Wake Forest Law Review
21Feb

Weekly Roundup – 2/12-2/16

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Weekly Roundup: 2/12-2/16

By: Mary Kate Gladstone & Robert Tucci

U.S. v. Cowden

In this case, the defendant, a former lieutenant with a West Virginia Sheriff’s Office, appealed his conviction for deprivation of rights under the color of law in violation 18 U.S.C. § 242 after he assaulted an arrestee.  On appeal, the defendant argued that the district court erred in admitting evidence of his prior uses of force; that the evidence was insufficient to support his conviction; that the jury was improperly instructed on the elements of the offense; and that he should not have been held liable for injuries to the arrestee when a different officer was the one arresting him, but the Fourth Circuit affirmed on all accounts.

Intl. Refugee Assistance v. Donald J. Trump

This is a consolidated appeal of three separate cases seeking injunctive and declaratory relief, asserting that Proclamation No. 9645, Enhancing Vetting Capabilities and Process for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats, and Executive Order 13,780, Protecting the Nation From Foreign Terrorist Entry into the United States, violate the Immigration and Nationality Act, the Establishment Clause of the First Amendment, the Free Speech and Free Association Clauses of the First Amendment, the equal protection and procedural due process guarantees of the Due Process Clause of the Fifth Amendment, the Religious Freedom Restoration Act, the Refugee Act, and the Administrative Procedure Act. The Fourth Circuit affirmed the preliminary injunction granted by the district court, noting that the Executive Order and Proclamation were “unconstitutionally tainted with animus toward Islam” based on their contents and the context of official statements made by President Trump.

U.S. v. Smith

In this case, defendant Antoine Smith appealed his enhanced prison sentence under 18 U.S.C. § 924(e)(2)(B)(i), the Armed Career Criminal Act (ACCA), arguing that one of his prior convictions, voluntary manslaughter (a North Carolina crime), is not a violent felony within the meaning of the force clause of the ACCA. The Fourth Circuit disagreed, holding that voluntary manslaughter in North Carolina requires an intentional killing, thus involving “the use, attempted use, or threatened use of physical force against the person of another” as required by the force clause of the ACCA.

Salgado-Sosa v. Sessions

In this case, plaintiff and Honduras citizen Reynaldo Salgado-Sosa petitioned for review of the denial of his asylum application, and requested the court to grant a withholding of removal and protection under the Convention Against Torture. In requesting relief, Salgado-Sosa stated that he feared he would face persecution if he was returned to Honduras, as the gang MS-13 has repeatedly attacked his family for resisting extortion demands. The Fourth Circuit vacated and remanded in part, finding that the Board of Immigration Appeals erroneously rejected Salgado-Sosa’s withholding of removal on the grounds that Salgado-Sosa could not establish a “nexus” between MS-13’s threats and membership in a cognizable “particular social group” – his family – and remanded the asylum claim for consideration of whether the untimely application exception in Zambrano v. Sessions is applicable in Salgado-Sosa’s case. 

E.W. v. Dolgos

Plaintiff E.W., a minor and elementary school student, appealed the district court’s grant of summary judgment for defendant Dolgos, a school resource officer, in E.W.’s 42 U.S.C. § 1983 action, which alleged that Dolgos used excessive force in handcuffing a calm and compliant E.W. for an altercation with another student that occurred several days prior, thus violating the Fourth Amendment and several state law claims. The Fourth Circuit affirmed the district court’s decision, finding that Dolgos was entitled to both federal qualified immunity an state statutory immunity under the Maryland Tort Claims Act.

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12Nov

Fourth Circuit Finds Plaintiff’s Due Process Rights Violated and Clarifies Standard for Excessive Force

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By Mike Stephens

On November 7, 2016, the Fourth Circuit decided the criminal case of Dilworth v. Adams. Michael Dilworth (“Dilworth”) was being held as a pretrial detainee in a North Carolina detention facility, facing charges for failing to appear in court. While detained, Dilworth was involved in an altercation with a fellow inmate and an separate altercation with two correctional officers. Dilworth was placed in disciplinary segregation, without a hearing, following both altercations. Dilworth appealed the district court’s grant of summary judgment in defendants’ favor, arguing that the district court erred in finding Dilworth’s procedural due process rights under 42 U.S.C. § 1983 were not violated when Dilworth was denied a hearing. Additionally, Dilworth appealed the district court’s grant of summary judgment on his claim of excessive force, arguing the district court applied the wrong standard governing a claim of excessive force. The Fourth Circuit held that Dilworth’s due process rights were violated by not providing a hearing, and directed that judgment be entered in favor of Dilworth because the defendants concede no hearing took place. The Fourth Circuit also remanded the excessive force claim given that a subsequent Supreme Court of the United States decision clarified that an objective standard governed the claim.

