Johns v. Gwinn

• Citation: 503 F.Supp.3d 452
• Decision Date: 30 November 2020
• Docket Number: Case No. 7:18-cv-00150
• Parties: Lameek JOHNS, Plaintiff, v. GWINN, Correctional Officer, Defendant.
• Court: U.S. District Court — Western District of Virginia

503 F.Supp.3d 452

Lameek JOHNS, Plaintiff,

v.GWINN, Correctional Officer, Defendant.

Case No. 7:18-cv-00150

United States District Court, W.D. Virginia, Roanoke Division.

Signed November 30, 2020

Lameek Shalam Johns, Pound, VA, pro se.

Margaret Hoehl O'Shea, Office of the Attorney General of Virginia, Richmond, VA, for Defendant.

FINDINGS OF FACT & CONCLUSIONS OF LAW

NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

Plaintiff Lameek Johns sued Defendant Gwinn¹ for violating his Eighth Amendment right to be free from cruel and unusual punishment, alleging that Defendant used excessive force by firing OC spray at Plaintiff in Defendant's capacity as a correctional officer at Red Onion State Prison. The Court referred this matter to the magistrate judge, who conducted a bench trial and issued a Report & Recommendation that this Court rule in Defendant's favor and deny Plaintiff's spoliation motion.

This Court will sustain Plaintiff's objections to the R&R. Reviewing the trial testimony and other record evidence de novo , the Court finds that the weight of the evidence shows that Defendant assaulted Plaintiff with OC spray, without justification. Moreover, because the Virginia Department of Corrections did not preserve relevant evidence, Plaintiff established that he was entitled to sanctions—just not to the degree sought. This Court concludes that Defendant's actions violated Plaintiff's Eighth Amendment rights, and that Plaintiff is entitled to compensatory and punitive damages for a total award of $4,000.

I. Background

A. Plaintiff's complaint and pretrial procedural history

Plaintiff claims that on the morning of April 5, 2016, Defendant sprayed Plaintiff in the face and chest for three to four minutes with oleoresin capsicum ("OC") spray by sticking his arm through a hinged feeding box attached to a tray slot on Plaintiff's cell door at Red Onion State Prison ("Red Onion"). Dkt. 1 at 4. He sued Defendant under 42 U.S.C. § 1983 for violating his Eighth Amendment rights, seeking $18,000 in compensatory and punitive damages for physical and emotional injuries; a declaratory judgment that his Eighth Amendment rights were violated; and an injunction transferring him to general population at another prison. Dkt. 1 at 11.

Before trial, Plaintiff filed a spoliation motion challenging Red Onion officers’ failure to preserve video from Red Onion's internal surveillance system that, Plaintiff asserted, would have captured Defendant's alleged assault. Dkt. 44. Plaintiff sought judgment in his favor as a sanction for the failure to preserve evidence. Id.

B. Bench trial summary and the R&R

Following this Court's referral, the magistrate judge conducted a one-day bench trial on August 5, 2019. The parties presented live testimony and produced documentary evidence. Dkt. 77 (trial transcript). Plaintiff and Michael Watson, the inmate in a cell next to Plaintiff at the time of the incident, testified for Plaintiff. Id. at 8–28. Defendant and five Red Onion correctional officers and employees testified for Defendant. Id. at 56–133.

The magistrate judge's 29-page R&R provides a detailed account of the testimony and documentary evidence, which the Court will not fully recount here. Dkt. 70 ("R&R") at 5–17. The parties agreed that between 7:00 and 7:45 a.m. on April 5, 2016, Defendant escorted two nurses as they distributed medication through the D-3 unit, a segregation unit housing Plaintiff. The parties’ competing narratives share little else in common.

Plaintiff testified that, as the nurses and Defendant passed near Plaintiff's cell, Defendant and Plaintiff engaged in a verbal altercation, which sparked the alleged assault.² Dkt. 77 at 22–23. Plaintiff testified that Defendant unholstered his OC spray, stuck his arm through the tray slot in Plaintiff's cell door, and sprayed Plaintiff in the face intermittently for two to three minutes, causing him extreme pain, discomfort, and difficulty breathing. Id. at 22–23, 39–41. Watson testified to seeing Defendant walk over to Plaintiff's cell; hearing Plaintiff's tray slot open; hearing Plaintiff yell to the nurses that he had been pepper sprayed in the face; and smelling the pepper spray coming through the vent between his and Plaintiff's cells. Id. at 8–21. Watson testified that the smell was strong enough that it made him cough

as well. Id. at 12.

Plaintiff testified that after the assault, the two nurses and Defendant ignored his pleas for medical treatment. Id. at 23–25. He also testified that Defendant, Sergeant Fleming and Lewis, another corrections officer at Red Onion, passed by his cell after the incident, and they also either ignored his pleas or, in Fleming's case, threatened to use OC spray against Plaintiff. Id. at 24–25. A nurse finally examined Plaintiff about an hour after the incident when Plaintiff was transferred to another cell block as previously scheduled. See id. at 27, 51. The nurse ordered that Plaintiff be given a shower in order to be decontaminated. Id.

