Dorsey v. Randolph

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

LAMAR NASHAWN DORSEY,

Plaintiff,

v. Civil Action No. 2:19-00608

CPL. CHRISTOPHER RANDOLPH,1

Defendant,

MEMORANDUM OPINION AND ORDER

Pending is Defendant Christopher Randolph’s Motion for

Summary Judgment (ECF No. 41), filed March 7, 2022. Plaintiff

Lamar Nashawn Dorsey filed a response to the motion (ECF No. 43)

on March 21, 2022, and Randolph filed his reply (ECF No. 44) on

March 23, 2022.

I. Background

On January 28, 2018, while incarcerated at

Southwestern Regional Jail, Plaintiff Lamar Nashawn Dorsey

(“Dorsey”) was in possession of meth. Dorsey Dep. 22:12−14,

30:19−24, ECF No. 43-1. After using some of the drugs and

sharing some with others, he ran out. Id. at 22:14−15.

1 Corporal Christopher Randolph’s name is incorrectly spelled as

“Randoff” in Dorsey’s complaint. The court will direct the

Clerk to have the caption reflect the correct spelling of

Corporal Randolph’s name.

Thereafter, six inmates came into his cell intending to “break

bread.”2 Id. at 22:15−16. Dorsey testified that the six men

started beating him up. Id. at 22:14−17. After this incident,

Dorsey was moved to “B2,” a lock-down pod, along with his

cellmate and two of the inmates who had assaulted him. Id. at

22:17−20.

The next morning, January 29, 2018, one of those

inmates came into his cell, once again asking for drugs. Id. at

23:1−4. A couple of minutes after Dorsey informed the man that

he did not have any more drugs, Dorsey said he overheard the

whole pod was plotting to “jump” him. Id. at 23:4−7.

Dorsey called out to the corrections officers that he

was suicidal, and an officer retrieved him from the pod and told

Dorsey he would take him “up to the psych.” Id. at 23:8−10.

Dorsey explained that he was not actually suicidal, but that he

did not feel safe in his cell and that he “felt like [he] was

about to get jumped again.” Id. at 23:10−13.

Nevertheless, the officer took Dorsey to see the jail

psychiatrist. Id. at 23:13. Dorsey told her about being

assaulted, and he testified that she told him she was “going to

2 Presumably, this means that the men were hoping to share some

of Dorsey’s meth.

move [him] somewhere safe.” Id. at 23:13−15.

After visiting the psychiatrist, Dorsey was placed in

an interview room. Id. at 23:16. Three or four hours later,

Corporal Randolph entered the room and told Dorsey that he was

going back to B2. Id. at 23:19−23. Dorsey refused the order,

telling Corporal Randolph that he did not feel safe in that pod.

Id. at 23:23−24:2. Corporal Randolph left the room and then

returned with a “can of mace.”3 Id. at 24:3−4.

When plaintiff signed the pro se complaint in this

case under penalty of perjury on July 15, 2019, he wrote in

handwritten script that Corporal Randolph instructed him to go

back to his cell twice before spraying him after he refused to

do so:

About 4pm Cpl Randoff said “You going back to B-

2.” I stated there going to assault me. I state

there going to assault me again. So Cpl Randoff

went to grab a can of O’C pepper spray. “He

stated your going back to B-2.” I stated I’m

scared. So he spray me with O’C spray in the

face . . .

Compl. 5.

3 The classification of the spray used by Corporal Randolph has

not been established by evidence. Dorsey refers to it as “mace”

in his deposition. Corporal Randolph refers to it as “O.C.” in

his briefing. See ECF No. 42, at 2. The court makes no

findings regarding the quality or nature of the spray used on

Dorsey.

Two and a half years later, after plaintiff had

engaged an attorney, plaintiff testified at his deposition as

though he was not asked a second time to return to his cell but

upon Corporal Randolph’s return was sprayed without warning.

Dorsey Dep. 24:3−4, 27:2−6, 52:4−53:13, 55:3−5.