Facts and Procedural History

While awaiting trial for failure to appear in court, Dilworth was involved in an altercation with a fellow inmate on May 11, 2013. The responding officer filed a disciplinary report, stating he had disciplined Dilworth by placing him in segregation for 45 days. This decision was approved by the commander. On May 21, Dilworth filed a written appeal demanding a hearing which was later dismissed after being reviewed by another correctional officer. Dilworth was released from segregation on June 20 without ever being granted a hearing.

Not long after being released from segregation, Dilworth was involved in an altercation with two officers, Officer Cookson and Officer Trott. The parties dispute how the altercation was started. Yet again, a disciplinary report was filed stating Dilworth had been placed in segregation for 45 days. The decision was again approved by the watch commander. Again, Dilworth filed a written appeal demanding a hearing and review of video evidence regarding the altercation. The appeal was again dismissed. Dilworth served the full 45 day sentence in segregation. Dilworth sued several correctional officers, claiming his due process rights were violated by failing to provide hearings and also claiming the officers in the second altercation used excessive force.

The district court granted summary judgment in favor of the defendants on both claims. The district court reasoned that Dilworth’s due process rights were not violated because Dilworth was given notice of the charges and the opportunity to file a written appeal. Additionally, the district court applied a subjective standard on the excessive force claim, holding that Dilworth had to show that Cookson and Trott used force “maliciously and sadistically to cause harm.” The court held that no reasonable jury could find the officers had a “sufficiently culpable state of mind.” Dilworth appealed.

Due Process Claim

The Fourth Circuit held that Dilworth’s due process rights were violated by not granting a hearing. Given the fact that no hearing took place, the Court directed that judgment be entered in Dilworth’s favor.

Due process claims require two inquiries: (1) whether placing Dilworth in disciplinary segregation “implicated a liberty interest triggering procedural due process requirements;” and (2) if yes, whether the procedures provided to Dilworth satisfied those liberty interests.

In the first inquiry, the Court, agreeing with the district court, found that a pretrial detainee had a liberty interest in freedom from “punishment” while detained and awaiting trial. Defendants argued that only punishments that impose “atypical and significant hardship” on prisoners violated a liberty interest. The Fourth Circuit disagreed, stating that the “atypical and significant hardship” standard did not apply when deciding procedural due process claims of pretrial detainees. The court held that that the Bell v. Wolfish standard of procedural due process claims grant pretrial detainees a liberty interest in freedom from “punishment.” The Court also held that placing Dilworth in segregation was a “punishment” because there was a “expressed intent to punish” given Dilworth was confined to his cell for 23 hours each day and denied all personal contact except with attorneys or members of the clergy. Thus, the Fourth Circuit answered the first inquiry of the due process claim in the affirmative.

In the second inquiry, the Court held that the detention facility failed to meet the “procedural minimums that pertain even in the prison setting.” In Wolff v. McDonnell, the Supreme Court of the United States held that an inmate must be provided a hearing, a written notice of the alleged violation 24 hours before the hearing, and a written statement, after the hearing, detailing the reasons for the disciplinary action. The Court made note of the fact that the detention facility published these requirements within its own policy regarding inmate discipline. The defendants conceded that these requirements were not provided to Dilworth and no factual dispute existed regarding the process Dilworth received. While an inmate may not be provided the same process as a defendant in a trial, such as the right to counsel, the minimum requires a hearing where the inmate may call some witnesses. The Court was also careful to note that “administrative segregation,” or segregation for a temporary amount of time following an altercation, was allowed, provided that the inmate is later given a hearing. Yet, the Fourth Circuit held that Dilworth was not provided a hearing and that the segregation amounted to a punishment and Dilworth’s procedural due process rights were violated as a matter of law. Thus, the Court remanded to resolve Dilworth’s damages claim.

