IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NORTH CAROLINA
`SOUTHERN DIVISION
`
`Case No. 7:23-CV-00166-M
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`BRENDA RANSOM,
`Administratrix of the Estate
`of Stephen Kendrick Hunt,
`
`Plaintiff,
`
`V.
`
`PAGE et al.,
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`Defendants.
`
`ORDER
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`This matter comes before the court on Defendants Steven Gist, Sheriff Burnis Wilkins, the
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`Robeson County Sheriff's Office ("RCSO"), and Western Surety Bonding Company's (the
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`"Surety's") motion to dismiss [DE 57] and Defendants Robbie Edwin Page and Larry Dean Jones'
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`motion to dismiss [DE 59]. For the reasons that follow, both motions are granted in part and denied
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`in part.
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`I.
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`PLAINTIFF'S ALLEGATIONS OF FACT
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`According to the Second Amended Complaint, Plaintiff is administratrix of the estate of
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`Stephen Kendrick Hunt ("Hunt"). DE 56 at 1. Hunt was sentenced on state criminal charges and
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`entered the custody of the RCSO on March 4, 2021. Id. at 3. While he was awaiting transfer to
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`the state prison system, he was housed at the Robeson County Detention Center ("RCDC"), located
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`in Lumberton, North Carolina. Id.
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`Hunt had a documented history of schizophrenia, substance abuse, seizures, attention
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`deficit hyperactivity disorder, anxiety, depression, and suicide attempts. Id. at 4. In addition, his
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`intake form for the RCDC reflected that he had previously overdosed on heroin. Id. After his
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`arrival at the RCDC, Hunt began suffering from apparent withdrawal; he was dehydrated, vomited
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`repeatedly (including blood) and could not eat. See id. He was also placed in medical observation
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`for several days due to heroin use. Id.
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`On March 9, Hunt was moved out of medical observation and into a booking cell located
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`just six feet from an officer duty station. Id. This placement is known as administrative detention;
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`Hunt had no cellmate. See id. Shortly after his placement in administrative detention, Hunt began
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`banging on the door of his cell requesting help. Id. Defendant Gist was on duty nearby and, in an
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`attempt to get Hunt to stop making noise, placed Hunt into full restraints (handcuffs, a waist chain,
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`and leg irons). Id. Even with the restraints, Hunt continued to knock on the cell door with his
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`foot, so Defendant Gist sprayed him with pepper spray and then left him in his cell without water
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`"to detoxify." Id. at 4-5 .
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`Some time later, Hunt was brought to the medical center at the RCDC and examined by
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`medical staff for "seizure-like" activity. Id. at 5. Hunt told staff he was going through withdrawal.
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`Id. No substance was indicated, and staff cleared Hunt to return to the general population. Id. But
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`officers kept Hunt in administrative detention in the booking cell near their duty station. Id.
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`Early on the morning of March 10, Defendant Page reported for duty and was assigned to
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`the booking area near Hunt's cell. Id. at 5. The facility was reportedly understaffed that day due
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`to employee absences. Id. at 6. Shortly after reporting for the day, Defendant Page learned from
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`other officers that Hunt was in administrative detention and had vomited "numerous times"
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`overnight. Id. He also heard from medical staff that Hunt had been vomiting for days and was
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`previously in observation for heroin use. Id.
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`After Defendant Page began his shift, he observed Hunt place his fingers in his throat to
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`induce vomiting at 5:45 a.m., and again at 6:00 a.m .. Id. Hunt's cell had the odor of vomit and
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`feces, so Defendant Page took Hunt to the showers so he could get cleaned up. Id. He gave Hunt
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`a new jumpsuit and then placed him in a different booking cell. Id.
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`Later that day, a social worker checked on Hunt.
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`Id. Defendant Page was present to
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`witness the interaction. Id. The social worker indicated that officers should not move Hunt if he
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`"did not act right." Id.
