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Philp v. Elola

United States District Court, M.D. Tennessee, Nashville Division

December 12, 2016

MATTHEW W. PHILP, Plaintiff,
v.
DAVID ELOLA, et al., Defendants.

          Sharp, Judge

          REPORT AND RECOMMENDATION

          JEFFERY S. FRENSLEY, United States Magistrate Judge

         I. Introduction and Background

         This 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).

         Plaintiff has not responded to Defendants' Motion or Statement of Undisputed Material Facts, nor has Plaintiff filed his own Statement of Undisputed Material Facts.

         Plaintiff 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.

         Plaintiff 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.[1] 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.

         Defendants 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).

         Defendants 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.[2] 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.

         As to 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. Id.

         Defendants 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.

         With 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 citations omitted).

         Defendants 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.

         Finally, 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.

         As 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 Facts.

         For the 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.

         II. Facts[3]

         A. Factual Allegations of Plaintiff's Verified Complaint

         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.” 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.

         B. Affidavit of Rondia Felts

         Rondia 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., ¶ 5.

         The 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.

         Defendants' 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.; ¶ 26.

         The 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.

         The 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., ¶ 13.

         The 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.

         Following the deployment of a chemical agent, the affected inmate(s) must be given an opportunity to decontaminate. Id., ¶ 18; Ex. 2.[4] 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. Id.

         Correctional 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.

         Pursuant 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.

         Plaintiff 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. Id.

         C. Affidavit of David Elola

         Defendant 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. Id.

         At the 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.

         On June 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.[5] 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., ¶ 6.

         Defendant 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.

         Upon 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. Id.

         Defendant 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.

         Defendant 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.

         Once 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., ¶ 17.

         Defendants never attempted to strike or kick Plaintiff during the incident. Id.

         While 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 ...


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