United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is Defendant Austin Peters' Motion for
Summary Judgment [ECF No. 79]. The plaintiff filed a response
[ECF No. 90], and the defendant filed a reply [ECF No. 94].
The matter is ripe for adjudication. For the reasons stated
herein, the Motion is GRANTED in part and
DENIED in part.
plaintiff, Andre Miller, is currently incarcerated in an
administrative segregation unit at Mount Olive Correctional
Complex (“MOCC”). Compl. ¶ 1 [ECF No. 2]. On
January 21, 2015, correctional officers discovered that the
plaintiff had alcohol in his cell. Mem. Law Supporting Def.
Austin Peters' Mot. Summ. J. Ex. A, at 3
(“Pl.'s Dep.”) [ECF No. 80-1]. When the
plaintiff returned from recreation that day a corporal, Wendy
Hight, approached the plaintiff and told him that his alcohol
had been confiscated. Id. The plaintiff told her
that he was “not worried about that” but asked
why the inmates' clean laundry was laying on the floor in
the hallway. Id. at 4. Defendant Hight responded
“F your laundry.” Id. In response, the
plaintiff kicked his door one time. Id. Defendant
Hight then left the pod. Id. The parties, through
unsworn incident reports, affidavits, and depositions,
provide different accounts of what happened next.
plaintiff claims that, approximately twenty to twenty-five
minutes later while locked in his solitary confinement cell,
he heard the sound of a cell door being kicked on the upper
tier of his pod. Compl. ¶ 12; Pl.'s Dep. 4;
Pl.'s Resp. Opp'n Def. Rubenstein & Def.
Ballard's Mot. Summ. J Ex. 1. (“Taylor Aff.”)
[ECF No. 88-1].Shortly after the kicking began,
Correctional Officers Brandon Mooney, Anthony Kidd, and
Austin Peters approached the plaintiff's cell door with
the Phantom Cell Buster. Compl. ¶ 14; Pl.'s Dep. 3.
Officer Kidd directed Officer Peters to “pop the bean
hole.” Pl.'s Resp. Opp'n Def. Rubenstein
& Def. Ballard's Mot. Summ. J Ex. 3 (“Pl.'s
Aff.”) [ECF No. 88-3]. When the plaintiff heard this,
he grabbed a pillow, and then his mattress, to try to block
the opening. Id. The plaintiff asked them,
“What did I do?” Id. The officers
responded, “We're spraying you boy, we'll teach
you bout [sic] kicking on our shift!” Id. The
plaintiff insisted that he had not kicked his door. Pl.'s
Dep. 3. Other inmates joined in, yelling that the plaintiff
had not been the inmate kicking the door. Id.;
Taylor Aff.; Pl.'s Resp. in Opp. Def. Rubenstein &
Def. Ballard's Mot. Summ. J Ex. 2 (“Hess
Aff.”) [ECF No. 88-2]. In fact, Steven Taylor, another
inmate, was yelling that he had been the one kicking his
door. Taylor Aff. The officers talked with the plaintiff for
a few moments, during which the plaintiff insisted repeatedly
that he had not been kicking the door. Pl.'s Aff. 3.
According to the plaintiff, “it looked like they were
going to stop.” Id.
unsworn incident reports of three of the officers involved
contest the version of events provided by the plaintiff.
According to Defendant Hight, the plaintiff began to kick his
door as she originally exited the pod. Def. Wendy Hight's
Mot. Summ. J. Ex. 4 (“Hight Rep.”) [ECF No.
83-4]. As she entered the control tower, she saw the light
corresponding to the plaintiff's cell flash on and off,
indicating that he was still kicking his door. Id. At
this time, she and Officer Peters allegedly returned to the
plaintiff's cell and gave him a verbal command to stop
kicking his door “or there would be consequences to his
actions.” Id.; Def. Wendy Hight's Mot.
Summ. J. Ex. 6 (“Peters Rep.”) [ECF No. 83-6].
