United States District Court, W.D. Oklahoma
SUPPLEMENTAL REPORT AND RECOMMENDATION
CHARLES B. GOODWIN, UNITED STATES MAGISTRATE JUDGE
Charles Lee Moore II, a state prisoner appearing pro se,
seeks damages against Defendant Juan Pantoja for allegedly
violating Plaintiff's Eighth Amendment right not to be
subjected to excessive physical force while imprisoned. Chief
United States District Judge Joe Heaton has referred the case
to the undersigned Magistrate Judge for proceedings
consistent with 28 U.S.C. § 636.
sole surviving legal claim stems from an encounter between
Plaintiff and Defendant, a correctional officer at Oklahoma
State Reformatory (“OSR”), on November 24, 2014.
See Compl. (Doc. No. 1) at 2-3; Pl.'s Br. in
Supp. (Doc. No. 2) at 2-5. Plaintiff alleges that he was in his
cell, wearing only a towel and “taking his heart and
thyroid medication, ” when Defendant entered his cell,
“grabbed him by the throat, and threw him violently to
the ground.” Compl. at 1-2. After allowing Plaintiff to
stand, Defendant “stared at Plaintiff for a brief
moment before spraying him” with pepper spray for
twenty to thirty seconds. Id. at 2; see
also Pl.'s Br. in Supp. at 2-3. Plaintiff's
Eighth Amendment claim is asserted against Defendant in
Defendant's individual capacity. See Compl. at
has moved for summary judgment. See Def.'s Am.
Mot. Summ. J. (Doc. No. 49). Plaintiff has responded to
Defendant's Motion (Pl.'s Resp. (Doc. No. 60)) and
Defendant has filed a Reply (Doc. No. 61). Defendant also has
filed a Special Report (“S.R., ” Doc. No. 19)
prepared by an official at the Oklahoma Department of
Corrections (“ODOC”) in accordance with this
Court's Order (Doc. No. 11) and Martinez v.
Aaron, 570 F.2d 317 (10th Cir. 1978). Upon de novo
review of the undersigned's prior Report and
Recommendation (Doc. No. 64), Chief Judge Heaton concluded
that Plaintiff had satisfied the requirement to exhaust
administrative remedies and re-referred the matter to the
undersigned to consider Defendant's alternative argument
that he is entitled to summary judgment on the basis of
qualified immunity. See Order of Dec. 8, 2017 (Doc.
No. 69) at 4-5.
judgment is a means of testing in advance of trial whether
the available evidence would permit a reasonable jury to find
in favor of the party asserting a claim. The Court must grant
summary judgment when “there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). When
considering a motion for summary judgment, the Court views
the evidence and the inferences drawn from the record in the
light most favorable to the nonmoving party. Pepsi-Cola
Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431
F.3d 1241, 1255 (10th Cir. 2005).
the Court construes a pro se litigant's pleadings
liberally, all parties must adhere to applicable procedural
rules. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th
Cir. 2007). A party that moves for summary judgment has the
burden of showing that the undisputed material facts require
judgment as a matter of law in its favor. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986). To defeat
summary judgment, the nonmovant need not convince the Court
that it will prevail at trial, but it must cite sufficient
evidence admissible at trial to allow a reasonable jury to
find in the nonmovant's favor-i.e., to show that there is
a question of material fact that must be resolved by the
jury. See Garrison v. Gambro, Inc., 428 F.3d 933,
935 (10th Cir. 2005). Parties may establish the existence or
nonexistence of a material disputed fact through:
• citation to “depositions, documents,
electronically stored information, affidavits or
declarations, stipulations . . ., admissions, interrogatory
answers, or other materials” in the record; or
• demonstration “that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.”
Fed. R. Civ. P. 56(c)(1)(A)-(B).
defendant seeking summary judgment on the basis of an
affirmative defense “must demonstrate that no disputed
material fact exists regarding the affirmative defense
asserted.” Hutchinson v. Pfeil, 105 F.3d 562,
564 (10th Cir. 1997). “If the defendant meets this
initial burden, the plaintiff must then demonstrate with
specificity the existence of a disputed material fact”
as to one or more elements of the affirmative defense, absent
which summary judgment must be granted in favor of the
seeks summary judgment on the basis of his affirmative
defense of qualified immunity. See Def.'s Am.
Mot. Summ. J. at 15-31; see also Answer (Doc. No.
