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Ballard v. Delgado

Supreme Court of West Virginia

March 25, 2019

MIGUEL ANGEL DELGADO, Plaintiff Below, Respondent

          Submitted: January 8, 2019

          Appeal from the Circuit Court of Kanawha County Honorable Joanna Tabit, Judge Civil Action No. 15-C-1885

          John P. Fuller, Esq. Betsy L. Stewart, Esq. Michael W. Taylor, Esq. Bailey & Wyant, PLLC Charleston, West Virginia Counsel for the Petitioners Kevin McCourt, Jess Mattox, and Hobert Allen

          William E. Murray, Esq. Natalie N. Matheny, Esq. Anspach Meeks Ellenberger LLP Charleston, West Virginia Counsel for the Petitioner David Ballard

          Lydia C. Milnes, Esq. Mountain State Justice, Inc. Clarksburg, West Virginia Counsel for the Respondent

          JUSTICE JENKINS dissents and reserves the right to file a dissenting opinion.


         1. "A circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the 'collateral order' doctrine." Syl. Pt. 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009).

         2."This Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court." Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).

         3."The circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial." Syl. Pt. 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

         4."The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition." Syl. Pt. 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996).

         5. "A circuit court's order denying summary judgment on qualified immunity grounds on the basis of disputed issues of material fact must contain sufficient detail to permit meaningful appellate review. In particular, the court must identify those material facts which are disputed by competent evidence and must provide a description of the competing evidence or inferences therefrom giving rise to the dispute which preclude summary disposition." Syl. Pt. 4, W.Va. Dep't of Health & Human Res. v. Payne, 231 W.Va. 563, 746 S.E.2d 554 (2013).

         6. "'On a motion for summary judgment all papers of record and all matters submitted by both parties should be considered by the court.' Syl. Pt. 2, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of NY, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syl. Pt. 3, Ford v. Dickerson, 222 W.Va. 61, 662 S.E.2d 503 (2008).


         In these consolidated appeals, the petitioners (defendants below), David Ballard, Warden at Mount Olive Correction Center ("MOCC"), [1] and Kevin McCourt, Jess Mattox, and Hobert Allen, correctional officers at MOCC (collectively the "petitioners"), appeal the Circuit Court of Kanawha County's March 9, 2017, order through which it denied their motions for summary judgment based on qualified immunity in this excessive force action brought under 42 United States Code §1983 (2012)[2] ("§ 1983"). The circuit court found that the petitioners were not entitled to summary judgment because there are genuine issues of material fact concerning the excessive force, deliberate indifference, and supervisory liability claims brought against them by the respondent (plaintiff below), Miguel Delgado, an inmate at MOCC ("Inmate Delgado"). The circuit court further found that if it is ultimately determined that the petitioner officers violated the Eighth Amendment[3] through use of excessive force and deliberate indifference, Inmate Delgado's tort claims were also viable. Following our review of the briefs, the arguments of counsel, the appendix record submitted, and the applicable law, this Court finds no reversible error and affirms the circuit court's denial of summary judgment based on qualified immunity grounds.

         I. Facts and Procedural Background[4]

         Shortly before midnight on May 23, 2015, Nurse Joyce Coleman, accompanied by Officers McCourt and Brandon Mooney, [5] was distributing medications to prisoners in the Quilliams II Unit ("Unit"), a segregation unit at MOCC, which is a state correctional facility located in Mt. Olive, West Virginia.[6] Medications are dispensed to inmates through what is sometimes referred to as a "bean hole," which is a narrow slot in the solid steel cell doors through which food trays and medications are passed. Inmate Delgado alleges that during this particular "pill pass," he repeatedly told Nurse Coleman that he had a question. When she did not respond, he asked Officer McCourt, one of the officers accompanying Nurse Coleman, to tell the nurse that he had a question. Inmate Delgado states that Nurse Coleman then approached his cell door and asked, "What is it? I'm busy." He responded that he had a question to which she replied she was busy dealing with a thousand other inmates. According to Inmate Delgado, after further discussion with Nurse Coleman, he became frustrated and threatened to report her to the board of nursing, prompting her to shout the address of the nursing board through his cell door. Inmate Delgado replied that he already had the board's address, adding "if you don't care, quit your job, go home, and kill yourself." Officer McCourt interjected, warning Inmate Delgado that he was getting close to a "write-up, "[7] Delgado responded, "listen, I don't care. You go home too and kill yourself." The officers and Nurse Coleman then left his cell door to complete the pill pass, after which they exited the Unit.

