IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

BRANDON SCOTT LAMBERT, ) ) Plaintiff, ) Case No. 7:20CV00002 ) v. ) OPINION AND ORDER ) SGT. WALTER L. THOMAS, ) By: James P. Jones ) United States District Judge Defendant. )

Brandon Scott Lambert, Pro Se Plaintiff; Rosalie Pemberton Fessier and Brittany E. Shipley, TIMBERLAKE SMITH, Staunton, Virginia, for Defendant.

The plaintiff, Brandon Scott Lambert, a Virginia inmate proceeding pro se, filed this civil rights action under 42 U.S.C. § 1983, alleging that the defendant jail officer used excessive force against him. Presently before the court is the defendant’s Motion for Summary Judgment and Lambert’s Response thereto.

Finding the matter ripe for disposition, I conclude that the defendant’s motion must be denied.

I. BACKGROUND.

A. Plaintiff’s Allegations and Claims.

At the time that Lambert filed his Complaint, he was confined at the Middle

River Regional Jail (“MRRJ”). Lambert alleges that on December 26, 2018, he was sitting on a table in MA-6 housing area, known as a pod. Other inmates told him to

get off the table because Officer Thomas was coming through the area passing out legal mail. Lambert said inmates could not tell him what to do, and he did not get down. Thomas told Lambert that he should have listened to the other inmates and said, “[G]o pack your shit, cause you[’re] going to the hole.” Compl. 3, ECF No. 1.

Lambert said, “For what?” Id. Thomas repeated the order for Lambert to go pack his things. Instead, Lambert kept talking — saying that only officers, not inmates, could order him to get off the table. Thomas then told Lambert to “cuff up. Someone else will pack your shit for you.” Id. at 4. Lambert turned and walked away from

Thomas toward his cell to pack up his things.

Thomas followed Lambert, saying, “You don’t fucking walk away when I’m talking to you!” Id. As Lambert entered his cell, Thomas came up behind him.

Lambert turned to face the officer, and Thomas sprayed mace toward him. Lambert ducked and turned his back, taking off his shirt to cover his face. Lambert heard

Thomas behind him in the cell, unsnapping his handcuffs from his belt. Thomas tried twice to grab Lambert’s hands to cuff him behind his back, but Lambert was busy trying to wipe off the mace and jerked his hands away from the officer, saying,

“[G]et the fuck off me.” Id. at 5.

Another officer helped Thomas take Lambert face down to the floor of the cell and hold him there. As they tried to pull his arms behind his back, Lambert kept his arms and hands tucked under his body. When Officer Mills came in to assist,

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Lambert asked for his discarded shirt to wipe the mace off the back and side of his head, so the substance would not get on the officers. Mills let him grab the shirt and wipe off the mace. Then, Lambert told Mills that someone’s radio was under his body and moved it out of the way. When Mills and the other officers tried to grab

Lambert’s hands to be cuffed, he “continued to resist their efforts to restrain” him,

“playing around” with them for “7 or 8 minutes,” “laughing and taking none of it seriously.” Id. at 6. Lambert finally got tired and surrendered his hands to be cuffed.

As the officers escorted him across the pod, Lambert was “‘talking trash,’

‘gloating,’ ‘bragging,’” to other inmates in his pod about how it took so long for so many officers to restrain him. Id. When the group reached the door into the sally port, Lambert turned around to keep talking to his pod mates and to other inmates at the windows of the pod on the other side of the sally port. Thomas came through the doorway, grabbed Lambert by the throat, and slammed him backwards against a closed door inside the sally port. Thomas tightened his grip so much that Lambert started having trouble breathing. To stop Thomas from choking him, Lambert spit at Thomas. The spit hit the officer on his cheek, his neck, and his shirt collar. Still holding Lambert by the throat with one hand, Thomas punched the inmate with his free hand, “directly, closed fisted, in the face.” Id. at 2. At that point, another officer slid under Thomas’s arm and took over control of holding Lambert’s body against the door.

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Thomas then removed his hand from Lambert’s throat. Another officer placed a hand over the Lambert’s mouth to prevent him from spitting on anyone else.