Dorsey estimated that he was hit in the face with a

three to four second burst of spray. Id. at 27:23−28:6;

53:15−17. As a result of the spray, Dorsey experienced physical

pain for three days and could not sleep, but he did not suffer

any permanent injury. Id. at 29:3−30:1.

After being sprayed, Dorsey was taken to the nurse’s

station, decontaminated in the shower, and then placed outside

for two hours in fresh air. Id. at 24:4−11, 28:11−13. From the

time Dorsey left the B2 pod to see the psychiatrist through the

time he was placed outside for decontamination, he was free from

physical restraints. Id. at 26:14−27:1, 28:14−23.

Dorsey testified that he filed a grievance related to

the incident and that he received a response from a Sergeant

Lambert. Id. at 25:6−21. When asked what he did after he

received the response, he stated, “Nothing. I just stayed in my

pod.” Id. at 25:22−24. When asked whether he pursued the

grievance any further he testified:

You couldn’t pursue it no further. He didn’t say

you could pursue it to an administrator, because

at the time, they were called administrators.

And there wasn’t no paper grievances, sir.

Id. at 26:2−4.

Dorsey filed a pro se complaint against Corporal

Randolph and Southwestern Regional Jail with this court on

August 21, 2019. ECF No. 1. The complaint was filed pro se and

was assigned to United States Magistrate Judge Dwane L. Tinsley

for proposed findings and recommendation. On September 15,

2020, Magistrate Judge Tinsley recommended that the court

dismiss Southwestern Regional Jail as a defendant and leave the

matter referred for additional proceedings concerning Corporal

Randolph. ECF No. 9. This court adopted Magistrate Judge

Tinsley’s proposed findings and recommendation on December 1,

2020, and dismissed Southwestern Regional Jail from this action.

ECF No. 16.

In April of 2021, Dorsey retained counsel and the

referral to Magistrate Judge Tinsley was vacated. After summary

judgment briefing, Dorsey is once again without counsel and is

proceeding pro se. ECF No. 49; ECF No. 51.

II. Legal Standard

Summary judgment is appropriate only “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). “Material” facts are those necessary to

establish the elements of a party’s cause of action. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News

& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d

570, 576 (4th Cir. 2010). A “genuine” dispute of material fact

exists if, in viewing the record and all reasonable inferences

drawn therefrom in a light most favorable to the non-moving

party, a reasonable fact-finder could return a verdict for the

non-moving party. Anderson, 477 U.S. at 248.

Inferences that are “drawn from the underlying facts .

. . must be viewed in the light most favorable to the party

opposing the motion.” United States v. Diebold, Inc., 369 U.S.

654, 655 (1962). A party is entitled to summary judgment if the

record, as a whole, could not lead a rational trier of fact to

find for the non-moving party. Williams v. Griffin, 952 F.2d

820, 823 (4th Cir. 1991). Conversely, summary judgment is

inappropriate if the evidence is sufficient for a reasonable

fact-finder to return a verdict in favor of the non-moving

party. Anderson, 477 U.S. at 248.

III. Analysis

In his motion, Corporal Randolph argues that summary

judgment should be granted on three grounds. First, he asserts

that he is entitled to summary judgment because Dorsey failed to

exhaust his administrative remedies as required by the Prison

Reform Litigation Act. Second, he argues that he is entitled to

summary judgment because he applied force in good faith. Third,

he argues that he is entitled to qualified immunity. The court

notes that Corporal Randolph’s argument that his force was

applied in good faith is subsumed in the qualified immunity

analysis. Accordingly, the Corporal Randolph’s second and third

arguments will be addressed together.

A. Exhaustion Under the Prison Reform Litigation Act

Pursuant to the Prison Litigation Reform Act (“PLRA”)

prisoners are prohibited from filing actions under § 1983 “until

such administrative remedies as are available are exhausted.”

