Pearson v. Thompson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

MARIO PEARSON,

Plaintiff,

v. CIVIL ACTION NO. 2:19-cv-00321

CAPTAIN THOMPSON, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants Ronnie Thompson, William Cabell, and Timothy

Hicks’ (collectively, “Defendants”) Motion for Summary Judgment. (ECF No. 36.) For the

reasons more fully explained below, Defendants’ motion is GRANTED in part and DENIED in

part.

I. BACKGROUND

This action arises out of an alleged use of excessive force by correctional officers at the

South Central Regional Jail (the “Jail”) on October 28, 2017. Plaintiff Mario Pearson (“Plaintiff”)

was a recently-booked inmate at the Jail and was to be incarcerated until February 24, 2018. (ECF

No. 37 at 2.) Defendants Captain Ronnie Thompson (“Captain Thompson”), Sergeant William

Cabell (“Sergeant Cabell”) , and Corporal Timothy Hicks (“Corporal Hicks”) are all correctional

officers employed by the West Virginia Regional Jail and Correctional Facility Authority and were

assigned to the Jail. (Id. at 1.)

During the booking process, Plaintiff was examined by a nurse who conducted a suicide

screening. (ECF No. 36–2, Ex. B.) For the protection of private health and medical information,

Plaintiff’s assessment was not disclosed to Jail personnel. (ECF No. 37 at 2.) However, based

on Plaintiff’s assessment, the nurse recommended to the booking officer that Plaintiff be placed

on suicide watch. (Id.) A mistake was made, though, and Plaintiff was initially housed in

general population. (Id. at 3.) Upon discovering the mistake, Plaintiff was brought to an

interview room where Sergeant Cabell informed Plaintiff he was to be moved to suicide watch and

needed to change into a suicide smock. (Id.) According to Defendants, Plaintiff became

argumentative at this time, denied being suicidal, yelled at the officers, and attempted to flip the

table in the interview room. (Id.) De-escalation attempts by the officers failed, and Corporal

Hicks then sprayed Plaintiff in the face with two one-half second bursts of Oleoresin Capsicum

(“OC”). (Id.) Plaintiff, however, denies that he was “combative,” but concedes that he was

verbally arguing with Corporal Hicks over Plaintiff’s placement on suicide watch. (ECF No. 39

at 2.) Plaintiff contends that Corporal Hicks used the OC spray on Plaintiff “for simply arguing

over their intention to place plaintiff on suicide watch.” (Id.)

Following Corporal Hicks’s use of OC spray, Captain Thompson ordered the officers to

close the door to the interview room to allow the OC to take effect. (Id.) Once Plaintiff was

subdued by the spray, the officers removed Plaintiff without further use of force and took him to

decontamination. (Id.) Plaintiff asserts that he was left in the cell for approximately two hours

before being moved to decontamination. (ECF No. 39 at 2.) Plaintiff was taken to the suicide

watch section following decontamination.1 (ECF No. 37 at 3.)

1 Specifically, Plaintiff was taken to pod section A-7-3. (ECF No. 37 at 3.) Section A of the suicide watch is used

for inmates who are monitored more closely. (Id.)

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Shortly after being moved to the suicide watch section, Plaintiff removed the sprinkler head

in his cell, which resulted in the flooding of the area.2 (Id.) Plaintiff was removed from his cell

and placed in booking so that the sprinkler could be replaced. (Id. at 3–4.) While in booking,

Plaintiff took a shower and was given fresh clothing. (Id. at 4.) However, Plaintiff refused to

change into a fresh suicide smock and “became belligerent and continued to act erratically.” (Id.)

Plaintiff repeatedly refused to be placed on suicide watch and stated that the officers would need

to fight him. (Id.) Plaintiff, however, asserts that he was calm, requested medical, but was

ignored. (ECF No. 39 at 3.)

After approximately 20 to 25 minutes, Captain Thompson was called to assist the officers

handling Plaintiff. (ECF No. 37 at 3.) Plaintiff continued to refuse the officers’ orders. (Id.)

Plaintiff also continued to request medical assistance. (ECF No. 39 at 3.) Captain Thompson

then ordered that a restrain chair be brought in, and he told Plaintiff that Plaintiff could either

comply with his placement on suicide watch or would be placed in the restraint chair. (ECF No.