Officers escorted Lambert to the medical unit, with Thomas following. Thomas told

Lambert that he intended to bring a criminal charge against him for assault.1

Lambert told the nurses that he “was fine [and] had no injuries.” Id. at 9. Then, he asked the other officers to take him to the hole. They escorted him to the segregation unit and allowed him a shower to wash off the mace. Lambert states that after the incident, he had “marks and bruises” on his neck, and he tried to bring a criminal charge against Thomas. Id. at 9.

Lambert filed this § 1983 action against Thomas in January of 2020. He asserts that Thomas used excessive force against him in violation of the Eighth

Amendment — when Thomas sprayed him with mace, and grabbed his throat and choked him and punched him in the face, while he was handcuffed behind his back.

As relief, Lambert seeks compensatory and punitive damages.2

1 Lambert’s submissions indicate, and state court records online reflect, that as a result of the incident on December 26, 2018, Lambert was charged in Augusta County Circuit Court with assault on a correctional officer, in violation of Va. Code Ann. § 18.2- 57(C). On October 4, 2019, a jury found Lambert not guilty of that offense.

2 Lambert also seeks to have Thomas terminated from his job. This is not a form of relief available under § 1983.

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B. Defendant’s Evidence.

In support of a Motion for Summary Judgment, Thomas has submitted his declaration and copies of video footage of the incident at issue. In Thomas’s declaration, he offers a version of events that differs markedly from Lambert’s version.

On December 26, 2018, Thomas was working at MRRJ as the A Shift

Supervisor and Watch Commander. He saw Lambert sitting on a table in the MA-6 housing area, involved in what Thomas understood to be a heated conversation with other inmates. Hoping to defuse the situation, Thomas approached the group and told Lambert inmates were not allowed to sit on the tables. Lambert said, “Who the fuck are you to tell me to get off the table?” Mem. Supp. Mot. Summ. J. Ex. A,

Thomas Decl. ¶ 2, ECF No. 23-1. After Thomas identified himself, Lambert said,

“Fuck you.” Id.

In his role as Watch Commander, Thomas then asked Lambert to step into the sallyport with him, intending to separate him from the other inmates to explain

MRRJ rules. Lambert did not comply with this command and, instead, walked in the opposite direction. Thomas followed the inmate, ordering Lambert several more times to come with him into the sally port. Lambert did not comply and walked into his cell. Thomas directed the inmates in the housing area to lockdown. He ordered

Lambert to put his hands behind his back to be handcuffed. Lambert turned and

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moved toward Thomas with his fists raised. Believing that Lambert might be about to assault him, Thomas deployed one burst of Oleoresin Capsicum (“OC”) spray3 toward Lambert to induce his compliance. Lambert turned away from Thomas, who called for assistance using his radio. Thomas took Lambert’s arm, but the inmate pulled away from his grasp.

Officer Mills arrived and helped Thomas place Lambert face down on the floor so that he could be handcuffed. Lambert tucked his hands under his body and refused to comply with orders to surrender his hands to be cuffed behind his back.

Despite continued resistance by Lambert, Thomas, Mills, and other officers managed to handcuff the inmate’s hands and bring him to his feet. Using the standard escort technique, Thomas and Mills walked behind the inmate, each holding one of his arms, moving across MA-6 pod to the sally port. Between the cell and the sally port, Lambert tried to break away from the officers. They regained control of his arms and entered the sally port. During this escort, Lambert yelled and cursed at the officers and physically struggled against them.

Inside the sally port, Lambert tried again to break free of the officers and turned toward MA-5 housing area. Thomas perceived these actions as Lambert’s attempt to “grandstand” for other inmates. Id. at ¶ 5. Thomas and Mills steered

3 OC spray is a chemical agent similar to what is commonly known as pepper spray or mace and irritates a person’s eyes, throat, and nose. Park v. Shiflett, 250 F.3d 843, 849 (4th Cir. 2001).

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Lambert toward the exit door instead and held him against it, facing the officers, as they waited for the control booth officer to open that door. In that position, Lambert, who is taller than Thomas, spit on the right side of Thomas’s face. To prevent further spitting, Thomas reached up and put his “hand on the lower part of the left side of

[Lambert’s] face toward his jaw so that the right side of his face was pressed toward the sally port door and his mouth was angled away from the officers.” Id. Held in this position, Lambert continued to talk, shout profanities, and physically resist the officers holding him. Shortly after Thomas turned Lambert’s face away, another officer took his place, holding Lambert’s face, and Thomas “stepped back and removed [himself] from the situation.” Id. Thomas states that he never choked or punched Lambert and never saw the inmate gasp for breath, cough, vomit, lose consciousness, have difficulty speaking, or appear to be injured in any way.