Excessive Force Claim

The Fourth Circuit remanded Dilworth’s excessive force claim so that the district court could apply the proper standard set out in the intervening Supreme Court decision, Kingsley v. Hendrickson. In Kingsley, the Supreme Court of the United States held that a pretrial detainee’s excessive force claim should be governed by an objective standard. A pretrial detainee has to show that the force “purposely or knowingly used against him was objectively unreasonable.” Both parties agreed that the district court had not applied the Kingsley standard to Dilworth’s claim. Therefore, the Court remanded so that the district court could apply the proper standard. The Fourth Circuit also recommended that the district court should view the video that may show evidence regarding this claim, citing to a decision that held a grant of summary judgment on an excessive force claim premature when the trial court did not view video evidence of the altercation.

Disposition

The Fourth Circuit reversed the district court’s grant of summary judgment in defendant’s father on Dilworth’s due process claim and ordered that judgment be entered for Dilworth. The Court remanded this claim so the district court could resolve the damages claim. The Court also vacated the district court’s decision regarding Dilworth’s excessive force claim and remanded it for further proceedings.

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31Mar

Fourth Circuit Affirms No Qualified Immunity in Excessive Force Case

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By Blake Stafford

On March 31, 2016, the Fourth Circuit issued its published opinion in Yates v. Terry, a civil case concerning a police officer’s qualified immunity defense against a claim of excessive force.  After being tased three times during a nonviolent traffic stop, Brian Yates (“Yates”) filed an action against the arresting officer, Christopher Terry (“Terry”), asserting, inter alia, excessive force in violation of 42 U.S.C. § 1983.  Terry filed a motion for summary judgment on the basis of qualified immunity, which was denied by the district court.  The Fourth Circuit affirmed the denial of summary judgment.

Facts & Procedural History

Yates, a first sergeant and Iraq War veteran, was driving on a highway in North Charleston, South Carolina with his mother and brother following in a separate vehicle behind him.  Yates drove past two police cruisers, and one of the cruisers, driven by Terry, pulled out and began to follow him, activating his lights to indicate that Yates should pull over.  When Yates realized that Terry was behind him, he pulled over at a gas station.  At the gas station, Terry requested to see Yates’s driver’s license.  Yates responded that he did not have his driver’s license but that he did have military identification.  Terry then opened Yates’s car door, forced him out of the car, and ordered him to place his hands on the car.  Yates complied.  Terry informed Yates that he was under arrest; however, when Yates questioned him about the basis for the arrest, Terry failed to provide any explanation.  By this time, Yates’s mother and brother had arrived at the gas station.

With Yates’s hands on top of the car and Terry behind him, Yates turned his head to the left, at which point Terry deployed his taser in “probe mode,” whereby two probes are fired from the taser, attached by thin electrical wires, into the skin of the subject, delivering a five-second cycle of electricity as a means to override the subject’s central nervous system.  Yates fell to the ground.  While he was still on the ground and having made no attempt to get up, Terry tased him a second time.  Following the second application of the taser, Yates told his brother to call his commanding officer.  When Yates reached for his cell phone, which was clipped to his waist, Terry tased Yates a third time.  Following these events, other officers arrived on the scene, and Yates was arrested and charged with an excessive noise violation, no license in possession, and disorderly conduct.  All of these charges were nol prossed.

Yates filed, inter alia, a § 1983 excessive force claim against Terry in his individual capacity.  Terry filed a motion for summary judgment on the basis of qualified immunity.  The district court determined that Terry was not entitled to qualified immunity with respect to the first two taser applications as a matter of law, but found that the third taser application was “problematic” in that it would depend on more factual development, including the timing of events surrounding it.  However, the district court held that, as to all three uses of the taser, qualified immunity did not apply, and that defendant Terry was therefore not entitled to summary judgment.  Terry appealed the denial of summary judgment.

Interlocutory Appellate Jurisdiction

Before reaching the merits, the Fourth Circuit first had to determine whether it had jurisdiction over Terry’s interlocutory appeal.  Generally, a district court’s order denying summary judgment based on qualified immunity is immediately appealable under the collateral order doctrine.  However, when a district court denies a claim of qualified immunity based on the insufficiency of the facts, then that determination is not immediately appealable—the reviewing court’s jurisdiction only extends to issues of law.  In this case, the district court provided conflicting language in explaining its reasoning for holding that qualified immunity did not apply, first noting that there was a constitutional violation as to the first two taser deployments, then noting that factual development was required for the third.