Plaintiff introduced into evidence a Red Onion logbook showing that on two occasions on the morning of the incident—at 7:25 a.m. and again at 8:10 a.m.—medical clearance was given to an unnamed guard working in Plaintiff's cell block to use OC spray on Plaintiff specifically. Dkt. 68-2. Sergeant Fleming accounted for one of the authorizations, who testified that he secured authorization before escorting Plaintiff from his cell that morning in the planned cell block transfer. Dkt. 77 at 80. Neither Defendant nor any other witness accounted for the other OC spray authorization.

Plaintiff also introduced into evidence a portion of his Red Onion medical record, which described his visit to the prison infirmary at 8:30 a.m. on the morning of the incident. Dkt. 68-3. Nurse Mullins examined Plaintiff. Id. ; Dkt. 77 at 27, 51. She wrote in his medical record, under "Complaint and Treatment": "OC spray utilized[.] Inmate was decontaminated no injuries noted." Dkt. 68-3.

Defendant offered contrary testimony and documentary evidence. Six Red Onion employees and correctional officers—including Defendant—testified that Defendant did not use OC spray on Plaintiff, and that if he had, this use of force would have been documented in several ways pursuant to Virginia Department of Corrections ("VDOC") and internal Red Onion procedures. Defendant also disputed several aspects of Plaintiff's narrative, including that a single OC cannister could be deployed continuously for several minutes without depleting. He also explained that a prison guard would be "foolish" to stick one's arm through an inmate's tray slot. Dkt. 77 at 69.

Unit Manager Swiney and Fleming testified that they reviewed the Rapid Eye³ surveillance video following the event—Swiney on the morning of the incident after Plaintiff complained to staff, and Fleming when Plaintiff submitted a written informal complaint about the incident six days later. Dkt. 77 at 89–90, 123, 127. Both testified that the video did not substantiate Plaintiff's allegations of assault by Defendant, and therefore, pursuant to VDOC policy, it was not marked for preservation and was automatically allowed to be recorded over. Id. at 126–28. Swiney testified that the video showed that Defendant approached Plaintiff's cell door alone at one unspecified time that morning, briefly unholstered and reholstered his OC cannister, but did not access the tray slot on Plaintiff's cell. Id. at 124, 127. Fleming similarly testified that at no point in his review of the video did he see Defendant access Plaintiff's tray slot. Id. at 90. Fleming also denied that Plaintiff informed him about being exposed to OC spray until Plaintiff's cell transfer took place. Id. at 88.

After the bench trial, the magistrate judge determined that Plaintiff failed to prove by a preponderance of the evidence that the alleged use of force occurred, and Defendant should therefore prevail. R&R at 23–26. The magistrate judge also recommended that the Court deny Plaintiff's spoliation motion, because Plaintiff had not shown that the electronically-stored information ("ESI") at issue—the Rapid Eye video—contained evidence relevant to Plaintiff's claim, or that the video would have supported Plaintiff's version of the events. R&R at 26–28. Plaintiff timely filed objections to the R&R, both concerning the recommended disposition of the merits of his claim and his spoliation motion. Dkt. 73.

II. Legal Standard

Federal Rule of Civil Procedure 72 permits a party to submit objections to a magistrate judge's R&R within fourteen days. Fed. R. Civ. P. 72(b)(2) ; 28 U.S.C. § 636(b). The district court conducts a de novo review of those portions of a magistrate's R&R to which specific objections were made. Fed. R. Civ. P. 72(b)(3) ; Orpiano v. Johnson , 687 F.2d 44, 48 (4th Cir. 1982). The Court may give a magistrate judge's R&R "such weight as its merit commands and the sound discretion of the judge warrants," United States v. Raddatz , 447 U.S. 667, 682–83, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (internal quotations omitted), but the Court still must "consider[ ] the actual testimony" and evidence, and cannot merely rely upon "reviewing the magistrate's report and recommendations," Wimmer v. Cook , 774 F.2d 68, 76 (4th Cir. 1985) (citations omitted). The district court may accept, reject, or modify the recommended disposition based on its de novo review of the recommendation and the objections made. Fed. R. Civ. P. 72(b)(3).

"In a civil case, the plaintiff carries the burden of proving each of the elements of his claim by a preponderance of the evidence." Makdessi v. Fields , No. 7:11-cv-00262, 2017 WL 363014, at *2 (W.D. Va. Jan. 24, 2017) (Conrad, J.), aff'd , 716 F. App'x 148 (4th Cir. 2017) (citing In re Winship , 397 U.S. 358, 371, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ). " ‘The burden of showing something by a preponderance of the evidence ... simply requires the trier of fact to believe that the existence of a fact is more probable than its...