42 U.S.C. § 1997(e)(a).4 “Failure to exhaust is an affirmative

defense under the PLRA.” Jones v. Bock, 549 U.S. 199, 216

(2007). Accordingly, the defendant has “the burden of raising

4 Corporal Randolph also argues that exhaustion is required by

the West Virginia Prison Litigation Reform Act (“WVPLRA”). ECF

No. 42, at 7−8. The courts notes that it is the federal PLRA

that controls in this instance.

and proving the absence of exhaustion.” Porter v. Sturm, 781

F.3d 448, 451 (8th Cir. 2015) (citing Jones, 549 U.S. at

211−12). If the defendant makes such a threshold showing, the

burden then shifts to the plaintiff to show that administrative

remedies were not “available.” Baxley v. Jividen, 508 F. Supp.

3d 28, 46 (S.D.W. Va. 2020).

Although it is the PRLA that requires exhaustion, “it

is the prison's requirements, and not the PLRA, that define the

boundaries of proper exhaustion.” Jones, 549 U.S. at 218.

Corporal Randolph concedes that Dorsey filed a

grievance, but he argues that Dorsey failed to fully exhaust his

administrative remedies because he “failed to appeal his

grievance to the Chief of Operations, Regional Jail Authority.”

ECF No. 42, at 7. Dorsey contends that he was not required to

appeal his grievance because the jail’s grievance process was

“unavailable.” ECF No. 43, at 5−7.

At the time of the incident with Corporal Randolph,

West Virginia Regional Jail Authority Policy and Procedure

Statement 14003 contained the procedures for inmate grievances.

ECF No. 41-2.

Statement 14003 provides “[i]f an inmate wishes to use

the grievance procedure, facility staff will provide the inmate

access to a grievance form.” Id. at 3. The inmate is to

complete the form and place it in an envelope addressed to the

facility administrator. Id. The administrator may then accept

or reject the grievance. Id. at 4. If the grievance is

accepted, the administrator “shall provide a written decision

with regard to the grievance to the grieving inmate within two

(2) days of the receipt of the investigation report. Such

written decisions shall include a statement of actions taken,

the reasons for such actions, and procedures for appeal of the

decision.” Id.

The ”Appeal Procedure” portion of the policy states,

in pertinent part,

1. An inmate who is dissatisfied with the

Administrator’s decision may appeal such

decision to the Chief of Operations, Regional

Jail Authority. Such appeal must be filed in

writing within five (5) days of the receipt of

the Administrator’s decision and must include a

copy of the initial complaint and the

Administrator’s decision.

2. Inmate appeals shall be mailed in accordance

with procedures applying to legal

correspondence. Reasonable amounts of postage

will be provided to indigent inmates. Wherever

possible, such appeals may be included in daily

mail sent to the Central Office by the Jail.

Id. at 5.

Inasmuch as Dorsey admits he did not appeal the denial

of his grievance, Corporal Randolph has made a threshold showing

that Dorsey did not complete the exhaustion process, and the

burden shifts to Dorsey to prove that the exhaustion was

unavailable.

The availability of administrative remedies under the

PLRA is a question of law for the court. Ray v. Kertes, 130 F.

App’x 541, 543−44 (3d Cir. 2005); Baxley, 508 F. Supp. 3d at 47.

Administrative remedies are “available” if they are “capable of

use to obtain relief.” Ross v. Blake, 578 U.S. 632, 643 (2016).

In Ross, the United States Supreme Court explained

three circumstance in which administrative remedies are not

“available”: (1) a remedy is not available if it “operates as a

simple dead end – with officers unable or consistently unwilling

to provide any relief to aggrieved inmates”; (2) “an

administrative scheme might be so opaque that it becomes,

practically speaking, incapable of use”; and (3) remedies are

unavailable “when prison administrators thwart inmates from

taking advantage of a grievance process through machination,

misrepresentation, or intimidation.” Id. at 643−44.5

5 Corporal Randolph urges that exhaustion is mandatory. ECF No.

42, at 7; ECF No. 44, at 1. Indeed, in Reynolds v. Doe, the

Fourth Circuit held that “[e]xhaustion to administrative duties

is mandatory, even where the inmate claims that exhaustion would

Dorsey argues that he could not complete the jail’s

exhaustion procedure because “there was no way to appeal the

grievances through the kiosk system that was utilized at the

regional jails.” ECF No. 43 at 7. Dorsey contends that he is

similarly situated with the inmates in Baxley v. Jividen, whose

failure to exhaust was excused by a finding that the grievance

procedure utilized by the West Virginia Division of Corrections

and Rehabilitation6 (“WVDCR”) was not navigable, and thus was

unavailable. Id. at 6−7 (citing Baxley, 508 F. Supp. 3d at

51−53).

