United States District Court, M.D. Tennessee, Nashville Division
MATTHEW W. PHILP, Plaintiff,
DAVID ELOLA, et al., Defendants.
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY, United States Magistrate Judge
Introduction and Background
matter is before the Court upon Defendants' Motion for
Summary Judgment. Docket No. 38. Along with their Motion,
Defendants have contemporaneously filed a supporting
Memorandum of Law (Docket No. 39) and a Statement of
Undisputed Material Facts (Docket No. 40), as well as the
Affidavits of Rondia Felts with Exhibits (“Felts
Aff.”)(Docket No. 41-1), David Elola (“Elola
Aff.”)(Docket No. 41-2), Joshua Miller (“Miller
Aff.”)(Docket No. 41-3), and Derrick Webster
(“Webster Aff.”)(Docket No. 41-4), and excerpts
from the Deposition of Matthew Philp (“Plaintiff's
Dep.”)(Docket No. 41-5).
has not responded to Defendants' Motion or Statement of
Undisputed Material Facts, nor has Plaintiff filed his own
Statement of Undisputed Material Facts.
filed this pro se, in forma pauperis action pursuant to 42
U.S.C. § 1983, alleging that Defendants violated his
Eighth amendment rights. Docket No. 1. Specifically,
Plaintiff avers that Defendant Elola “aggressively
approached” him, “pointed his finger” in
Plaintiff's face, yelled at him to return to his bunk or
be taken to the “hole, ” and instructed Plaintiff
to “pack your shit.” Id. Plaintiff
asserts that he “stood in temporary shock, ” and
that, before he had time to respond to Defendant Elola's
“demands, ” Defendant Elola again ordered
Plaintiff to “pack your shit.” Id.
Plaintiff avers that he replied “But I did nothing
wrong, ” in response to which Defendant Elola grabbed
him and slammed him into the wall. Id. Plaintiff
asserts that Defendants Miller and Webster then
“rush[ed] in and start[ed] attacking” him,
“repeatedly slamming him into the wall twisting his
arms behind him, shoving his head toward the ground
etc.” Id. Plaintiff avers that when Defendant
Miller turned his attention toward another inmate, Plaintiff
was able to “escape the grasp of the two remaining
officers (Webster, Sgt. Elola).” Id. Plaintiff
asserts that, “once free [he] retreated under the
stairs towards the bathroom.” Id. Plaintiff
avers that Defendant Miller followed him to the bathroom and
sprayed him with pepper spray. Id. Plaintiff
maintains that Defendants then left, but returned
approximately fifteen minutes later to try to “talk to
him in a peaceful manner.” Id.
sues Defendants in their official capacity, arguing that
“they lack the proper training needed to safely
restrain an inmate without risk of causing serious injury or
the use of excessive force.” Id. Plaintiff further
argues that Defendants have “demonstrated their
inability to resolve issues without the use of threats and
violence against non-threatening victims.” Id.
Plaintiff contends that he “constantly” has
“bad dreams about the whole situation, ” and
suffers from “the re-injury to” his shoulder; he
seeks “[t]o be compensated for living in fear of
officers daily.” Id.
filed the instant Motion and supporting materials arguing
that Plaintiff's Eighth Amendment claims should be
dismissed because they do not rise to the level of a
constitutional violation, and because they are entitled to
qualified immunity. Docket Nos. 39 -41-5. With regard to
Plaintiff's individual capacity claims against them,
Defendants argue that: 1) Plaintiff does not have a
constitutional right to be spoken to in a manner that is free
of abrasive tones and harsh language; 2) “[v]erbal
harassment and insulting remarks, while unpleasant and
unprofessional, do not constitute cruel and unusual
punishment”; and 3) tone, language, and hand gestures
simply do not violate any constitutional or federally
protected right. Docket No. 39, citing Johnson v. Unknown
Dellatifa, 357 F.3d, 545-46 (6th Cir. 2004).
further argue that their use of force against Plaintiff was
not excessive because: 1) they used force following
Plaintiff's repeated failure to comply with their orders;
2) they are not required to wait and see if an inmate is
going to eventually obey an order before using force against
the inmate to gain compliance; 3) they have a legitimate
interest in having inmates obey orders; and 4) Plaintiff
resisted their attempt to apply handcuffs by attempting to
pull away in a combative manner and physically struggling
with them. Id., citing Jennings v. Peiffer,
110 Fed.Appx. 643, 645 (6th Cir. 2004); Jennings v.
Mitchell, 93 Fed.Appx. 723, 725 (6th Cir. 2004);
Caldwell v. Moore, 986 F.2d 595, 601 (6th Cir.