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`Around 4:32 p.m. on the afternoon of March 10, Defendant Page opened Hunt's cell and
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`placed a dinner tray on the floor. Id. at 7. He observed Hunt was covered in vomit and blood and
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`appeared very weak. Id. But Defendant Page thought Hunt was faking his symptoms, so he did
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`not request medical assistance for him. See id. Defendant Page closed the cell door. Id.
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`The RCSO has a written policy requiring officers to check on inmates in administrative
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`detention twice per hour, with no more than 40 minutes lapsing between checks. Id. at 5. Instead
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`of following that written policy, RCDC officers follow an unwritten policy of engaging in
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`inadequate cell checks, where officers merely scan a barcode on the outside of each cell with a
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`handheld scanner. Id. Officers do not open the cell door or look through the cell window to
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`actually observe the inmate. Id.
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`Defendant Page did not conduct a proper check of Hunt's cell for at least the next hour.
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`See id. at 8. He walked up to Hunt's cell and scanned the barcode on the outside, but did not look
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`inside the cell. Id. Then, around 5:30 p.m., Defendant Jones began his shift. Id. Defendant Page
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`told Defendant Jones that Hunt had been vomiting all day but was faking sick. Id. Between
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`approximately 5:30 and 8:00 p.m., Defendant Jones conducted several improper checks of Hunt's
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`cell by scanning the barcode on the outside but never actually looking into the cell to observe and
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`document Hunt's status. Id.
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`Around 8:00 p.m., a nurse conducting rounds opened Hunt's cell window, and saw Hunt
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`lying unresponsive on the floor of his cell. Id. at 9. The nurse asked Defendant Jones to open the
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`cell door.
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`Id. Defendant Jones did so, and when he and the nurse entered Hunt's cell, Hunt
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`appeared lifeless, was cold to the touch, and apparent rigor mortis had set in. Id. There was a dark
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`red "coffee ground like" substance all over Hunt and on the floor of his cell, consistent with
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`Defendant Page' s prior observation that Hunt had been vomiting blood. See id.
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`Defendant Jones immediately called medical responders, who arrived several minutes later.
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`Id. Hunt was deceased and, according to medical staff, likely had been dead for 2-3 hours, placing
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`his time of death between approximately 5: 19 and 6: 19 p.m. See id. at 10. Cell check logs reflect
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`apparent checks of Hunt's cell at 6:42 p.m., 7:05 p.m. and 7:36 p.m., all of which would have
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`occurred after Hunt's likely time of death. Id.
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`An autopsy revealed Hunt died of fentanyl toxicity. Id. The amount of fentanyl in his
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`system at the time of the autopsy suggested recent ingestion. Id. Defendants Page and Jones were
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`later criminally charged in connection with this event, and North Carolina's Department of Health
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`and Human Services conducted an investigation, which found that RCDC officers were deficient
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`in their cell checks on March 10. Id. at 11.
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`II.
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`PROCEDURAL HISTORY
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`Plaintiff initiated this federal action on February 23 , 2023. DE 1. Two months later,
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`Plaintiff filed an Amended Complaint. DE 22. Defendants Page and Jones then filed a motion to
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`dismiss, and Defendants Gist, Wilkins, the RCSO and the Surety answered the Complaint and filed
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`a motion for judgment on the pleadings. DE 26; DE 27; DE 28 ; DE 44; DE 45. Those motions
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`were fully briefed, DE 38; DE 41; DE 49; DE 51, but at the same time Plaintiff sought leave of
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`court to file a Second Amended Complaint, which Defendants Page and Jones opposed, DE 36;
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`DE 37; DE 42; DE 43.
