United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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; (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
Eighth Amendment (Excessive Force) and ...