1992). Defendants contend that, had Plaintiff either complied
with their orders or willfully submitted to being handcuffed,
their use of force would have been entirely avoided.
Id. Defendants additionally maintain that: 1) the
“soft hand control” utilized is a permitted means
by which Dickson County Correctional Officers can attempt to
gain an inmate's compliance; 2) the amount of force used
was minimal and did not violate contemporary standards of
decency; 3) they applied force in a good faith effort to
restore discipline; 4) the use of force was necessitated by
Plaintiff's refusal of three direct orders and physical
resistance to being handcuffed; and 5) reasonable officers in
their position would recognize the need to use physical force
to gain control against an inmate that had refused to comply
with multiple orders and had physically resisted an
officer's previous attempt to apply handcuffs and would
recognize the need to assist fellow officers who were
grappling with an inmate actively resisting being handcuffed.
Id. Defendants also note that, following the
incident, the Dickson County Jail's (“Jail”)
medical staff x-rayed Plaintiff's shoulder, and Plaintiff
admits that no one told him that there was any new damage to
his shoulder or that his shoulder was any worse than it had
been before. Id., citing Felts Aff., ¶
20; Plaintiff's Dep., p. 62:25 - 63:7, 64:4-12.
Defendants also note that Plaintiff did not suffer a severe
physical injury, and argue that this evidences the fact that
they did not act maliciously or sadistically. Id.
Defendant Miller's use of a chemical agent against
Plaintiff, Defendants argue that the use of a chemical agent
against Plaintiff was likewise done in a good faith effort to
restore discipline and was not done either maliciously or
sadistically to cause Plaintiff harm. Id. Defendants
maintain that the use of a chemical agent was necessary
given: 1) Plaintiff's repeated refusal to obey orders; 2)
Plaintiff's resistance to being handcuffed; 3) the prior
ineffectiveness of the lessor forms of force; and 4)
Defendant Miller's belief that prompt resolution to the
incident was required because the approaching agitated
inmates in the Pod represented a substantial threat to the
officers' safety. Id. Defendants note that
Plaintiff was allowed to decontaminate to lessen the effect
of the chemical agent. Id., citing Elola
Aff., ¶ 25. Defendants assert that the use of a chemical
agent on an inmate is an incremental escalation of force and
not the type of force that violates contemporary standards of
decency, and one that a reasonable officer in their position
would recognize was an appropriate use of force to gain an
inmate's compliance. Id. Defendants additionally
contend that the extenuating circumstance posed by the
agitated inmates aggressively approaching the officers makes
the use of a chemical agent even more objectively reasonable.
next argue that they are entitled to qualified immunity
because their use of force was reasonable under the
circumstances that existed at the time, and they did not
violate a clearly established right of Plaintiff during their
use of force against him since they: 1) only used force after
Plaintiff had refused multiple orders and had physically
resisted being handcuffed; 2) attempted to use soft hand
control to restrain Plaintiff so that he could be escorted
out of the Pod; and 3) Defendant Miller did not deploy his
chemical agent until he had witnessed Plaintiff's
repeated refusal of Defendant Elola's orders and had
witnessed Plaintiff's physical resistance to being
handcuffed. Id., citing Elola Aff., ¶¶ 11,
13, 15, 16; Miller Aff., ¶¶ 17, 19, 21.
regard to Plaintiff's official capacity claims against
them, Defendants argue that those claims would be claims
against Dickson County, and they note that Dickson County is
not a party to this action. Id. Defendants further
argue that Plaintiff could only establish municipal liability
against Dickson County if he could demonstrate that a
constitutional violation occurred because of a Dickson County
policy, practice, or custom by offering evidence of one of
the following: 1) the existence of an illegal official policy
or legislative enactment; 2) that an official with final
decision-making authority ratified illegal actions; 3) the
existence of a policy of inadequate training or supervision;
or 4) the existence of a custom of tolerance or acquiescence
of federal rights violations. Id., citing Burgess v.
Fisher, 735 F.3d 462, 478 (6th Cir. 2013) (internal
contend that Plaintiff has failed to establish that they were
improperly trained because Plaintiff has failed to specify
how Defendants were inadequately trained, has failed to even
reference the Jail's training policies and procedures,
and has acknowledged in his deposition that he does not have
information regarding the training of correctional officers
at the Jail. Id., citing Plaintiff's Dep.