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`The court ultimately granted Plaintiff leave to file a Second Amended Complaint, which
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`she did. DE 55; DE 56. That pleading raises five federal and two state law claims against the
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`various Defendants, including:
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`1. An excessive force claim against Defendant Gist for his use of pepper spray against
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`Hunt;
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`2. A conditions of confinement claim against Defendants Page and Jones for leaving
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`Hunt in an unsanitary cell on March 10;
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`3. A deliberate indifference claim against Defendants Page and Jones for their
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`disregard of Hunt' s medical needs on March 10;
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`4. A federal claim against Defendant Wilkins and his office for the unofficial policy
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`of permitting improper cell checks at the RCDC;
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`5. A federal claim against Defendant Wilkins and his office for the unofficial policy
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`of understaffing the RCDC;
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`6. A gross negligence claim against Defendant Wilkins and the Surety for the RCDC
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`officers' failure to conduct proper cell checks on March 10; and
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`7. A wrongful death claim against Defendants Wilkins, Page, and Jones.
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`DE 56 at 11-17. Plaintiff also seeks punitive damages. Id. at 17-18.
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`Defendants Page and Jones filed a renewed motion to dismiss the Second Amended
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`Complaint. DE 59; DE 60. In lieu of filing an answer, Defendants Gist, Wilkins, the RCSO and
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`the Surety also filed a motion to dismiss. DE 57; DE 58. Both motions are now fully briefed and
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`ready for decision. DE 64; DE 65 ; DE 66; DE 67; DE 68.
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`Ill.
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`STANDARD OF REVIEW
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`A complaint must contain "a short and plain statement of the claim showing that the pleader
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`is entitled to relief." Fed. R. Civ. P. 8(a)(2). A motion to dismiss under Rule 12(b)(6) tests the
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`legal sufficiency of the complaint; "it does not resolve contests surrounding the facts, the merits
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`of a claim, or the applicability of defenses." Republican Party of N Carolina v. Martin, 980 F.2d
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`943, 952 (4th Cir. 1992). As a result, the court accepts the complaint's factual allegations as true,
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`and construes them in the light most favorable to the plaintiff. Nemet Chevrolet; Ltd. v.
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`Consumerajfairs.com, Inc., 591 F.3d 250,255 (4th Cir. 2009).
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`Although "a complaint attacked by a Rule 12(b )( 6) motion to dismiss does not need
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`detailed factual allegations," the "allegations must be enough to raise a right to relief above the
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`speculative level." Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007). And importantly, "the
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`tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable
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`to legal conclusions." Ashcroft v. Iqbal, 556 U.S . 662, 678 (2009). Likewise, "[l]abels,
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`conclusions, recitation of a claim's elements, and naked assertions devoid of further factual
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`enhancement will not suffice." ACA Fin. Guar. Corp. v. City of Buena Vista, Virginia, 917 F.3d
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`206, 211 ( 4th Cir. 2019). Ultimately, when considering a motion to dismiss, the court must "draw
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`on its judicial experience and common sense" to determine whether the complaint "states a
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`plausible claim for relief." Iqbal, 556 U.S. at 679.
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`IV.
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`ANALYSIS
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`a. Defendants Gist, Wilkins, the RCSO, and the Surety's Motion
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`i. The RCSO
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`Defendants I first contend that all claims against the RCSO should be dismissed because a
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`sheriffs office is not amenable to suit under 42 U.S.C. § 1983 or North Carolina law. DE 58 at 5-
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`6. This contention is correct. "The capacity of a governmental body to be sued in the federal
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`courts is governed by the law of the state in which the district court is held." Avery v. Burke Cnty.,
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`660F.2d 111 , 113- 14(4thCir.1981);Fed. R.Civ.P.17(b)(3). NorthCarolinalaw "acknowledges
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`that a county is a legal entity which may be sued." Parker v. Bladen Cnty., 583 F. Supp. 2d 736,
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`740 (E.D.N.C. 2008) (referencing N.C.G.S. § 153A- 11) (emphasis added). But "[n]o North
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`Carolina statute authorizes suits against sheriffs' departments." Grey v. Lamar, No. 4:22-CV-
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`00007, 2022 WL 3695482, at *3 (E.D.N.C. Aug. 25, 2022). Plaintiffs claims against the RCSO
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`must therefore be dismissed because the RCSO lacks capacity to be sued. See Efird v. Riley, 342
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`F. Supp. 2d 413 , 420 (M.D.N.C. 2004); Fed. R. Civ. P. 17(b)(3).
