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McDougald v. Bear

United States District Court, S.D. Ohio, Western Division

November 7, 2017

JERONE MCDOUGALD, Plaintiff,
v.
SHANNON BEAR, et al., Defendants.

          Barrett, J.

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz, United States Magistrate Judge.

         Plaintiff, an inmate at the Southern Ohio Correctional Facility ("SOCF'), brings this prisoner civil rights action under 42 U.S.C. § 1983 alleging that defendant Bear used excessive force against him and defendants Bear, Keating, Andre, Hart, and Reiter were deliberately indifferent to his medical needs. (Doc. 5). This matter is before the Court on defendants' motion to dismiss (Doc. 12), plaintiffs response in opposition (Doc. 16), and defendants' reply memorandum (Doc. 18). I. Background Plaintiff filed his complaint in this matter on April 20, 2017, and this Court subsequently conducted a sua sponte review of the complaint. (Docs. 5, 6). This Court concluded by Report and Recommendation that plaintiff could proceed with his Eighth Amendment claims against defendants Bear, Keating, Andre, Hart, and Reiter based on his allegation that defendant Bear used excessive force against him and these defendants were deliberately indifferent to his medical needs. (Doc. 6 at 3-4). The Court dismissed plaintiffs claims against defendants in their official capacities for monetary damages. (Id., at 4). The Court also dismissed plaintiffs Fourteenth Amendment claims against defendants Sammons, Felts, Green, and Mohr, and plaintiffs claim against defendant Bear for allegedly writing a false conduct report. The District Court adopted the Report and Recommendation on May 22, 2017. (Doc. 9).' With regard to the remaining Eighth Amendment claims against defendants, plaintiff alleges that on December 16, 2015, defendant Bear sprayed him at close range in the face with a fogger can of pepper spray while he "wasnt [sic] doing anything wrong." (Complaint, Doc. 5 at 1). Plaintiff alleges that he was escorted to the segregation unit where defendants Bear, Keating, and Andre denied him decontamination and defendants Hart, Bear, Keating, Andre, and Reiter denied him medical attention. (Id.). Plaintiff alleges that he had trouble breathing and defendants placed him in a cell that contained no water and a "piece of a [sic] inside of a mat." (Id. at 2). Plaintiff further alleges that defendants left him in handcuffs inside the cell and left him there to "suffer the mitigating effects of the pepper spray on [his] body and uniform." (Id.).

         II. Defendants' motion to dismiss (Doc. 12)

         Defendants move to dismiss plaintiffs complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the ground the complaint fails to state a claim upon which relief can be granted. (Doc. 12). Defendants contend that plaintiff fails to state cognizable claims under 42 U.S.C. § 1983 for Eighth Amendment excessive force and deliberate medical indifference. (Id. at 5). Defendants also contend that they are entitled to qualified immunity. (Id. at 12).

         A. Rule 12(b)(6) standard

         In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations as true and make reasonable inferences in favor of the non-moving party. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)). Only "a short and plain statement of the claim showing that the pleader is entitled to relief is required. Id. (quoting Fed.R.Civ.P. 8(a)(2)), "[T]he statement need only give the defendant fair notice of what the . .. claim is and the grounds upon which it rests." Id. ' Plaintiff subsequently filed a motion for relief from judgment (Doc. 14) on June 9, 2017, which remains pending. (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks omitted) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although the plaintiff need not plead specific facts, the "[f]actual allegations must be enough to raise a right to relief above the speculative level" and to "state a claim to relief that is plausible on its face." Id. (quoting Twombly, 550 U.S. at 555, 570). A plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         It is well-settled that a document filed pro se is "to be liberally construed" and that a pro se complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers [, ]" Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, the Sixth Circuit has recognized that the Supreme Court's liberal construction case law has not had the effect of "abrogating] basic pleading essentials" in pro se suits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

         B. Defendants' motion to dismiss plaintiffs Eighth Amendment excessive force claim should be denied.

         Defendants contend that plaintiffs excessive force claim should be dismissed because he pleads no facts suggesting that the use of force was objectively unreasonable. (Doc. 12 at 7). Citing to a conduct report attached to plaintiffs complaint, defendants argue that "[p]Iaintiff was acting aggressively, and was told not to turn around." (Id.). Defendants also argue that while one handcuff was on plaintiffs hand, he turned around aggressively and made a "hocking sound" as though plaintiff was going to spit on defendant Bear. (Id.). Defendants contend that the pepper spray "appears to have been applied in a good-faith effort to maintain or restore discipline." (Id.) (citing Whitley v. Albers, 475 U.S. 312, 321 (1986)).

