Prisons & Jails – Constitutional – Eighth Amendment – ‘Rough Ride’ – Excessive Force – Deliberate Indifference

Thompson v. Virginia (Lawyers Weekly No. 001-224-17, 38 pp.) (Roger Gregory, C.J.) 15-7680; Dec. 18, 2017; USDC at Norfolk, Va. (Rebecca Beach Smith, C.J.) 4th Cir.

Holding: If, as the plaintiff-prisoner forecasts, prison guards gave him a “rough ride” in a prison van in order to teach him a lesson about filing grievances, then the driver used excessive force and the other guard was deliberately indifferent.

The court reverses summary judgment for these two guards. The court affirms summary judgment for the remaining defendants. Remanded.

Plaintiff’s Forecast

According to plaintiff, in preparation for a drive to a court hearing, he was shackled so that his hands were tight against his body. Nevertheless, the defendant-prison guards did not buckle his seatbelt.

The hearing was canceled before the van reached its destination, so the defendant-driver turned around. On the drive back to prison, the driver deliberately drove recklessly on curves and hills, throwing plaintiff around the van. Plaintiff sustained cuts and bruises.

The guards told plaintiff he was being taught a lesson for having filed so many grievances.

Excessive Force

Given the circumstances – plaintiff was shackled and compliant – the driver, defendant Cooper, never needed to use force on plaintiff during the transport. Accordingly, a reasonable jury could find that the guards’ intent was malicious: to teach plaintiff a lesson for filing grievances. Such a motive, unsupported by any penological interest, is clearly not a legitimate basis for using force.

Because there was no need to use force, the force used was necessarily excessive in relation to the need. Although the guards secured medical assistance upon their return to the prison, plaintiff has still alleged a constitutional violation. To hold otherwise would allow prison officials to escape liability in excessive force cases simply by rendering medical assistance after the fact. Furthermore, when use of force is malicious, the extent of a plaintiff’s injury is not relevant.

Because plaintiff has alleged facts from which a reasonable factfinder could conclude that Cooper maliciously subjected him to a rough ride, he has sufficiently alleged an Eighth Amendment excessive force claim as to Cooper.

Under the Eighth Amendment, prisoners have the right to be free from malicious or penologically unjustified infliction of pain and suffering. No reasonable officer would think that violently tossing a prisoner around in a moving vehicle is an acceptable means of punishment even if the prisoner had engaged in wrongdoing. Cooper had fair warning that gratuitously giving an inmate a “rough ride” for no reason other than to retaliate against him for filing lawsuits and grievances is unconstitutional. Accordingly, we reverse the district court’s determination that Cooper is entitled to qualified immunity on the Eighth Amendment excessive force claim.

Deliberate Indifference

Deliberate indifference is the correct standard to apply to defendant Officer Diming, who refused to buckle plaintiff’s seatbelt, ignored his pleas for help, failed to intervene to stop Cooper’s unlawful use of force, and instead verbally taunted and harassed plaintiff.

Viewing the facts in light most favorable to plaintiff, there was a substantial risk that he would suffer serious harm: he was fully shackled, unable to brace himself for impact, and sitting without a seatbelt, in a vehicle that was speeding and being driven in a way intended to scare and injure him, by a driver who refused both his requests to be seatbelted and to slow down.

A prison official is deliberately indifferent if he is present at the time of an assault and fails to intervene or otherwise act to end the assault.

A reasonable jury could find that Diming subjectively knew of the serious risk to plaintiff’s safety. Plaintiff informed Diming that his seatbelt was unfastened, but Diming ignored the request to buckle it, contrary to his normal practice. In addition, plaintiff informed Diming of his concerns for his safety when Cooper began driving erratically, and Cooper’s erratic driving of course took place in Diming’s presence.

Diming was also demonstrably aware of plaintiff’s concerns for his safety, as he apparently mocked him for being scared. While it is unclear whether Diming, Cooper, or both indicated to plaintiff that the “rough ride” was intended to teach him a lesson, one could infer that Diming, at minimum, heard that threat. Diming was also aware that plaintiff had been injured, having called the prison to report that plaintiff had banged his head.

These facts lead to the inescapable conclusion that Diming was aware of the risk to plaintiff created by Cooper.

A reasonable jury could also find that Diming disregarded a known risk of harm by failing to take any reasonable steps to prevent plaintiff from being hurt. Diming initially dismissed plaintiff’s request for a seatbelt. He then dismissed plaintiff’s fear of injury and taunted him.

Even after plaintiff was visibly injured and began bleeding, Diming took no action, whether to ask Cooper to slow down or to finally secure plaintiff’s seatbelt. A reasonable factfinder could conclude that Diming was aware of a risk to plaintiff’s safety, certainly by the time plaintiff was injured, if not earlier, and that Diming consciously disregarded that risk by failing to intervene.

Plaintiff adequately asserts that he was exposed to the substantial risk of harm of being physically tossed about in an erratically moving vehicle and that Diming was aware of that risk and disregarded it by failing to take any preventative measures.

Odom v. S.C. Dep’t of Corr., 349 F.3d 765 (4th Cir. 2003), held that, by June 2000, it was clearly established in the Fourth Circuit that “a correctional officer who stands by as a passive observer and takes no action whatsoever to intervene during an assault violates the rights of the victim inmate.” Because controlling authority clearly establishes an inmate’s right to reasonable protection from malicious assault, plaintiff’s right was clearly established. Accordingly, we reverse the district court’s grant of qualified immunity to Diming.

Supervisory Liability

Plaintiff’s Eighth Amendment claim also attempts to reach Lt. Thompson, Assistant Warden Jennings, and Captain Dolan. However, plaintiff’s appellate brief and argument do not address their liability, nor are there any facts that show how any of the three officials were aware of any risk to plaintiff or how any of their actions contributed to his injuries. Accordingly, we affirm the district court’s grant of summary judgment in favor of these three defendants.

Affirmed in part, reversed in part, and remanded.