Derrick Gibson v. Mary Flemming ( 2020 )

CLD-042 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-1669
___________
DERRICK GIBSON,
Appellant
v.
MARY FLEMMING, Nurse; THOMAS ARMSTRONG, Captain, Hearing Examiner;
CARL WALKER, Captain; DARRYL BEVERIDGE, Corrections Officer I; ROBERT
HAWKINBERRY, Captain; ROBERT FLEMMING, Lieutenant; SHAUN IREY,
Lieutenant
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2-16-cv-00392)
District Judge: Honorable David S. Cercone
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 3, 2020
Before: RESTREPO, MATEY and SCIRICA, Circuit Judges
(Opinion filed December 30, 2020)
_________
OPINION*
_________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Derrick Gibson appeals the District Court’s order granting Appellees’ motion for
summary judgment and denying his motion for summary judgment. For the reasons
below we will summarily affirm the District Court’s order.1
The procedural history of this case and the details of Gibson’s many claims are
well known to the parties, set forth in the Magistrate Judge’s Report and
Recommendation, and need not be discussed at length. In his Second Amended
Complaint, Gibson challenged several uses of force by prison officials. Both Gibson and
the Appellees filed motions for summary judgment. The Magistrate Judge wrote a
detailed and thorough Report and Recommendation analyzing Gibson’s claims. The
District Court adopted the Report and Recommendation, denied Gibson’s motion for
summary judgment, and granted Appellees’ motion for summary judgment. Gibson filed
a timely notice of appeal.
We agree with the District Court that Appellees were entitled to summary
judgment on Gibson’s claims.2 We write here to address a few of his excessive force and
sexual harassment claims which were addressed by prison officials through
1
Earlier in the District Court proceedings, the Magistrate Judge recommended granting
in part a motion to dismiss filed by Appellees. Gibson did not object to the Magistrate
Judge’s Report and Recommendation, and the District Court adopted it. The District
Court did not err in dismissing those claims.
2
We have jurisdiction pursuant to 28 U.S.C. § 1291. A grant of summary judgment will
be affirmed if our review reveals that “there is no genuine dispute as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We
agree with the District Court that the evidence must be viewed in light of the video
footage of the incidents. Scott v. Harris, 550 U.S. 372, 380-81 (2007).
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investigations. However, regardless of exhaustion, Appellees were entitled to summary
judgment on those claims.
An Eighth Amendment claim has an objective and subjective component. Hudson
v. McMillian, 503 U.S. 1, 8 (1992). The defendant must act with a “sufficiently culpable
state of mind,” and the conduct must be objectively harmful enough to violate the
Constitution. Wilson v. Seiter, 501 U.S. 294, 298, 303 (1991). In evaluating the
subjective component of an excessive force claim, the Court should consider “whether
force was applied in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Ricks v. Shover, 891 F.3d 468, 480 (3d Cir. 2018)
(citations omitted). Several factors guide this analysis: “(1) the need for the application
of force; (2) the relationship between the need and the amount of force that was used; (3)
the extent of the injury inflicted; (4) the extent of the threat to the safety of staff and
inmates, as reasonably perceived by responsible officials on the basis of facts known to
them; and (5) any efforts made to temper the severity of the forceful response.” Id.(internal quotations omitted). In addressing the objective component of an Eighth
Amendment claim, the question is whether the injury was more than de minimis. Fuentes
v. Wagner, 206 F.3d 335, 345 (3d Cir. 2000). The use of chemical agents to subdue
recalcitrant prisoners is not cruel and unusual when reasonably necessary. See Soto v.
Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984).