In this case, the district court provided conflicting language in explaining its reasoning for holding that qualified immunity did not apply, first noting that there was a constitutional violation as to the first two taser deployments, then noting that factual development was required for the third.  However, in evaluating excessive force claims, the Fourth Circuit has a general rule cautioning courts against using a segmented view of the sequence of events where each distinct act of force becomes reasonable given what the officer knew at each point in the progression.  Instead, determining reasonableness of force should be done in full context, with an eye toward the proportionality of the force in light of the totality of the circumstances.  Thus, the Fourth Circuit determined that it had jurisdiction to review the district court’s denial of Terry’s motion for summary judgment.

Qualified Immunity

Turning to the merits, the Fourth Circuit affirmed the district court’s denial of Terry’s motion for summary judgment on the basis of qualified immunity.  Generally, qualified immunity shields government officials from liability for civil damages, provided that their conduct does not violate clearly established statutory or constitutional rights within the knowledge of a reasonable person.  To determine whether an officer is entitled to qualified immunity, the court must determine (1) whether the facts, taken in the light most favorable to the non-movant, establish that the officer violated a constitutional right; and (2) whether that right was clearly established.

Constitutional Violation: Excessive Force.  The Fourth Circuit first evaluated whether an established constitutional right was violated—in this case, the Fourth Amendment’s bar against the use of excessive force by police officers to effectuate a seizure.  To determine whether the force used was excessive, as opposed to objectively reasonable, courts evaluate the totality of the circumstances in light of three factors: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.

Here, the Fourth Circuit found that all three factors weighed heavily in Yates’s favor.  First, the Court found that the severity of the crime at issue strongly favored Yates.  It was undisputed that the alleged violations were nonviolent, minor traffic infractions; none amounted to more than a misdemeanor.  Second, the Court found that the evidence did not support any inference that Yates posed an immediate threat to the safety of Terry or others at any time during their encounter.  Yates, who was unarmed, complied with Terry’s initial order to place his hands on the car; however, he was subsequently tased by Terry once for turning his head and a second time for no apparent reason.  The Court noted that Yates was never a danger to Terry at any time during their encounter.  Third, the Court found that, based on the evidence, Yates never attempted to flee or resist Terry’s efforts to detain him—he never attempted to get up after he fell to the ground following the first taser application.  Thus, in light of the totality of the circumstances, the Court held that the level of force used by Terry against Yates was not objectively reasonable and constituted excessive force in violation of Yates’s Fourth Amendment rights.

Clearly Established Right.  Next, the Fourth Circuit determined that Yates’s violated constitutional rights were clearly established at the time of Terry’s conduct, such that a reasonable official would have understood that what he was doing violates that right.  The Court held that it was clearly established—and Terry was thus on fair notice—that a police officer was not entitled to use “unnecessary, gratuitous, or disproportionate force by repeatedly tasing a nonviolent misdemeanant who presented no threat to the safety of the officer or the public and who was compliant and not actively resisting arrest or fleeing.”

Disposition

The Fourth Circuit concluded that, based on the totality of the circumstances, Terry was not entitled to qualified immunity as a matter of law.  The Court affirmed the district court’s denial of Terry’s motion for summary judgment based on qualified immunity.

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15Feb

Qualified Immunity Defense Shocks Plaintiff Who Alleges Use of Excessive Force

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hospital

By Taylor Anderson

On January 11, 2016, the Fourth Circuit issued its published opinion regarding the civil case Estate of Ronald Armstrong v. Village of Pinehurst. The estate of Ronald H. Armstrong (“Appellant”), appealed the district court’s order granting summary judgment to various appellees, including the Village of Pinehurst, North Carolina (“Pinehurst”), Lieutenant Jerry McDonald (“Lieutenant McDonald”), Sergeant Tina Sheppard (“Sergeant Sheppard”), and Officer Arthur Gatling, Jr. (“Officer Gatling”). The Fourth Circuit affirmed the grant of summary judgment in appellees’ favor, holding that the appellees were entitled to qualified immunity in this case.