The Baxley decision involved a putative class action

wherein pretrial detainees and convicted inmates in West

Virginia Regional Jails asserted claims against the Commissioner

of the WVDCR under § 1983 and the Americans with Disabilities

Act. Baxley, 408 F. Supp. 3d 28. In that case, Judge Robert C.

Chambers analyzed the same grievance procedure at issue in this

be futile.” 431 F. App’x 221, 222 (4th Cir. 2011) (citing Booth

v. Churner, 532 U.S. 731, 741 n.6 (2001)). Nevertheless, the

United States Supreme Court’s decision in Ross makes clear that

there is an exception to the mandatory language of the PLRA, and

that “[a] prisoner need not exhaust remedies if they are not

‘available.’” Ross, 578 U.S. at 635.

6 The West Virginia Division of Corrections and Rehabilitation is

the government agency that operates West Virginia’s jails and

prisons, including the jail Dorsey was incarcerated at,

Southwestern Regional Jail.

case and found that the procedure was unavailable.7

In doing so, Judge Chambers noted two factors that are

particularly relevant in this case. First, he found that the

grievance process set forth in the Inmate Handbook given to

inmates was “entirely different from the one that the

[commissioner] expected [the inmates] to follow.” Id. at 51.

Second, Judge Chambers remarked that despite the fact that the

written policy “specifically states that inmates will be

provided with the ‘procedures for appeal,’. . . no such

instructions were provided.” Id. at 52.

The court finds that these same factors lead to a

conclusion that the grievance process was similarly unavailable

in this case. Although Dorsey testified that he filed his

grievance on a kiosk, see Dorsey Dep. 25:6−11, the written

policy furnished by Corporal Randolph describes a paper system

whereby inmates are given grievance forms to be placed in

envelopes and delivered to jail administrators. ECF No. 41-2,

at 3−4. That policy further states that inmates will be given a

written decision including “a statement of actions taken, the

reasons for such actions, and procedures for appeal of the

7 The court notes that in Baxley, the grievance procedure is

reproduced from WVDCR’s “Inmate Handbook,” rather than directly

from Policy 14003. Nevertheless, the grievance procedures are

materially identical.

decision.” Id. at 4. That fact notwithstanding, Dorsey

testified that although he received a response to his grievance

from a Sargent Lambert, he was not told he could pursue the

grievance any further. Dorsey Dep. at 26:2−4.

Inasmuch as Corporal Randolph does not attempt to

dispute Dorsey’s testimony, or otherwise explain how Dorsey

might have been able to appeal the denial through the electronic

kiosk Dorsey used to file his grievance, the court finds that

Dorsey exhausted his remedies to the extent they were available

to him. See Goebert v. Lee Cnty., 510 F.3d 1312, 1322 (11th

Cir. 2008) (finding grievance process was available where inmate

“did not know that she should, or could, appeal [the] denial of

her complaint”).

Accordingly, Corporal Randolph’s motion for summary

judgment based on failure to exhaust under the PLRA is denied.

B. Qualified Immunity

Section 1983 subjects to civil liability any person

who, under color of state law, deprives an individual of his

constitutional or federal rights. 42 U.S.C. § 1983. Proving a

deprivation of rights, however, is not enough. Qualified

immunity is an affirmative defense to Section 1983 that applies

when an officer’s “conduct does not violate clearly established

statutory or constitutional rights known to a reasonable

person,” even if the facts “establish that the officer’s conduct

violated a plaintiff’s constitutional rights.” Wilson v. Prince

George’s County, 893 F.3d 213, 219 (4th Cir. 2018); see also

Thompson v. Virginia, 878 F.3d 89, 98 (4th Cir. 2017) (“[E]ven

if an official has violated an inmate’s constitutional right, he

is still entitled to immunity if the right was not so clearly

established that a reasonable official would understand that

what he is doing violates that right.” (quotation marks

omitted)). “The burden of proving qualified immunity rests on

the party seeking to invoke it.” Wilson, 893 F.3d at 219.