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`Even if state law authorized suits against the RCSO, here Plaintiff has already sued
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`Defendant Wilkins in his official capacity as Sheriff of Robeson County, and a sheriffs office "is
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`not a cognizable legal entity separate from the Sheriff in his official capacity." Revene v. Charles
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`Cnty. Comm 'rs, 882 F.2d 870, 874 (4th Cir. 1989). In other words, Plaintiffs federal claims
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`against the RCSO are separately subject to dismissal because they are "duplicative" of his claims
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`against Defendant Wilkins. Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004).
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`Notably, Plaintiff responded to Defendants ' argument by conceding "that the claims
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`against the RCSO are duplicative of those against Sheriff Wilkins in his official capacity." DE 65
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`1 Although there are two groups of Defendants, and two motions to dismiss, for stylistic ease the court will refer to
`each group simply as "Defendants."
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`at 7. Plaintiffs concession is tantamount to an abandonment of her claims against the RCSO and
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`warrants dismissal of those claims. See Pueschel v. United States, 369 F.3d 345, 354 (4th Cir.
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`2004); Ferdinand- Davenport v. The Children 's Guild, 742 F.Supp.2d 772, 777 (D.Md. 2010).
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`The court therefore grants Defendants' motion in part and dismisses Plaintiffs claims against the
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`RCSO.
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`11. Excessive Force
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`Defendants next argue that the Second Amended Complaint fails to state a claim for
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`excessive force against Defendant Gist for his use of pepper spray. DE 58 at 6. To recap the
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`allegations relevant to that claim, Hunt was moved into a booking cell on the morning of March
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`9, and began banging on the door of his cell requesting help. DE 56 at 4. In an attempt to get Hunt
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`to stop, Defendant Gist placed Hunt into full restraints. Id. But even with those restraints, Hunt
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`continued to kick the cell door, so Defendant Gist sprayed him with pepper spray and then left him
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`in his cell without water "to detoxify." Id. at 4-5 . Those allegations plausibly give rise to a claim
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`for excessive force.
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`"The Eighth Amendment prohibits the infliction of 'cruel and unusual punishments. "'
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`Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996) (quoting U.S. CONST. amend. VIII). That
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`term "has been interpreted in a flexible and dynamic manner." Gregg v. Georgia, 428 U.S . 153,
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`171 (1976). Thus, "the Eighth Amendment prohibits" more than just "physically barbarous" acts;
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`it also forbids "the unnecessary and wanton infliction of pain," and punishments that "are grossly
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`disproportionate to the severity of the crime." Rhodes v. Chapman, 452 U.S. 337, 346 (1981)
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`(internal quotation marks and citations omitted).
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`To state a claim for excessive force under the Eighth Amendment, a plaintiff must allege a
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`"sufficiently serious" injury, Iko v. Shreve, 535 F.3d 225 , 238 (4th Cir. 2008), caused by a prison
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`official2 acting with a "sufficiently culpable state of mind," Wilson v. Seiter, 501 U.S. 294, 297
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`(1991 ). In assessing the plaintiffs injury and defendant's culpability, "the core judicial inquiry"
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`centers on "whether force was applied in a good-faith effort to maintain or restore discipline, or
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`maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7 (1992). This
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`core judicial inquiry means that, although the plaintiffs injury is often relevant, the court's true
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`focus is on the nature of the force used by the officer, and the justification for it. See Wilkins v.
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`Gaddy, 559 U.S. 34, 38 (2010) ("An inmate who is gratuitously beaten by guards does not lose his
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`ability to pursue an excessive force claim merely because he has the good fortune to escape without
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`serious injury.").