Police Intervene After Ronald H. Armstrong’s Hospital Incident

On April 23, 2011, Ronald H. Armstrong (“Armstrong”), who suffered from bipolar and paranoid schizophrenia, had been off of his prescribed medication for five days and was acting strange. His sister, Jinia Armstrong Lopez (“Lopez”) convinced Armstrong to accompany her to Moor Regional Hospital (“Hospital”) in Pinehurst, North Carolina. Armstrong willingly went to the Hospital and checked in, but during the course of evaluation, Armstrong became frightened and fled the emergency department. The examining doctor determined Armstrong to be a danger to himself and issued involuntary commitment papers to compel Armstrong’s return.

Lieutenant McDonald, Sergeant Sheppard, and Officer Gatling (collectively, “Appellees”) responded to this dispatch. When the Appellees arrived at Armstrong’s location, they engaged in conversation with Armstrong because the commitment order had not yet been finalized. As soon as the Appellees learned that the commitment papers were complete, they surrounded and advanced toward Armstrong. Armstrong reacted by sitting down and wrapping himself around a post that was supporting a nearby stop sign. The Appellees struggled to remove Armstrong from the post.

After about thirty seconds or so after struggling to remove Armstrong from the post, Appellees tasered Armstrong five separate times over a period of approximately two minutes. Shortly after the tasing ceased, Appellees removed Armstrong from the post and laid him facedown on the ground. During the struggle, Armstrong complained that he was being choked; however, no witness saw the police apply any chokeholds. Because of Armstrong’s continued resistance, Appellees handcuffed Armstrong and shackled Armstrong’s legs too. Appellees stood up to collect themselves and left Armstrong facedown in the grass. When the Appellees flipped Armstrong over, they saw that Armstrong’s skin had turned a bluish color and he did not appear to be breathing. Two of the Appellees administered CPR and the other radioed dispatch to send Emergency Medical Services. Armstrong was pronounced dead shortly after arriving to the hospital.

Based on the foregoing event, Appellant filed a complaint, suing each police officer involved in Armstrong’s seizure, pursuant to 42 U.S.C. § 1983, alleging that Appellees used excessive force. The district court granted summary judgment to Appellees, reasoning that “[i]t is highly doubtful that the evidence establishes a constitutional violation at all, but assuming it does, the defendants are entitled to qualified immunity.” Appellant filed a timely notice of appeal.

Appellant Established the Violation of a Constitutional Right

The Fourth Circuit began its “qualified immunity analysis” by pointing out that this analysis involves two inquires: (1) whether the plaintiff has established the violation of a constitutional right, and (2) whether that right was clearly established at the time of the alleged violation. Appellant’s case would survive summary judgment only if the Fourth Circuit answered both questions in the affirmative.

Turning to the first inquiry, the Fourth Circuit held that the Appellees conduct violated Armstrong’s Fourth Amendment right. Using the “objective reasonableness” standard as well as the factors enunciated in Graham v. Connor, the Fourth Circuit held that the level of force Appellees chose to use was not objectively reasonable because Appellees were merely confronted with a situation involving a few exigencies that justified only a limited degree of force. Tasing Armstrong exceeded this permissible, limited degree of force. The Fourth Circuit stated, “[i]mmediately tasing a non-criminal, mentally ill individual, who seconds before had been conversational, was not a proportional response.” For this reason, Appellees were not entitled to summary judgment on the question of whether they violated the Constitution because, viewing the record in the light more favorable to Appellant, Appellees used excessive force in violation of the Fourth Amendment. Therefore, the Fourth Circuit answered the first question of its “qualified immunity analysis” in the affirmative.

Appellees Entitled to Qualified Immunity

Turning to the second inquiry, the Fourth Circuit held that Armstrong’s specific Fourth Amendment right was not “clearly established” at the time of Appellees’ alleged violation. For this reason, the Fourth Circuit held that Appellees were entitled to qualified immunity; therefore, the Fourth Circuit nevertheless affirmed the district court’s grant of summary judgment to Appellees.

Using Fourth Circuit precedent, the court stated that qualified immunity shields government officials from liability for civil damages, provided that their conduct does not violate “clearly established” statutory or constitutional rights within the knowledge of a reasonable person. The inquiry into whether a constitutional right is “clearly established” required that the Fourth Circuit first define the precise right into which it was inquiring. After defining that right, the court had to determine whether that right was clearly established at the time Appellees acted. A right satisfies this standard when it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Therefore, if the constitutional right was “clearly established” at the time Appellees acted, Appellees were not entitled to qualified immunity.

