DAVIS v. LESTER, 156 F.Supp.2d 588 (W.D.Va. 07/26/2001)

[1] United States District Court, Western District of Virginia, Roanoke Division

[2] No. Civ.A. 7:00-CV-00737

[3] 156 F. Supp.2d 588, 2001

[4] July 26, 2001

[5] TRINI DAVIS, PLAINTIFF,
V.
LT. LESTER, ET AL., DEFENDANTS.

[6] Trini Davis, Somers, Ct, pro se.

[7] Banci Enga Tewolde, Susan Foster Barr, Office of the Attorney General, Richmond, Va, for defendants.

[8] The opinion of the court was delivered by: Turk, District Judge.


[9] MEMORANDUM OPINION

[10] Plaintiff Trini Davis, a Virginia inmate proceeding pro se, brings this action under the Civil Rights Act, 42 U.S.C. § 1983, with jurisdiction vested under 28 U.S.C. § 1343. In his complaint, plaintiff alleges that the defendants, officers at Wallens Ridge State Prison ("Wallens Ridge"), used excessive force against him because of his race and in retaliation for his filing grievances when they placed him in 5-point restraints for 48 hours, purportedly for kicking his door. The defendants named in the complaint, Lt. Lester and Officer Kilgore, have filed a motion to dismiss to which plaintiff has responded, making the matter ripe for the court's consideration. Plaintiff has also filed a motion to amend, bringing additional claims and adding new defendants. Upon review of the record, the court grants the motion to amend and denies the motion to dismiss except as to one claim. The court also finds that the majority of the new claims raised in the motion to amend must be dismissed, pursuant to 28 U.S.C. § 1915A. for failure to state a claim.

[11] I.

[12] Davis alleges the following sequence of facts in his complaint as amended relevant to the motion to dismiss.*fn1 On April 16, 2000, he was watching television in his cell at about 10:45 p.m., Lt. Lester came to Davis' cell door and told him that he was to be put in 5-point restraints because Lester had seen him kicking his cell door. Lester also said that the 5-point restraints would teach Davis not to file complaints against his officers.*fn2 Lester returned to Davis' cell a few minutes later with an enforce team, which escorted Davis to a stripped cell and placed him in the 5-point restraints. Davis told the officers that the restraints were too tight around his ankles, but Lester told him to be quiet and did not adjust the restraints. When the officers left the cell and closed the door, Davis could see a paper hung on the door with a drawing of a hangman's noose on it and the words "coming soon." Kilgore visited Davis' cell a few hours later during his morning shift and told Davis, "We're going to hang you, boy. That picture should give you something to think about." When officers came in to give Davis his dinner, Officer Kilgore showed Sgt. Kendrick the drawing, and Kendrick removed it from the door.

[13] Davis remained in 5-point restraints for 48 hours, restrained by cuffs on wrists and ankles to the bed posts and by a strap across his chest. He urinated on himself about a dozen times and did not have opportunity to wash himself.*fn3 He also suffered chills and muscle cramps from the combination of the air conditioning in the cell being too high and being wet from lying in his own urine in the same position for so many hours. He suffered pain in his ankles from the restraints being too tight and still has scars on his ankles and numbness in his left foot. No officer ever charged him with a disciplinary violation for conduct occurring before he was placed in the restraints, so he never had an opportunity to challenge his treatment during an official hearing. Davis asserts that defendants' alleged actions violated his rights under the First Amendment (retaliation for his exercise of the right to access the courts), the Eighth Amendment, and the due process and equal protection clauses of the Fourteenth Amendment.*fn4

[14] II.

[15] In an action brought pursuant to 42 U.S.C. § 1983, a motion to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The allegations in the complaint should be construed in the light most favorable to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

[16] In their motion to dismiss, defendants Lester and Kilgore argue that Davis' allegations fail to state any constitutional claim and should be dismissed under Rule 12(b)(6) accordingly. If the court had found this to be true, the court would have dismissed Davis' entire complaint summarily upon screening the complaint, pursuant to 28 U.S.C. § 1915A(b)(1) before ordering that it be filed and served. Accordingly, except as to Davis' retaliation claim,*fn5 the court does not find that defendants motion to dismiss for failure to state a constitutional claim is well taken, as the motion fails to note any allegation or evidence in the record*fn6 that the court has not already considered in screening the complaint under § 1915A. Defendants also assert the affirmative defense of qualified immunity against Davis' claims for monetary damages. For the following reasons, the court also denies their motion on this ground.