Defendants argue that the Jail's policies and procedures
comply with the minimum standards set forth by the Tennessee
Corrections Institute (“TCI”) in all manners,
including relating to the training and education of its
correctional officers in the appropriate use of force.
Id., citing Felts Aff., ¶¶ 8-11,
27. Defendants additionally maintain that, at the time of the
incident in question, it is undisputed that they had
fulfilled all of their training and educational requirements
set forth by the Jail's policies and procedures,
including regarding the use of force against inmates and the
proper methods of use for chemical agents. Id.,
citing Felts Aff., passim.
Defendants argue that although Plaintiff seemingly takes
issue with the response he received to the grievance he
filed, Plaintiff has no constitutional right to a specific
inmate grievance procedure. Id. Defendants contend
that it is undisputed that Plaintiff's grievance was
responded to in a timely manner by Jail staff. Id.
noted, Plaintiff has not responded to the instant Motion or
to Defendants' Statement of Undisputed Material Facts,
nor has he filed his own Statement of Undisputed Material
reasons discussed below, the undersigned finds that there are
no genuine issues of material fact and that Defendants are
entitled to a judgment as a matter of law. The undersigned
therefore recommends that Defendants' Motion for Summary
Judgment (Docket No. 38) be GRANTED.
Factual Allegations of Plaintiff's Verified
Elola “aggressively approached” him,
“pointed his finger” in Plaintiff's face,
yelled at him to return to his bunk or be taken to the
“hole, ” and instructed Plaintiff to “pack
your shit.” Docket No. 1. Plaintiff “stood in
temporary shock, ” and before he had time to respond to
Defendant Elola's “demands, ” Defendant Elola
again ordered Plaintiff to “pack your shit.”
Id. Plaintiff replied “But I did nothing
wrong, ” in response to which Defendant Elola grabbed
him and slammed him into the wall. Id. Defendants
Miller and Webster then “rush[ed] in and start[ed]
attacking” him, “repeatedly slamming him into the
wall twisting his arms behind him, shoving his head toward
the ground etc.” Id. When Defendant Miller
turned his attention toward another inmate, Plaintiff was
able to “escape the grasp of the two remaining officers
(Webster, Sgt. Elola).” Id. “Once free
[Plaintiff] retreated under the stairs towards the
bathroom.” Id. Defendant Miller followed
Plaintiff to the bathroom and sprayed him with pepper spray.
Id. Defendants then left, but returned approximately
fifteen minutes later to try to “talk to him in a
peaceful manner.” Id. Plaintiff
“constantly” has “bad dreams about the
whole situation, ” and suffers from “the
re-injury to” his shoulder. Id.
Affidavit of Rondia Felts
Felts has been employed by the Dickson County Sheriff's
Office since March of 1995. Felts Aff., ¶ 2. From
September of 2007 to February of 2016, Ms. Felts served as a
Lieutenant with the Sheriff's Office and was the acting
Administrator of the Dickson County Jail from October of 2014
to February of 2016. Id., ¶ 5. In February of
2016, Ms. Felts was promoted to Captain and awarded the
position of Dickson County Jail Administrator. Id.,
¶ 3. Her duties as the acting Jail Administrator were
substantially similar to her current duties as the Jail
Administrator. Id., ¶ 5. As the Jail
Administrator, Ms. Felts oversees the Jail's operations,
its compliance with state standards, and its compliance with
policies set forth by the Dickson County Sheriff's
Office. Id., ¶ 4. As the acting Jail
Administrator, Ms. Felts oversaw the same. Id.,
Jail has always been recommended for certification by the
TCI, and Dickson County Officers complete forty (40) hours of
TCI training annually. Id., ¶ 6; Ex. 1. The
Jail's Policies and Procedures comply with, and to a
certain extent exceed, the TCI's Minimum Standards for
Local Correctional Facilities. Id., ¶ 27. The
TCI, in its Minimum Standards for Local Correctional
Facilities, permits force to be used to: 1) overcome
resistance; 2) repel aggression; 3) protect life; or 4)
retake prisoner or property. Id., ¶ 7; Ex. 1.
The Jail's policy regarding use of force permits
correctional officers to use only the amount of force which
is reasonable and necessary to affect an arrest or assume
control over any given situation. Id., ¶ 8; Ex.