The Fourth Circuit had no trouble in defining the precise right into which it was inquiring. The constitutional right in this case was Armstrong’s right not to be subjected to tasing while offering stationary and non-violent resistance to a lawful seizure.

However, once the Fourth Circuit turned to the second question as to whether this constitutional right not to be tased was “clearly established,” it held that the defined constitutional right was not so settled at the time that Appellees acted such that every reasonable official would have understood that tasing Armstrong was unconstitutional. The Fourth Circuit looked to tasing cases from other circuits when discussing how the law—in relation to tasing and excessive force—was unsettled at the time Appellees tased Armstrong; thus, not every reasonable official would have understood tasing was unconstitutional in this situation. For this reason, the Fourth Circuit concluded that Armstrong’s right not to be tased while offering stationary and non-violent resistant to a lawful seizure was not “clearly established” on the date he was seized. For this reason, the Fourth Circuit held that Appellees were entitled to qualified immunity.

Judgment Affirmed

The Fourth Circuit held that Appellees used unconstitutionally excessive force when seizing Armstrong, but the Fourth Circuit, nevertheless, agreed with the district court that Appellees were entitled to qualified immunity. For this reason, the Fourth Circuit affirmed the district court’s order granting Appellees’ motion for summary judgment.

One judge concurred in part as to the majority’s analysis of the Appellees’ qualified immunity defense; however, this judge wrote a concurring opinion to express his concern over the majority’s discussion on the merits of the excessive force claim. This judge felt as though the excessive force discussion was unnecessary and unwise.

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28Sep

Prisoner Exhausted Over Exhaustion Defense, Fourth Circuit Steps In

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By Taylor Anderson

On May 21, 2015, the Fourth Circuit issued its published opinion regarding the civil case Blake v. Ross. The appellant, inmate Shaidon Blake (“Blake”), appealed the district court’s summary dismissal of his 42 U.S.C. § 1983 excessive force claim against Appellee Lieutenant Michael Ross (“Ross”) on the ground that Blake failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The Fourth Circuit reversed the judgment of the district court and remanded the case for further proceedings, holding that because Blake reasonably believed that he had sufficiently exhausted his remedies by complying with an internal investigation, Blake exhausted his administrative remedies as required by the PLRA.

Blake Alleged Use of Excessive Force

On June 21, 2007, Ross and Lieutenant James Madigan (“Madigan”) approached Blake’s cell at the Maryland Reception Diagnostic and Classification Center in order to move Blake to another cell block. Ross handcuffed Blake, and escorted him out of the cell towards his new cell downstairs. While Ross escorted Blake, Madigan physically contacted Blake multiple times. Madigan reached out and grabbed Blake’s arm, shoved Blake while he was walking down the stairs, and shoved Blake at the bottom of the stairs.

When they reached the new cell, Madigan ordered Blake to stand against the wall of the corridor. Madigan began yelling, screaming, and pointing in Blake’s face. While Ross held Blake against the wall, Madigan wrapped a key ring around his fingers and then punched Blake at least four times in the face in quick succession. Ross and Madigan then took Blake to the ground by lifting him up and dropping him. Ross dropped his knee onto Blake’s chest, and he and Madigan restrained Blake until other officers arrived. The responding officers took Blake to the medical unit.

That same day, Blake reported the incident to senior corrections officers. The Internal Investigative Unit (“IIU”) of the Maryland Department of Public Safety and Corrections Services (“Department”) undertook a year-long investigation, eventually confirming that Madigan had used excessive force against Blake.

On September 8, 2009, Blake filed a pro se § 1983 complaint against Ross, Madigan, two supervisors, and three government entities. The district court later dismissed the claims against the government entities, and granted the two supervisors’ motion for summary judgment. After Ross filed an answer to the complaint, Ross motioned for summary judgment and the motion was denied.

On August 2, 2011, nearly two years after filing his answer to Blake’s complaint, Ross filed a motion to amend his answer. This motion was granted. Ross’s amended answer included a new affirmative defense alleging that Blake had failed to exhaust his administrative remedies as required by the PLRA, 42 U.S.C. § 1997e(a).