37 at 3.) Plaintiff continued to refuse compliance. (Id.) When Plaintiff did not move towards

the chair, Captain Thompson sprayed Plaintiff with the OC in a single half-second burst. (Id.)

Plaintiff immediately sat down in the restraint chair. (Id.) Officers then applied the restraints to

Plaintiff. (Id.) Captain Thompson ordered another officer that once Plaintiff had become

compliant, he was to move Plaintiff to decontamination and again place him on suicide watch.

(Id.) Once Plaintiff was in the chair, Captain Thompson and Corporal Hicks left the area. (Id.

at 5.) Plaintiff asserts that he did not threaten or act aggressively towards Captain Thompson

during this period of time in booking, (ECF No. 39 at 3), but Captain Thompson stated in the

2 Plaintiff states that he “popped the sprinkler head” after “unsuccessfully attempting to get officers to decontaminate

him.” (ECF No. 39 at 2.)

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incident report that he feared for the safety of a nurse who was in the vicinity, despite the presence

of other correctional officers. (ECF No. 39–6, Ex. F.)

Plaintiff was held in this chair for several hours. (ECF No. 36–6, Ex. F at 23.) While

restrained in the chair, Plaintiff requested that he be decontaminated. (ECF No. 37 at 4; ECF No.

39 at 4.) Various officers, including Sergeant Cabell, misted Plaintiff with water in the face and

neck area. (ECF No. 37 at 4–5.) During this time, both Jail personnel and the nursing staff began

logging the active monitoring of Plaintiff in the chair. (Id. at 5.) This monitoring included

checking his pulse, respiration, and blood pressure, as well as the tightness of his restraints and

overall general health. (Id.) After Plaintiff was released from the restraint chair, he was placed

on suicide watch for the next day. (Id.) The day after that, he was removed from suicide watch

by a mental health professional. (Id. at 5–6.)

Plaintiff filed this action on January 30, 2019, in the Circuit Court of Kanawha County,

West Virginia. (ECF No. 1–1.) Defendants removed this action to this Court on April 25, 2019,

on the basis of federal question jurisdiction. (ECF No. 1.) Plaintiff asserted the following causes

of action in the original complaint: assault and battery (Count I); intentional infliction of emotional

distress/outrageous conduct (Count II); and violations of 18 U.S.C. § 1983 (Count IV).3 On

August 29, 2019, this Court issued an order dismissing the claim for intentional infliction of

emotional distress against all defendants. (See ECF No. 13.) Plaintiff’s remaining claims,

asserted against all Defendants, are for assault and battery and violation of 42 U.S.C. § 1983.

3 “Count IV” is apparently a typographical error, as no “Count III” was listed in the original complaint.

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Defendants filed their motion for summary judgment on April 20, 2020. (ECF No. 36.)

Plaintiff timely responded on May 4, 2020. (ECF No. 39.) Defendants filed their reply on May

11, 2020. (ECF No. 42.) As such, Defendants’ motion is fully briefed and ripe for adjudication.

II. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure governs summary judgment. It states, in

pertinent part, that a court should grant summary judgment if “there is no genuine issue as to any

material fact.” “Facts are ‘material’ when they might affect the outcome of the case, and a

‘genuine issue’ exists when the evidence would allow a reasonable jury to return a verdict for the

nonmoving party.” News & Observer Publ. Co. v. Raleigh–Durham Airport Auth., 597 F.3d 570,

576 (4th Cir. 2010). Summary judgment should not be granted if there are factual issues that

reasonably may be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 (1986). “Thus, at the summary judgment phase, the pertinent inquiry is whether there

are any genuine factual issues that properly can be resolved only by a finder of fact because they

may reasonably be resolved in favor of either party.” Variety Stores, Inc. v. Wal-Mart Stores,

Inc., 888 F.3d 651, 659 (4th Cir. 2018) (alteration and internal quotation marks omitted).

The nonmoving party bears the burden of showing there is a “genuine issue of material fact

for trial . . . by offering ‘sufficient proof in the form of admissible evidence[.]’” Guessous v.

Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). When ruling on a motion for

summary judgment, the Court must view the evidence “in the light most favorable to the opposing

party.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970).

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III. DISCUSSION

Defendants argue that they are entitled to summary judgment on all of Plaintiff’s remaining

claims. First, Defendants argue that Sergeant Cabell is subject to dismissal because there has

been no evidence produced that he used any force, let alone excessive, against the Plaintiff. (ECF

No. 37 at 8.) Next, Defendants argue that Captain Thompson and Officer Hicks are entitled to

summary judgment in their favor because the force used by them in subduing Plaintiff was applied

in a good-faith effort. (Id.) Finally, Defendants assert that they are all entitled to qualified

immunity as to both the state and federal causes of action.4 (Id. at 15–18.)

A. Sergeant Cabell

Defendants argue for the dismissal of Sergeant Cabell from this action because no evidence

has been produced that he used any force against Plaintiff. (Id. at 8.) While Sergeant Cabell was

present when Corporal Hicks first used the OC spray against Plaintiff, he did not actually disperse

the spray. (Id.) Further, Sergeant Cabell was not present when Captain Thompson used the OC

spray or during the time leading up to Plaintiff’s placement into the restraint chair. (Id.)

Therefore, Defendants maintain that Plaintiff cannot prove a “prima facie” case against him, thus

requiring his dismissal. (Id.)

Plaintiff responds by arguing that Sergeant Cabell is liable “because he was present to hear

the pleas of plaintiff that the O.C. was burning him.” (ECF No. 39 at 13.) Instead of properly

decontaminating him, Sergeant Cabell “misted plaintiff’s face with a spray bottle,” which only

4 Defendants have also included an argument addressing a § 1983 claim under a theory of supervisory liability. (ECF

No. 37 at 18–20.) This appears to be in error, as no cause of action was advanced by Plaintiff under supervisory

liability. Therefore, the Court does not take up this argument.

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exacerbated the burning. (Id.) Therefore, Plaintiff maintains that Sergeant Cabell should not be

granted summary judgment in his favor.

Plaintiff has not produced any evidence that Sergeant Cabell committed an assault and

battery against him. In West Virginia, a person commits an act of battery if “(a) he acts intending

to cause a harmful or offensive contact with the person of the other or a third person, or an

imminent apprehension of such a contact, and (b) a harmful contact with the person of the other

directly or indirectly results.” Tolliver v. The Kroger Co., 498 S.E.2d 702, 711 (W. Va. 1997)

(quoting Restatement (Second) of Torts § 13 (1965)). Sergeant Cabell did not use any force

against Plaintiff when Corporal Hicks deployed OC spray, and he was not even present when

Captain Thompson used OC spray against the Plaintiff. Therefore, Plaintiff’s claim of assault and

battery against Sergeant Cabell is DISMISSED.

Similarly, Plaintiff has failed to produce any evidence showing a genuine issue that

Sergeant Cabell violated the Eighth Amendment by failing to properly decontaminate Plaintiff.

In order to prevail on an Eighth Amendment claim, Plaintiff must demonstrate that (1) the

“deprivation suffered or injury inflicted . . . was sufficiently serious,” and (2) the “prison official

acted with a sufficiently culpable state of mind.” Williams v. Benjamin, 77 F.3d 756, 761 (4th

Cir.1996). The latter requirement of this test is a subjective one. Mann v. Failey, 578 Fed. App’x

267, 272 (4th Cir. 2014). The subjective component requires a showing that the force was applied

“maliciously and sadistically for the very purpose of causing harm,” instead of “a good-faith effort

to maintain or restore discipline.” Hudson v. McMillian, 503 U.S. 1, 6–7 (1992). While Plaintiff

is correct that the deprivation of decontamination may establish a constitutional claim, the

evidence against Sergeant Cabell fails in that regard. Instead, the evidence shows that Sergeant

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Cabell even attempted to help Plaintiff while he was restrained by spraying him with water. (See

ECF No. 37 at 4–5.) This is a far cry from the “malicious and sadistic” standard articulated by

the Supreme Court in Hudson. Simply, Plaintiff has failed to show any genuine issue of material

fact as to Sergeant Cabell. As such, Plaintiff’s Eighth Amendment claim of excessive force

against Sergeant Cabell must be DISMISSED.