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`Turning first to Hunt's alleged injury, the test is an objective one; " [a]ll that is necessary is
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`[an allegation] of more than de minimis pain or injury." Williams, 77 F.3d at 761 (italics in
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`original). Phrased another way, although not "every malevolent touch by a prison guard gives rise
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`to a federal cause of action," a plaintiff does not need to allege a "serious injury" to meet the
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`objective component of an Eighth Amendment claim. Hudson , 503 U.S. at 9. "This is not a high
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`bar." Dean v. Jon es, 984 F.3d 295, 302 (4th Cir. 2021).
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`Defendants acknowledge that the Second Amended Complaint alleges more than a de
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`minimis injury stemming from Defendant Gist's use of pepper spray. See DE 58 at 7. But
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`Defendants reject Plaintiffs allegation that the pepper spray contributed to Hunt's death as "a
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`conclusory statement," and accuse Plaintiff of providing no "supporting facts" for that conclusion.
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`2 This case is somewhat unique because Hunt, after his conviction, qualified as a prisoner whose constitutional claims
`are analyzed under the Eighth Amendment, whereas Defendants Gist, Page, and Jones are officers employed at the
`RCDC, a jail which typically houses pretrial detainees whose claims are analyzed under the Due Process Clause of
`the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535- 36 (1979). This factual wrinkle is analytically
`immaterial though, because " [t]he due process rights of a pretrial detainee are at least as great as the eighth amendment
`protections available to the convicted prisoner. Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). Accordingly,
`any reference to behavioral standards for "prison" officials applies equally to officers at a "jail" because a jail's officers
`must conform their conduct to the same (if not more strict) constitutional standards. See id. Put another way, the floor
`for their conduct is coextensive with that of a prison official.
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`DE 58 at 7. Defendants' accusation does not fairly consider the allegations in the Second Amended
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`Complaint. Plaintiff alleges that Defendant Gist (1) administered pepper spray to Hunt when he
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`was fully restrained (and thus could not cover his eyes, nose, or mouth), (2) left Hunt in his cell to
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`detoxify with no water, that shortly thereafter Hunt (3) suffered from an apparent seizure, (4) was
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`seen by medical staff and cleared, but (5) vomited throughout the night, and (6) died the next day.
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`DE 56 at 4-7, 9-10. Because the court must construe those factual allegations in the light most
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`favorable to Plaintiff and draw every reasonable inference in her favor, the court cannot dismiss
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`the link between Defendant Gist's pepper spray and Hunt's death as merely "a conclusory
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`statement." DE 58 at 7.
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`The Jko case from the Fourth Circuit is instructive. There, at summary judgment, a medical
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`report in the record "suggested that [an officer's use of] pepper spray may have contributed to
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`lko 's asphyxia and death." Jko , 535 F.3d at 239 (emphasis added). Because the Court had to
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`accept, for purposes of summary judgment, "that Plaintiffs might be able to prove that Iko' s death
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`resulted from the excessive use of pepper spray," the Fourth Circuit "easily conclude[d] that
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`Plaintiffs satisf[ied] the objective component of their excessive force claim at th[ at] stage in the
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`litigation." Id. Likewise here, because the court must accept as true the factual allegations linking
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`Defendant Gist's use of pepper spray and Hunt's death, it similarly concludes that Plaintiff satisfies
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`the objective component of her excessive force claim at this stage of the litigation.
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`Moreover, even if the court were to disregard the allegation that Defendant Gist's use of
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`pepper spray "likely facilitated" Hunt's death, DE 56 at 12, the Complaint also alleges that Hunt
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`was left in his cell without water after Defendant Gist pepper sprayed him, and shortly thereafter
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`experienced "seizure-like activity," id. at 5. The court finds that being left in a confined space
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`without water after an officer has administered pepper spray and then suffering from an apparent
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`seizure clears the "not [] high bar," Dean, 984 F.3d at 302, of "more than de minimis injury,"
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`Williams, 77 F.3d at 761. That's just "common sense." Iqbal, 556 U.S. at 679; see also Dean,
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`984 F.3d at 303 (expressing that Fourth Circuit had "no difficulty concluding ... that a sustained
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`blast of pepper spray directly to the face constitutes something more than de minimis force");
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`Williams, 77 F.3d at 763 (noting that mace "possess[es] inherently dangerous characteristics
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`capable of causing serious and perhaps irreparable injury to the victim").