On January 9, 2012, Ross moved for summary judgment on the ground that Blake had failed to exhaust his administrative remedies. On May 10, 2012, the district court granted summary judgment to Ross. Blake timely appealed the dismissal of his claim against Ross.

What the PLRA Required Blake to Do

The PLRA requires an inmate to exhaust available administrative remedies before filing an action. The Department provides inmates with a number of administrative avenues for addressing complaints and problems. At issue here is the interaction between two of them: the Administrative Remedy Procedure (“ARP”) and the IIU.

The ARP is available for “all types of complaints” except “case management recommendations and decisions,” “Maryland Parole Commission procedures and decisions,” “disciplinary hearing procedures and decisions,” and “appeals of decisions to withhold mail.”

The IIU is responsible for investigating, among other things, allegations of excessive force by an employee or nonagency employee.

The IIU investigated Blake’s encounter with Ross and Madigan; however, Blake never filed an administrative grievance through the ARP. Ross contended that the ARP was available to Blake, thus Blake failed to exhaust all administrative remedies. Blake argued that the investigation removed his grievance from the ARP process. The Fourth Circuit sought to resolve this issue and examined the exhaustion defense in greater detail.

Ross’s Exhaustion Defense Was Without Merit

The Fourth Circuit noted that the PLRA’s exhaustion requirements are not absolute, pointing to Justice Breyer’s comment that there are “special circumstances” in which a prisoner’s failure to comply with administrative procedural requirements may have been justified. If the inmate’s failure to exhaust available remedies “was justified by his reasonable belief” that no further remedies were available, then the inmate’s failure may qualify as an exception to the PLRA requirements.

The Fourth Circuit went on to adopt the Second Circuit’s two prong test for determining whether a situation qualifies as an exception to the PLRA (formulated in Macias v. Zenk). If the situation satisfies both prongs, it qualifies as an exception to the PLRA’s complete exhaustion requirement.

The first prong is whether “the prisoner was justified in believing that his complaints in the disciplinary appeal procedurally exhausted his administrative remedies because the prison’s remedial system was confusing.” The Fourth Circuit determined that Blake reasonably interpreted Maryland’s murky and complex inmate grievance procedures by using three resources available: the Inmate Handbook, the Maryland Code of Regulations, and the Maryland Department of Correction Directives. Thus, Blake was justified in believing that his complaints to the IIU procedurally exhausted his administrative remedies. The Fourth Circuit found that the first prong was satisfied.

The second prong is whether “the prisoner’s submissions in the disciplinary appeals process exhausted his remedies in a substantive sense by affording corrections officials time and opportunity to address complaints internally.” The Fourth Circuit found that Blake’s IIU investigation satisfied this component of the exception because the Department conducted a one-year investigation into Blake’s violent encounter, giving officers ample notice and opportunity to internally address the issues raised.

Judgment Reversed and Remanded

Because Blake’s complaint to the IIU satisfied both prongs of the PLRA exception test, the Fourth Circuit held that Ross’s exhaustive defense was without merit, reversed the judgment of the district court, and remanded the case for further proceedings.

One Judge dissented. The dissenting Judge believed the Fourth Circuit should have affirmed the district court’s judgment because Maryland’s ARP was available to Blake and he did not use it, and for that reason, Blake’s unexhausted claim should not have gone forward.

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24Sep

Fourth Circuit Affirms Denial of Correction Officers’ Motion for Summary Judgment in Excessive Force Case

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By Whitney Pakalka

On May 19, 2015, The Fourth Circuit issued a published opinion in the civil case of Ussery v. Mansfield, 786 F.3d 332. Sammy Ussery filed suit under 42 U.S.C. § 1983 alleging that officers at the North Carolina penal institution where he was incarcerated caused him serious injuries by their use of excessive force. The Fourth Circuit affirmed the district court’s denial of the officers’ motion for summary judgment.

  Ussery Claimed Correctional Officers Used Excessive Force

Sammy Ussery was an inmate at a correctional facility where he was forcibly extracted from his cell by correctional officers on July 9, 2008. Sergeant David Mansfield ordered Ussery to exit his cell so that it could be searched, but Ussery refused because officers repeatedly searched his cell in previous days without discovering any contraband. Sgt. Mansfield then gathered an extraction team of officers, including Officers James Dunlow and Timothy Ruffin, named defendants.

