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Murray v. Lilly

United States District Court, S.D. West Virginia, Charleston Division

September 26, 2019

Garland Murray Plaintiff,
v.
Devon Lilly; William Sumpter; Donald Slack; James Smith; and Richard Toney, Defendants.

          MEMORANDUM OPINION AND ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE

         Pending before the court is Defendants William Sumpter, Devon Lilly, Donald Slack, James Smith, and Richard Toney’s motion for summary judgment [ECF No. 131]. The Plaintiff filed a response [ECF No. 140], and the Defendants filed a reply [ECF No. 143]. The matter is ripe for adjudication. For the reasons stated herein, the Motion is GRANTED in part and DENIED in part.

         I. Background

         This case involves officers’ treatment of Mr. Garland Murray, while he was incarcerated at Mount Olive Correctional Complex (MOCC). On or around November 20, 2017, Defendants Lilly and Sumpter took Murray to a control unit for a urine drug screening, based on smoke and an odor emanating from his cell. Def. Lilly et. al. Mot. Summ. J., Ex. 3 at 14–21 [ECF No. 131–3] (“Lilly Dep.”). The parties agree that while in the control unit, Defendants sprayed Murray, without warning, in the face and head with oleoresin capsicum (pepper spray), through the slot in the door. Id. at 23–25; see also Def. Lilly et. al. Mot. Summ. J., Ex. 1 [ECF No. 131–1] (“Incident Reports”). And that the officers then used some degree of takedown force against Murray. Incident Reports [ECF No. 131–1]. The parties further agree that Murray was subsequently taken to the medical unit, placed in a shower fully clothed, and then escorted to the recreation yard, where the Defendants sprayed his face with water. Id. There is video recording beginning with Murray in the shower and ending with the Defendants terminating decontamination efforts at the recreation yard. Def. Lilly et. al. Mot. Summ. J., Ex. 8 [ECF No. 131–8]. However, there is no other video evidence of these events, including most importantly, the circumstances that lead to the deployment of force and pepper spray. Pl.’s Resp. Opp’n Def. Lilly et. al. Mot. Summ. J., Ex. K [ECF No. 140–11].

         a. Plaintiff’s version

         The Plaintiff contends that he was unable to urinate for the drug test while in the control unit. Def. Lilly et. al. Mot. Summ. J., Ex. 4 at 54–56 [ECF No. 131–4] (“Pl.’s Dep.”). He thus tapped on the cell window, requesting a water bottle to assist him in his ability to urinate. Id. Murray asserts that Defendant Lilly opened the slot to the cell and held a water bottle as if he was going to hand it to him. Id. But when Murray squatted down to take the bottle, the Defendant Smith sprayed him in the face with pepper spray. Id. at 56–61. The Plaintiff contends that at no point prior to the use of the pepper spray was he posing a threat to himself, others, or property; rather he was locked alone, secured in a cell. Id.

         The Plaintiff contends that immediately after being sprayed in the face, the Defendants ordered him to place his hands behind his back through the slot to be cuffed. Id. at 63–62. Once Murray complied, Defendants Lilly, Slack, Sumpter, and James Smith, shoved the door open, tackled Murray to the ground, bashed his head on the floor, kneed, and punched him. Id. Murray maintains that he did not provoke this use of force. Id.

         The Plaintiff asserts that the Defendants then took him to the medical unit, where they refused his multiple requests to have his injuries photographed. Id. at 58; Pl.’s Resp. Opp’n Def. Lilly et. al. Mot. Summ. J., Ex. S [ECF No. 140–19]. The Defendants subsequently placed him, fully clothed, in a scalding hot shower, which exacerbated his physical discomfort and prevented him from effectively removing the pepper spray. Pl’s Dep. at 14 [ECF No. 131–4]. Murray was then taken to a sink in the recreation area, where hot water was sprayed in his face. Id. at 17. The Defendants then took Murray to a solitary confinement cell, where they left him in his wet clothing and still covered with pepper spray. Id. at 60. His cell also did not contain bedding or a mattress. Id. He was not given fresh clothing, bedding, or a mattress until the following day, despite his numerous requests for such items. Id.

         b. Defendants’ version

         The Defendants tell a strikingly different story. Defendants contend that Murray refused the urinary drug test. Incident Reports [ECF No. 131–1]. And repeatedly struck the cell door and window with his fists, despite the officers’ commands for him to stop. Id. After multiple verbal efforts to deescalate Murray’s actions, the Defendants determined deploying pepper spray was necessary to prevent Murray from injuring himself or property. Id. Officer Lilly opened the slot and Officer Smith deployed two to three ½ second bursts of pepper spray. Id. Defendants then cuffed Murray through the slot and entered the cell to extract him. Lilly Dep., at 32 [ECF No. 131–3]. Defendants contend that Murray attempted to head-butt the officers and ignored verbal commands to stop resisting. Id. at 32–34. Defendants conducted a “control takedown, ” in which Defendants made physical contact with Murray and “placed him on the floor.” Id. at 32–34. Defendants argue that while on the floor Plaintiff attempted to kick them. Id. Defendants maintain that the Plaintiff was not tackled, was not injured, and continued to fight the control of the Officers throughout the takedown process. Id. at 36.

         Defendants assert that Murray refused medical treatment, refused to remove his contaminated clothing once placed in the shower, and refused orders to self-decontaminate, despite being given time to shower, unrestrained by handcuffs. Incident Reports [ECF No. 131–1]. After taking Murray to the shower, the Defendants took him to the recreation yard to further decontaminate at a sink. Id. Officer Smith tested the water temperature on his own wrist. Id. The Defendants maintain that the water was not hot, notwithstanding the Plaintiff’s allegations. Id. The Defendants claim they ceased decontamination at the Plaintiff’s request. Id.

         II. Legal Standard

         To 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) (“[d]isposition 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).

         In 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).

         Before turning to the merits of Murray’s claims, I find it necessary to address the Defendants’ assertion throughout their briefs that Murray may not rely upon his own self-serving allegations to overcome summary judgment and that he has offered no other evidence to corroborate his allegations. Testimony by a plaintiff of events of which he has personal knowledge is sufficient to overcome summary judgment. See Cantrell v. Rubenstein, No. 2:14-CV-17419, 2016 WL 5723601, at *7 (S.D.W.Va. Aug. 23, 2016), report and recommendation adopted, No. 2:14-CV-17419, 2016 WL 5660339 (S.D.W.Va. Sept. 29, 2016). It is difficult to imagine what other evidence besides his own testimony Murray could offer to show his version of the key events, as there were no witnesses other than the Defendants to the use of force. Moreover, the video camera used to record the crucial moments of the incidents allegedly malfunctioned.

         Additionally, the Plaintiff does offer evidence other than his own allegations, including incident reports, medical records, photographs of his injuries, prison policy directives addressing permissible uses of force, and prison policy directives addressing video recording policies.

         III. Discussion

         Defendants Slack, Sumpter, Lilly, Toney, and James Smith move for summary judgment as to all claims made against them in the Complaint: (Count I) Eighth Amendment violations based on excessive use of force brought under § 1983; (Count III) First Amendment retaliation brought under § 1983; (Count IV) Assault & Battery[1]; (Count V) Intentional Infliction of Emotional Distress; (Count VI) Spoliation. Def. Lilly et. al. Mot. Summ. J. [ECF No. 131]. The Defendants also move for summary judgment on the Plaintiff’s request for injunctive and declaratory relief. Id. Additionally, the Defendants seek qualified immunity on the § 1983 claims. Id.

         a. Eighth Amendment (Excessive Force) and ...


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