Therefore, for the foregoing reasons, Defendants’ motion is GRANTED as to Sergeant

Cabell. Sergeant Cabell is hereby DISMISSED from this action, with prejudice.

B. Captain Thompson and Corporal Hicks

As to the remaining Defendants, Defendants argue that Captain Thompson and Corporal

Hicks are entitled to qualified immunity as to both the state and federal claims and that Plaintiff

has failed to produce evidence that their actions were not in a good-faith effort to maintain or

restore discipline. Plaintiff counters, however, that numerous genuine issues of material fact

prevent this Court from granting summary judgment in favor of the remaining Defendants. (ECF

No. 39 at 5–12.) The Court begins by analyzing the issue of qualified immunity.

1. Qualified Immunity

The purpose of qualified immunity is to ensure that government officials performing

discretionary functions can perform their duties “free from the specter of endless and debilitating

lawsuits.” Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991) (citing Anderson v.

Creighton, 483 U.S. 635, 638 (1987)). When performing discretionary functions, government

officials are “entitled to qualified immunity from liability for civil damages to the extent that ‘their

conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Rish v. Johnson, 131 F.3d 1092, 1095 (4th Cir. 1997) (quoting

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Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, qualified immunity protects “all but the

plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335,

341 (1986).

In determining whether an official is entitled to qualified immunity, a court must consider

“whether the facts alleged or shown, taken in the light most favorable to the plaintiff, establish that

the police officer's actions violated a constitutional right,” and “whether the right at issue was

‘clearly established’ at the time of the officer's conduct.” See Meyers v. Baltimore Cnty., 713 F.3d

723, 731 (4th Cir. 2013). Courts are “permitted to exercise their sound discretion in deciding

which of the two prongs of the qualified immunity analysis should be addressed first in light of

the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

West Virginia’s qualified immunity standard is modeled on the federal standard described

above. See State v. Chase Secs., Inc., 424 S.E.2d 591, 595 (W. Va. 1992). The West Virginia

Supreme Court of Appeals has explained the standard as follows:

A public executive official who is acting within the scope of his authority and is

not covered by the provisions of W. Va. Code 29–12A–1 et seq. [the West Virginia

Governmental Tort Claims and Insurance Reform Act], is entitled to qualified

immunity from personal liability for official acts if the involved conduct did not

violate clearly established laws of which a reasonable official would have known.

There is no immunity for an executive official whose acts are fraudulent, malicious,

or otherwise oppressive.

Syl. Pt. 5, West Virginia Regional Jail and Correctional Facility Authority v. A.B., 766 S.E.2d 751,

755 (W. Va. 2014) (alteration in original).

In the matter at hand, the Court need not advance beyond the first prong of this analysis

because there are genuine issues of material fact. To begin, there is a significant disagreement

between the parties as to whether the use of force was necessary. For example, Defendants

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contend that, from the start, Plaintiff was argumentative, yelling at the officers, and attempted to

flip a table. (ECF Nos. 36–3 at 18–22; 36–4 at 21–26; 36–5 at 26–27.) Plaintiff, meanwhile,

disputes this characterization. (See ECF No. 39–1 at 71:2.) Furthermore, there appears to be

conflicting accounts between certain testimony and documentary evidence. For instance,

Sergeant Cabell testified that the officers were outside of the interview room when Corporal Hicks

first used OC Spray against Plaintiff. (ECF No. 39–8 at 22:5–6.) Meanwhile, Captain

Thompson’s incident report indicates that both he and Corporal Hicks were still in the interview

room when Corporal Hicks deployed the OC spray. (ECF No. 39–6 at 2.) Similarly, in the

second incident, Corporal Hicks stated that Plaintiff was not a threat while in booking and did not

act out violently. (ECF No. 39–8 at 44:10; 46:23.) While Defendants claim to have “exhausted

every possible avenue to gain compliance,” (ECF No. 37 at 4), Plaintiff claims that Defendants

escalated the use of force beyond “using empty hand control, . . . [and] used intermediate control

tactics in response to a situation where there was no physical threat or active resistance.” (ECF

No. 39 at 8.)