Although prison policy mandates that extractions be videotaped, Sgt. Mansfield stood in front of the video camera during most of the extraction, obstructing the view of Userry’s cell. What can be seen on the video, however, comports with some of Ussery’s account that the officers “beat him repeatedly in the head and face with batons, punches and kicks” and that Sgt. Mansfield “kicked and stomped” on him. Ussery was eventually handcuffed and carried out of his cell, and he was later taken to the hospital for emergency treatment of his injuries.

Several months later, the State Bureau of Investigation conducted an inquiry at the request of the state Department of Corrections to determine whether excessive force was used. However, because the video of Userry’s cell was obstructed by Sgt. Mansfield, the SBI was not able to reach a definitive conclusion.

The District Court Denied One of Defendants’ Motion for Summary Judgment

Ussery filed an action pro se under 42 U.S.C. § 1983 alleging that the officers violated the Eighth Amendment by use of excessive force and for failure-to-protect. Ussery contended that as a result of the force used, he suffered hearing loss, neck pain, loss of vision in one eye, and other injuries that caused him ongoing “physical and emotional pain and suffering, and disability.”

The officers denied punching or kicking Ussery, and argued that he only incurred de minimis injuries. The officers submitted an affidavit of a doctor employed by the Division of Prisons who said that Ussery only had minor injuries with no lasting effects. The doctor based his medical opinion on prison records without examining Ussery. The officers requested summary judgment based on an entitlement to qualified immunity. The district court granted the motion as to the failure-to-protect claim, but denied the motion as to the excessive force claim.

Qualified Immunity from Civil Damages for Excessive Use of Force

In cases where excessive force is claimed, the Fourth Circuit previously applied the standard from Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994) (en banc). The court in Norman held that a plaintiff cannot prevail on an Eighth Amendment excessive force claim if his injury is de minimis, unles he can show that the use of force was “repugnant to the conscience of mankind.” However, Norman was abrogated by the Supreme Court in Wilkins v. Gaddy, 559 U.S. 34, 38–39 (2010), holding that “[a]n inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.”

The Fourth Circuit still applies the standard set out in Norman for cases where the alleged use of excessive force occurred before Wilkins was decided. Thus, because the extraction occurred in 2008, Ussery will have to establish (1) that he sustained more than de minimis injuries, or (2) that the use of force was “of a sort repugnant to the conscience of mankind and thus expressly outside the de minimis force exception.” Norman, 25 F.3d at 1263, n.4.

Jurisdiction for an Appeal from Denial of a Claim of Qualified Immunity

When a district court denies a claim of qualified immunity, it is an appealable final decision under 28 U.S.C. § 1291, “to the extent that it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The Supreme Court further explained that where a district court denies summary judgment to a defendant seeking qualified immunity entirely on the basis of evidentiary sufficiency, no basis for an interlocutory appeal exists. Johnson v. Jones, 515 U.S. 394 (1995).

The district court, in its denial of summary judgment, found that a question of fact existed not only in regard to the extent of Ussery’s injuries, but also as to whether the circumstances were sufficient to show force “repugnant to the conscience of mankind,” thus satisfying the standard in Norman. Because the denial of summary judgment was based on the sufficiency of the evidence, the Fourth Circuit found that it was not permitted to review the lower court’s assessment of the factual evidence.

However, the Fourth Circuit inferred that the district court concluded that Ussery could establish a violation of law under Norman. Finding that this was a “purely legal conclusion,” the Court went on to consider whether the district court properly denied Defendant’s motion for summary judgment.

The officers argued that Ussery only suffered de minimis injuries and could not satisfy the Norman standard. The Fourth Circuit disagreed noting that whether a plaintiff’s injuries satisfy the standard depends on the facts of the case. The Court noted that the injuries Ussery claims may have long-term effects and were arguably more severe than injuries previously held to be sufficient for an excessive force claim. Additionally, the Department of Corrections conducted its own investigation, suggesting that the force used could have resulted in sufficiently serious injuries to meet the standard of Norman.

The Fourth Circuit Affirmed the District Court’s Judgment

Interpreting the facts in the light most favorable to Ussery, the Fourth Circuit affirmed the district court’s denial of Defendants’ motion for summary judgment requested on the basis of qualified immunity.

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