With respect to the incident on September 4, 2014, Gibson claimed, without
citation to any evidence in the record, that a security investigation was conducted. We
saw no report from this investigation in the record. In any event, Appellees were entitled
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to summary judgment on Gibson’s excessive force claim. Gibson admitted, in his
response to a misconduct, that he told officers that he was suicidal and tied a sheet around
his neck before the officer sprayed him with oleoresin capsaicin (OC) spray. Thus, the
unplanned use of force was required to prevent Gibson from hurting himself. Gibson
suffered no injuries beyond the temporary discomfort of the OC spray. The use of force
did not rise to the level of a constitutional violation.3
Gibson alleged that on January 10, 2016, he was ordered to strip for a search or be
sprayed. He complied. He claims that he was then taken to another cell where officers
pulled his shackled feet from under him, causing him to fall. At the beginning of the
video for this incident, an officer states that Gibson has cut himself and claims to have a
razor. When the extraction team arrives at his cell, Gibson is strip searched and complies
with orders to be handcuffed. He is upset about the strip search and claims that he is
being sexually harassed. As he is being taken into the other cell, he yells “take me
down!” He is then brought down to the floor by officers who yell “quit resisting!”
We agree with the District Court that Gibson failed to exhaust his administrative
remedies for his claim of excessive force. Gibson argued in response to Appellees’
summary judgment motion that he filed a grievance that was labeled as a complaint about
3
As for his claim that he was left in his cell for forty minutes suffering from the spray
before the officers returned, Gibson’s allegations do not match the video and paperwork
regarding the incident. The paperwork shows that he was sprayed at 8:45, and the video
started a few minutes later when the extraction team arrived at his door. While Gibson
had to wait 30 minutes to have his eyes washed out, most of this delay was because he
refused to be cuffed and removed from the cell. He was not, as he claims in his response
to the Appellees’ motion for summary judgment, left in his cell for 30 minutes begging
for medical treatment.
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conditions. In a grievance submitted on January 13, 2016, Gibson complained of being
placed in a “hard cell” with many restrictions. He made no mention of any excessive
force.
The record does, however, include an investigation of Gibson’s claim that he was
sexually harassed on January 10, 2016, when he was required to submit to a second
visual strip and an officer allegedly winked at him. The investigator interviewed the
officers involved but Gibson did not cooperate with the investigation. The investigator
concluded that Gibson’s allegations were unfounded. Being subject to an extra visual
strip search and a wink does not rise to the level of a constitutional violation. See Ricks,
891 F.3d at 475 (“the incident [of sexual abuse] must be objectively, sufficiently
intolerable and cruel, capable of causing harm, and the official must have a culpable state
of mind.”).
The record also contains an investigation report into Gibson’s allegations of
unspecified sexual harassment arising from a January 13, 2016 incident. Gibson again
did not cooperate with the investigation, and the allegations were determined to be
unfounded. In his Second Amended Complaint, Gibson alleged that an officer winked at
him and “flicked his tongue” at Gibson. To the extent these allegations are considered
exhausted, they do not rise to the level of a constitutional violation. Id.
With respect to the January 21, 2016 incident, Gibson did not respond to
Appellees’ argument that he did not exhaust his claims. We agree with the District Court
that he failed to exhaust his administrative remedies for these claims. However, a few
allegations arising from the January 21, 2016 incident were addressed in an investigation
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by the prison. Gibson filed a grievance in which he complained of continuous sexual,
physical, verbal, and psychological harassment by Officer Beveridge. He did not
describe any specific incidents. The grievance was rejected but the allegations of sexual
harassment were forwarded to the Security Department and PREA Compliance Manager
for an investigation. In June 2016, the security department issued an investigative report.
It noted that Gibson alleged that the officer provoked him into self-injurious behavior so
he could issue misconducts and videotape Gibson being stripped. He alleged that the
officer choked him with two spit hoods, stepped on his finger causing a blood clot, and
falsely accused Gibson of biting him. No one interviewed by the investigator
corroborated Gibson’s allegations.
Even if those allegations were considered exhausted, Appellees would still be
entitled to summary judgment. The video does not support Gibson’s allegations that he
was choked and his finger was stepped on. The use of force during the January 21, 2016
incident was unfortunately necessary for the safety of staff, and there is no genuine
dispute that any force was not applied maliciously but rather for the purpose of
maintaining order.
Summary action is appropriate if there is no substantial question presented in the
appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by
the District Court, we will summarily affirm the District Court’s order. See Third Circuit
I.O.P. 10.6.; Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir. 2011) (court of appeals
may affirm on any basis supported by the record). Gibson’s motions for the appointment
of counsel and for injunctive relief are denied.
6