         Inmate Delgado alleges that after Nurse Coleman and the officers left his cell door, he lay down on his bed, put on his headphones, and listened to music. He states that approximately ten minutes later, Officers McCourt, Mooney, and Maddox returned to his cell door to re-engage with him. He contends that Officer Mooney told him that he was "tired of my smart mouth and my attitude with the nurses," that they were "fed up with it," and that I was "going to get a write-up." Inmate Delgado responded, "[w]rite it up, write it up," after which Officer Mooney said, "you got a smart mouth. I'm going to spray you[, ]" referring to Oleoresin Capsicum pepper spray ("OC").[8] Inmate Delgado avers that he replied, "[g]o ahead, spray me. If that's what you want to do, go ahead and spray me." He then spun around to place his lower back against the slot in his cell door to try to block the spray from dispersing throughout his cell.[9] He states that he was not quick enough, and the first spray[10]went along the wall of his cell; however, the second spray struck his lower back, soaking his clothing. Inmate Delgado contends that the rest of the Unit was quiet during this entire incident and that the only disturbance was the one created by the correctional officers.

         Upon being sprayed with OC, Inmate Delgado states that he immediately began to suffer from burning eyes and skin and restricted airways causing him to feel as if he could not breathe. After deploying the OC spray, the officers closed the slot in the cell door and departed. Inmate Delgado used the sink in his cell to splash water on his face and hands in an attempt to lessen the burning effects of the OC spray but, within minutes, the officers shut off the water to his cell. Inmate Delgado states that when he asked why his water had been shut off, Officer Allen told him they had done it "so you won't decontaminate yourself." Approximately ten minutes later, Officers McCourt, Allen, and Mattox returned to Inmate Delgado's cell to take him to the recreation yard for decontamination. Inmate Delgado testified that his hands were cuffed behind his back in a twisting fashion that caused him so much pain in his shoulder that he fell to his knees while the officers simultaneously disregarded his protestations that they were hurting him. Other than an inmate yelling to ask why his water had been shut off, [11] Inmate Delgado states that the rest of the Unit continued to remain quiet.

         Once they arrived in the recreation yard, Inmate Delgado states that Officer Allen turned on the water in a large sink. When he asked how the decontamination would proceed when he could not remove his clothing that was soaked with OC spray as he was handcuffed, he contends that Officer Allen accused him of refusing decontamination. Another officer told Inmate Delgado to go ahead and remove his clothing, but refused to remove his handcuffs, at which point the officers again accused him of refusing decontamination. Thereafter, Inmate Delgado was taken to see Nurse Coleman for a medical evaluation.

         Inmate Delgado states that he was seated at a table in a multipurpose room with Officers Mattox and Allen on either side of him when Nurse Coleman approached him, asking him what was wrong. He told her about his shoulder pain caused by the officers twisting his arm and wrist at an awkward angle before cuffing him and that his buttocks and back were on fire because of the pepper spray. Inmate Delgado alleges that Nurse Coleman neither touched nor examined him but, instead, walked to the other side of the table, sat down, and began reading a book.[12] Approximately one hour after the OC spray was deployed into his locked isolation cell, Inmate Delgado was allowed to shower. He was then returned to his cell, which had been decontaminated.

         Offering a different account of these events, Officers McCourt and Mooney filed incident reports in which they stated that Inmate Delgado became verbally combative with Nurse Coleman, telling her to "go kill yourself," but also threatening, "im [sic] going to kill you bitch," the latter of which Inmate Delgado denies. These officers also reported that Inmate Delgado told them "fuck you CO"[13] as they escorted Nurse Coleman away from his cell following his verbal exchange with her. As for their reason for later returning to Inmate Delgado's cell, these officers reported that they did so to attempt to "deescalate" or "calm" him. According to the reports of the petitioner officers and Officer Mooney, Inmate

         Delgado ignored their multiple, loud, and clear verbal commands to cease creating a disturbance[14] that was spreading to other inmates who were yelling from within their locked cells in the Unit, which prompted Officer Mooney to open the slot in Inmate Delgado's locked cell door through which Officer McCourt deployed "two one second burst[s]" of OC spray into the cell. The officers state this "very low level" use of force was utilized to gain Inmate Delgado's compliance and restore order to the Unit.[15] Regarding the water being turned off to Inmate Delgado's cell after the OC spray was deployed, Officer McCourt stated in his Incident Report that Officers Mooney and Mattox turned off the water "[i]n order to allow [Delgado] to deescalate[.]" Officer Mattox stated in his Incident Report that the water was shut off "due to Inmate Delgado's prior history to prevent him from flooding his cell and unit."