In arguing for summary judgment, Thomas asserts that the video clips submitted with his motion conclusively prove his version of events. As such, he contends that he is entitled to qualified immunity or to summary judgment on the merits of Lambert’s claims. Lambert has responded to the motion, making it ripe for disposition.

II. DISCUSSION.

The court should grant summary judgment only when the pleadings, declarations or affidavits, and the record reveal that “there is no genuine dispute as

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to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine dispute of fact for trial exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. On summary judgment, if there is a genuine dispute of fact, the court must view the facts and the reasonable inferences to be drawn from the facts in the light most favorable to the party opposing the motion. Scott v. Harris, 550 U.S. 372, 380 (2007). On the other hand, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id.

When a motion for summary judgment is made and is properly supported by affidavits and other appropriate evidence, the nonmoving party may not rest on the mere allegations or denials in his pleadings. Anderson, 477 U.S. at 256. Instead, the nonmoving party must respond by affidavits or otherwise and present specific facts from which a jury could reasonably find in his favor. Id. at 256-57.

A. The Verified Complaint.

The defendant argues in his Reply that Lambert’s Response to the summary judgment motion is not a proper affidavit or sworn statement as required to survive summary judgment. It is well established, however, that the verified complaint of a

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pro se prisoner must be considered as an affidavit and may, standing alone, defeat a motion for summary judgment when the allegations it contains are based on the plaintiff’s personal knowledge. Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir.

2021) (citing Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991)). “A complaint is verified if it is signed, sworn, and submitted under penalty of perjury.” Id. at 495 n.7.4

Lambert’s Complaint was prepared using a § 1983 form that clearly incorporates by reference the attached sheets of paper containing the remainder of his factual statements and claims. That § 1983 form includes Lambert’s signature under a verification paragraph that states, in part, “I declare under penalty of perjury the foregoing to be true and correct.” Compl. 2, ECF No. 1. Because the

Complaint’s factual matter is based on Lambert’s personal knowledge and is verified, I must consider it as an affidavit capable of withstanding summary judgment if it creates material disputes of fact.

Lambert’s Response, although notarized, bears no indication that it was

“sworn” or otherwise made under penalty of perjury.5 Therefore, I will not consider

4 I have omitted internal quotation marks, citations, and alterations here and throughout this Opinion, unless otherwise noted.

5 See Goodman, 986 F.3d at 495 n.2 (“it appears that a notarized document is ‘sworn’ in Virginia only if it is made under penalty of perjury”).

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the Response as an affidavit for purposes of the summary judgment analysis. In any event, it primarily relies on facts already in the record.6

B. Excessive Force.

It is well established that only “the unnecessary and wanton infliction of pain

. . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”7

Hudson v. McMillian, 503 U.S. 1, 5 (1992). On the other hand, not every forceful

6 Lambert’s Response argues two bases for denial of the defendant’s motion, neither of which has merit. First, he asserts that since two attorneys represent Thomas, they should not have been granted an extension of time to respond to his claims. The magistrate judge found otherwise and granted the extension. I find no legal or factual justification to revoke that extension and dismiss the defendant’s motion with prejudice as untimely, as Lambert demands.

Second, Lambert contends that testimony presented by Thomas and other jail officials at the state court criminal trial must be considered as proving Lambert’s § 1983 claims of excessive force. This contention also has no merit. The assault charge on which Lambert was acquitted in state court required proof of entirely different elements than the elements Lambert must prove in this § 1983 case to succeed on his excessive force claims. Moreover, the burden of proof rests with Lambert in the § 1983 case, whereas the Commonwealth had the burden of proof in the criminal proceeding. Finally, I cannot consider the testimony of Thomas or other officials at this stage of the case because the record before me does not include any transcripts of testimony from the state court proceeding.

7 Lambert’s claims allege that Thomas used excessive force against him. “[T]he Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). After an inmate has been convicted of a crime, the Eighth Amendment “serves as the primary source of substantive protection . . . in cases . . . where the deliberate use of force is challenged as excessive and unjustified.” Id. I take judicial notice of court records online indicating that when the events at issue in this case occurred in December of 2018, Lambert had been convicted earlier that year in the Rockingham County Circuit Court and sentenced to prison time for a probation violation on a felony offense and for possession of a controlled substance. Therefore, I will decide Lambert’s excessive force claims under the Eighth Amendment.