The court thus proceeds under the familiar two-pronged

approach for assessing Section 1983 liability and qualified

immunity. First, the court determines whether the officer

violated the plaintiff’s constitutional or federal rights under

the standard of review applicable to the stage of litigation,

such as summary judgment. Id.; see also Dean v. Jones, 984 F.3d

295, (4th Cir. 2021) (“On summary judgment, then, the inquiry .

. . boils down to whether a reasonable jury could determine that

an officer [violated the plaintiff’s constitutional or federal

rights].”). If the court finds a violation of the plaintiff’s

rights, then second, the court must determine whether that right

was “clearly established” at the time the conduct took place.

Wilson, 893 F.3d at 219.

“The Eighth Amendment protects prisoners from

unnecessary and wanton infliction of pain.” Thompson, 878 F.3d

at 97 (quotation marks omitted). An excessive force claim under

the Eighth Amendment inquires “whether force was applied in a

good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” Id. at 98

(quotation marks omitted).

“An inmate’s Eighth Amendment excessive force claim

involves both an objective and a subjective component.” Brooks

v. Johnson, 924 F.3d 104, 112 (4th Cir. 2019). The objective

component is not onerous: it asks merely whether the force

applied was “something more than de minimis,” id. (quotation

marks omitted), “regardless of the extent of the injury,” Dean,

984 F.3d at 303. The objective component is readily met in this

case because a reasonable jury could find that the three or four

second blast that Corporal Randolph sprayed in Dorsey’s face

constituted more than de minimis force. See id. (“[A]

reasonable jury could find that a sustained blast of pepper

spray directly to the face constitutes something more than de

minimis force.”).

The subjective component, however, presents a higher

bar: it “asks whether the officers acted with a sufficiently

culpable state of mind.” Brooks, 924 F.3d at 112 (quotation

marks omitted). That requisite state of mind is “wantonness in

the infliction of pain.” Id. “And whether such wantonness can

be established . . . 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.” Id. at 113 (quotation marks omitted). Thus, the line

separating good faith from bad faith use of force is, roughly,

the permissible motive to “confront immediate risks to physical

safety” and to “preserve internal order by compelling compliance

with prison rules and procedures” on the one hand, and the

impermissible motive to “punish an inmate for intransigence or

to retaliate for insubordination” on the other. Id. at 113

(quotation marks omitted); see Boone v. Stallings, 583 F. App'x

174, 177 (4th Cir. 2014) (“[T]he Eighth Amendment does not

permit a correctional officer to respond to a misbehaving inmate

in kind.”).

To aid in deciding on which side of the line a

correctional officer’s conduct falls, the United States Supreme

Court has outlined four factors to be considered:

(1) the need for the application of the force;

(2) the relationship between the need and the

amount of force that was used;

(3) the extent of any reasonably perceived threat

that the application of force was intended to

quell; and

(4) any efforts made to temper the severity of a

forceful response.

Whitley v. Albers, 475 U.S. 312, 320−21 (1986); Thompson, 878

F.3d at 99. The Fourth Circuit emphasizes the “non-

exclusive[ness]” of those four Whitley factors. “[O]ther

evidence of an impermissible malicious motive, direct or

circumstantial, always will be relevant to the Eighth Amendment

inquiry.” Dean, 984 F.3d at 309.

At the summary judgment stage, “the inquiry under the

subjective component boils down to whether a reasonable jury

could determine that an officer acted with malice, applying

force punitively and ‘for the very purpose of causing harm.’”

Id. at 302 (quoting Whitley, 475 U.S. at 320−21).