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`In that regard, this action bears relevant similarity to the Robinson case from the District
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`of South Carolina. In that case, the plaintiff alleged that, while a prisoner in the custody of the
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`South Carolina prison system, he requested medical assistance from a guard because "he was
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`vomiting and his throat was constricted." Robinson v. SC Dep 't of Corr., No. C.A. 4:10-157,
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`2011 WL 1770817,at*l (D.S.C.May 10, 2011). Theguarddeniedtherequest,sotheplaintiffs
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`"cell mate began kicking their cell door in an attempt to secure medical attention for [the
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`plaintiff]." Id. at *4. When the guard returned to the cell, the plaintiff again requested medical
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`assistance (while employing derogatory language), and the guard sprayed the plaintiff with pepper
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`spray and left him in his cell.
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`Id. The plaintiff was later admitted to a medical center and
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`"diagnosed with sarcoidosis." Id. at * 1. The Robinson Court found that, based on that version of
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`events, a jury could conclude that the guard subjected the plaintiff to excessive force in violation
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`of the Eighth Amendment. See id. at *4. That finding operates with equal force in this action,
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`where Hunt was also in full restraints and there is no allegation that he made offensive remarks to
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`Defendant Gist. See DE 56 at 4-5.
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`The court's conclusion on the objective component of Plaintiffs excessive force claim is
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`also supported by Hudson , where the Supreme Court recognized that "[t]he objective component
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`of an Eighth Amendment claim is [] contextual and responsive to contemporary standards of
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`decency." Hudson, 503 U.S. at 8 (internal quotation marks omitted). Even though Hunt was later
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`attended to by medical staff and ultimately cleared to return to the general population, DE 56 at 5,
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`the Fourth Circuit has "specifically recognized that the objective component can be met by the
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`pain itself, even if an inmate has no enduring injury," Williams, 77 F.3d at 762 (internal quotation
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`marks and citation omitted). The court can reasonably infer that Hunt suffered from more than de
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`minimis pain when Defendant Gist left him in his cell "to detoxify" without water and he then had
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`an apparent seizure. DE 56 at 5. The Second Amended Complaint plausibly alleges the objective
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`component of an Eighth Amendment excessive force claim.
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`Fighting this conclusion, Defendants offer five unpublished cases for the proposition "that
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`temporary pain caused by the use of chemical agents do [sic] not cause more than de minimis pain
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`or injury where the inmate is promptly provided with medical care or an adequate opportunity to
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`rinse the chemicals from his person." DE 58 at 7 (collecting cases) (internal quotation mark
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`omitted). But those cases are inapposite. Hunt was not promptly provided with medical care;
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`Defendant Gist left him in his cell without water "to detoxify." DE 56 at 5.
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`In addition, the cases that Defendants collected as support all predate Wilkins , where in
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`2010 the Supreme Court admonished the Fourth Circuit for "stray[ing] from the clear holding of
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`[ the Supreme] Court in Hudson," by reinstating a requirement of "what amounts to a showing of
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`significant injury in order to state an excessive force claim." Wilkins, 559 U.S. at 36. The Fourth
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`Circuit's "strained reading of Hudson" was, in the Supreme Court's view, "not defensible." Id. at
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`40. Thus, this court does not find persuasive the holdings of those Fourth Circuit (and district
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`court in the Fourth Circuit) cases, which impermissibly refocused "the core judicial inquiry" away
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`from "whether force was applied in a good-faith effort to maintain or restore discipline, or
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`maliciously and sadistically to cause harm," and towards "some arbitrary quantity of injury."