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touch of an inmate by a prison guard amounts to a deprivation of constitutional rights. Id. at 9. Where officers apply force in a good faith effort to restore order and discipline, there is no excessive force. Id. at 6–7. Courts recognize that corrections officials must act “in haste, under pressure, and frequently without the luxury of a second chance” to protect the inmate, themselves, and others in the area from harm.

Whitley v. Albers, 475 U.S. 312, 320 (1986). Consequently, this court must give prison officials “wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Hudson, 503 U.S. at 6.

In this context, the court must inquire whether the official, subjectively, applied force “in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm” and whether “the alleged wrongdoing was objectively harmful enough to establish a constitutional violation.”

Id. at 6, 8. The subjective inquiry considers “the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible official[ ], and any efforts made to temper the severity of a forceful response.” Id. at 7. The objective inquiry of an excessive force claim considers whether the incident involved more than “de minimis uses of physical force” by the defendant. Id. at 9–10.

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In short, in considering an excessive force claim, “the core judicial inquiry

[is] not whether a certain quantum of injury was sustained, but rather whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010).

When prison officials maliciously and sadistically use force to cause harm, . . . contemporary standards of decency always are violated . . . whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.

Id. Lack of any serious injury is not irrelevant to the analysis, however. The extent of the inmate’s injury is a factor to consider when determining “whether the use of force could plausibly have been thought necessary in a particular situation” and as

“some indication of the amount of force applied.” Id.

1. OC Spray.

Application of certain chemical substances such as OC spray or mace is one measure that prison officials can lawfully use to regain “order and discipline and to maintain institutional security.” Hudson, 503 U.S. at 6. Indeed, mace or OC spray can be more humane and effective in quelling inmate disturbances than hand-to-hand confrontation, and promptly washing off the substance usually provides immediate relief from its painful effects. Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir.

1996). So long as the quantity of the chemical used is commensurate with the gravity of the occasion, its use does not violate the Constitution. Bailey v. Turner, 736 F.2d

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963, 969 (4th Cir. 1984). Indeed, if the factors of the Hudson standard apply, prison officials may constitutionally use small quantities of mace or OC spray to compel the obedience of an unruly or recalcitrant inmate, even one confined in his cell, or to persuade him to follow prison rules, even when he is not posing an immediate physical threat. Id. at 969–71; see Williams, 77 F.3d at 762–63 (4th Cir. 1996)

(upholding initial use of mace against inmate who threw liquid substance at officers and refused to comply with orders to stop; the officers believed liquid was possibly a health hazard, and use of mace instead of other forms of force indicated tempered response to disruptive behavior).

On the other hand, it is a violation of the Eighth Amendment for a prison official to use OC spray merely to punish an inmate who is complying and not posing a threat, or “in quantities greater than necessary or for the sole purpose of infliction of pain.” Id. at 763; see also Iko ex rel. Iko v. Shreve, 535 F.3d 225, 239–40 (4th

Cir. 2008) (finding “no question that some dispersal of pepper spray was warranted in carrying out [a] cell extraction” where inmate “did not initially comply with orders to ‘cuff up’”; but evidence of continued use of pepper spray “even after [inmate] attempted to comply with orders” and “remained docile and passive throughout the cell extraction” created dispute precluding summary judgment); Taylor v. Lang, 483

F. App’x 855, 858 (4th Cir. 2012) (unpublished) (finding factual dispute for trial where inmate stated officer used mace on him during verbal altercation while inmate

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was following officer’s order and was not acting in aggressive or threatening manner).

In the version of events Thomas presents, he perceived Lambert to be in a verbal disagreement with other inmates and in violation of rules; Lambert refused to comply with Thomas’s orders and walked away; when Thomas followed him to his cell, Lambert turned suddenly to face him; and in self-defense, Thomas sprayed

Lambert with OC spray. Thomas argues that under this undisputed set of facts, he meets the subjective factors of the Hudson test: he needed to use force to protect his own safety, he used only a mild form of force — one burst of OC spray, he reasonably perceived Lambert to be a threat after his noncompliance and front- facing stance in the cell, and the prior use of verbal orders indicates Thomas’s efforts to temper his use of force throughout the incident.