41) at 2. Qualified immunity shields government officials
performing discretionary functions from personal liability
“if their conduct does not violate clearly established
rights of which a reasonable government official would have
known.” Graves v. Thomas, 450 F.3d 1215, 1218
(10th Cir. 2006) (internal quotation marks omitted).
a defendant asserts qualified immunity at summary judgment,
the burden shifts to the plaintiff to show that: (1) the
defendant violated a constitutional right and (2) the
constitutional right was clearly established” at that
time. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th
Cir. 2009). This determination is generally made based on
“the plaintiff's version of the facts”;
however, such account “must find support in the
record” if he or she is to defeat a qualified-immunity
defense at this stage of litigation. Scott v.
Harris, 550 U.S. 372, 378 (2007); Thomson v. Salt
Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009). When a
fact put forward by the plaintiff is “blatantly
contradicted by the record, so that no reasonable jury could
believe it, ” the Court should disregard that fact.
Thomson, 584 F.3d at 1312 (internal quotation marks
plaintiff demonstrates that the defendant violated a clearly
established constitutional right, then the defendant
“bears the normal summary judgment burden of showing
that no material facts remain in dispute that would defeat
the qualified immunity defense.” Olsen v. Layton
Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002).
“In determining whether both parties have satisfied
their burdens, the court must evaluate the evidence in the
light most favorable to the non-moving party.”
Hinton v. City of Elwood, 997 F.2d 774, 779 (10th
Plaintiff's Burden to Rebut the Assertion of Qualified
two prongs required for a plaintiff's initial showing,
the district court has discretion as to which to address
first. Martinez, 563 F.3d at 1088. The undersigned
first addresses whether Plaintiff has rebutted
Defendant's argument that no constitutional right was
violated and then turns to whether the implicated right was
clearly established at the time of the incident in November
Violation of a Constitutional Right
constitutional right at issue derives from the Eighth
Amendment, which prohibits “cruel and unusual
punishments, ” and accordingly “places restraints
on prison officials, who may not . . . use excessive physical
force against prisoners.” Farmer v. Brennan,
511 U.S. 825, 832 (1994); see U.S. Const. amend.
VIII. In determining whether a prison official is liable for
excessive force in violation of the Eighth Amendment, a
two-prong standard applies: “(1) an objective prong
that asks ‘if the alleged wrongdoing was objectively
“harmful enough” to establish a constitutional
violation, ' and (2) a subjective prong under which the
plaintiff must show that ‘the officials acted with a
sufficiently culpable state of mind.'” Giron v.
Corr. Corp. of Am., 191 F.3d 1281, 1289 (10th Cir. 1999)
(alteration omitted) (quoting Hudson v. McMillian,
503 U.S. 1, 8 (1992)). When “prison officials stand accused
of using excessive physical force, ” the court asks
“whether force was applied in a good faith effort to
maintain or restore discipline, or maliciously and
sadistically to cause harm.” Hudson, 503 U.S.
at 6-7 (citing Whitley v. Albers, 475 U.S. 312,
320-22 (1986)); see also DeSpain v. Uphoff, 264 F.3d
965, 978 (10th Cir. 2001). “In making this
determination, ” the Court “balance[s] the need
for application of force with the amount of force
used.” Mitchell v. Maynard, 80 F.3d 1433, 1440
(10th Cir. 1996). “This standard applies regardless of
whether the corrections officers are quelling a prison
disturbance or merely trying to maintain order.”
Id. (internal quotation marks omitted).
following facts are asserted by Plaintiff, and find support
in the record through Plaintiffs verifications of his
pleading and Response:
• In November 2014, Plaintiff was incarcerated at OSR
and in the custody of ODOC. Compl. at 1, 2; accord
Def's S. of Facts ¶¶ 1, 2, 3 (Def's Am.
Mot. Summ. J. at 8-10); Pl.'s Resp. at 1. At that time,
Defendant was employed by ODOC and worked at OSR as a
correctional officer. Compl. at 1; accord Answer at
• On November 24, 2014, at approximately 8:30 a.m.,
Defendant entered Plaintiffs cell. Compl. at 2;
accord Def's S. of Facts ¶ 3; Pl.'s
Resp. at 1. Plaintiff was wearing only a towel and attempting
to take his heart and thyroid medication. Compl. at 2.
Defendant grabbed Plaintiff by the throat and threw him to
the ground, causing the towel to fall off. Id. at
2-3. Next, Defendant allowed Plaintiff to stand, and
Defendant stared at Plaintiff for a brief moment.
Id. at 3. Defendant then sprayed Plaintiff with
pepper spray for twenty to thirty seconds. Id.;
see also Def's S. of Facts ¶ 4; Pl.'s
Resp. at 1.
• Plaintiff remained docile and noncombative for the
duration of his encounter with Defendant. Compl. at 3. Two
prison officials standing nearby took no verbal or physical
action to stop Defendant's conduct. Id; accord
Def's S. of Facts ¶ 6; Pl.'s Resp. at 1.
Defendant's actions caused Plaintiff ...