[17] State officials are entitled to qualified immunity against suits for damages if a reasonable officer facing the same situation would not have known that his actions violated plaintiffs clearly established constitutional right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). To address a claim of qualified immunity, the court "must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). See also Saucier v. Katz, 531 U.S. 991, 121 S.Ct. 2151, 2159, 150 L.Ed.2d 272 (2001). "Clearly established" for purposes of qualified immunity means that "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent." Wilson v. Layne, 526 U.S. 603, 614-15, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); Saucier; 121 S.Ct. at 2159-60 (granting qualified immunity upon finding "substantial grounds for the officer to have concluded he had legitimate justification under the law for acting as he did" mid upon finding no "case demonstrating a clearly established rule prohibiting the officer from acting as he did").

[18] A. Excessive Force

[19] Davis first alleges that use of 5-point restraints under the circumstances he alleges was cruel and unusual punishment in violation of the Eighth Amendment. The Eighth Amendment prohibits the "the unnecessary and wanton infliction of pain" by a prison guard upon an inmate. Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). A claim that guards used excessive force against an inmate entails a dual inquiry regarding (1) the objective nature of the force used and the resulting harm and (2) the subjective intent of the officers. Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). De minimis injury can be conclusive evidence that the force used was also de minimis and, therefore, not violative of constitutional protections. See Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir. 1994). Thus, absent the most extraordinary circumstances, an inmate cannot prevail on an excessive force claim if he proves no more than de minimus injury. Id. The Fourth Circuit has defined two types of extraordinary circumstances that give rise to an excessive force claim where plaintiff suffered de minimis injury: when the "force used [is] of a sort repugnant to the conscience of mankind . . . or the pain itself [is] such that it can properly be said to constitute more than de minimis injury." Id. at 1264 n. 4. As "[m]ankind has devised some tortures that leave no lasting physical evidence of injury," "courts should be wary of finding uses of force that inflict merely' pain but not injury to be de minimus, and therefore beyond requiring justification under the Eighth Amendment." Williams v. Benjamin, 77 F.3d 756, 762 and 762 n. 2 (4th Cir. 1996) (involving inmate who spent 8 hours in 4-point restraints after being sprayed with mace).

[20] The key subjective inquiry in analyzing an excessive force claim is "whether the force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7, 112 S.Ct. 995. In making this determination, the court must balance such factors as the need for the application of force, the relationship between the need and the amount of force actually applied, the threat "reasonably perceived by the responsible officials," and "any efforts made to temper the severity of a forceful response." Id.; see also Hickey v. Reeder, 12 F.3d 754, 759 (8th Cir. 1993) (use of stun gun to force prisoner to comply with rule requiring him to clean his cell, without immediate implication of security concerns, was wanton infliction of pain).

[21] Defendants assert that Davis' allegations fail to demonstrate that he suffered more than de minimis injury as a result of confinement in the restraints. Defendants also assert that Davis was placed in restraints for his own safety and institutional security after he refused to stop kicking his door and, therefore, cannot show use of the restraints constituted the wanton infliction of pain. The court finds neither of these characterizations of Davis' claims supports a finding of qualified immunity for defendants for failure to state a constitutional claim.

