two . . . one . . .

second burst[s] of Sabre Red MK-IX (Tag # A1112) into I/M

Greene’s cell. Lt. Gary Arbogast was notified of the

incident and reported to the cell and instructed him to

submit to mechanical restraints. I/M Greene did comply

at this time and was removed from his cell. COII Mathew

[sic] Balducci did place a spit hood on I/M Greene. I/M

Greene was escorted to shower #1 on Unit E-1 to begin the

decontamination process. Upon completion of the

decontamination process, I/M Greene was medically

assessed by RN Dana Mahanes. I/M Greene[’s] assigned

cell was decontaminated and I/M Greene was returned to

his cell without further incident.

After a review of video footage and written reports, it

is the findings [sic] that the force used was minimal and

justified.

ECF No. 40-2 at 1. Defendants also attached a copy of an Incident

Report filed by defendant Feaster, stating in pertinent part that:

[o]n Monday 01 February 2016 at approx. 1626 hours I

. . . did respond to cell 41 on unit E-1 which Inmate

Greene, Michael # 3520461 is housed[.] inmate was

kicking his cell door at this time I COII Sidney Feaster

did give multiple direct orders to stop kicking the cell

door[.] Inmate Greene continued to kick the cell door.

At this time I . . . did deploy two one second burst of

Sabre red MK 9 tag #A1112. I . . . did assist in

escorting inmate Greene to the decontamination shower on

unite E-1. When decontamination was complete I also

escorted inmate Greene . . . to the front of the E-1

control room to be assessed by RN Dana Mahanes . . .

Id. at 3. Defendant White’s report of the incident was that:

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[o]n Monday 01 February 2016 at approx. 1636 hours I

. . . did go to cell 41 on unit E-1 due to inmate Greene,

Michael . . . kicking the cell door. I . . . did escort

. . . Greene . . . from cell 41 to the decontamination

shower on unit E-1. When decontamination was complete I

. . . did escort . . . Greene and placed him in front of

the E-1 Control room.

Id. at 5. A report of the incident was also created by Matthew

Balducci, C.O. II, stating:

On Monday 01 February 2016, at approximately 1630 hrs, I

. . . did respond to an incident on Unit E-1 with Inmate

Greene, Michael . . . I . . . provided extra security on

Unit E-1. Then at approximately 1636 hrs Inmate Greene

. . . was taken out of Cell 41 at that time I . . . did

place a spit hood onto Inmate Greene . . . I . . . then

provided extra security during the decontamination

process. At approximately 1705 hrs I . . . along with

Corporal Doug White did escort Inmate Greene . . . back

onto the Unit E-1 pod and placed I/M Greene . . . into

shower number 1. At approximately 1710 hrs I . . . then

removed all of the magnets off of the cell door windows.

Id. at 7. Correctional Officer II Timothy Herron was also on duty

that day, and provided his version of the event:

[a]t approximately 1428 I . . . did respond to an

incident on unit E-1 with I/m Greene Michael . . . Lt.

Robert Kesling did tell me . . . to get the camera and

record the incident. I . . . did record the entire

incident through the decontamination process.

Id. at 9. An Incident Report was also prepared by Lt. Gary

Arbogast, who stated:

[o]n 01 February 2016 at approximately 1630 hrs. I . . .

was notified by Lt. Robert Kesling that inmate Greene,

Michael . . . had been exposed to Oleoresin Capsicum. At

approx. 1632 hrs. I did arrive on unit E-1 and was

briefed by Lt. Kesling. At approx. 1636 hrs. I did

approach Cell 41 . . . housing Inmate Greene. Once at

the cell door I did instruct . . . greene [sic] to cuff

up at wich [sic] time he did comply. Inmate Greene was

secured and removed from his cell and escorted to the

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shower for decontamination. Once decontaminated . . .

Greene was assessed by nurse Dana Mahanes. Inmate Greene

was returned to his cell without further incident.

Id. at 11. Dana Mahanes RN prepared her own report of the

incident:

[o]n February 1st, 2016 at approximatley [sic] 1640

called to E-1 to assess Inmate Greene Michael . . . after

decontamination of a chemical agent. Inmate Greene . . .

denied any injuries, vital signs stable, instructed

Inmate Greene . . . if experienced any symptoms or

further complaints to notify Medical[.] Inmate Greene

. . . voiced understanding.