2. Defendants have all received written instructions dealing
with the use of force and have demonstrated an understanding
of said instructions. Id., ¶ 9.
training satisfied both the Jail's Policies and
Procedures and the training required by the TCI.
Id., ¶ 25. Said training taught Defendants how
to properly restrain an inmate without using excessive force
and without risking serious injury to the inmate.
Id. Throughout the entirety of the incident at
issue, Defendants complied with the Jail's Policies and
Procedures relating to the use of force. Id.; ¶
Jail has established a Use of Force Continuum as a general
guideline for assisting its correctional officers in
determining which force is reasonable and necessary for a
given circumstance. Id., ¶ 10. The Use of Force
Continuum begins with the least severe use of force and
progresses to the most severe form of force allowed.
Id., ¶11. The Continuum is as follows: 1)
physical presence; 2) verbal warning; 3) verbal command; 4)
soft hand control; 5) chemical weapon; 6) hard hand control;
7) impact weapon; and 8) deadly force. Id.; Ex. 2.
Because the use of force is reactionary and dependent on the
resistive action, however, there will be times that not all
the steps in the Use of Force Continuum will be used.
Id., ¶ 10; Ex. 2.
uses of force employed by Defendants during the incident in
question were in accordance with the Use of Force Continuum,
in that the force employed gradually escalated. Id.,
¶ 12. Jail Administrator Felts has reviewed the use of
force reports related to the June 29, 2015 incident and
believes that each act of force Defendants used was
reasonable and necessary to gain control of Plaintiff, in
light of the circumstances then-present. Id., ¶
TCI, in its Minimum Standards for Local Correctional
Facilities, requires that all correctional officers
authorized to use chemical agents shall receive basic and
ongoing in-service training in the use of such chemical
agents. Id., ¶ 14. Before a Jail correctional
officer is permitted to carry a chemical agent, the
correctional officer is required to have received training on
its use and a Certificate of Training must be kept in the
officer's training file. Id., ¶ 15; Ex. 2.
Defendant Miller has received both initial training and
continued training on the proper use of deploying a chemical
agent and a Certificate of Training is kept in his training
file. Id., ¶ 16. Jail Administrator Felts has
reviewed the evidence of the incident in question and is of
the opinion that Plaintiff had refused multiple orders and
was actively resisting being handcuffed when Defendant Miller
deployed his chemical agent. Id., ¶ 17.
the deployment of a chemical agent, the affected inmate(s)
must be given an opportunity to decontaminate. Id.,
¶ 18; Ex. 2. Plaintiff was given an opportunity to
decontaminate after being sprayed by a chemical agent.
Id., ¶ 20. Medical staff at the Jail also
x-rayed Plaintiff's shoulder following the incident, as
Plaintiff complained of shoulder pain. Id. Nothing
was found to be wrong with Plaintiff's shoulder.
officers at the Jail are required to file an Incident Report
whenever an inmate violates an institutional rule.
Id., ¶ 21; Ex. 3. Defendants all filed Incident
Reports shortly after the incident in question. Id.;
¶ 22; Ex. 4.
to Dickson County's Policies and Procedures relating to
inmate grievances, inmates are permitted to file grievances
as an acceptable procedure for the settlement of legitimate
complaints concerning any incident, policy, or condition
existing or occurring within the Jail. Id., ¶
23. Jail staff is required to review and respond to all
appropriate grievances within ten (10) days of receipt.
Id. If the grievance is related to an inmate's
health or welfare, a reply must be made as soon as possible,
and within forty-eight (48) hours of the complaint.
Id.; Ex. 5.
submitted a grievance on July 5, 2015, complaining of the
actions taken by Defendants. Id., ¶ 24. Jail
Administrator Felts spoke with Plaintiff within ten (10) days
of receiving the grievance and communicated to him that the
use of force by the officers was necessary and reasonable in
light of the circumstances present; she reached this
conclusion after reviewing the incident reports, Defendant
Miller's Use of Force Report, and video footage, and
after speaking with Defendants, and based upon her over
twenty (20) years of experience working in corrections.