Approximately 40 minutes later, the officer in the control
tower notified the officers that the plaintiff's cell
door was showing as unsecured on the control panel. Hight
Rep.; Peters Rep.; Def. Wendy Hight's Mot. Summ. J. Ex. 5
(“Kidd Rep.”) [ECF No. 83-5]. Officers Kidd,
Mooney, and Peters arrived at the plaintiff's cell to
find that he had barricaded himself in with his mattress and
multiple layers of clothing and that he was continuously
kicking his door. Peters Rep.; Kidd Rep. They instructed the
plaintiff to cease his disruptive behavior. Peters Rep.; Kidd
Rep. When he refused, they left to retrieve the Phantom OC
Cell Buster and instructed another officer to notify
Defendant Hight of the plaintiff's “continuous
disruptive behavior.” Peters Rep.; see Kidd
Rep. According to Officer Kidd, they again “tr[ied]
loud verbal commands to stop kicking his door at which time
he did comply.” Kidd Rep. There is no mention of the
plaintiff's cooperation in the incident reports of the
undisputed that when Defendant Hight entered the pod, she
instructed Correctional Officer Kidd to deploy a burst of
pepper spray into the plaintiff's cell, though the method
in which she did so is not clear. Compare Pl.'s
Aff. 11 (stating that Hight “jumped in there and is
like, spray his f***ing ass.”); Hess Aff. (“Then
about that time Cpl Hights [sic] came in saying f***ing spray
him.”), with Hight Rep. (“It was at this
time (due to the prior incident of the door showing
unsecured) I believed that the safety of the Officers and the
Security of the Facility was in jeopardy and instructed COI
Kidd to utilize the Phantom Oleoresin Capsicum Cell Buster in
I/M Miller's cell to regain control of the
situation.”); Kidd Rep. (“At this time Corporal
Wendy Hight did enter Pod 4 . . . and instructed me to
deliver one three second burst of the Phantom Oleoresin
Capsicum Cell Buster . . .”). Officer Kidd obeyed. Kidd
Rep. According to the plaintiff, the officers stood by and
laughed as he struggled to breathe. Taylor Aff; Resp. in Opp.
Def. Rubenstein & Def. Ballard's Mot. Summ. J Ex. 3
(“Miller Aff.”) [ECF No. 88-3]. Hight asked
“how [does] the colored boy like that?” Miller
Aff. The plaintiff was strip-searched and placed into
mechanical restraints. Hight Rep. He was then taken to the
Multi-Purpose Room to be assessed by the medical staff.
Id. However, he refused medical treatment and
decontamination. Hight Rep.; Pl.'s Dep. 5-6. Days later,
the plaintiff filed a “sick call” complaining of
watering eyes, burning on his face, itching on his body, and
several facial scars. Pl.'s Dep. 6.
23, 2016, the plaintiff filed a five-count Complaint
alleging: (1) United States Constitutional violations, (2)
West Virginia Constitutional violations, (3) Assault and
Battery, (4) Intentional Infliction of Emotional Distress,
and (5) Negligence. Compl. [ECF No. 1]. On October 12, 2016,
the court entered an order dismissing the plaintiff's
West Virginia Constitutional claim (Count 2), pursuant to the
plaintiff's request. Order [ECF No. 20]. Thus only Counts
One, Three, Four, and Five remain.
obtain summary judgment, the moving party must show that
there is no genuine dispute as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). “Facts are ‘material'
when they might affect the outcome of the case.”
Lester v. Gilbert, 85 F.Supp.3d 851, 857 (S.D. W.Va.
2015) (quoting News & Observer Publ'g Co. v.
Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th
Cir. 2010)). “A genuine issue of material fact exists
if . . . a reasonable fact-finder could return a verdict for
the non-movant.” Runyon v. Hannah, No.
2:12-1394, 2013 WL 2151235, at *2 (S.D. W.Va. May 16, 2013)
(citations omitted); Williams v. Griffin, 952 F.2d
820, 824 (4th Cir. 1991) (“Disposition by summary
judgment is appropriate . . . where the record as a whole
could not lead a rational trier of fact to find for the
non-movant.”). The moving party bears the burden of
showing that “there is an absence of evidence to
support the nonmoving party's case.” Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986).
considering a motion for summary judgment, the court will not
“weigh the evidence and determine the truth of the
matter.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). Instead, the court will draw any
permissible inference from the underlying facts in the light
most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986). Summary judgment is appropriate when the nonmoving
party has the burden of proof on an essential element of his
or her case and does not make, after adequate time for
discovery, a showing sufficient to establish that element.
Celotex Corp., 477 U.S. at 322-23. The nonmoving
party must satisfy this burden of proof by offering more than
a mere “scintilla of evidence” in support of his
or her position. Anderson, 477 U.S. at 252.
Likewise, conclusory allegations or unsupported speculation,
without more, are insufficient to preclude the granting of
summary judgment. See Dash v. Mayweather, 731 F.3d
303, 311 (4th Cir. 2013); Stone v. Liberty Mut. Ins.
Co., 105 F.3d 188, 191 (4th Cir. 1997).
Peters moves for summary judgment as to all claims made
against him in the Complaint: (1) § 1983, (2) West
Virginia Constitutional Claims, (3) Assault & Battery,
(4) Intentional Infliction of Emotional Distress, and (5)
Negligence. Additionally, the defendant moves for summary
judgment regarding the plaintiff's request for punitive
damages. He also asserts qualified immunity for the §
1983 and negligence counts.