Id. at 13. Finally, a February 10, 2016 response by Lt. Gary

Arbogast to Greene’s grievance, attached to Greene’s complaint,

notes that:

Mr. Greene in response to the above Grievance. On 01

February 2016 staff on unit E-l did address the issue of

you repeatedly hitting your call light. You then began

kicking your cell door. Staff did address This [sic]

issue with you several times, due to your escalation in

behavior you were exposed to Oloeresin Capsicum. You

were then removed from your cell and decontaminated.

Once decontaminated you were Assessed [sic] by medical

staff. At this time you had no complaints and you were

returned to your cell.

ECF No. 1-1 at 3.

On remand, pursuant to the Court’s order, the defendants

produced copies of two DVDs, one contained three views of HCC

surveillance video with no audio. The other contained video

footage from a hand-held camera with audio,4 which captured the

events from shortly after the pepper spray incident through the

4The audio on the hand-held camera footage is poor at times.

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time Greene was removed from his cell, taken to the shower for

decontamination, and then medically assessed.

View One and View Two of the HCC surveillance video both begin

at approximately 5.22.30 p.m. on February 1, 2016, and end at

5.45.26 p.m. View Two was not as useful as View One; while it

captured the same events shown on View One, it did so from the

opposite end of the cell block from Greene’s cell, too far away for

the images to be plainly visible; however, it did more clearly show

how far down the cell block the two COs walked before they returned

to Greene’s cell and used the OC spray on him.

View Three of the HCC surveillance video also begins at

5.22.30 p.m., but as it is surveillance video of the first floor

tier before Greene arrived there, at first, it only shows random,

unrelated correctional officer activity before Greene is brought

downstairs for a decontamination shower. It then picks up from

where View One and Two end, providing footage of the COs escorting

Greene when he was brought downstairs. It then ends when Greene

finishes the shower and is taken to another area for medical

assessment. The medical assessment itself is only seen on the

hand-held camera footage.

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A review of the video footage shows that at 5.22.31 p.m.,5 two

COs were standing very close to Greene’s cell,6 talking to him

through the closed door; because there is no audio, their

conversation is inaudible; Greene, inside the cell, is not visible.

It appears that, consistent with the complaint, it is at this point

that the COs are telling Greene to stop kicking his cell door or he

will be sprayed. At 5.22.49 p.m., the two COs turn and walk away

from Greene’s cell down the second floor cell block, away from the

camera; when three cells past Greene’s cell, they stop and appear

to chat briefly with the occupant of a cell there; then, at 5.23.03

p.m., they continued walking down the block again.7 At 5:23.09

p.m., they suddenly stop in unison and whirl around, as if

5It is unclear why there appears to be a one-hour difference

in the defendants’ renditions of what happened in their incident

reports versus the times shown on the surveillance and hand-held

camera footage, unless the cameras were set on daylight savings

time and never corrected when the time changed.

6The surveillance video does not include any footage of the

earlier part of Greene’s claim regarding that at around 3:00 p.m.

that day he pressed his cell light and never got a response. It

appears then, that the surveillance video began when about “an hour

or so” later, as Greene admits, he began repeatedly hitting his

call light and then kicking his door.

7View One does not clearly show how many cells past Greene’s

that they walked, because the angle of the View One surveillance

camera is too “straight-on” relative to the cell block to show; had

it been positioned slightly more at an angle, it would have been

possible to see/count the other cell doors; however, the View Two

camera shows they walked past the next wall panel that held the

magnetic window screens, and then past the next pair of cells, so

they were five cells past Greene’s before they turned around and

came back.

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simultaneously startled by hearing a loud noise behind them; they

then walk back toward Greene’s cell at a slightly quickened pace.

This is inconsistent with Greene’s claim that the COs walked away

after warning him, before “[t]hey came back to my cell . . . out

the blue (no reason) . . to spray me[.]” ECF No. 1 at 8. However,

it is consistent with the facts that were provided in the multiple

incident reports by the defendants and other non-party corrections

personnel, and the sworn affidavit of the Warden, contemporaneously

prepared well before litigation ensued.

By 5.23.18 p.m., the COs are back at Greene’s cell, standing

close to his door and speaking to him through it, consistent with

Greene’s claim that they “told me to back up so he could spray me.”

ECF No. 1-1 at 2. At 5.23.26 p.m., the shorter CO opens the slot

in the door of Greene’s cell, and after a brief conversation,

presumably when Greene was told to back up (so that he did not get

OC spray directly in his face or on his skin), the taller CO

briefly sprays OC spray into Greene’s cell. Greene was sprayed

with OC spray during the two-second interval between 5.23.27 –

5.23.29 p.m.