[22] First, defendants do not cite, and the court has not found, a single case in which a court held the use of 4-or 5-point restraints to be both de minimis injury and de minimis force, as defendants argue, and dismissed the case under Rule 12(b)(6) on that basis alone, without requiring further development of plaintiffs claims. In the cases defendants cite, courts found the use of 4-point restraints to be constitutional only after extensive development of the record and in-depth analysis of the circumstances offered by prison officials to justify the application of the restraints in each case, such as the inmate's history of violent and disruptive behavior and the repeated attempts to control him through the use of other disciplinary measures. See LeMaire v. Maass, 12 F.3d 1444 (9th Cir. 1993); Williams v. Burton, 943 F.2d 1572 (11th Cir. 1991); Stenzel v. Ellis, 916 F.2d 423 (8th Cir. 1990); Bruscino v. Carlson, 854 F.2d 162 (7th Cir. 1988). Moreover, the Fourth Circuit has recognized in dicta that application of 4-point restraints for 8 hours likely constitutes more than de minimis injury. See Benjamin, 77 F.3d at 762 (noting apparent wisdom of defendant officers' decision not to contend plaintiffs allegations failed to satisfy objective component under McMillian).

[23] Davis alleges that he was restrained for 48 hours with all four of his limbs and his chest immobilized, lying on his back in his own urine in a cold cell, and that he suffered chills, muscle spasms, permanent scars to his ankles, and continuing numbness in his left foot, all for no other reason than his race and his complaints about previous expressions of racism. These allegations describe psychological and physical torture and humiliation, entirely unrelated to Davis' alleged conduct and unnecessary to restore or preserve safety, order or security. Taking these allegations in the light most favorable to plaintiff, the court finds that use of 5-point restraints in the manner and for the length of time Davis alleges was "repugnant to the conscience of mankind" thus satisfying the objective component of his Eighth Amendment. claim regardless of whether Davis suffered no severe or disabling injuries from the application of the restraints. Norman, 25 F.3d at 1264 n. 4.

[24] The court also finds that, taking Davis allegations in the light most favorable to him, he has alleged facts stating a claim that defendants subjected him to 5-point restraints for 48 hours solely for the malicious and sadistic purpose of causing him harm, in violation of the Eighth Amendment. Davis alleges no facts suggesting that defendants applied the restraints for his own safety or for the security of the institution. He alleges that at the time defendants took him from his cell to be restrained, he was sitting, watching television. Moreover, even if Davis was repeatedly kicking his door, as defendants assert based on the unsworn grievance responses, absent detailed evidence concerning other disciplinary measures attempted first and the inmate's continued misbehavior while in the restraints, the court must infer that 48 hours in 5-point restraints was an extreme response, "imposed upon Davis solely to punish him rather than to serve any legitimate security or safety purpose. See Benjamin, 77 F.3d at 765 (noting that after restraints were imposed and disturbance ended, "unnecessary infliction of continued pain throughout a prolonged time period [8 hours in 4-point restraints] supports an inference that the guards were acting to punish rather than to quell the disturbance."); United States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990) ("[P]unitive intent behind a defendant's use of force may be inferred when the force is not reasonably related to a legitimate nonpunitive governmental objective" (quotations omitted)). Based on the foregoing, the court finds that Davis has alleged facts stating a constitutional claim of excessive force and thus satisfied the first prong of the qualified immunity analysis. Wilson, 526 U.S. at 614-15, 119 S.Ct. 1692.

[25] So saying, the court moves to the next prong of the analysis: whether the "contours" of the right were sufficiently clear at the time of the alleged violations such that a reasonable official would have understood that his actions violated that right. Id. The court has not found a case from the United States Supreme Court or the Fourth Circuit expressly holding that use of 5-point restraints as alleged by Davis violates the Eighth Amendment. However, no such express rule is necessary to deny qualified immunity. Id. The standards in McMillian, Norman, and Benjamin were clearly established at the time of the alleged violations. In Benjamin, the Fourth Circuit repeatedly questioned the use of 4-point restraints for an 8-hour period after a not and found summary judgment inappropriate absent additional development of the facts regarding the justification for such prolonged use of these restraints. See, generally, 77 F.3d at 762-68. In the face of this case law, the court cannot find that the defendants had any substantial grounds upon which to conclude they had legitimate justification under the law for acting as they allegedly did. Saucier, supra. Accordingly, the court denies the motion to dismiss Davis' excessive force claims on the ground of qualified immunity.

[26] B. Race Discrimination