As to the first factor, “the need for application of

force,” and the third factor, “the extent of any reasonably

perceived threat that the application of force was intended to

quell,” as well as the fourth factor of “temper the severity of

a forceful response,” Corporal Randolph submits that his use of

force was reasonable, and that,

[t]he threat perceived by Cpl. Randolph is clear.

The Plaintiff, an unrestrained convicted felon

was simply refusing to leave the interview room

and return to his assigned cell, in a lock-down

pod.

Prior to discharging the O.C., Cpl. Randolph

attempted to temper his response by giving loud,

clear verbal commands and officer presence.

ECF No. 42, at 10.

Indeed, Dorsey acknowledged that he refused an order

to return to his pod. Dorsey Dep. 27:2-9. Although he stated

during his deposition that Corporal Randolph sprayed him in the

face without warning, id. at 47:3-5, Dorsey writes in his

verified complaint that he was given two instructions to return

to his pod before Corporal Randolph employed force, see Compl.

5.

While Dorsey avers that he was not physically or

verbally aggressive in his refusal, Dorsey Dep. 27:2−6, the fact

remains that he was an unrestrained inmate, who had made a false

statement to be removed from his cell and was refusing to

return.

As to the second Whitley factor, which examines “the

relationship between the need and the amount of force that was

used,” the court notes that there is no evidence that Corporal

Randolph used more force than necessary to obtain Dorsey’s

compliance.

Finally, the court returns to the fourth Whitley

factor, “which focuses on corrections officers’ efforts to avoid

or temper a forceful response.” See Brooks v. Johnson, 924 F.3d

at 117. First, the injury to Dorsey was temporary and one from

which he soon recovered. See supra at 4. Second, inasmuch as

Dorsey’s complaint states that he was given two direct

instructions from the corrections officer before he was sprayed,

it is not clear what additional action Corporal Randolph should

have been required to take “to secure [Dorsey’s] compliance

without using violent force.” Id.; see Soto v. Dickey, 744 F.2d

1260, 1267 (7th Cir. 1984) (“When an order is given to an inmate

there are only so many choices available to the correctional

officer. If it is an order that requires action by the

institution, and the inmate cannot be persuaded to obey the

order, some means must be used to compel compliance, such as a

chemical agent or physical force.”); Lewis v. White, No. 1:07-

cv-00348, 2010 WL 2671495, at *3 (S.D. W. Va. 2010) (“[I]t is

clear that Plaintiff cannot satisfy the subjective component of

the excessive force analysis. Although Plaintiff alleges that

he was merely asking Defendant White a question, his actions

demonstrate that he twice refused to obey a direct order. . . .

It is widely recognized that prison guards may use chemical

sprays when reasonably necessary to subdue an insubordinate

prisoner because orders must be obeyed, and there are only so

many choices available to correctional officers when an inmate

refuses.” (collecting cases)).

Viewing the facts in the light most favorable to

Dorsey, the court finds he has failed to adduce evidence that

would be sufficient for a reasonable jury to conclude Corporal

Randolph’s actions were not made in a good faith effort to

restore order, but rather that he acted with malice and “for the

very purpose of causing harm,” in violation of the Eighth

Amendment. See Dean, 984 F.3d at 303.

Inasmuch as Dorsey has failed to satisfy the first

prong of the qualified immunity analysis, Corporal Randolph is

entitled to qualified immunity and the court need not answer

whether Dorsey’s Eighth Amendment right was clearly established.

Iv. Conclusion

For the foregoing reasons, the court ORDERS that

Defendant Christopher Randolph’s Motion for Summary Judgment

(ECF No. 41) be, and it hereby is, granted.

The Clerk is directed to modify the caption in this

Civil action to identify defendant “Cpl. Randoff” as “Cpl.

Christopher Randolph.”

The Clerk is further directed to transmit copies of

this memorandum opinion and order to all counsel of record and

any unrepresented parties.

ENTER: August 30, 2022

- Be, <p

Jo . Copenhaver, Jr.

Senior United States District Judge

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