However, the hand-held camera footage shows that at 5.27.15

p.m., Greene, who was left unrestrained in his cell after being

sprayed, and was being filmed through the window of his cell door

by the CO with the camera, stepped over to the sink on the wall

just to the right of his cell door window, leaned over, turned the

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water on, began cupping handfuls of running water and repeatedly

splashing it on his face. He did this for 1.5 minutes.8

Despite Greene’s response in opposition claim that “the . . .

defendants unlawfully used the spray on me for no reason at the

time,” (ECF No. 51 at 1), careful, thorough reviews of the

surveillance video and hand-held video camera footage refutes this.

Because there is no audio in any of the three HCC surveillance

videos, only the first two of which capture the footage of the

actual OC spray incident, it is unknown what was said between the

parties after Greene was first warned that if he continued kicking

his door he would be sprayed. Nonetheless, the record is

consistent with Greene’s claim that the COs cautioned Greene and

then walked away, not “two cells down” as Greene contends, but at

least five cells down the cell block before they suddenly stopped

and spun around in unison, as if they simultaneously heard

something loud enough to be heard from that distance, before they

immediately returned and spoke briefly to Greene through the door

before administering the OC spray. The record indicates that

Greene resumed pressing his call light and kicking his cell door

after the defendants directed him to stop; thus, the need for

application of force was warranted. The correctional officers

8The COs did not arrive at his cell to take him to

decontamination until 5.32.47 pm; it would seem that if Greene had

really been that uncomfortable, he would have continued to avail

himself of the opportunity to access the water at the sink to rinse

the OC off his skin until they did arrive.

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properly concluded that Greene was not responding to verbal

commands before they used force. Williams, 77 F. 3d at 762. In

sum, when reviewing the totality of the evidence, including the

video footage, Greene’s version of the events in the complaint is

not credible and does not support Greene’s version of the key

factual dispute at issue here: whether Greene was complying with

defendants’ orders at the time he was pepper sprayed. To the

contrary, even when drawing all reasonable inferences in his favor,

the video evidence refutes Greene’s claim.

“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.” See Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct.

1769, 1776, 167 L. Ed. 2d 686, 694 (2007). Beyond the unsupported

conclusory allegations to the contrary in Greene’s admittedly

verified complaint, and further attested to in his subsequent

affidavit (ECF No. 88, ¶¶ 4–7 at 2), when weighed against the sworn

declaration by the Warden of HCC and the facts in each of the

contemporaneously-prepared incident reports by defendants and other

non-party corrections personnel, long before any of them were aware

that litigation would ensue, Greene has failed to present

sufficient evidence to dispute the surveillance video evidence and

defendants’ assertions that the force applied on February 1, 2016

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was applied in a good-faith effort to maintain or restore

discipline, and not maliciously and sadistically to cause harm.

Greene’s conclusory allegations do not meet the “heightened

pleading standard” required in actions against government

officials. See Randall v. United States, 95 F.3d 339 (4th Cir.

1996); see also Dunbar Corp. v. Lindsey, 905 F.2d at 764.

IV. Conclusion

For the reasons stated above, the plaintiff’s excessive force

claim is DENIED and DISMISSED with prejudice for failure to state

a claim upon which relief can be granted under 28 U.S.C.

§ 1915(e)(2)(B)(ii). Further, the plaintiff’s pending third and

fourth Motions to Appoint Counsel (ECF No. 89, 90) and his Motion

to Schedule Conference (ECF No. 93) are DENIED as moot.

Accordingly, it is ORDERED that this civil action be DISMISSED WITH

PREJUDICE and STRICKEN from the active docket of this Court.

Should the plaintiff choose to appeal the judgment of this

Court to the United States Court of Appeals for the Fourth Circuit,

he is ADVISED that he must file a notice of appeal with the Clerk

of this Court within thirty days after the date of the entry of

this order.

IT IS SO ORDERED.

The Clerk is DIRECTED to transmit a copy of this order to the

pro se plaintiff by certified mail, return receipt requested, at

his last known address as reflected on the docket, and to transmit

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a copy electronically to all counsel of record. Pursuant to

Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter

judgment on this matter.

DATED: March 1, 2019

/s/ Frederick P. Stamp, Jr.

FREDERICK P. STAMP, JR.

UNITED STATES DISTRICT JUDGE

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