         A convicted prisoner's right to be free from the use of excessive force by prison officials is governed by the Eighth Amendment. Whitley, 475 U.S. at 327. An Eighth Amendment claim has both an objective and subjective component. Cordell v. McKinney, 759 F.3d 573, 580 (6th Cir. 2014) (citing Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir. 2013)). The subjective component focuses on "whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). In making this inquiry, the Court should consider the need for the use of force, the relationship between that need and the type and amount of the force used, the threat reasonably perceived by the official, the extent of the injury inflicted, and any efforts made to temper the severity of a forceful response. See Hudson, 503 U.S. at 7; Whitley, 475 U.S. at 319-21. The inmate is not required to suffer a serious injury, but the extent of his injuries may be considered in determining whether the force used was wanton and unnecessary. Hudson, 503 U.S. at 7.

         The objective component requires the "pain inflicted to be 'sufficiently serious'" to offend "contemporary standards of decency." Cordell, 759 F.3d at 580 (quoting Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011); Hudson, 503 U.S. at 8). "While the extent of a prisoner's injury may help determine the amount of force used by the prison official, it is not dispositive of whether an Eighth Amendment violation has occurred." Id. at 580-81 (citing Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)). "When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated ... [w]hether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury." Id. at 581 (quoting Hudson, 503 U.S. at 9).

         At this stage in the proceedings, the Court finds that plaintiff has pleaded sufficient facts satisfying both the objective and subjective elements of an Eighth Amendment excessive force claim. The complaint alleges that defendant Bear sprayed plaintiff in the face with pepper spray at close range when plaintiff "wasnt [sic] doing anything wrong." (Doc. 5 at 1). Defendant Bear's actions, if true, suggest that the force used was unnecessary and not applied in a good faith effort to maintain or restore discipline, but rather to cause harm, and thus satisfying the subjective component of an Eighth Amendment excessive force claim. Hudson, 501 U.S. at 7. See also Williams, 631 F.3d at 384 (plaintiff stated a valid excessive force claim when he "allege[d] that, when instructed to 'pack up, ' he inquired, 'What for, sir?, ' at which point an 'assault team' entered the cell and used a chemical agent on him."); Roberson v. Torres, 770 F.3d 398, 406-07 (6th Cir. 2014) (denying qualified immunity at the summary judgment stage to defendants who allegedly sprayed an inmate with a chemical agent while he was sleeping).

         Plaintiff has also pleaded sufficient facts satisfying the objective component of an Eighth Amendment excessive force claim. Plaintiff has alleged that as a result of the pepper spray application, he suffered an injury in the form of difficulty breathing. (Doc. 5 at 1). Defendants argue that plaintiff has not alleged a "serious injury beyond the normal discomfort associated with being exposed to pepper spray." (Doc. 12 at 8). However, the Supreme Court has consistently rejected the notion that a serious injury is a threshold requirement for stating an excessive force claim. Wilkins, 559 U.S. at 37 (citing Hudson, 503 U.S. at 7). Here, plaintiffs allegation that he had difficulty breathing after defendant Bear sprayed him with pepper spray is sufficient to state a claim for excessive force under the Eighth Amendment. Williams, 631 F.3d at 384 (finding inmate's allegations of coughing and shortage of oxygen sufficient to satisfy the objective component of an Eighth Amendment excessive force claim). Cf. Jennings v. Mitchell,93 Fed.Appx. 723, 724 (6th Cir. Mar. 12, 2004) (explaining that ...


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