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`Hudson, 503 U.S. at 7 & 9. The portions of those cases Defendants rely upon are also no longer
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`good law. See Dean, 984 F.3d at 303 (recognizing that focus on whether plaintiff suffered de
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`minimis injury "is the wrong question," and "what matters is the severity of the force employed,"
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`and further finding that "sustained blast of pepper spray directly to the face constitutes something
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`more than de minimis force") (emphasis in original). This court adheres to Hudson, Wilkins , and
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`Dean in finding the objective component met.
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`Turning next to " [t]he more demanding part of the test," "the subjective component," the
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`court' s inquiry trains on "whether [Defendant Gist allegedly] acted with a 'sufficiently culpable
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`state of mind. "' Dean, 984 F.3d at 302 (quoting Williams, 77 F.3d at 761). "The Supreme Court
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`has set forth four non-exclusive factors to assist courts in assessing whether an officer has acted"
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`with a sufficiently culpable state of mind. lko , 535 F.3d at 239. Those factors include (1) "the
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`need for the application of force," (2) "the relationship between the need and the amount of force
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`that was used," (3) "the extent of the threat to the safety of staff and inmates, as reasonably
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`perceived by the responsible officials on the basis of the facts known to them," and (4) "any efforts
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`made to temper the severity of a forceful response." Whitley v. Albers, 475 U.S . 312,321 (1986).
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`In the current procedural posture, each factor favors Plaintiff and a finding that Defendant Gist
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`acted with a sufficiently culpable state of mind.
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`First, accepting as true Plaintiffs allegations, there was no apparent need to apply force.
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`Hunt was knocking on the door of his cell requesting help. DE 56 at 4. Instead of inquiring as to
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`why Hunt needed help, Defendant Gist placed him in full restraints. Id. Hunt continued to kick
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`the cell door, so Defendant Gist pepper sprayed him. Id.
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`A prisoner making noise in an attempt to seek help from a nearby guard is not the sort of
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`"recalcitrant inmate" for whom "mace can be constitutionally used in small quantities." Williams,
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`77 F.3d at 763; see also Iko, 535 F.3d at 239 (holding that "some dispersal of pepper spray was
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`warranted" in order to "carry[] out" cell extraction of inmate who refused to leave cell).
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`In
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`addition, it bears repeating that Hunt was in full restraints. "[T]he use of pepper spray on a docile
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`prisoner [can] qualify as excessive force," and even if Hunt's kicking of the door had been
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`aggravating to Defendant Gist, "the Eighth Amendment does not permit a correctional officer to
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`respond to a misbehaving inmate" by using retaliatory force where the inmate is physically
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`restrained. Boone v. Stallings, 583 F. App'x 174, 176 (4th Cir. 2014); see also Brooks v. Johnson ,
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`924 F.3d 104, 113 ( 4th Cir. 2019) (noting that correctional officer may constitutionally "inflict
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`[some quantum of] pain [] to induce compliance, but [not] to punish an inmate for intransigence
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`or to retaliate for insubordination"); Landman v. Royster, 333 F. Supp. 621, 649 (E. D. Va. 1971)
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`(recognizing that "the use of gas to disable a man physically who poses no present physical threat
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`constitutes a form of corporal punishment, the use of which in such a situation is generally
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`disapproved").
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`Furthermore, there is no allegation that Defendant Gist instructed Hunt to stop kicking the
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`door prior to administering pepper spray. Rather here, "[w]ithout being instructed to cease his
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`conduct, Plaintiff states that Defendant [Gist] immediately [opened the cell door] and sprayed
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`[Hunt] with [pepper] spray." Douty v. Rubenstein, No. 2:13-CV-32832, 2016 WL 11481145, at
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`*12 (S.D.W. Va. Apr. 27, 2016) (recommending that excessive force claim proceed to trial),
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`recommendation adopted, No. 2:13-CV-32832, 2016 WL 3349325 (S.D.W. Va. June 15, 20 16).