         The petitioner officers further allege that approximately ten minutes after the OC spray was deployed, Inmate Delgado was placed in mechanical wrist restraints and removed from his cell at which point leg restraints were also applied. He was escorted by Officers Mattox and Mooney to the recreation yard for decontamination where they contend he refused decontamination. Next, Inmate Delgado was taken for medical assessment by Nurse Coleman. Officer Mattox stated in his Incident Report that "[d]uring the medical assessment, there were no injuries to be noted for Inmate Delgado[.]" Officer Allen stated in a memorandum that Inmate Delgado was "medically assessed by LPN Joyce Coleman." Similarly, a confidential Use of Force Committee Report to Warden Ballard states that Inmate Delgado "was medically assessed by LPN Coleman and medically cleared to return to his cell." Inconsistent with these reports, Nurse Coleman, the individual who was to have performed this medical assessment, stated in her Incident Report that Inmate Delgado refused medical assessment.

         Following Inmate Delgado's exhaustion of his administrative remedies concerning this incident, he filed the instant action against the petitioners seeking monetary damages, as well as injunctive relief. See 42 U.S.C. § 1983. He asserted violations of his federal constitutional rights, [16] including allegations that the correctional officers used excessive force against him in violation of the Eighth Amendment. More specifically, Inmate Delgado alleged that Officer McCourt violated his "constitutional rights to safety . . . and to be free from cruel and unusual punishment by indiscriminately utilizing . . . OC pepper spray, through excessive and nontrivial force against [him], as a sadistic and malicious form of punishment, rather than adhering to clearly established law, [and] proper disciplinary procedures[.]" He alleged the petitioner officers were "deliberately indifferent to [his] medical need for decontamination in a manner that caused [him] an unnecessary and wanton infliction of pain." A claim of assault and battery was also asserted against Officer McCourt and intentional infliction of emotional distress against the petitioner officers.

         In addition, Inmate Delgado asserted a claim of supervisory liability against Warden Ballard.[17] He alleged that Warden Ballard's actions violated his constitutional rights through his promulgation and implementation of policies and internal orders that exposed him and other inmates confined in the segregation units at MOCC "to unnecessary and unreasonable uses of force when such uses of force were not justified, but rather administered as wanton forms of punishment." In support of this claim, Inmate Delgado's evidence included: (1) an inmate's inquiry concerning whether there was "martial law" in the Quilliams Units and an MOCC lieutenant's written response that stated: "PER WARDEN, MARITAL LAW IS A CONDITION THAT MOCC UTILIZES[;]" (2) an MOCC major's email to prison administrators and employees on which Warden Ballard was copied and which advised that officers "do not have to give efforts to temper to those locked up in our Seg units[;]" (3) the testimony of an MOCC correctional officer during a disciplinary hearing that "there's martial law going on right now" and that "they told me that came from the Warden[;]" and the deposition testimony of Warden Ballard in which he confirmed that "efforts to temper are not required in the segregation . . . units." Also, Inmate Delgado testified during his deposition to having heard correctional officers discuss martial law in the Quilliams Units, explaining it was his

understanding from what the officers say, the paperwork I've seen, say we were under Martial Law and that we could be sprayed for any reason or for no reason at all. And that there was a memo that I read that the staff working in Quilliams did not need to temper their efforts of a forceful response meaning that we were - - we could be victimized by the officers at any time. That there was nothing we could do about it.

         Inmate Delgado further testified that he and many other inmates in the segregation units were regularly subjected to the use of OC spray for minor infractions, such as yelling through the doors of their locked isolation cells. He maintains that the subject incident exemplifies how correctional officers implemented this policy of martial law "and/or the suspension of the requirement that officers should make 'efforts to temper' the use of force against inmates on the isolation units."