Lambert’s version of events differs from Thomas’s on material points.

Lambert claims Thomas ordered him to go to his cell and pack his things to go to segregation. When Lambert tried to ask why, Thomas changed the order and told the inmate to cuff up, a term Lambert claims he misunderstood as picking a fight.

Instead, Lambert went to his cell to comply with the officer’s initial order to pack his things. He states that he turned toward Thomas inside his cell merely to see who was behind him, only to be doused with OC spray while complying with Thomas’s order.

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As stated, Thomas supports his affidavit with three clips of surveillance camera footage of his interactions with Lambert on December 26, 2018, filmed in the MA-6 pod, in the sally port, and from the control booth. Lambert has viewed this video footage. The parties agree that the visual depictions on all three clips and the audio depictions on the sally port clip accurately show what occurred.

Where the plaintiff’s “version of events is so utterly discredited” by unchallenged video footage that no reasonable jury could believe him, summary judgment is appropriate. Scott, 550 U.S. at 380, 381 (holding that court “should have viewed the facts in the light depicted by the videotape” that clearly contradicted plaintiff’s version of facts on material points); accord Iko ex rel. Iko, 535 F.3d at

230 (“[W]here, as here, the record contains an unchallenged videotape capturing the events in question, we must only credit the plaintiff’s version of the facts to the extent it is not contradicted by the videotape.”).

The MA-6 pod video clip, which has no audio, shows Lambert chatting with other inmates at a table when Thomas approaches. Lambert gets off the table and stands facing the officer. When Thomas gestures toward the sallyport, Lambert walks slowly away in the opposite direction, and Thomas follows him into his cell on the far side of the pod. The video clips do not include any depiction of events inside Lambert’s cell. Taking Lambert’s version of events in the pod in the light most favorable to him, and in light of the video, he complied (albeit belatedly) with

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Thomas’s order to go pack his things, turned around to see who was behind him in his cell, and Thomas sprayed mace on him for no reason. I conclude that material factual disputes remain as to what orders Thomas gave, Lambert’s actions in the cell, whether Thomas reasonably perceived those actions as a threat, and thus, whether

Thomas used OC spray maliciously or sadistically to inflict harm or in a good faith effort to maintain his own safety and restore institutional security. I will deny summary judgment as to the claim that Thomas’s use of OC spray was excessive force.

2. Choking and Punching.

Thomas first argues that these claims fail on the objective prong of the Eighth

Amendment excessive force standard. He asserts that Lambert’s lack of evidence of injury indicates that Thomas used no more than de minimis force in placing and holding Lambert against the door in the sally port. Thomas denies choking or punching Lambert or grabbing his throat at any time. Thomas states that after

Lambert spit on him, he merely put his hand on the inmate’s jaw and pressed his face up and away from Thomas’s own face. Minutes later in the medical unit,

Lambert states that he told nurses he was fine and had no injuries.

In addition to his own declaration, Thomas relies on the sally port video, which includes audio. According to video time stamps starting as Lambert and officers enter the sally port — about fifteen seconds elapses from the time Thomas

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and Miller force Lambert toward the closed door and hold him there until Thomas relinquishes physical custody of Lambert to another officer. Most of that time, when

Thomas was allegedly choking him, Lambert can be heard shouting or talking and makes no obvious gasping or coughing sounds. Thomas says the video clearly shows a sharp movement of Lambert’s head when he spit on Thomas and does not show Thomas throwing a punch at Lambert’s face. Thomas argues that in the face of this evidence, no reasonable fact-finder could determine that he choked or punched Lambert as the inmate alleges.

Lambert states that as he and the officers entered the sally port, “out of nowhere,” Thomas grabbed him by the throat,8 pushed him violently backwards, and

“slammed” him against the exit door. Compl. 7, ECF No. 1. Thomas then

“tighten[ed]” his grip, and Lambert “start[ed] having trouble breathing.” Id. Many other officers followed the trio into the sally port, and no one intervened to make

Thomas let go of Lambert’s throat. Accordingly, Lambert spit on Thomas, as a

“nonviolent way for a result” of freeing himself from the officer’s grasp. Id.