Based on the foregoing, genuine issues of material fact exist such that the Court cannot

grant summary judgment on the issue of state and federal qualified immunity. As such,

Defendants’ motion is DENIED as to the Defendants’ claim of qualified immunity.

2. Good-Faith Effort Restore Order

The Eighth Amendment to the United States Constitution prohibits the infliction of cruel

and unusual punishments. U.S. Const., amend. VIII. In the prison context, the Eighth

Amendment “protects inmates from inhumane treatment and conditions while imprisoned.” Iko v.

Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (quoting Williams, 77 F.3d at 761). As already

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explained by the Court, in order to prevail on an Eighth Amendment claim, Plaintiff must

demonstrate that (1) the “deprivation suffered or injury inflicted . . . was sufficiently serious,” and

(2) the “prison official acted with a sufficiently culpable state of mind.” Williams, 77 F.3d at 761.

This analysis encompasses both an objective and a subjective element. Id.

To establish the objective component of this test, a plaintiff must demonstrate that “the

alleged wrongdoing is objectively ‘harmful enough’ to establish a constitutional violation.”

Hudson, 503 U.S. at 2. The question, as applied here, is whether the officer’s conduct was

“objectively unreasonable” under the circumstances. Kingsley v. Hendrickson, 576 U.S. 396–97

(2015). Therefore, the conduct must be assessed from the perspective of a “reasonable” officer

with the knowledge they actually possessed at the time, while recognizing the need of jails “to

preserve internal order and discipline and to maintain institutional security.” Id.

A plaintiff must show that an officer “acted with a ‘sufficiently culpable state of mind’”

that is “wantonness in the infliction of pain.” Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008).

This subjective component requires a showing that the force was applied “maliciously and

sadistically for the very purpose of causing harm,” instead of “a good-faith effort to maintain or

restore discipline.” Hudson, 503 U.S. at 6–7. Whether the force was applied “maliciously and

sadistically” or in a good-faith effort requires a court to weigh the following factors:

[1] the need for application of force, [2] the relationship between that need and the

amount of force used, [3] the threat “reasonably perceived by the responsible

officials,” and [4] “any efforts made to temper the severity of a forceful response.”

Whitley v. Albers, 475 U.S. 312, 320-21 (1986), abrogated on other grounds by Wilkins v. Gaddy,

559 U.S. 34 (2010).

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However, and as explained above, there exist genuine issues of material fact in this matter

that prevent the Court from deciding this issue. To begin, the parties dispute the events such that

it is impossible for the Court to determine if there was a need for the application of force. On one

hand, the Plaintiff testified and points to evidence indicating that he was merely argumentative

with the officers about being placed on suicide watch, (ECF No. 39–1 at 71:2), while on the other,

Defendants assert that Plaintiff was cursing and flipped a table. (ECF Nos. 36–3 at 18–22; 36–4

at 21–26; 36–5 at 26–27.) Furthermore, as to the second factor, while the officers maintained that

they “exhausted every possible avenue to gain compliance,” Plaintiff testified that the Defendants

inappropriately escalated the amount of force beyond what was needed. (ECF No. 39 at 8.)

Naturally, the dispute of fact revolving on the level of force used affects the Court’s analysis on

the third Whitley factor as well. Simply, genuine issues of material fact prevent the Court from

engaging in this analysis, and those issues must be decided by the fact-finder.

Based on the foregoing, genuine issues of material fact exist such that the Court cannot

grant summary judgment on Plaintiff’s Eighth Amendment claim of excessive force. As such,

Defendants’ motion is DENIED.

IV. CONCLUSION

For the reasons stated above, the Court GRANTS IN PART Defendants’ Motion for

Summary Judgment on all Plaintiff’s claims asserted against Sergeant Cabell. The Court further

DENIES IN PART the Defendants’ Motion for Summary Judgment on all remaining claims

asserted against Defendants Thompson and Hicks. The Court ORDERS that Defendant Cabell

be DISMISSED from this action with prejudice.

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IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented party.

ENTER: August 21, 2020

THOMAS E. f—

UNITED STATES DISTRICT JUDGE

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