         In further support of his supervisory liability claim, Inmate Delgado alleged in his complaint, inter alia, that Warden Ballard's directive not to give efforts to temper "was in direct violation of clearly established law";[18] that it was objectively unreasonable and an "unawarranted invasion" upon his clearly established rights under the Eighth Amendment; that the MOCC policy of martial law, which permits any level of force to be used without efforts to temper, creates a "pervasive and unreasonable risk that inmates, including [himself], will be maliciously and sadistically harmed by the use of force for the purpose of punishment and without regard for the need for force;" and that Warden Ballard had actual and constructive knowledge of the numerous incidents of excessive force in the segregation units, had approved policies and practices of martial law, and then acted with deliberate indifference through his failure to stop the abusive and excessive uses of force.

         The petitioners filed motions for summary judgment in which they asserted entitlement to qualified immunity from Inmate Delgado's claims. Inmate Delgado filed responses in opposition to the motions. During the final pretrial conference, the circuit court fully entertained counsels' arguments on these dispositive motions. The hearing transcript reveals that the circuit court asked counsel several questions during the course of the hearing concerning the parties' conflicting factual accounts. The circuit court also confirmed its understanding of the petitioner officers' arguments, asking: "[Y]ou're arguing that your clients are entitled to qualified immunity, that these were discretionary actions, and that they did this in good faith, and that there's no violation of clearly established laws as it relates to any actions that they took?" The correctional officers' counsel responded in the affirmative. After hearing the arguments of counsel, the circuit court stated:

[U]nder the circumstances, I do believe that there are genuine issues of material fact as to whether or not there was excessive force.
• • • •
I think there are issues . . . when you look at the Whitley[19]factors to the need for the application of the force, the relationship between that need and the amount of force used, and, frankly, the threat reasonably perceived by the officials.
• • • •
And I just think it's appropriate to let those issues go before the jury, and I do believe that the remaining tort claims flow from that. I think that they're factual issues, so they'll go to the jury[.]

(Footnote added). The circuit court also concluded during the hearing that there were disputed facts related to the supervisory liability claim against Warden Ballard, observing that if evidence was not elicited as Inmate Delgado's counsel anticipates, the court would "do the appropriate thing at the directed verdict stage."

         The circuit court directed Inmate Delgado's counsel to prepare an order denying the summary judgment motions. Counsel did so, submitting a proposed order to which the petitioners objected.[20] Over those objections, the circuit court entered a seventeen-page order on March 6, 2017, denying the petitioners' motions for summary judgment based on qualified immunity. The circuit court found that summary judgment was improper because the resolution of the immunity and the substantive claims were dependent upon a determination of conflicting evidence. This appeal followed.

         II. Standard of Review

         We are asked to determine whether the circuit court erred in denying summary judgment to the petitioners based on their assertion of qualified immunity. While the denial of summary judgment is generally not subject to appellate review, we have carved out an exception, holding that "[a] circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the 'collateral order' doctrine." Syl. Pt. 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009). Further, "[t]his Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court." Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002). In conducting our de novo review, we "must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion." Painter v. Peavy, 192 W.Va. 189, 192, 451 S.E.2d 755, 758 (1994) (citations omitted). This matter being properly before us, the parties' arguments will be considered against this plenary standard.

         III. Discussion

         In addition to challenging the denial of their dispositive motions based on qualified immunity, the petitioners also challenge the circuit court's order denying summary judgment as being deficient and unsupported by the record. We consider each of these issues, in turn, below.

         A. Qualified Immunity

         Inmate Delgado asserts, and the petitioners do not dispute, that federal law controls our analysis because the claims to which qualified immunity are being asserted arise under federal law. Our case law makes clear this Court's "approach to matters concerning immunity historically has followed federal law due in large part to the need for a uniform standard when, as in the case before us, public officers are sued in state court for violations of federal civil rights pursuant to 42 U.S.C. § 1983." City of Saint Albans v. Botkins, 228 W.Va. 393, 398, 719 S.E.2d 863, 868 (2011); see also Robinson, 223 W.Va. at 834, 769 S.E.2d at 666 (citation omitted) ("federal law is controlling when public officials are sued in ...

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