According to Lambert, Thomas maintained his throat hold and punched Lambert in the face with his free fist, before moving back and letting another officer take

8 Thomas admits that at times in the sally port video, it appears that he has his hand on Lambert’s “chest, collar bone, neck, jaw, or face area.” Thomas Decl. ¶ 11, ECF No. 23-1. Thomas denies, however, that he was choking Lambert or squeezing his throat during any of these times.

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custody of Lambert. Lambert states that the incident left marks and bruises on his neck.

I agree that the audio on the sally port video clip indicates that Lambert was able to breath well enough to shout and talk during that portion of the incident.

Taking the account in Lambert’s verified Complaint in the light most favorable to him, however, I cannot find an absence of disputed facts on the amount and type of the force Thomas applied. Namely, I cannot find it de minimis force to grab a handcuffed inmate’s throat and tighten that grip over fifteen seconds to the point that the inmate fears his breathing will be cut off, with enough force to leave marks and bruises, and then to punch the inmate in the face with a closed fist.

Thomas contends that the video footage of the sally port and the control room prove that he never punched Lambert in the face. Lambert contends that the video verifies his version of events. My viewing of the footage finds no clear view of what

Thomas did to Lambert. On the sally port clip, after Lambert, Thomas, and Miller enter the sally port, a mass of other officers follows them through an open door. The officers and the open door substantially block the camera’s view of the interactions between Thomas and Lambert much of the time. The control booth video clip is taken from a camera in the ceiling of the four-sided booth, with activity in the sally port showing through a window in the lower left corner of the video screen, upside down. As in the sally port clip, the camera’s view of Thomas and Lambert is often

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blocked by other officers or other items such as the window frame. I cannot find that these video clips so definitively contradict Lambert’s account of the sally port incident such that no reasonable fact-finder could believe him. Iko ex rel. Iko, 535

F.3d at 230.

Thomas also argues that Lambert’s excessive force claims based on alleged choking and punching fail on the subjective prong of the Eighth Amendment standard. First, he points to Lambert’s own description of his behavior — flouting

Thomas’s orders repeatedly, jerking away when Thomas tried to handcuff him, pulling his hands under his body to prevent officers as a team from handcuffing him, shouting and cursing and turning around to draw attention of inmates in both the

MA-6 and MA-5 pods as officers led him toward and into the sally port, and spitting on Thomas. The video clips are consistent with this account. Both the pod video and the sally port video show Lambert failing to cooperate and walk with the officers, as he instead pulls forward or sideways during the escort. Thomas contends that these actions created a need for him to use force to induce Lambert to comply with the escort, to prevent him from inciting disorder by his inmate audience, and after the spitting, to maintain the safety of the officers. I agree that the evidence weighs in favor of Thomas on the first factor of the Hudson analysis.

Thomas also urges me to find in favor of him on the second factor — the amount and type of force applied in proportion to the need. He characterizes

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Lambert’s lack of physical cooperation and his turning away from the officers to shout to other inmates as combative and aggressive, justifying the force that Thomas used to move him across the pod into the sally port and to place and hold him against the sallyport door. Lambert’s version of events, however, does not admit any aggression against or attempts to harm the officers, other than the spitting.

Moreover, the factual disputes over the nature of the force applied in the sally port prevents Thomas from satisfying this second factor of the subjective prong at this stage of the case.

Thomas asserts that the evidence weighs in his favor on the third factor—a responsible officer’s reasonable perception of a need for force. From Lambert’s admitted behavior, Thomas contends that he reasonably perceived the inmate to be a threat to the order and security of the facility, including the safety of the officers, both before and after Lambert spit on Thomas. I must agree. Even assuming that

Lambert did not act aggressively or combatively with intent to harm anyone, his intentional physical and verbal disruption of officers’ attempts to escort him calmly from the pod and his admitted efforts to arouse reaction from other inmates in the area do support a reasonable perception that his behavior threatened order and security.

Finally, on the fourth factor, Thomas argues that he clearly made efforts to temper the type and amount of force he used to control Lambert. He tried verbal

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orders repeatedly; he tried mace; he tried using standard escort methods (two officers walking behind the cuffed inmate, each holding one arm; and he tried moving

Lambert inside the sally port, away from the other inmates, and placing him against the door to minimize further disruptive actions. According to Thomas’s version of events, after the spitting, he placed his hand on Lambert’s jaw, not his throat, and used pressure to turn Lambert’s face away to prevent more spitting, not to choke the inmate. Lambert’s version, which is not definitively contradicted by the video clips, has Thomas grabbing him by the throat as the group enters the sally port and tightening and maintaining his grip until after the spitting and the punch. Taking the evidence in the light most favorable to Lambert as the nonmovant, I cannot say that no reasonable fact-finder could believe him to find that Thomas’s actions in the sally port were malicious and sadistic. See Iko ex rel. Iko, 535 F.3d at 230.