Affidavit of David Elola
Elola completed TCI's week-long Basic Training Course for
jail deputies in 2011. Elola Aff., ¶ 1. Defendant Elola
worked as a Corporal at the Jail from November 6, 2013 until
September 18, 2014, when he was promoted to his current
position of Sergeant. Id. He has been required to
complete forty (40) hours of TCI training annually, and he
completed the requisite forty (40) hours of training in 2014.
time of his Affidavit, Defendant Elola worked first shift at
the Jail, from 7:00 a.m. until 3:00 p.m., and he is
responsible for supervising the deputies on duty during his
shift, reviewing disciplinary actions taken by deputies, and
maintaining the safe and orderly operation of the Jail.
Id., ¶¶ 2, 3.
29, 2015, Defendant Elola started his shift at 7:00 a.m..
Id., ¶ 4. At approximately 12:10 p.m.,
Defendant Miller requested his presence in Pod D20 to help
resolve an issue related to an inmate's bunk
assignment. Id. Another inmate in the Pod had
previously been assigned a top bunk but now needed to be
re-assigned to a bottom bunk because he had begun suffering
from seizures. Id. On June 29, 2015, there were no
unoccupied bottom bunks available to which the inmate with a
medical restriction could be re-assigned. Id.,
Miller informed Defendant Elola that he had previously
requested for an inmate to volunteer to give his bottom bunk
to the inmate in need, however no one volunteered so
Defendant Elola selected an inmate on the bottom floor to
move bunks. Id., ¶ 7. Defendant Miller then
told Defendant Elola that an inmate was volunteering to give
up his bunk but wanted to speak to the Sergeant. Id.
Defendant Miller also told Defendant Elola that several of
the inmates in Pod D20 became argumentative and
confrontational when the officers asked for an inmate to
voluntarily give up his bottom bunk. Id.
entering Pod D20, Defendant Elola advised the inmates in the
Pod that they do not control the inmate movements or bunk
assignments and that if any of the inmates had a problem with
the bunk re-assignment process, then they would be taken to
lockdown. Id., ¶ 8. Plaintiff became visibly
agitated with Defendants' requests that a bunk be
voluntarily provided and began shouting his displeasure.
Id., ¶ 10. At that time, Plaintiff was assigned
to a top bunk. Id., ¶ 9. He was not asked to
give up his bunk, as there was no need for a top bunk.
Elola walked toward Plaintiff and ordered him to calm down
and return to his bunk. Id., ¶ 11. Plaintiff
continued to approach Defendant Elola and refused to follow
Defendant Elola's direct order, claiming that he did
nothing wrong, and demanding an explanation for why he was
being ordered back to his bunk. Id. Defendant Elola
was aware that Plaintiff's father had recently passed
away and that Plaintiff had been upset by the news, thought
that Plaintiff was still upset over his father's death,
and believed that removing Plaintiff from the Pod would be in
Plaintiff's best interest. Id., ¶ 12.
Defendant Elola ordered Plaintiff to pack his belongings and
leave the Pod with him. Id. Plaintiff refused to
follow Defendant Elola's order, remained fixed to his
position at the bottom of the stairs, and stated,
“you're not taking me to lockdown.”
Id., ¶ 13.
Elola again ordered Plaintiff to return to his bunk and pack
his belongings. Id., ¶ 14. For the third time,
Plaintiff refused to follow Defendant Elola's order.
Id. In response to his third refusal, Defendant
Elola ordered Plaintiff to give him his hands and he reached
for his handcuffs. Id., ¶ 15. Using the least
amount of force necessary, Defendant Elola attempted to place
handcuffs on Plaintiff. Id. Defendant Miller
assisted Defendant Elola with his initial attempt to handcuff
Plaintiff. Id. Plaintiff refused and resisted
Defendant Elola's attempts to apply handcuffs by
attempting to pull away in a combative manner. Id.
Plaintiff began to pull away, Defendants Elola and Miller,
with the assistance of Defendant Webster, began to use soft
hand control against Plaintiff in an attempt to gain
Plaintiff's compliance. Id., ¶ 16. The soft
hand control employed by Defendant Elola during this incident
can best be described as grappling and/or wrestling in an
attempt to bring Plaintiff to the ground. Id.,
never attempted to strike or kick Plaintiff during the
attempting to handcuff Plaintiff, several of the other
inmates housed in Pod D20 began to angrily yell and
aggressively approach Defendants in a threatening manner.
Id., ¶ 18. Fearing for his personal safety and
the safety of others, Defendant Elola disengaged from
Plaintiff and moved towards the approaching inmates, with his
baton extended at his side and pointed down, demanding that
the inmates stay back. Id. Defendant ...