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`"Eighth Amendment violations have [] been found when a chemical agent was used without a prior
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`verbal command." Glascoe v. Sowers, No. 11-CV-2228, 2013 WL 5330503, at *6 (D. Md. Sept.
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`20, 2013) (collecting cases), ajf'd, 570 F. App'x 344 (4th Cir. 2014). Because Hunt was requesting
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`help, in full restraints and inside of a locked cell, the court cannot conceive of any basis for the
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`application of force other than to quiet Hunt. But absent any allegation of a prior verbal command,
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`the court finds no need for Defendant Gist's use of pepper spray (at the time he used it).3
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`Next, and relatedly, the court considers "the relationship between the need and the amount
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`of force that was used." Whitley , 475 U.S. at 321. Where, as here, the court discerns no need for
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`force, the relationship between that (nonexistent) need and the amount of force Defendant Gist
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`used necessarily skews in Plaintiffs favor. See Thompson v. Commonwealth of Virginia, 878 F.3d
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`89, 100 (4th Cir. 2017) (holding that if "there was never a need, the use of force [would be]
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`disproportionate from start to finish") ; Tedder v. Johnson , 527 F. App' x 269, 273 (4th Cir. 2013)
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`(recognizing that where court concludes "that no force was necessary at all, the Whitley "amount
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`of force" factor favors [the plaintiff] as well"). In addition, the Fourth Circuit has found that the
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`use of pepper spray "after [a prisoner has] attempted to comply with orders ... tend[s] to show
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`that the amount of force was disproportionate to the need for force. " Iko , 535 F.3d at 240. Because
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`there is no allegation that Defendant Gist issued any order to Hunt, Hunt had no opportunity to
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`comply, and thus the court finds that the resulting use of pepper spray was disproportionate to its
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`need.
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`Third, there was no "threat to the safety of staff and inmates." Whitley, 475 U.S. at 321.
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`At the risk of stating the obvious, Hunt was in handcuffs, a waist chain, and leg irons, inside of a
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`locked cell. DE 56 at 4. The Fourth Circuit has (repeatedly) held that a restrained prisoner does
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`not pose a threat to officers or others. E.g. , Dean, 984 F.3d at 304; Iko , 535 F.3d at 240; Boone,
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`583 F. App'x at 177. Where a prisoner is "fully restrained with shackles, handcuffs, and a black
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`box," officers "cannot[] argue" that the prisoner "present[ s] any kind of physical threat."
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`3 Because the Complaint does not allege that Defendant Gist issued a prior verba l command to Hunt, Defendants'
`description of Hunt as a "recalcitrant inmate" is misguided. DE 58 at IO; see also Recalcitrant, DICTIONARY.COM,
`https://www.dictionary.com/browse/recalcitrant (defini ng "recalcitrant" as one who is "resisting authority or control ;
`not obedient or compliant") (last visited Jan. 8, 2025).
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`Thompson, 878 F.3d at 100. Defendants suggest that "[i]t is unclear which party the third [Whitley]
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`factor would favor," DE 58 at 10, but it's not. Based on the allegations in the Second Amended
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`Complaint, that factor favors Plaintiff.
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`Lastly, there were no apparent "efforts made to temper the severity of a forceful response."
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`Whitley, 4 75 U.S. at 321 . There is no allegation that Defendant Gist issued Hunt a verbal command
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`prior to administering pepper spray, and after he sprayed Hunt, he left him in the cell with no
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`water. DE 56 at 4-5. Leaving a prisoner in a confined space without medical care after the
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`administration of a chemical agent reflects an absence of effort to temper the severity of a forceful
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`response. See Iko, 535 F.3d at 240. In sum, each Whitley factor favors Plaintiff, and the court
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`finds that the allegations in Second Amended Complaint plausibly permit the inference that
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`Defendant Gist acted with "a sufficiently culpable state of mind." Wilson, 501 U.S. at 297.
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`Plaintiff has therefore stated a claim for excessive force in violation