In arguing his case on the fourth factor of Hudson, Thomas compares his interactions with Lambert to the facts of another case, Walters ex rel. Walters v. Cty. of Charleston, 63 F. App’x 116 (4th Cir. 2003) (unpublished). In Walters, the court of appeals affirmed the district court’s granting judgment as a matter of law on a §

1983 excessive force claim in which officers attempted to subdue a recalcitrant inmate using neck holds, among other hands-on measures. The court of appeals stated:

We have carefully reviewed the record and the transcripts of the trial of this matter and find no reversible error. There is no evidence to

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support Appellant’s claim that the officers acted maliciously or sadistically for the very purpose of causing harm to Walters in their necessary effort to restore order by restraining him. The evidence is undisputed that Walters, an exceptionally large and strong man, became violent while in his cell and after he was let out of his cell, putting himself, other detainees, and the officers at substantial risk of physical injury. The officers did not use any weapons in their efforts to subdue Walters, nor was there any evidence that they purposely tried to strangle him. The Appellee officers [used] . . . only their bodies and open hands in their attempt to subdue Walters and prevent injury and escape, while Walters refused repeated verbal commands to stop struggling. . . . Appellant failed to demonstrate any showing of improper behavior by one or more of the individual defendants, and there was a complete absence of testimony by any witness, including the disinterested detainee witness, that any of the officers intentionally choked Walters. What was demonstrated was that the officers apparently caused a compression injury to Walters’ neck and inhibited his ability to breathe in their attempts to subdue him, thus causing his death. Appellant’s claims that the officers did not use proper restraining techniques in attempting to control Walters constitute allegations of negligence, at most, and as such do not constitute meritorious constitutional claims under § 1983.

Id. at 117–18 (footnotes omitted).

Thomas contends that similar to the Walters case,9 Lambert has presented no evidence that Thomas acted maliciously or sadistically with intent to cause harm. I cannot agree. Lambert states that Thomas grabbed him by the throat and maintained a tightening grip for some fifteen seconds and then punched him — which a fact-

9 I note that at the time of the alleged excessive force, the decedent in the Walters case was a pretrial detainee; as such, that case was decided under the Due Process Clause using an objective reasonableness standard, which requires the plaintiff to show “only that the force purposely or knowingly used . . . was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396–97 (2015). Lambert’s Eighth Amendment claim is thus distinguishable on legal grounds.

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finder could, conceivably, perceive as malicious and sadistic. The minimal nature of Lambert’s evidence of injury does not eliminate this dispute. Wilkins, 559 U.S. at 37. Moreover, the inmate in the Walters case was not available to give his account of the officers’ actions.

In conclusion, I find that genuine issues of material fact remain in dispute for trial: the orders Thomas gave in the pod, Lambert’s actions in his cell, Thomas’s actions in the sally port, and the extent of Lambert’s injury and pain. These disputes preclude summary judgment for Thomas on the merits of Lambert’s claims.

Moreover, because Lambert’s right to be free from excessive use of pepper spray or physical force was clearly established in December 2018, these same disputes also preclude summary judgment on Thomas’s defense of qualified immunity. See Iko ex rel. Iko, 535 F.3d at 239–243. Accordingly, I will deny the defendant’s motion.

III. CONCLUSION.

For the reasons stated in this Opinion, it is ORDERED as follows:

1. The defendant’s Motion for Summary Judgment, ECF No. 22, is DENIED;

and

2. There being no demand for a jury trial, this matter is REFERRED to the

Honorable Pamela Meade Sargent, United States Magistrate Judge, pursuant

to 28 U.S.C. § 636(b)(1)(B), for further proceedings, including a bench trial,

and preparation of a report setting forth appropriate findings of fact,

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conclusions of law, and recommended dispositions of the excessive force claims described above.

ENTER: March 26, 2021

/s/ JAMES P. JONES United States District Judge

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